"Therefore, NZSIS assesses that [their] presence in New Zealand presents an enduring national security risk as we cannot discount that [they] may seek to assist the PRCIS again in the future."
Immigration New Zealand (INZ), which was assessing the couple's residence application under the business entrepreneur category, declared them 'excluded' which ruled them out of any further visas.
They asked the Immigration and Protection Tribunal to hear their appeal, which centred on whether the decision could be overturned if it relied on classified information.
It ruled there was no right of appeal to the tribunal as an excluded person.
INZ wrote to the man last year raising concerns about his application to renew his entrepreneur work visa, as it assessed whether he should be classed an excluded person, which states "no visa may be granted to a person whom the Minister (or an appropriately delegated immigration officer) had reason to believe is or is likely to be, a threat or risk to security".
The tribunal heard the man, who has two children, set up a business in 2016 and applied for residence two years later.
He has twice been interviewed in 2019 by the NZSIS on a voluntary basis.
His lawyer said INZ had provided no evidence they had any current or intended engagement with the PRCIS, nor that the couple were engaged in any ongoing activity relevant to the national security of New Zealand.
The tribunal recorded that his previous involvement with PRCIS had been a "legitimate work requirement and did not involve any form of espionage".
"He had explained to the NZSIS that, in his previous work for a private company in China, he had had legitimate contact with the PRCIS because he had assisted overseas employees of the company to obtain visas to enter China for business purposes," the tribunal said in its decision.
"This involved passing on to the PRCIS copies of the employees' CVs, passports and other details as part of the visa vetting process, to facilitate the issue of visas.
"[He] had provided his mobile telephone to the NZSIS, which contained the names and telephone contact details of four PRCIS staff members with whom [he] had had contact through his work in China. He had not maintained contact with them since coming to New Zealand. No New Zealand nationals had been involved and there was no issue relating to the security of New Zealand."
The lawyer said they were been involved in the Chinese Communist Party, were not employed in any role with the PRCIS and noted that the man's wife, who had not been interviewed, appeared to be considered a risk to security only because of her relationship.
'Enduring national security risk'
The man's interim visa lapsed in March this year and he was unlawfully in New Zealand when the tribunal made its decision, which said no visa can be granted to an excluded person unless it follows a special direction and no direction has been granted in this case.
INZ declined his residence application in March this year, writing: "An immigration officer may take into consideration advice and information provided by other appropriate government agencies. In respect of risk to security, it is entirely appropriate to consider the views of the NZSIS. As set out in our letter to you, the NZSIS have assessed your ... presence in New Zealand as presenting an 'enduring national security risk'."
His lawyer argued that as the decision relied on classified information, the case could be appealed, and that INZ had made its decision under a specific section to avoid the statutory procedures for decisions which have relied on classified information.
The tribunal ruled that decision was based on an assessment by the immigration officer that there is "reason to believe" that the appellant constitutes 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: in those cases, the remedy lies through a judicial review to the High Court of the officer's decision."
RNZ has approached the man's lawyer and asked whether they will seek a judicial review.
The full decision can be found here.
- RNZ
