Students left stranded by Immigration's lack of oversight

by Alastair McClymont*

Opinion - Immigration NZ's "absolute discretion" in decision-making inevitably leads to racial discrimination, writes immigration lawyer Alastair McClymont.

While Indian students in New Zealand are correctly identified as being vulnerable to exploitation, the government does not want to jeopardise the export education market.

Immigration NZ's only solution to the problem of exploitation would appear to be to remove vulnerable students, and it is doing this by cutting corners on their fundamental common law rights to have applications processed in a fair and just manner.

Recently released figures show 14 percent of Indian applicants were rejected last year for the employer-assisted work visa, compared to four percent for Chinese applicants.

This disparity shows the legal process that makes it possible to racially discriminate in decision-making needs to be investigated.

Decisions which were inconsistent, unfair and relied on assumptions based on race or nationality were previously able to be challenged through an internal complaint process.

Matters of "fairness and natural justice" are enshrined in Immigration NZ's immigration policy, created by Cabinet.

But one year ago - at about the same time that issues of fraud and exploitation in the Indian student market became common - Immigration dismantled the complaint process by bypassing the need for Cabinet to make changes to immigration policy and introducing a new complaints process.

It states: "Complaints which only raise matters of the merits of a decision will not be accepted for an investigation into that decision."

At the same time, Immigration began advising the minister that its strategy to clamp down on migrant exploitation was to target those migrants who are at risk of exploitation - to deport people who may become victims, rather than stop the exploitation itself.

Immigration has suggested that budget constraints were responsible for this strategy.

It simultaneosuly began a campaign of advising the minister that problems in the Indian student market were the fault of the students themselves, for "exploiting pathways to residence".

So immigration officers are left in no doubt that Indian students are the target - and this can be seen in Immigration's briefing papers to the minister.

Officers have "absolute discretion" in decision making.

This means they can simply decline an application because they choose not to believe an applicant, or trust a document, or accept at face value a statement made. Basically, decision-making based on assumptions, rather than facts.

While such decisions were previously able to be overturned in the complaint process, from May 2017 onwards this right was taken away by the new complaint process.

This gave immigration officers the ability to discriminate against applicants of particular nationalities without tainting the immigration records by reference to the applicant's nationality. It also enabled Immigration to have plausible deniability when questioned.

Other avenues of complaint are also unavailable. A declined visa turns an applicant into an overstayer - they then lose their job, have no income and are unable to afford a legal challenge in the courts.

Those who do file a judicial review have their claims "settled" out of court almost immediately. The Ombudsman is pointless, as an investigation can take up to a year, during which time the applicant has no visa and no income.

The Immigration Protection Tribunal was set up as a judicial body independent of Immigration, and one of their functions is to review resident visa decisions. These decisions are published online.

While immigration instructions do not require Immigration to abide by principles set out in tribunal decisions, if the tribunal continues to point out that Immigration are making the same mistakes in their assessments, a responsive ministry would obviously correct those mistakes and amend its processes accordingly.

However, Immigration has taken the opposite approach over the past year and now makes it clear in its decisions that because it is not required to follow principles of policy interpretation in their decision-making, they are also entitled to ignore the tribunal's criticisms of its decision-making.

This removes another key "check and balance" in Immigration decision-making, which inevitably leads to discriminatory decision-making.

Those students who choose to stay and fight must do so as an overstayer, work under the table and become even more vulnerable to exploitation. So the government, rather than addressing the exploitation problem, is simply contributing to driving it underground.

The very complexity of the system that has been developed also enables Immigration to avoid media scrutiny.

Administrative principles of fairness and natural justice are a fundamental common law protection against discriminatory decision-making.

It is these principles which protect individuals from discrimination based on race, ethnicity, religion or sex, among other factors.

Immigration is at the front line in the erosion of these principles, as these are some of the most vulnerable people in our society, with the weakest voice.

By enabling government departments to slowly chip away at such fundamental common law rights the risk is that this will then begin to spread to other areas: beneficiaries, the unemployed, the elderly, children. All New Zealanders should be very concerned.

*Alastair McClymont is an immigration law specialist at McClymont & Associates.