A19.1 Definition of 'classified information'

See also Immigration Act 2009 ss 39, 40, 265

1. Classified information means information that the chief executive of a relevant agency certifies in writing cannot be disclosed, unless expressly provided for under the Act, because:
   1. the information is of a kind specified in A19.1(c) below; and
   2. disclosure of the information would be disclosure of a kind specified in A19.1(d) below.
2. A chief executive of a relevant agency must not delegate to any person the ability to certify information as classified information under A19.1(a) above.
3. Information falls under section A19.1(a)(i) above if it:
   1. might lead to the identification, or provide details, of the source of the information, the nature, content, or scope of the information, or the nature or type of the assistance or operational methods available to the relevant agency; or
   2. is about particular operations that have been undertaken, or are being or are proposed to be undertaken, by the relevant agency; or
   3. has been provided to the relevant agency by the government of another country, an agency of a government of another country, or an international organisation, and is information that cannot be disclosed by the relevant agency because the government, agency, or organisation from which the information has been provided will not consent to the disclosure.
4. Disclosure of information falls under A19.1(a)(ii) above if the disclosure would be likely:
   1. to prejudice the security or defence of New Zealand or the international relations of New Zealand; or
   2. to prejudice the entrusting of information to the Government of New Zealand on a basis of confidence by the government of another country, an agency of a government of another country, or an international organisation; or
   3. to prejudice the maintenance of the law, including the prevention, investigation, and detection of offences, and the right to a fair trial; or
   4. to endanger the safety of any person.

A19.1.1 Definition of ‘relevant agency’

In relation to any classified information, a relevant agency is any of the following agencies that hold, were the source of, or were provided with, that classified information:

1. Aviation Security Service;
2. Civil Aviation Authority of New Zealand;
3. Department of Corrections;
4. Department of Internal Affairs;
5. Ministry of Business, Innovation and Employment;
6. Government Communications Security Bureau;
7. Maritime New Zealand;
8. Ministry for Primary Industries;
9. Ministry of Foreign Affairs and Trade;
10. New Zealand Customs Service;
11. New Zealand Defence Force;
12. New Zealand Police;
13. New Zealand Security Intelligence Service.

A19.1.5 Definition of ‘proceedings involving classified information’

See also Immigration Act 2009, s 7

1. Proceedings involving classified information means any proceedings in which classified information:
   1. was relied on in making the decision appealed against or subject to review proceedings (including a decision of the Immigration and Protection Tribunal); or
   2. is first raised or proposed to be raised in the course of an application to the Tribunal or an appeal or in review proceedings; or
   3. is raised in an application under detention or monitoring.

A19.1.10 Protection of classified information

See also Immigration Act 2009, s 35

1. Classified information relied on for the purpose of making any decision or determining any proceedings under the Immigration Act 2009 must be kept confidential and must not be disclosed, except as provided for under the Act to the Tribunal, a court, a Special Advocate, counsel assisting the court, or a special adviser.
2. A19.1.10(a) above does not limit or affect the application of the Ombudsmen Act 1975, the Official Information Act 1982, or the Privacy Act 2020, but otherwise applies despite any other enactment or rule of law to the contrary.
3. Neither the Tribunal or any court may require or compel the chief executive of the relevant agency, the Minister of Immigration, or any other person to disclose any classified information in any proceedings under the Immigration Act 2009 (but without derogating from Tribunal access and Court access to classified information).

A19.1.15 The Summary of Allegations

See also Immigration Act 2009, ss 38, 40

1. Before a relevant decision is made that relies on any classified information that may be prejudicial to the person who is the subject to the proposed decision, a summary of allegations arising from the classified information must be agreed on by the chief executive of the relevant agency and either the Minister of Immigration or the refugee and protection officer as applicable.
2. The Minister of Immigration or the refugee and protection officer must forward the summary of allegations to the person who is the subject of the proposed decision for comment, and specify a time by which any comment may be provided.
3. The summary of allegations must be updated and agreed as stated in A19.1.15(a) above, and the person affected provided with an updated summary of allegations, where:
   1. any classified information that was proposed to be relied on in making the decision is withdrawn (unless all of the classified information is withdrawn); or
   2. the chief executive of the relevant agency adds to or updates the classified information that will be relied on in making the decision.
4. The summary of allegations is not required to:
   1. list any documents or other source material containing classified information; or
   2. detail the contents of any documents or other source material containing classified information; or
   3. specify the source of any documents or other source material containing classified information.
5. The provision of a summary of allegations only applies where classified information is to be relied on, or may be relied on, in the making of any decision in relation to:
   1. an application for a visa, if the application is for:
      • a residence class visa; or
      • a temporary visa or a limited visa, and the applicant is onshore; or
   2. a person’s liability for deportation; or
   3. any matter to which refugee and protection status determinations apply, if the decision is to be made by a refugee and protection officer.
6. The summary of allegations is not required to be provided:
   1. if the decision concerned is in the absolute discretion of the decision maker; or
   2. in relation to expressions of interest or invitations to apply for a visa, or
   3. to applicants for transit visas; or
   4. to applicants for temporary entry class visas who are outside New Zealand; or
   5. in relation to applications for visas made in an immigration control area or a place outside New Zealand that is designated by the Chief Executive of the Department of Labour where entry permission may be granted; or
   6. in relation to applications for entry permission.

A19.1.20 Reason for decision made that relied on classified information

See also Immigration Act 2009 ss 39, 40, 265

1. Following a prejudicial decision by the Minister of Immigration or refugee and protection officer of a kind referred to in A19.1.15(e), the person who is the subject of the decision must be informed, in writing, of:
   1. the fact that classified information was relied on in making the decision; and
   2. the reasons for the decision (except to the extent that providing reasons would involve a disclosure of classified information that would be likely to prejudice the interests referred to in A19.1(d)) and contain the information required under s23 of the Official Information Act 1982 as if the reasons were given in response to a request to which that section applies; and
   3. the appeal rights, if any, available in respect of the decision; and
   4. if appeal rights are available, the right to be represented by a special advocate.
2. Where appeal rights are available in respect to a decision of a kind referred to in A19.1.15(e), the Minister of Immigration or a refugee and protection officer, as applicable, must notify the designated agency that a decision relying on classified information has been made under the Immigration Act 2009.
3. The Minister of Immigration or a refugee and protection officer, as applicable, must prepare a record of the reasons for the decision, including any reasons arising from the classified information, which may not be accessed or disclosed except as required by the Tribunal or courts, or to the chief executive of the relevant agency.
4. The reasons for the decision are not required to be provided:
   1. if the decision concerned is in the absolute discretion of the decision maker; or
   2. in relation to expressions of interest or invitations to apply for a visa; or
   3. to applicants for transit visas; or
   4. to applicants for temporary entry class visas who are outside New Zealand; or
   5. in relation to applications for visas made in an immigration control area or a place outside New Zealand that is designated by the chief executive where entry permission may be granted; or
   6. in relation to applications for entry permission.

A19.1.25 Declassification of classified information

See also Immigration Act 2009 s 41

1. Information can be declassified when the chief executive of the relevant agency certifies in writing that, as from a specified date, the classified information is no longer classified information within the definition of classified information at A19.1.
2. From the date of the declassification, the information is no longer subject to any confidentiality, processes or other requirements of the Immigration Act 2009 that apply to classified information or the users of the information.

A19.1.30 No right of complaint to Inspector-General of Intelligence and Security

See also Immigration Act 2009 s 42

No complaint may be made to the Inspector-General of Intelligence and Security about any situation or set of circumstances relating to an act, omission, practice, policy, or procedure done, omitted, or maintained (as the case may be) in connection with a decision under the Immigration Act 2009 involving classified information (including a determination in proceedings involving classified information).

Effective 28/01/2021