Bureaucrats' burying visa decisions 'a blatant act of law breaking'

Immigration officers can grant visas to those unlawfully in New Zealand and not subject to a deportation order. Photo / Thinkstock

Instructions to immigration officials not to record information to avoid judicial reviews and extra paperwork have outraged civil libertarians, who are calling it a deliberate attempt to avoid accountability.

The Immigration New Zealand directive to staff concerns section 61 of the Immigration Act, which empowers the Immigration Minister to grant a visa to a person who is unlawfully in New Zealand and not subject to a deportation order.

This power is delegated to Immigration NZ officials and decisions are open to review by the Ombudsman.

In November last year Immigration NZ issued instructions to staff not to "record any reasons or rationale" in all cases involving section 61, including those that are thrown out without being considered, and those that are considered and are accepted or declined.

Department emails released under the Official Information Act and published on left-wing blog No Right Turn reveal that the instructions were given to lessen the workload and avoid the possibility of complaints.

"They [resolutions officers] strongly feel that including rationale just opens up to the risk of judicial review and ombudsman complaints," wrote Immigration NZ business analyst Kathy Tait, operational policy.

Lynne White, operations support senior adviser, replied: "It seems more logical to me not to include rationale for the reasons given by Resolutions.

"I wouldn't want to make it mandatory to put something [rationale] in AMS [department database] which is likely to generate more work and complaints for branches."

Two days after this email exchange, it was suggested that the department contact the Ombudsman for comment, but this never happened.

Council for Civil Liberties spokesman Thomas Beagle said the instructions could violate the Public Records Act, which requires that "every public office and local authority must create and maintain full and accurate records of its affairs, in accordance with normal, prudent business practice".

Failure to comply with the act regarding an individual could see a $5000 fine.

Mr Beagle said hiding under a complete lack of documentation was against the way a transparent and accountable Government should operate.

"It's so concerning that they're being so blatant about it. They're actually deliberately trying to work around the Public Records Act, and they're deliberately doing that to block the Ombudsman's inquiries, and those are important elements in the transparency of a Government."

George Mason, general counsel for the Department of Labour, which includes Immigration NZ, said he did not believe the directive violated any laws.

However, in light of concerns the department was now in discussions with the Ombudsman.

THE DIRECTIVE

* Under section 61 of the Immigration Act, immigration officers can grant visas to those unlawfully in New Zealand and not subject to a deportation order
* In November, Immigration NZ instructed officials not to record reasons for their decisions relating to s61 to avoid the risk of complaints and extra work
* Civil libertarians say this is not how a transparent and accountable Government should operate, and question if it violates the Public Records Act