What do you do when a government agency appears to be acting illegally?
Lawyers were presented with this dilemma in November 2011 when Immigration New Zealand (INZ) issued a circular (IAC 11/10) stating that immigration officers were not to record their reasons for decisions under s61 of the Immigration Act 2009 relating to visas for persons illegally in New Zealand.
Internal administration circulars, such as IAC 11/10, set out INZ’s operational policy for implementing the Immigration Act. The prospect of there being no recorded reasons was of concern to immigration lawyers because of the difficulty of advising clients facing deportation whether the decision not to consider their case or grant a visa was legal.
The direction not to record reasons appeared to be contrary to administrative law and to contravene s17 of the Public Records Act 2005.
A request for official information was promptly made to ascertain the thinking behind the new circular. Not surprisingly, perhaps, the release disclosed that certain officials in INZ hoped that the lack of recorded reasons would leave INZ less open to judicial review. Officials also stated that the direction not to record reasons was seen as closer to the intent of s61 of the Act in giving the Minister of Immigration, or officials acting under delegation, the power to regularise the status of an overstayer, or not, without having these decisions regularly relitigated. The official information released showed that INZ had internal legal advice on the recordkeeping aspect of IAC 11/10.
Section 61 states that the decision to grant a visa is at the absolute discretion of the minister. The meaning of “absolute discretion” is set out in s11 and, in summary, is that the decision maker is under no obligation to consider the purported application, enquire into the circumstances of the person, or give reasons for any decision on the purported application, other than that s11 applies. The right of access to reasons via s27 of the Immigration Act, and s23 of the Official Information Act 1982 are ousted.
Interpreting the s11 wording was obviously critical. No one seemed to think that discretionary decisions may be made without any reasons, but did the lack of an obligation “to give reasons” for a decision mean that reasons need not be recorded?
Turning to the Public Records Act, s17(1) requires that agencies of Government make a full and accurate record of their affairs in accordance with normal, prudent business practice. Guidance as to what this means has been given by the Chief Archivist in the mandatory Create and Maintain Recordkeeping Standard. This standard says that “normal, prudent business practice” requires recordkeeping that enables the agency to meet its ongoing statutory, contractual and accountability obligations.
INZ refused to disclose its legal advice, and the Office of the Ombudsman considered maintaining legal professional privilege justified withholding the advice.
Bloggers and the media picked up on the issues raised by IAC 11/10, and the Office of the Ombudsman considered the issue. In March 2012, at the request of the New Zealand Law Society’s Immigration and Refugee Committee and the Wellington branch’s Immigration and Refugee Committee, the Society’s President wrote to the Chief Ombudsman.
The Office of the Ombudsman and the Chief Archivist met INZ officials to understand the issues faced by INZ in implementing the Immigration Act. In July 2012 the Ombudsman wrote to the chief executive of what was, by this time, the Ministry of Business, Innovation and Employment (MBIE) suggesting changes to IAC 11/10.
In spite of strong encouragement from the Chief Ombudsman, the ministry continued to prevaricate. A publicly available circular setting out INZ’s practice continued in place despite it being plainly wrong.
In January 2013 the Chairperson of the New Zealand Council for Civil Liberties (NZCCL) wrote to the chief executive of MBIE. The letter made the point that the direction not to record reasons appeared to be inconsistent with the right to natural justice confirmed in s27(1) of the New Zealand Bill of Rights Act 1990, and with the administrative law principle articulated by the Court of Appeal in Westhaven Shellfish Ltd v Chief Executive of the Ministry of Fisheries  2 NZLR 158, that a policy document “must indicate, or at least reserve a power to depart from the policy and a willingness to exercise that power.” In Chiu v Minister of Immigration  2 NZLR 451, the Court of Appeal confirmed that administrative law principles apply to immigration policies.
At last, in February 2013, the ministry’s chief executive wrote to NZCCL saying “It is hoped that an amended Internal Administration Circular will be issued shortly.”
Finally, near the end of September 2013, INZ announced that a new circular was being issued. IAC 13/08 took effect from 30 September, and it states that immigration officials making absolute discretion decisions under s61 of the Immigration Act should “briefly record their reasons for decisions ...” Unfortunately the new circular does not direct that reasons are to be given in cases where the purported application is not considered. The concern remains that an agency of government can take so long to respond to requests to correct its procedures, and then fail to make all the changes needed.
Marion Sanson is a member of the New Zealand Law Society’s Wellington branch Immigration and Refugee Committee.