Reasons for visa denials to be kept secret

22:24, Feb 16 2012

Immigration officers have been instructed to hide their reasons for refusing discretionary visas for fear they will be open to legal action.

Section 61 of the Immigration Act allows officers to grant visitor, work, student, residential or limited visas in special cases.

The provision gives officers absolute discretion and is used in cases such as where someone has inadvertently overstayed or made an error on their immigration documents.

The section was reviewed last year and in November an internal circular was sent to staff saying: ''the rationale and reasons for the decision should not be recorded, either on the template, in the notes or in the communication with the client.''

Correspondence between officials who redrafted the section, released under the Official Information Act, show the Immigration Service wanted the requirement for including rationale removed.

''They strongly feel that including rationale just opens us up to the risk of judicial review and Ombudsman complaints.''

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There was also concern making it mandatory to include rationales was ''likely to generate more work and complaints for the branches''.

However, not all staff were happy about removing rationale.
One official wrote: ''I'm not convinced Visa Services are completely comfortable with dropping it entirely''.

''If everyone is happy for it to disappear, I'll take it out entirely, but I'm not sure we want to go in that direction yet.''

Labour's immigration spokeswoman Darien Fenton said decisions under section 61 could not be appealed but people had the right to complain to the Ombudsman.

''That right is essentially being removed because there will be no reason that can be traced or checked by the Ombudsman.

''It's an issue of transparency and being able to hold public servants to account.''
Decisions by the Immigration Service had been criticised in the past so it was important the integrity of officers could be guaranteed, she said.

''This is a matter of convenience and covering up of what needs to be a very transparent process for their own protection.''

The Department of Labour's general counsel George Mason said yesterday the Law Society's immigration group had raised concerns about the decision to remove rationale.

''It's a matter the department is currently discussing with the Ombudsman.,'' he told Parliament's transport and industrial relations select committee.

There was no legal requirement for immigration officers to record their reasons.

''But the points that have been raised... are being worked through in a couple of forums.''

Immigration Minister Nathan Guy said hiding rationale was not inappropriate for an agency charged with protecting New Zealand's borders.

''Persons who are unlawfully in New Zealand can't expect to be treated in the same way as those who lodge proper immigration applications.''

The Immigration Service was ''highly transparent'', he said.