Immigration Act 2009: Is the Use of “Absolute Discretion” an Invitation for Arbitrary Decision Making?

Abstract

Immigration law is a direct product of the State’s sovereign right to control its borders. One way this powerful right has manifested is in the use of “absolute discretion” in the Immigration Act 2009. “Absolute discretion” essentially allows the decision maker to make any decision they deem fit and they do not have to provide any reasons for that decision. This raises concerns in the deportation context, where the outcome of the decision may result in the person being forced to leave New Zealand. Given the human rights considerations and international obligations that are often relevant in the deportation context, such a broad use of power should be subject to sufficient accountability mechanisms to ensure arbitrary decisions are not being made.

This paper analyses the use of “absolute discretion” in ss 61 and 177 of the Immigration Act. Sections 61 and 177 are arguably the two most significant uses of “absolute discretion” in the Act, essentially allowing the Minister of Immigration or an immigration officer to stop the deportation process. Part II will introduce the concept of “absolute discretion” and how it arises in the deportation context. Part III will examine the accountability mechanisms that exist in this context, with a specific focus on the mechanisms that react to the use of “absolute discretion”. Part IV concludes that the use of “absolute discretion” in s 61 appears to be adequately safeguarded against the making of arbitrary decisions. However, the same does not appear to be true for s 177. Possible solutions to ensure good s 177 decisions are being made are considered.