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Amendment Bill misses vital immigration points

The Immigration Amendment Bill introduced to Parliament on October 3, 2013, aims to ensure that our immigration system is robust with enhanced border security.

A number of amendments also address exploitation of migrant workers.

In doing so the bill provides for (1) Enhanced search powers for immigration officers, including the power to enter and search employers’ premises to search for unlawful workers, check documents and interview employees to ascertain that employers and employees are complying with the Act (2) Biometric information collection from persons liable for deportation or to be collected from non-citizens arriving in New Zealand (3) Liability for deportation of employers who hold resident class visa and who exploit migrants on temporary entry class visa with work conditions (4) Revenue generation for funding the Immigration system by imposing ‘immigration levy’ (renamed from ‘migrant levy’) on applications for a visa (5) No availability, of reasons for decisions made using absolute discretion, on a personal information request under the Privacy Act 1993.

The Bill, when operative as law, will help in achieving some of its objectives and purposes and reducing exploitation of migrant workers.

These measures will be a deterrent to ‘buying job offers,’ working underhand in inhuman conditions, being paid less for the number of hours worked, and being paid less than the prescribed minimum wage.

Employers discriminated

However the Bill misses a number of technical points in its current form. .

It endorses division and creates a new class of residents, those who have been residents for more than 10 years and those less than 10 years.

Section 161 of the Principal Act specifies the deportation liability of residents convicted of certain offences.

Sections 350 and 351 of the Principal Act specify the offences committed by employers by employing an unlawful employee and exploiting persons not legally entitled to work.

The Bill rightly proposes to bring these offences (Section 350 and 351) within the ambit of Section 161 of the Principal Act so that employers may be subject to deportation if committing these offences.

However, Clause 43 of this Bill proposes to amend Section 161 of the Principal Act to making a person holding a residence class visa is liable for deportation if he or she is convicted of an offence under Section 350 (1) (a) or 351 of the Principal Act within the first 10 years of holding that visa.

This means those who have been residents for more than 10 years are better able to exploit the workers and be not deported, whereas those with less than 10 years of residency are subject to deportation.

Retrospective effect

It also creates retrospective effect on some of the residents and leaving others out.

Someone who has been a resident for five years, who may have employed an unlawful person a few years back, is suddenly exposed. Retrospective legislation is not desirable on a number of grounds.

Do the purposed provisions and amendments violate New Zealand Bill of Rights 1990, Sections 19 and 26 (freedom from discrimination and retrospective penalties); and Human Rights Act 1980 Section 21 (g) (prohibitive grounds of discrimination)?

Should it be that any resident committing the offence is liable for deportation? More discussion in Parliament is required on this topic.

Power corrupts

The Bill also gives extended power to immigration officers without a proper mechanism of, checks and balances.

It is a fact that many Immigration Officers have been caught abusing these powers and indulging in corrupt practices. This is contrary to generally accepted legal principals.

The Bill leaves more room for misuse of power by taking away the ability to obtain reasons for decisions made using absolute discretion.

It is common knowledge that these absolute discretions are exercised by the Immigration officers under the delegated powers, far below the hierarchy than Immigration Minister, who is constantly under scrutiny by Parliament, Media and his or her constituents.

Some inconsistencies

Further, Clause 18 of the Bill amends Section 61 of the Act, but seems inconsistent to Section 172 as Section 61 takes away the discretionary power to grant a visa and Section 172 continues to provide that discretionary power.

Perhaps both Sections 61 and 172 should be amended to clarify that if a person provides good and sufficient reasons, then he or she may not be deported and to keep his or her status in New Zealand legal and that the Minister may grant a suitable visa to that person.

Extra revenue

Finally, imposing ‘immigration levy’ on all applications for a visa could pose extra expenses, burden an applicant and could result in the decline of the number of applications, instead of generating additional revenue. This is counterproductive to encouraging visitors and immigration to New Zealand.

Perhaps the levy should be reconsidered to bring in line with the levies imposed by other countries, so that New Zealand continues to compete as a viable option for tourists, visitors and immigration aspirants.

However, overall, the Bill seems to be headed in the right direction in achieving its ultimate purpose and objectives.

Gurbrinder Aulakh is a Barrister & Solicitor at George Bogiatto. He is also Deputy Chairman, Auckland Regional Migrant Services and member on the boards of many social and community organisations. Mr Aulakh clarifies that the views expressed in the above article are his own and many not represent those of his law firm or those of the organisations with which he is involved.

Website: www.aucklandcitylawyers.co.nz

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