9 October 2019
MBIE welcomes findings of review into processes for residence deportation liability decisions
The Chief Executive of the Ministry of Business, Innovation and Employment (MBIE) has today welcomed the findings of an independent review of the process used by Immigration New Zealand (INZ) to prepare files for decision-makers who make residence deportation liability decisions.
The process for preparing and presenting cases to the Minister and other Delegated Decision Makers (DDMs) has been in place for a number of years and has not materially changed. However, in view of the scrutiny of the process and systems used by INZ in preparing the Karel Sroubek case, Chief Executive Carolyn Tremain considered it was timely to review whether the process is still fit for purpose.
The review was carried out by Mike Heron QC and concluded that the process and operational practices used by INZ are sound in the current settings, but found there is some room for improvement.
“I welcome the review’s findings that INZ collects the information necessary to enable decision-makers to make informed decisions and presents that information to decision-makers appropriately and professionally,” Ms Tremain says.
“In addition, the review found that every one of 30 case files reviewed was drafted fairly and objectively by INZ.”
However, Ms Tremain acknowledges that the review highlighted some aspects of the process that can be improved and makes five main recommendations to strengthen the existing processes for preparing files for decision-makers. Those recommendations are:
· The Minister should be able to request advice from INZ in complex cases and INZ should develop further guidance for the Minister on the types of cases warranting specific advice from officials
· INZ’s Resolutions team should have a limited inquiry function to check or corroborate the veracity of information provided to INZ
· A simplified two-stage process could be applied to criminal cases where the offence is relatively minor
· Consideration should be given to shifting the DDMs process in automatic liability cases (involving more serious offending) to after an appeal option to the Immigration and Protection Tribunal (IPT) has been exercised or lapsed
· Other process changes could be made including sending copies of relevant evidence to a client who faces deportation, obtaining a final Summary of Facts in relation to all criminal cases and streamlining certain administrative processes.
Ms Tremain says INZ accepts the recommendations and will now look at the process for implementing those recommendations. Where policy or legislative changes are proposed, MBIE will work with relevant government agencies to provide advice to the Government.
· Independent Review of Immigration New Zealand’s Residence Deportation Liability Process by Mike Heron QC Independent_Review_into_Immigration_New_Zealands_Residence_Deportation_Liability_Process.pdf
· MBIE’s Management Response to the Independent Review MBIEs_Management_Response_to_the_Independent_Review.pdf
· Summary table of the recommendations made in Mike Heron’s report and MBIE’s management response Summary_table_of_the_Report_s_Recommendations_and_MBIE_s_response.pdf
· Process diagram for deportation liability decisions for residents Process_diagram_for_Deportation_liability_decisions_for_residents.pdf
NOTES TO EDITORS
Under the Immigration Act, the Minister has the power to determine whether a resident or permanent resident who is liable for deportation should have that liability cancelled or suspended. In circumstances where the resident has become liable for deportation due to criminal offending, this power is commonly exercised by Delegated Decision Makers (DDMs) within INZ, under a delegated authority from the Minister. In non-criminal cases, or “mixed” cases (where there is both non-criminal and criminal liability), the Minister first decides whether the person should be made liable for deportation and if so, whether deportation liability should be suspended or cancelled. (See Process diagram for deportation liability decisions for residents attached).
Under the terms of the Immigration Act, the Minister’s decision-making power to cancel or suspend deportation liability is a matter of absolute discretion. The nature of absolute discretion means that it is up to the decision maker how they choose to weigh and balance the information presented to them in a deportation liability case file.
In November 2018, the Ministry of Business, Innovation and Employment’s Chief Executive commissioned a review of the process used by Immigration New Zealand (INZ) to prepare and present files for the Minister of Immigration and DDMs who make residence deportation liability decisions. The review was commissioned following the attention that surrounded the cancellation of the deportation liability of Karel Sroubek by the Minister of Immigration.
The review was carried out by Mike Heron QC and focused on case file preparation processes, guidelines and practices to ensure case file preparation and presentation is as effective as possible within the existing legislative framework. It looked at a representative sample of 30 case files, including the Karel Sroubek case, decided by the Minister of Immigration and DDMs between 1 November 2016 and 31 October 2018. The cases reviewed included non-criminal cases and “mixed” cases.
Mr Heron concluded that the processes and operational practices used by INZ are sound in the current settings. He found that INZ collects the information necessary to enable decision-makers to make informed decisions and every case file his team reviewed was drafted fairly and objectively and prepared thoroughly and professionally. He also found that INZ’s staff and its Resolutions team are well placed to consider and appropriately decide issues regarding residence deportation liability. Mr Heron was general of the view that INZ’s processes are robust and consistent with our legislative and Ministerial mandate. However, Mr Heron considered there was some room for improvement and made five main recommendations.