An immigration decision against two suspected spies has the hallmarks of a set-up to deny them justice, according to a former minister and immigration lawyer.
China and NZ flags Photo: 123RF
Matt Robson is calling on MPs to consider the Chinese couple's case at select committee, describing decisions in their case as appalling and draconian.
The couple, who deny having links to the Chinese security services, cannot see the evidence on which the Security Intelligence Service (SIS) based its advice to immigration officials, who rejected their residence application.
An appeals tribunal agreed with Immigration New Zealand (INZ) that it had no jurisdiction to hear the appeal. That ruling applies in cases where applicants are "excluded" and - crucially - where INZ does not use restricted national security information to make its decision.
Immigration lawyer Matt Robson, who served as minister for courts in the Labour-Alliance government (1999-2002), said he believed agencies and ministers contrived to make it impossible for the couple to answer the accusations made against them and launch an appeal.
The case had similarities to that of detained asylum-seeker Ahmed Zaoui, he said.
"Everything screams out in this decision that the tribunal should have, as they did in the Zaoui case, said we believe that we're being lied to and that there's been a set-up," he said.
"From my experience, both as a lawyer and as a member of Parliament and as a minister, it's clearly got the fingerprints all over it of the Security Intelligence Service (SIS) working with the ministry to ensure it had a classification that wasn't 'classified' so that they didn't have to explain themselves.
"In this decision is a very serious issue for New Zealanders - this person because he comes from China gets this denial of justice. The Bill of Rights tells us that in front of any tribunal or court we're to know what we've been charged with, and full rights of natural justice applies to everybody."
The SIS told INZ the man and his wife have "almost certainly" assisted the People's Republic of China Intelligence Services (PRCIS) and had deliberately concealed the amount of contact they maintained with PRCIS.
Their lawyer said the decision relied on classified information and that SIS and INZ were arguing otherwise to prevent them from appealing.
The father-of-two said the only contact he had with PRCIS was in a previous job for a private company, where he assisted overseas employees of the company to obtain visas to enter China for business purposes, a legitimate work requirement that "did not involve any form of espionage".
The Immigration and Protection Tribunal ruled that immigration's decision was based on its assessment that there was 'reason to believe' that the appellant constituted a threat or risk to security.
"This is a matter of judgement to be made on the available evidence. The Act specifically precludes the Tribunal from hearing such appeals and assessing the correctness or procedural fairness of such decisions."
'Circular arguments'
Robson does not represent the couple, but said the case raised alarm bells and he had spoken to their lawyer about how the case had played out.
"Immigration sent a letter to the applicant to say that there's classified information," Robson said. "They later fall all over themselves, from what's recorded in the Tribunal, to show 'oh no, that was a mistake', they didn't mean that.
"The Immigration Act shows that if it's classified information then the broad outlines of that - not all the details - the person has to be given a summary of exactly what they're basing their decision on so you can challenge that.
"But if it's not decided that it's classified information, the person just becomes an excluded person and you don't have to justify it."
The Immigration and Protection Tribunal had accepted "circular arguments" from INZ, which sits within the Ministry for Business, Innovation and Employment (MBIE), that there was no classified information because it had decided not to call it classified, he said.
The Zaoui case showed the SIS lied and fabricated material, he said, but the appeals tribunal of the day called them out and the High Court ruled classified information had at least to be summarised for an applicant.
"I'm certain that the minister responsible for the Security Intelligence Service which is Andrew Little, the Minister of Immigration, they've had many meetings on this, and their officials will have had many meetings to really basically tell MBIE what they're going to do, that's what it seems to me from my experience.
"And so this is an attempt to get around the IPT or even the High Court being able to get under this.
"The intelligence services are only overseen, not by a parliamentary select committee, but by the prime minister and a few other so-called senior MPs. But the Justice Committee select committee could call the officials before them and look into this case, which they should.
"One other thing concerns me, and that is that somewhere along the line, it's been declared that China and New Zealand are enemies, that if you even talk to an agency in China, which in this case the person was responsible for applying for visas, that you're likely to be someone who's going to be an agent in New Zealand.
"Where's the proof of that? When did we decide that if you talk to the Chinese intelligence service you're a danger to New Zealand? Whereas if you're in the United States and you talk to the FBI or the CIA, [are you] going to be an agent in New Zealand? A lot of questions on this, particularly they flow to the issue of justice, which has been trampled on here."