In November 2011 the Department of Labour issued an Internal Administration Circular: IAC No. 11/10 (PDF), setting out how immigration staff are to deal with cases where a person, although unlawfully in New Zealand, may, in the exercise of the officer's absolute discretion, be granted or refused a visa to remain in New Zealand. The circular is available on Immigration New Zealand's website and says that any reasons or rationale for such decisions are not to be recorded.
Does this matter? Yes, it does. For example, even though a person is an overstayer, the decision whether to deport that person should, as a matter of natural justice, be made on the basis of facts and not unsubstantiated allegations. Without recorded reasons no one can be sure immigration staff took the correct facts into consideration. The consequences of not doing so could be dire for the person concerned.
The New Zealand Council for Civil Liberties considers the Circular directs immigration staff to breach the law, including section 17 of the Public Records Act 2005. Furthermore, information released under the Official Information Act shows that part of the reasoning for the direction is to attempt to avoid having decisions criticised by the courts.
A number of people complained to the Ombudsman about aspects of the Circular. In July 2012 the Ombudsman and the Chief Archivist suggested changes to the Circular, making it clear immigration staff should record reasons for their decsions, but the Circular remains unchanged.
The NZ Council for Civil Liberties wrote to the Chief Executive of the Department of Labour (now the Ministry for Business, Innovation and Employment) on 31 January this year setting out the legal objections to the Circular's recordkeeping directives. The Ministry's Chief Executive acknowledged the Council's letter and expressed the hope that the Circular will be amended shortly. This is good news.
The Council continues to remind Mr Smol about this issue in the hope that both the Circular and Immigration NZ practice will change, and very soon.