新西兰指南-Administration-General and Operational Instructions

新西兰签证与移民 新西兰技术移民
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A16 一般的指导工作

从新西兰指南-Administration-Immigration officer warrants and delegations继续讨论

A16.1 处理居住申请的顺序和方式一般规定

  • a 一般下列的申请会被给予优先考虑：

  • i 技术移民种类的申请人，拥有雇主offer的会更优先考虑；

  • ii 商务投资种类的申请人；

  • iii 工作类签证转居住申请的申请人；

  • 人才(雇主等)；

  • 人才(艺术文化以及体坛名人等)；

  • 长期技术短缺职业的人；

  • 难民法案；

  • 或者是团聚类的申请人；

  • 新西兰公民；

  • 永居签证的持有人，已经离开新西兰大约2年的且在此期间申请短期签证；

  • b 第二考虑的申请人：

  • i 合作关系的或者是子女申请；

  • c 第三考虑的申请人：

  • i 父母团聚申请；

  • ii 成年姐妹或者已经成年的子女；

  • d 这些要求并不能阻止移民官处理特殊情况的签证申请；

  • e 之前的根据1987移民法案制定的指导已经取消；

A16.1 General Instructions as to the order and manner of processing residence applications

Pursuant to section 26(4) of the Immigration Act 2009 and acting under delegated authority from the Chief Executive of the Ministry of Business, Innovation and Employment, I hereby give the following general instructions as to the order and manner of processing residence class visa applications under Government residence instructions:

  • a.First priority will be given to the following types and categories of applications for residence class visas in preference to applications under other types and categories:
  • i.Skilled Migrant Category (SMC) applications with job offers will have priority;
  • ii.All business categories;
  • iii.Residence from Work category applications :
  • Talent (Accredited Employer);
  • Talent (Arts, Culture and Sport);
  • Long Term Skill Shortage List;
  • iv.Refugee Policy;
  • v.Partnership and Dependent Child applications where the partner or parent is,
  • a New Zealand citizen, or
  • the holder of a permanent resident visa, and who has been absent from New Zealand for a period of at least two years prior to the date of the application being accepted for consideration apart from short visits within that period. (Note that in the case of a partnership application the New Zealand partner and the applicant must have been living together for 12 months or more in a partnership that is genuine and stable).
  • b.Second priority will be given to the following types and categories of applications for residence class visas :
  • i.Partnership and Dependent Child applications (other than those in instruction (a)).
  • c.Third Priority will be given to the following types and categories of applications for residence class visas:
  • i.Parent category;
  • ii.Adult Sibling and Adult Child category.
  • d.These instructions do not prevent immigration officers according urgency to the processing of any particular residence class visa application when the individual circumstances so warrant that.
  • e.The previous General Instructions made pursuant to section 13BA of the Immigration Act 1987 are revoked.

A16.2 操作指南

A16.2.1 介绍

a 为移民官提供了关于处理移民申请或者是难民保护身份申请的指南；
b 包括的规则一般是，申请移民是申请人的自由，需要一致对待，对于孕期妇女或者是青少年女孩可能需要特殊的关照，小孩子等等；
c 操作指南已经根据UNHCR起草出来；
d 操作指南将会合编到新西兰移民操作守则中；

A16.2.1 Introduction

  • a.This Operational Instruction provides guidance to immigration officers concerning the continuing treatment of persons claiming refugee or protection status on arrival at the border, including in a mass arrival context. In particular, it is intended to inform decisions made by immigration officers at the border and whether to detain or otherwise restrict the freedom of movement of persons claiming refugee or protection status. It rescinds previous operational instructions and internal administration circulars on this subject.
  • b.The overriding principle behind the Operational Instruction is that, if freedom of movement of persons claiming refugee or protection status at the border is to be restricted at all, then it should be restricted to the least degree and for the shortest duration possible. Particular care must be given in any decision involving women (particularly pregnant women and adolescent girls), children and members of other vulnerable groups.
  • c.The Operational Instruction has been drafted having regard to the UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers (February 1999), and the Court of Appeal’s 16 April 2003 decision in Refugee Council and Ors v AG.
  • d.The Operational Instruction will be incorporated into the INZ Operational Manual and the Compliance Staff Toolkit.

A16.2.5 背景

  • a 2009年移民法案包括自由裁量权，移民官可以处理与非新西兰公民或者居民有关的登陆新西兰的人。对于临时签证，入境许可以及驱逐出境等决定，可以由移民官自行安排。
  • b 可能的回答如下：
  • i 45节下签证的签发和2009移民法案下的107节的入境许可，申请人可以递交移民申请；
  • ii 61节下签证的签发，申请人不能递交申请；
  • iii 315节下的准许居住但并没有签发签证；
  • iv 313节下规定的申请延期为了根据2009移民法案中的320节减少延期；
  • v 313节下规定的延期是为了根据2009移民法案317节进行进一步的延期；
  • vi 2009移民法案下的313节是为了根据2009移民法案的317节进行相应的惩罚；
  • c The response chosen will take into account the individual circumstances of the person presenting at the border. In the case of a group arrival in New Zealand, all the circumstances surrounding its arrival will be considered. The responses are not static. It may be appropriate, throughout the duration of a person’s presence in New Zealand, for an immigration officer to revisit the case to ensure that their decision remains appropriate in view of any changed circumstances (including the simple passage of time). This is particularly important where a person remains subject to restrictions on their freedom of movement (including being released on conditions). Those restrictions must continue to be able to be justified as necessary. It may, for example, be appropriate for a person initially detained in a penal institution to be moved to an approved premises. A person detained at an approved premises may be released on conditions or released into the community with a temporary visa. It may be appropriate for a person previously released on conditions to be taken back into custody to be detained at an approved premises or in a penal institution.

A16.2.5 Background

  • a.The Immigration Act 2009 contains discretionary powers that may be exercised by immigration officers in relation to non-New Zealand citizens or residents arriving at New Zealand’s border. The spectrum of responses ranges from the grant of a temporary visa and/or entry permission to New Zealand to detention in a penal institution until departure from New Zealand can be arranged on the first available flight. In all cases, a decision to detain in a penal institution rather than any lesser form of restriction on the freedom of movement of a refugee or protection claimant is to be made only after all other alternatives have been excluded.
  • b.The full range of possible responses are as follows:
  • i.The grant of a visa under section 45 and/or entry permission under section 107 of the Immigration Act 2009 where the person is able to lodge an application in accordance with section 79 of the Immigration Act 2009 (i.e. they hold a valid visa or have arrived under a visa waiver);
  • ii.The grant of a visa under section 61 of the Immigration Act 2009 where the person is not able to lodge an application;
  • iii.Release into the community on residence and reporting requirements under section 315 of the Immigration Act 2009 without the grant of a visa and without initially detaining the person under section 313 of the Immigration Act 2009;
  • iv.Initial detention under section 313 of the Immigration Act 2009 for the purpose of release into the community on conditions under section 320 Immigration Act 2009;
  • v.Initial detention under section 313 of the Immigration Act 2009 for the purpose of obtaining a warrant for further detention in an approved premises under section 317 of the Immigration Act 2009;
  • vi.Initial detention under section 313 of the Immigration Act 2009 for the purpose of obtaining a warrant for further detention in a penal institution under section 317 of the Immigration Act 2009.
  • c.The response chosen will take into account the individual circumstances of the person presenting at the border. In the case of a group arrival in New Zealand, all the circumstances surrounding its arrival will be considered. The responses are not static. It may be appropriate, throughout the duration of a person’s presence in New Zealand, for an immigration officer to revisit the case to ensure that their decision remains appropriate in view of any changed circumstances (including the simple passage of time). This is particularly important where a person remains subject to restrictions on their freedom of movement (including being released on conditions). Those restrictions must continue to be able to be justified as necessary. It may, for example, be appropriate for a person initially detained in a penal institution to be moved to an approved premises. A person detained at an approved premises may be released on conditions or released into the community with a temporary visa. It may be appropriate for a person previously released on conditions to be taken back into custody to be detained at an approved premises or in a penal institution.

A16.2.10 难民保护官员的要求

A16.2.10.1 公约以及分析

根据1951难民联合公约规定，由另一个国家抵达新西兰的人并且符合难民规定身份的人，需要给予特殊的关照。以下是大概的原因和理由：

  • a 承诺庇护难民身份的人，需要对难民身份的人予以保护；
  • b 惩罚中监管的效力可能会影响某些申请人；
  • c 移民官需要注意难民身份的申请人。根据难民保护公约中的31章，需要注意难民受限制的自由；

A16.2.10 Restricting movement of refugee or protection status claimants

A16.2.10.1 Convention/Covenant Analysis

Where a person arrives in New Zealand from another country and on arrival claims refugee status under the 1951 United Nations Convention Relating to the Status of Refugees (the Refugee Convention), or protection status under the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) or the 1966 International Covenant on Civil and Political Rights (ICCPR), care must be exercised in determining the appropriate immigration response. This is especially important where the response involves possible detention under section 317 in a penal institution or at an approved premises. There are a number of reasons for this:

  • a.Commitment to a system of asylum, as being a Party to the Refugee Convention, CAT and ICCPR entails, requires all persons claiming asylum to be treated carefully and with sensitivity at all stages of the process. This is especially important where it is proposed that restrictions on freedom of movement be imposed, particularly restrictions involving detention;
  • b.The effect of custody in a penal institution can be traumatic for some genuine claimants;
  • c.Immigration officers need to have regard to the provisions of the Refugee Convention in carrying out their functions. In accordance with Article 31 of the Refugee Convention and also with the UNHCR Guidelines on Detention, it is accepted that restrictions on freedom of movement of refugees, in particular by detention (including detention of refugee status claimants), should occur only where necessary. In particular Article 31 states。

A16.2.10.1.5 自由运动的限制

对于声称是难民保护身份的人可能有某些情况的限制。需要根据申请人的陈述以及所有申请的因素进行考虑。包括申请人提供证明材料以及信息的准确程度等等。对于新西兰甚至是国际公共安全，公共秩序的保证。申请人如果是非法偷渡入境的，或者非法移民组织入境，都是需要被考虑的因素；非法移民组织是必须杜绝的，一般会被驱逐出境。

A16.2.10.1.5 Restrictions on freedom of movement

There will be circumstances where restricting the movement of a person who claims refugee or protection status at the border is necessary, particularly where issues of national security or public order arise. Determining whether placing restrictions on freedom of movement (in particular, through detention) is necessary will depend on a careful assessment of all factors relevant to the arrival. This may include the extent to which that person is able to provide accurate and reliable information about their identity, whether the claim appears to be made in good faith, and the extent to which there are identified risks to national security and public order.
An assessment of any risk to public safety, security, and order will need to take account of the prevailing security situation, both in New Zealand and globally. Whether the person arrived as part of a group which arrived unlawfully, or was involved in organised smuggling of illegal migrants, may be a factor in determining whether restriction on freedom of movement (in particular detention in a penal institution) is necessary. Smuggled migrants must not, however, be automatically subject to detention.

A16.2.10.10 审判

  • a 根据对自由运动的不同的限制标准会有不同的审判标准。UNHCR指南中制定了不同的要求。同样，也对不同的限制标准做出了区分。移民官需要考虑不同的情况：
  • i 移民官需要考虑难民身份保护人员的情况，考虑是否可以签发签证，入境许可或者是不用限制；
  • ii 如果移民官拒绝了签证申请或者是入境许可，移民官接下来需要考虑潜在的风险因素；
  • iii 如果居住申请和申请报告不足以审核潜在风险，移民官可以考虑根据法院的某些条件审理客户申请；
  • iv 如果危险身份不能够通过这种方式进行识别，移民官需要考虑是否根据难民安置中心进行处理；
  • v 受刑事拘留或者处罚的，也会进行必要的考虑；
  • b 所有的决定必须依据提供的事实，非必要的时候，相关决策不能违背自由法则。
  • c 已经形成了一个列表，包括某些特殊情况以及必要的限制自由运动的情况；

A16.2.10.10 Judgement

  • a.The necessary standard will vary according to the type of restriction on freedom of movement to be applied. The UNHCR Guidelines on Detention recognise a distinction between detention in a prison environment and accommodation at an open centre with some restrictions on freedom of movement. The Guidelines also recognise a distinction between detention and release into the community with reporting conditions. Individual immigration officers must, therefore, make judgements taking into account a cumulative set of considerations:
  • i.Immigration officers are first to consider whether any restriction at all on a refugee or protection status claimant’s freedom of movement is necessary or whether the officer may grant the claimant a visa and/or entry permission so that they may remain in the community unrestricted.
  • ii.If a visa and/or entry permission is refused then officers are next to consider whether monitoring of the claimant on residence and reporting requirements can manage the identified risks.
  • iii.If release on residence and reporting requirements is not sufficient to manage the risks, then officers should consider whether the client could be released on conditions by a District Court.
  • iv.If the identified risks cannot be managed by this means, immigration officers are to consider whether
  • accommodation at the Mangere Refugee Resettlement Centre can manage those risks.
  • v.If not then detention in a penal institution may be considered necessary.
  • b.All decisions are based on a careful, individual assessment of the circumstances of each case, and a decision must not restrict freedom of movement more than is necessary. All decisions involving any form of restriction on freedom of movement must be lawful and in accordance with international standards. An immigration officer making a decision to restrict freedom of movement should record all of the matters considered in reaching the decision. All decisions to restrict the freedom of movement of a refugee or protection status claimant are also subject to built in safeguards, by way of administrative or judicial review. These review processes are described at A16.2.25.
  • c.An indicative list of considerations has been drawn up to guide decisions by immigration officers as to whether in a particular case any restrictions on freedom of movement are necessary, and if so, the type of restriction that may be necessary. See A16.2.30.

A16.2.15 18岁以下的子女或者青少年

  • a 根据2009移民法案，移民可能申请自由裁判权，出于对声称难民保护身份的申请人的未满18岁的子女的尊重；这种情况下，需要考虑某些限制条件，某些规定符合UNHCR指南以及国际儿童保护法案等；
  • i 会优先考虑最有利于孩子的利益和福利；
  • ii 子女也会被优先考虑难民身份保护；
  • iii 子女或被优先考虑合适的保护或者予以人权协助等；
  • iv 不会违背子女的意志将子女和父母分离，除非最大限度的考虑子女的利益和福利；
  • v 未满18岁的子女，需要有成年监护人代表其利益和权益；
  • vi 子女可以有权表达或者委托成年监护人或者代表表达自己的意见或者观点；
  • vii 对于子女的真实情况的考察只是短暂的手段；
  • viii 子女不应该与成年人一起拘留，除非已经考虑过这样对孩子是最有利的。考虑到最好解决办法的局限性，这样的情况很多时候也是不可避免的；
  • b 根据这些规则，未满18岁的子女不应该被拘留，除非根据某些规定认为很有必要的情况下。没有成年人陪同的子女是不应该被拘留的，根据自由运动规则，未满18岁的子女即使需要拘留的话，也必须包括Child Youth and Family Services;
  • c 对于有成年人陪同或者没有陪同的自由运动的限制需要及时通知Child Youth and Family Services;

A16.2.15 Children and young persons under 18 years of age

  • a.Under the Immigration Act 2009, an immigration officer may apply a discretionary power in respect of a child or young person under 18 years of age who has (or, if accompanied, whose parent/s have) claimed refugee or protection status. In this situation, where any restriction on freedom of movement is being considered, the additional principles set out below apply. These principles are in accordance with the UNHCR Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum (February 1997) and the United Nations Convention on the Rights of the Child:
  • i.The best interests and welfare of a child or young person shall be the primary consideration;
  • ii.A child or young person is entitled to such measures of protection as are required given their status as a minor;
  • iii.A child or young person is entitled to receive appropriate protection and humanitarian assistance in pursuing their claim to refugee or protection status;
  • iv.A child or young person is not to be separated from their parent(s) against their will, except where such separation is necessary for the best interests and welfare of the child or young person;
  • v.In the case of a child or young person under 18, there must be a responsible adult to represent their interests, in accordance with, and as defined in, section 375 of the Immigration Act 2009, before any decision regarding restrictions on that child or young person’s freedom of movement is made;
  • vi.A child or young person is entitled to express their views regarding any proposed restriction on their freedom of movement, either personally or through a responsible adult. Due weight is to be given to those views having regard to the age and level of maturity and understanding of that child or young person;
  • vii.The detention of a child or young person is only to be used as a measure of last resort and for the shortest appropriate period of time; and
  • viii.A child or young person should not be detained with adults unless it is considered in that child’s or young person’s best interests and welfare to do so (for example if this is the only way to preserve family unity). It is recognised, however, that due to the number of suitable facilities, in some cases detention with adults will be unavoidable.
  • b.On the basis of these principles, as a general rule, children and young persons under 18 years of age should not be detained, and it would only be in extenuating circumstances that their detention in a penal institution could be justified as necessary. As a general rule, an unaccompanied child or young person under 18 should not be detained. Any restriction on the freedom of movement of an unaccompanied child or young person under 18 years of age should only occur after Child Youth and Family Services (CYF) has been involved, either in the role of responsible adult, or otherwise.
  • c.As a minimum, any restriction on the freedom of movement of an accompanied or unaccompanied child (all young persons under 18 years of age) should be notified to CYF as soon as practicable after that detention has occurred.

A16.2.20 官员有权行使自由裁量权

A16.2.36中列举出的移民官员可以授权如下的权利：

  • 决定警察局是够需要逮捕或者拘留某人，根据2009移民法案313部分；
  • 有权决定难民保护身份的人的居住申请；
  • 可以决定难民身份保护的人的申请；
  • 可以决定是否授予申请人签证；

A16.2.20 Officers authorised to exercise discretionary powers

Only immigration officers listed in A16.2.35, (as may be amended by an Area Manager from Compliance Risk and Intelligence Services from time to time), are authorised:

  • to determine whether a request that a police officer arrest and detain a person who is a refugee or protection status claimant, under section 313 of the Immigration Act 2009, is justified as necessary;
  • to agree to a residence and reporting requirements agreement with a refugee or protection status claimant under section 315 of the Immigration Act 2009;
  • to apply for or give consent to the release on conditions of a refugee or protection status claimant under section 320 of the Immigration Act 2009;
  • to refer to a branch with a direction to grant a visa under section 61 of the Immigration Act 2009 to a claimant who has been detained and/or released on conditions.

A16.2.25 对自由运动限制活动的定期核查
A16.2.25.1 行政审查程序

a 对于难民身份保护的人的自由运动的限制不应该是影响决定申请的唯一因素；个人的情况也可能随时间而有所改变，自由运动的限制对于短期申请而言，很有必要考虑；
b 申请人抵达新西兰，会有适当的关于难民身份保护的人的时间限制和信息决定等；A16.2.30中有详细的情况说明。一般包括身份类的信息：
i 由申请人提供的证明身份的文件和进一步的有关身份的信息；
ii 根据相关采访，进行有关难民身份保护的人的身份的可信性的评估；
iii 从惩教院管理者或者MRRC中心的相关负责人确认申请人的相关身份以及潜在的危险因素等；
iv 有国际机构提供的任何相关的信息，新西兰警局或者是安全保障部门等等；
c 对于拘留状态的申请人，需要考虑所有有关的敏感信息以及及时更新的相关信息等。可以等到最初的28天过后由法官进行审查。如果该阶段的拘留是不再必要的，移民官可以根据2009年移民法案中320节决定是否可以释放申请人。另外，还需要随时关注各种政策的变化；
d 移民官还应该持续关注申请人的情况。对申请人进行适当的审查之后，某些新的证据证明申请人的安全身份之后，移民官应该尽快解决；
e 审核后，移民官会了解客户的各种信息同时包括新西兰难民身份保护机构的信息等。不影响公平评估的情况下，新西兰难民身份保护机构会提供关于申请人的相关信息；

A16.2.25 Periodic review of restrictions on freedom of movement A16.2.25.1 Administrative review processes

  • a.Any decision restricting the freedom of movement of a refugee or protection status claimant must not only be justified as necessary at the time of the decision, but that restriction must continue to be justified as necessary.Individual’s circumstances can change with the passage of time. Restrictions on freedom of movement that are necessary for shorter periods of time may not meet the necessary test over a longer period.
  • b.At the time of a person’s arrival in New Zealand there may be limited time and information available to inform a decision that affects a claimant’s freedom of movement. A more conservative approach to the guidelines set out in A16.2.30 may be appropriate. Often, further information will become available over the next 10-14 days that may be relevant to the initial decision to restrict a person’s freedom of movement. This may include information regarding the identity of the claimant such as:
  • i.documents and further information provided by the claimant regarding their identity;
  • ii.a credibility assessment concerning identity by a refugee and protection officer following an interview of the claimant;
  • iii.information from a superintendent of a penal institution or the person in charge of the Mangere Refugee Resettlement Centre (MRRC) about the identity of a person and any identified risks that they present in terms of criminal offending, absconding or to national security and public order; and
  • iv.any relevant information provided by international agencies, the New Zealand Police or security services.
  • c.For claimants in detention, a review of the grounds justifying detention should occur as soon as practical after any new evidence or information emerges about the claimant, or 14 days after detention at the latest. This is preferable to waiting until the initial 28 day period expires, when the matter will be subject to mandatory judicial review by a judge. If detention is determined at that stage to no longer be necessary, then the immigration officer must decide whether to apply for the claimant’s release on conditions under section 320 of the Immigration Act 2009, or to direct that a visa be granted under section 61 of the Immigration Act 2009. Alternatively, an application for a variation of the warrant to allow the person to be transferred from a penal institution to the MRRC may be appropriate.
  • d.Immigration officers should also continue to monitor the circumstances of claimants released on conditions or subject to a residence and reporting requirements agreement. A review of the appropriateness of that release should occur as soon as practical after any new evidence or information emerges or is provided about the claimant, and immigration officers should continue to monitor these cases. Where applicable, steps to vary the conditions or requirements should be taken.
  • e.In conducting a review, immigration officers may obtain information about the claimant and the claim from a variety of sources, including the Refugee Status Branch (RSB) of Immigration New Zealand. Without compromising its ability to carry out a full and fair assessment of the claim, the RSB may be in a position to offer factual advice about the circumstances of the claimant (including their identity and nationality) and about the relative strength or weakness of the claim. Where the RSB has declined refugee or protection status, that fact itself may have a bearing on any review of the necessity for continued restrictions on the claimant’s freedom of movement.

A16.2.25.5 进一步司法审查的承诺

承诺的进一步权证：

  • a 根据2009年移民法案，对于拘留的人会进行阶段性的审核；
  • b 317节说明了是否承诺进一步权证，需要最大限度的根据法案进行；
  • c 323节准许法官对特殊情况的申请人进行进一步的审查，情况属实的话需要进行长达6个月的拘留；除非某些法案规定可以不再拘留；
  • d 因此，移民官很重要，根据216节准备所需的必要的应用程序，说明某个申请的所有情况等；

信息发布的申请：

  • a 移民官可以在任何时候申请发布信息。被拘留的人也可以申请信息的更新并申请释放，最终由法院法官进行裁量；
  • b 信息发布必须根据特定的法定条件，以及法官认为的适合的其他条件等；入境处人员有责任告知各种方式并协助司法人员工作。

一个区域的法官需要对个人信息的发布做一个安排；申请人不符合法定条件，可能会被继续拘留，除非提供某些特定的原因或者理由；

人身保护权的司法审查：

  • a 根据2009移民法案317/323节，信息发布需要经过高级司法官员审查；
  • b 被拘留的人可以向高级司法官员申请人身保护权的司法审查，需要更全面的考虑各项因素；

A16.2.25.5 Further warrants of commitment and judicial review processes

Further Warrants of Commitment

  • a.The Immigration Act 2009 provides for periodic review of the detention of all persons detained under sections 317 and 323 of the Immigration Act 2009 in either a penal institution or an approved premise, regardless of whether or not they have claimed refugee or protection status.
  • b.Section 317(4) states that in determining whether to issue a warrant of commitment, or whether to order the person’s release on conditions, the Judge must have regard to, among other things, the need to seek an outcome that maximises compliance with the Act.
  • c.Section 323(3) allows the Judge to order a person’s release on conditions where a warrant of commitment is applied for, and if successful would result in the persons continuous detention for a period of more than six months, unless the person’s deportation or departure is prevented by some action or inaction of the person; and no exceptional circumstances exist.
  • d.It is therefore particularly important that immigration officers, when preparing the required section 316 application, present all the circumstances of the case, and that the application justifies as necessary the continued detention of the claimant in either a penal institution or the Mangere Refugee Resettlement Centre

Application for release on conditions

  • a.An immigration officer may at any time apply for release on conditions of a person detained under section 317 of the Immigration Act 2009. A detainee may also apply for a variation of the warrant or release on conditions, which is ultimately a matter for the discretion of a District Court Judge.
  • b.Orders for release on conditions must be made subject to particular statutory conditions (e.g. place of residence, frequency and manner of reporting), and can be made subject to other conditions the Judge thinks fit to impose. Immigration officers have a role in informing the way in which the statutory conditions are applied and in assisting in the imposition of any judicial conditions. The conditions imposed should be no more than are necessary to manage the risks associated with the claimant.

Judicial review of release on conditions

  • A District Court Judge may make an order for a person released on conditions to be detained under a warrant on application by an immigration officer, either due to a breach or because detention in a penal institution or approved premises is considered necessary. Where a person breaches the statutory conditions, there is a presumption of continued detention unless the person concerned can provide a reasonable excuse for the breach. An application for an order to detain under a warrant of commitment by an immigration officer must include the reasons why detention in a penal institution or at the Mangere Refugee Resettlement Centre is necessary.

Habeas corpus and judicial review

  • a.Persons subject to detention under sections 317 or 323 of the Immigration Act 2009 or released on conditions under section 320 of the Immigration Act 2009 may apply at any time to the High Court for judicial review of any decision by an immigration officer or a District Court Judge to detain them or release them on conditions.
  • b.Persons detained pursuant to sections 317 or 323 of the Immigration Act 2009 may also apply to the High Court in accordance with the Habeas Corpus Act to have the lawfulness of their detention determined by a High Court Judge. Such applications must be heard and determined in precedence to all other matters.

A16.2.30 关于限制自由运动的考虑事宜的列表

  • 任何加强自由限制运动的条件的决定，需要相关人员衡量；
  • 考虑到列举出的各项事宜，缺乏旅游证件等是需要被考虑的缺失因素。并没有先前的例子说明没有旅游证件或者过期的不可用的旅游证件而被认为是危险因素；
  • 关键是，受刑罚的情况下考虑是否拘留是很必要的。需要符合UNHCR指南；
    A16.2.15列出了特定的规则，即适用于影响未满18岁的子女的自由运动的规则
    。需要予以这类人群的特殊关照，包括女人，老人，残疾人等等弱势群体；

A16.2.30 Indicative list of considerations which may guide decisions about restriction on freedom of movement (at the time of their arrival and subsequently) of persons claiming refugee or protection status at the border

Any decision to impose any level of restriction on the freedom of movement of the individual, and the level of restriction of movement that is to be imposed, remains a matter for careful judgement by the officer concerned after weighing up all relevant circumstances of the case. For example, with regard to the factors listed below, the absence of valid travel documents is just one factor which may be taken into consideration when making a decision whether or not to impose any level of restriction of movement. There is no predetermined view that a claimant without valid travel documents, or whose documents have been destroyed, should be treated as high risk, as it is recognised that individuals with legitimate claims to refugee or protection status may have to resort to such measures to escape a well founded fear of persecution, torture, cruel treatment or arbitrary deprivation of life.
A critical factor, particularly in considering whether detention in a penal institution is necessary, (and in line with the UNHCR Guidelines on Detention, including the 1989 Policy and 1991 Guidelines on the Protection of Refugee Women and the 1995 Sexual Violence against Refugees: Guidelines on Prevention and Response (as updated in 2003)), is the existence of an intention to mislead the authorities of the State in which they wish to claim asylum. In all cases, a decision to detain in a penal institution rather than any lesser form of restriction on the freedom of movement of a claimant is considered only after all other alternatives have been excluded.
A16.2.15 sets out the special principles that apply in relation to decisions affecting the freedom of movement of children and young persons under 18. Special consideration is also to be given to the treatment of other vulnerable groups, including women (especially pregnant women and adolescent girls), the elderly, the disabled, and torture or trauma survivors, in line with the relevant UN human rights instruments and UNHCR guidelines.

A16.2.30.1 告知签发签证的注意事项

  • a 难民身份保护的申请人持有效的旅游证件。对申请人的身份安全以及国籍或者是公众安全没有影响。
  • b 对于不能持有有效旅游证件的难民身份的申请人，申请在处理过程中可能会有困难或者是被延期处理甚至会被取消；
  • c 相反的是，申请人可以进入不被限制的地区，尤其是特殊关照的弱势群体，包括老人，女人，孩子以及残疾人等等；

A16.2.30.1 Considerations which may inform a decision to grant a visa and release into the community

  • a.The refugee or protection status claimant has valid travel documents. There are no concerns as to the claimant’s identity (including nationality) or risks to national security or public order. There are no concerns as to the claimant criminally offending or absconding (including for example, where a preliminary interview by a refugee and protection officer discloses that a claim is brought in good faith);
  • b.The circumstances outlined above apply but the claimant has no valid travel documents. However there would be no delay or difficulty in obtaining such documents in the event that the claim is declined;
  • c.The claimant is otherwise able to enter the community unrestricted, particularly in the case of a member of a vulnerable group including women (particularly pregnant women and adolescent girls), children, the elderly, the disabled, and torture or trauma survivors.

A16.2.30.5 告知信息公布的条件，居住或者相应的申请的要求

a 难民保护身份的申请人的身份，同时也包括国籍等身份信息，不能确定移民官的满意度，但是有关官员认为，低风险的潜在犯罪因素影响国家安全和公共秩序等；
b 先前移民官对难民身份的申请人的评估表明索赔并不能带来良好的信誉，同时这个理由移民官也不会满意；
c 没有有效旅游证件或者是身份证明文件的难民身份保护的人，获得这些相关文件的过程可能会存在困难甚至是被取消申请；

A16.2.30.5 Considerations which may inform a decision to release into the community on conditions or residence and reporting requirements

  • a.The identity (including nationality) of a refugee or protection status claimant cannot be ascertained to the satisfaction of an immigration officer but the officer is satisfied that the claimant presents a low risk of criminal offending, absconding or otherwise posing a risk to national security and public order;
  • b.A preliminary assessment of a refugee or protection status claimant’s claim by a refugee and protection officer suggests that the claim may not be brought in good faith and for this reason an immigration officer cannot be satisfied that there is no real risk of the claimant absconding;
  • c.A refugee or protection status claimant has no valid travel and/or identity document [and there may be delay or difficulty in obtaining those documents in the event that their claim to refugee or protection status is declined].

A16.2.30.10 告知在难民安置中心居住的信息

  • a 难民保护身份的申请人的身份，同时也包括国籍等身份信息等，不能确认移民官的满意度，但是有关官员认为低风险的潜在的犯罪因素影响国家安全和公共秩序等；
  • b 明确难民保护身份的申请人的的犯罪风险，以潜逃或者是其他方式对国家安全或者公共安全带来潜在风险的，这种风险可以由难民安置管理中心进行处理；
  • c 难民身份保护的人跟随10人或者是更对人的团体非法入境，这种情况并不适合他们；
  • d 没有有效旅游证件或者身份证明文件的人，获得这些相关文件的过程可能存在困难甚至是被取消申请；
  • e 先前移民官对难民身份的申请人的评估说明索赔并不能重新带来良好的信誉也不符合相应的标准；
  • f A refugee or protection status claimant has already had a claim to refugee or protection status substantively declined in New Zealand, or another country that affords effective protection in a similar manner to the obligations listed in the Immigration Act 2009, and requiring the claimant to reside at the MRRC is otherwise necessary given the risks associated with them. However, if there were evidence that the claim was unfairly rejected (including new circumstances not being properly considered) this should be taken into account.

A16.2.30.10 Considerations which may inform a decision to require residence at Mangere Refugee Resettlement Centre

  • a.The identity (including nationality) of a refugee or protection status claimant cannot be ascertained to the satisfaction of an immigration officer and the risks presented by the claimant in terms of criminal offending, absconding or to national security and public order cannot be ascertained;
  • b.There is a clearly identified risk of a refugee or protection status claimant criminally offending, absconding or otherwise posing a risk to national security or public order but that risk can be managed by the claimant being required to reside at the Mangere Refugee Resettlement Centre (MRRC);
  • c.A refugee or protection status claimant has arrived as part of a group of 10 or more persons who have also arrived unlawfully, and it is not appropriate for them to be released into the community on conditions;
  • d.A refugee or protection status claimant has no valid travel and/or identity document and there may be delay or difficulty in obtaining those documents in the event that their claim to refugee or protection status is declined, and requiring the claimant to reside at the MRCC is otherwise necessary given the risks associated with them;
  • e.A preliminary assessment of a refugee or protection claimant’s claim by a refugee and protection officer suggests any refugee or protection claim is clearly not brought in good faith, or not related to the criteria for the granting of refugee status laid down in the Refugee Convention nor any other criteria justifying the granting of refugee or protection status, and requiring the claimant to reside at the MRRC is otherwise necessary given the risks associated with them;
  • f.A refugee or protection status claimant has already had a claim to refugee or protection status substantively declined in New Zealand, or another country that affords effective protection in a similar manner to the obligations listed in the Immigration Act 2009, and requiring the claimant to reside at the MRRC is otherwise necessary given the risks associated with them. However, if there were evidence that the claim was unfairly rejected (including new circumstances not being properly considered) this should be taken into account.

A16.2.30.15 告知拘留并受刑罚的情况

  • a 对于受刑事处罚的难民身份的人，需要考其是否对公共安全和公共秩序造成危害；
  • b 怀疑难民身份保护的人但是不能立即确认其身份。对于以组入境某个国家的多个申请人需要进一步考虑；
  • c 确认申请人的身份是必要的，尤其是根据2009年移民法案中15.16节中的某些规定。
  • d 除非有强有力的理由证实难民或者保护身份的索赔加强了旅游证件或者是身份证明文件的真实性，向新西兰移民官证实了其身份的细节；
  • e 用错误的身份证明文件或者是证明材料误导新西兰移民局官员的；
  • f 明确的身份危险因素，潜逃或者是威胁国家安全或者公共安全秩序的；
  • g 先前移民官员的审核并不能表明当下的良好的信誉，根据1951年联合国公约，关于难民身份保护公约等，明确难民身份人的审核标准，受刑事处罚的或者拘留都被认为有潜在的危害因素；
  • h 在新西兰，难民身份的人已经呼吁对难民进行保护，其他的国家以相似的方式对难民进行保护，对身份的审核不能仅仅通过难民安置保护中心进行；
  • i 以群组的形式入境的，最好由新西兰政府或者其他国家政府出面对这些人进行审核。这样的形式可能要求新西兰，其他政府的互相协助等等；

A16.2.30.15 Considerations which may inform a decision to detain in a penal institution

  • a.A refugee or protection status claimant is a person to whom section 15 or 16 of the Immigration Act 2009 applies, or detention is otherwise required to protect national security or public order;
  • b.There is reason to suspect that a refugee or protection status claimant is a person to whom sections 15 or 16 of the Immigration Act 2009 applies but their section 15 or 16 status cannot be immediately ascertained. This is especially in the case of a group arrival situation where there may be good reason to suspect some of those people of being involved in people smuggling;
  • c.It is necessary to verify the identity of a refugee or protection status claimant where identity cannot be ascertained, particularly if identity may impact on the application of sections 15 or 16 of the Immigration Act 2009. This is especially relevant in the group arrival situation where there may be reason to suspect some of those arriving of being involved in people smuggling and the risks in failing to properly ascertain identity are high;
  • d.There are strong grounds to believe that a refugee or protection status claimant has destroyed or otherwise disposed of their travel and/or identity documents with the intention of misleading Immigration New Zealand (INZ) officials as to the details of their travel and/or identity;
  • e.A refugee or protection status claimant has used fraudulent documents in order to mislead INZ officials (for example the claim to refugee or protection status follows detection of the fraud by officials or the New Zealand Police);
  • f.There is a clearly identified risk of a refugee or protection status claimant criminally offending, absconding or otherwise threatening national security and public order and that risk cannot be managed by the claimant being required to reside at the Mangere Refugee Resettlement Centre (MRRC).
  • g.A preliminary assessment of a refugee or protection claimant’s claim suggests the claim is clearly not brought in good faith, or not related to the criteria for the granting of refugee status laid down in the 1951 United Nations Convention Relating to the Status of Refugees (the Refugee Convention) nor any other criteria justifying the granting of refugee or protection status, and detention in a penal institution is otherwise necessary given the risks associated with them;
  • h.A refugee or protection status claimant has already had a claim to refugee or protection status substantively declined in New Zealand, or another country that affords effective protection in a similar manner to the obligations listed in the Act, and the risks associated with the claimant cannot be managed by the claimant being required to reside at the MRRC. However, if there were evidence that the claim was unfairly rejected (including new circumstances not being properly considered) this should be taken into account.
  • i.In the case of a group arrival, if it is expected to take INZ and other government agencies considerable time to fully investigate and determine all the circumstances and facts pertaining to the group’s arrival in New Zealand. Such enquiries might include extensive enquiries both inside New Zealand, as well as in other countries, to obtain information regarding the group’s origin, history, composure, movements and activities.

A16.2.35 有权授予自由裁判权的移民官

  • a 被授予自由裁判权的移民官审核刑事处罚拘留情况很有必要，根据2009移民法案中61节，如下的人一般会被考虑授予自由裁量权：

  • 一般经理助理，出入境官员，CRIS；

  • 区域经理，进行调查，CRIS;

  • 市场经理，经理管理体系等，进行调查，CRIS;

  • 移民经理，出入境官员，CRIS;

  • 技术专员，进行调查，出入境官员，CRIS;

  • 调查官员，由经理管理体系决定；

  • 出入境官员(CRIS),由技术专员出入境官员决定；

-b 被授予自由裁判权的移民官，能够决定难民安置中心的人是否具有潜在的危害社会安全和公共治安的因素风险等，也可以对于形式处罚拘留状态的人决定释放的条件并授予签证等；
-c 根据2009年移民法案61节规定，授予直接签发签证等自由裁量权的移民官的要求在16.2.35中列出；

A16.2.35 Officers authorised to exercise discretionary powers

a.a. Immigration officers who are authorised to determine whether detention in a penal institution of a person who is a refugee or protection status claimant is justified as necessary, to apply for or consent to the release on conditions of a refugee or protection status claimant from a penal institution, or to direct that a visa be granted under section 61 of the Immigration Act 2009 to a refugee or protection status claimant detained in a penal institution are:

  • Assistant General Manager(s), Compliance and Border Operations, CRIS
  • Area Manager(s), Compliance Investigations, CRIS
  • Market Manager(s) ; Manager(s) Systems and Support, Compliance Investigations, CRIS
  • Immigration Manager(s), Border Operations, CRIS
  • Technical Specialist(s), Compliance Investigations ; Border Operations, CRIS
  • Compliance Officers (CRIS) who, as determined by the Manager(s) Systems and Support, are deemed sufficiently experienced to make this determination
  • Border Officers (CRIS), as determined by Technical Specialist(s) Border Operations, are deemed sufficiently experienced to make this determination
  • b.Immigration officers who are authorised to determine whether detention at the Mangere Refugee Resettlement Centre (MRRC) of a person who is a refugee or protection status claimant is justified as necessary, or to apply for or consent to the release on conditions of a refugee or protection status claimant from the MRRC, to agree a residence and reporting requirements agreement with a person who is a refugee or protection status claimant, or to direct the grant of a visa under section 61 of the Immigration Act 2009 to a refugee or protection status claimant detained at the MRRC are:
  • those immigration officers listed in A16.2.35(a).
  • c.Immigration officers who are authorised to direct the grant of a visa under section 61 of the Immigration Act 2009 to a refugee or protection status claimant who is released on conditions or is subject to a residence and reporting requirements agreement are:
  • those immigration officers listed in A16.2.35(a).