A review of the process that led to the Karel Sroubek debacle has found there is too much risk associated with the way ministers make discretionary deportation decisions.
An independent review into Immigration New Zealand’s deportation liability process has found it places undue risk on ministers making the decisions.
The review used the controversial case of Czech drug smuggler Karel Sroubek as an example of the risks associated with ministers using complete discretion to make decisions in complex cases, when relying on a file with potentially unverified information and their own limited personal experience and expertise.
Independent reviewer Mike Heron QC said the current process in non-criminal or “mixed” cases – like that of Sroubek – “risks not being fit for purpose for quality decision-making”.
Currently, an immigration minister can make decisions on deportation without receiving any advice or recommendations from officials, and without any verification of the reliability of the information on which a decision to suspend or cancel deportation liability could be based.
“Suffice to say, in my view the Sroubek case and those like it give rise to the need to re-examine whether the minister should be placed at such risk and how processes might be improved to avoid such situations re-occurring.”
Heron said the process put both the minister and INZ at risk.
“Whilst Sroubek is an unusual case, it does provide an example of the manifestation of that risk.
“The grounds contained in the case file summary were understood by most to be sufficiently powerful such that the original decision of the Minister was unexpected. Given the process described, decisions made under absolute discretion can (on occasions at least) be unpredictable.”
The fact the minister made a decision contrary to what immigration experts expected pointed to gaps in the system.
“Suffice to say, in my view the Sroubek case and those like it give rise to the need to re-examine whether the minister should be placed at such risk and how processes might be improved to avoid such situations re-occurring.”
The review came off the back of the long-running Sroubek saga, which saw the Czech citizen – who has a New Zealand conviction for drug smuggling and gang connections in his home country – granted residency by Immigration Minister Iain Lees-Galloway in September 2018.
The discretionary decision was questioned as soon as it was reported in October. For months, Lees-Galloway faced a barrage of criticism, with the National Party and the media drip-feeding new information about the case.
It eventually became clear Lees-Galloway did not have all the correct and relevant information when making his decision – namely information that Sroubek had returned to the Czech Republic, despite saying he feared for his life should he be deported to his home country.
Heron said out of the cases he reviewed between November 2016 and November 2018, Sroubek’s was the only one where he saw a relevant document had been left out.
This again pointed to the potential issues with the system, but did not entirely excuse Lees-Galloway’s initial decision, as officials expected the minister to deport Sroubek based on the original file.
National Party justice spokesperson Mark Mitchell said the report showed what he knew all along, Lees-Galloway shouldn’t have let Sroubek stay.
“What we still don’t have is a clear explanation from Iain Lees-Galloway about why he made this decision,” Mitchell said.
In November, Lees-Galloway issued a new deportation liability notice for Sroubek, under a different section of the complex Immigration Act.
Unless Sroubek is successful in his appeal, this deportation notice will override the minister’s previous decision to grant the Czech residency, and see him deported at the completion of his sentence, or upon being granted parole.
The same day Lees-Galloway advised media of his revised decision to deport Sroubek, he announced a review into the process INZ followed when preparing files in discretionary cases.
The saga saw tensions rise between the minister and his department. Lees-Galloway clearly felt let down by the process and the information made available to him, but stopped short of pinning the blame on his officials.
The report’s findings have somewhat vindicated the minister. However, flaws in the process and system don’t entirely account for Lees-Galloway’s decisions not to seek further advice, not to read the full report, and to make the decision in less than an hour.
Following the report’s release on Wednesday, the minister stopped short of admitting the process he followed was flawed, or that his initial decision was wrong.
He pointed to changes to his decision-making process and the fact he had since moved to deport Sroubek, but would not say he was wrong.
These changes included receiving files at a separate time to when he would meet with officials to make a decisions. This ensured the minister had time to review the file and careful consider the issues.
And now a legal team member always assisted in the presentation of a case file to the minister.
“I’m very pleased to see that Mr Heron found immigration officials acted appropriately within the context of the current, and longstanding, settings, and has also made a number of recommendations on how those settings can be improved.”
‘Minister should not be placed at risk’
While the report began by saying INZ’s processes and settings were “sound”, and immigration officials followed the process that was set out for them, and all legal requirements, Heron made clear there was room for improvement in the system and policy settings.
The report centred on protecting the minister from undue risk, providing official advice, and delegating more decision making to INZ officials.
Recommendations also included a broadening of resources and ability of the INZ’s resolutions team to investigate claims made by the person being considered by deportation. Lees-Galloway said he would adopt this recommendation.
Currently, the information and claims provided by people facing deportation were not checked, investigated, or verified. However, these claims formed part of the file presented to the minister or decision-maker.
Heron said non-criminal cases – those currently considered by ministers – could be complex, required careful consideration of the file, and ought to proceed only on reliable information.
Dedicated and experienced personnel were better placed to give these questions appropriate consideration, rather than a minister who had limited experience, knowledge and time when it came to complex decisions, he said.
“As seen in Sroubek, decisions can bring intense pressure on the minister. The minister should not be placed in such a situation of risk given his or her importance in the system.”
The recommendation to remove decision-making, and risk, from ministers is not new – it also formed part of the key recommendations of a process review carried out in 2015.
The Beaglehole review – like this one – suggested all decisions be delegated to INZ experts, while the minister would retain the ability to step-in, if required, or desired.
However, then-immigration minister Michael Woodhouse did not adopt any of the review’s recommendations.
Lees-Galloway and MBIE said they would be adopting this recommendation.
“As seen in Sroubek, decisions can bring intense pressure on the minister. The minister should not be placed in such a situation of risk given his or her importance in the system,” Heron said in his report.
By delegating more decisions to those with the knowledge, experience, easy access to further expertise and time, the minister would remain “above the fray”, but able to step in when they saw fit.
If the minister did decide to step in to make a decision in a case with factual or legal complexities – or which is “unusual or novel” – they should request and receive advice from INZ, the report said.
These cases come without recommendations, and advice is only provided if asked for. Part of this was due to the nature of complete discretion, and the risk of the advice and recommendations being challenged upon appeal or in review.
“It is obvious to state that a process which allows a minister to make a quick decision on a complex case with as little as an oral briefing and no advice, is fraught with risk.”
Lees-Galloway’s failure to ask for further advice and information formed a pivotal part of the criticism against him in the Sroubek case.
Heron’s recommendations seek to change the role official advice plays in the process, so as to not leave the minister out on a ledge.
“It is obvious to state that a process which allows a minister to make a quick decision on a complex case with as little as an oral briefing and no advice, is fraught with risk.”
MBIE chief executive Carolyn Tremain said she welcomed the review’s finding that INZ collected the information necessary to enable decision-makers to make informed decisions and presents that information to decision-makers appropriately and professionally.
But in terms of the Sroubek case she, and Heron, refused to pass judgment on the minister’s initial decision, or his ability to make decisions in these complex cases.
Tremain, Heron and INZ boss Greg Patchell all danced around questions from reporters on Thursday, in regards to Lees-Galloway’s decision. It was clear the ability of a minister to make an incorrect – or questionable – decision was possible because of the “absolute discretion” afforded to them. It also meant that decision was above reproach.
Other recommendations from the report suggested changes to the automatic deportation liability settings of minor criminal offences – especially driving offences, when the minister or designated decision-maker became involved in cases where the person was automatically liable for deportation, and sending information to those facing deportation as part of a streamlining.
Some of these recommendations would be considered as part of a policy review, due to be carried out next year.
