A19 Determination that classified information relates to matters of security or criminal conduct and may be relied on in decision-making

See also Immigration Act 2009, ss 33, 34, 36, 37

1. Classified information may be relied on in making decisions or determining proceedings if the Minister of Immigration determines that the classified information relates to matters of security or criminal conduct.
2. Where classified information may be relevant to a making a decision under the Immigration Act 2009, the Minister of Immigration may:
   1. request an oral or a written briefing from the chief executive of the relevant agency, and if so, the content of briefing is to be determined by the chief executive of that agency; and
   2. seek the assistance of such security cleared assistants as he or she thinks fit.
3. No person may be called to give evidence in any court or tribunal in relation to the content of the briefing or anything coming to his or her knowledge as a result of the briefing except as provided for in the Immigration Act 2009 for the tribunal or court.
4. The Minister of Immigration may:
   1. rely on the classified information to make a visa decision, an entry decision or a deportation decision; or
   2. direct that a refugee and protection officer may rely on the information to make a refugee and protection status determination; or
   3. refer the classified information to the Immigration and Protection Tribunal or a court, as applicable, if the information is first to be relied on:
      • in an appeal to the Tribunal or the court; or
      • in an application to the Tribunal or
      • in review proceedings; or
   4. refer the information to the Chief Executive of the Ministry of Business, Innovation and Employment to make an application for a warrant of commitment, or an application or a response to an application for review or release, in accordance with section 325 (to continue to be detained until a determination is made on the application).
5. The chief executive of a relevant agency who provides classified information to the Minister of Immigration must ensure that:
   1. the information is provided in a manner that does not, by reason of the omission of any other relevant classified or non-classified information, give a misleading view of the information supplied; and
   2. any classified or non-classified information that is favourable to the person subject to the decision or proceedings is also provided; and
   3. any further classified information that becomes available and that is relevant to the decision or proceedings is provided until the decision is made or a decision on the proceedings is made.
6. If the chief executive of a relevant agency updates, withdraws or adds to the classified information provided to the Minister of Immigration, the Minister of Immigration must make a further determination under A19(a) as to whether the information may be relied on.
7. If the chief executive of a relevant agency withdraws any classified information:
   1. the classified information must be kept confidential and must not be disclosed by the decision maker, the Tribunal, or the court (as the case may be); and
   2. the decision maker, the Tribunal, or the court must continue to make the decision or determine the proceedings:
      • without regard to that classified information (but subject to matters to be considered by the Tribunal); and
      • in the case of an appeal, a matter or review proceedings, as if that information had not been available in making the decision subject to the appeal, matter, or review proceedings.
8. The chief executive of the relevant agency may at any time direct any person to return classified information to the relevant agency.

Effective 08/05/2017