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Immigration Act 2009

Appeals, reviews, and other proceedings - Special advocates

267: Communication between special advocate and person to whom classified information relates

You could also call this:

“Rules for communication between you and your special advocate about classified information”

When you appoint a special advocate or have one made available to you, this person can talk to you freely until they see the classified information. After that, they can only communicate with you in specific ways.

The Minister or refugee officer will show the special advocate the classified information at least 29 days after you got the names of possible special advocates or had one made available to you.

The special advocate can talk to certain people without needing approval. These include judges, the Minister, refugee officers, and some government officials. They can’t talk to you or your representative without permission.

If the special advocate wants to talk to you after seeing the classified information, they must write to the Tribunal or court. The Tribunal or court will decide if the message can be sent to you, with or without changes.

You can write to the special advocate whenever you want. Your message must be in writing and can be sent through your representative. The special advocate can only reply through the Tribunal or court, or just to say they got your message.

The Tribunal or court can change messages or refuse to send them if they might harm important interests. They can ask the head of the relevant government agency for advice on this.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM1441005.

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266: Appointment of special advocate for purposes of Part 9 proceedings, or

“Special advocate appointed to help with cases involving secret information”

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268: Protection of special advocates from liability, or

“Special advocates are protected from legal consequences when following Immigration Act rules”

Part 7 Appeals, reviews, and other proceedings
Special advocates

267Communication between special advocate and person to whom classified information relates

  1. In this section (other than subsection (4)), person A means—

  2. a person who has appointed a special advocate under section 265(6); or
    1. a person to whom a special advocate has been made available under section 265(7) or 266.

      1. In subsection (4), person A means—

      2. a person who has appointed a special advocate under section 265(6); or
        1. a person to whom a special advocate has been made available under section 265(7).

          1. A special advocate may communicate with person A or person A's representative on an unlimited basis until the special advocate has been provided with access to the classified information concerned, but once he or she has been provided with access to the classified information, he or she may not communicate with any person about any matter connected with the proceedings involving the classified information except in accordance with this section.

          2. The Minister or a refugee and protection officer (as appropriate) must provide the special advocate with access to the classified information on any date that is 29 days or more after the date on which person A was provided with the names of possible special advocates under section 265(2) or (5) or, as the case may be, had a special advocate made available to him or her under section 265(7).

          3. A special advocate may not unreasonably refuse to be provided with access to the classified information after the date after which access may be provided under subsection (4).

          4. A special advocate may, without the approval of the Tribunal or the court, communicate about the proceedings with—

          5. the Judge or Judges of the Tribunal or the court:
            1. the Minister, or the Minister’s security-cleared representative:
              1. the refugee and protection officer concerned, or the refugee and protection officer's security-cleared representative:
                1. the chief executive of the relevant agency, or that chief executive’s security-cleared representative:
                  1. the chief executive of the Department, if the proceedings relate to an application to which section 325 applies:
                    1. any other person, except for person A or his or her representative, with whom it is necessary for administrative purposes for the special advocate to communicate about matters not connected with the substance of the proceedings.

                      1. A special advocate who wishes to communicate with person A or his or her representative after having been given access to the classified information may submit a written communication to the Tribunal or the court (as appropriate) for approval and for forwarding to person A or his or her representative.

                      2. The Tribunal or court must either—

                      3. forward the communication, with or without amendment, to person A or his or her representative if the communication would not be likely to prejudice the interests referred to in section 7(3); or
                        1. decline to forward the communication, and notify the special advocate of that decision.

                          1. The Tribunal or court may consult the chief executive of the relevant agency before determining—

                          2. whether to forward a communication, with or without amendment, to person A or his or her representative; or
                            1. if it proposes to forward the communication, the nature of any amendments necessary; or
                              1. whether to decline to forward the communication.

                                1. The Tribunal or court may—

                                2. amend a communication only if the communication would be likely to prejudice the interests referred to in section 7(3), and only to the extent necessary to ensure the communication would not be likely to prejudice those interests:
                                  1. decline to forward a communication only if the communication would be likely to prejudice the interests referred to in section 7(3), and it is not practicable to amend the communication to prevent such prejudice.

                                    1. Person A may, of his or her own volition, communicate with the special advocate on any matter in accordance with subsection (12).

                                    2. The communication—

                                    3. must be made in writing; and
                                      1. may be made through person A's representative.

                                        1. The special advocate must not reply to such a communication except—

                                        2. in accordance with the manner set out in subsection (7); or
                                          1. in order to provide a bare acknowledgement of receipt of the communication to person A or his or her representative.