Case file: If you have been charged with a crime, can Immigration New Zealand deport you?
If you haven’t been found guilty of a Crime, can Immigration New Zealand deport you?
The golden thread which runs through our justice system is the presumption of Innocence. That is you are innocent until you are proven guilty in a court of law. However a recent case at the Immigration and Protection Tribunal (IPT) highlights the question – if you haven’t been found guilty of a Crime, can Immigration New Zealand deport you?
The case was featured in an article on Stuff.co.nz but a number of issues raised in the case itself peaked our attention at Idesi Legal.
AC (Ireland) IPT 2020
The case of AC (Ireland) decided on 15 September 2020 at the IPT demonstrates this point. AC, a work visa holder from Ireland (not the real initials as IPT decisions are depersonalised) was charged with ‘Injures with intent to injure/reckless disregard’ in January 2020 and a further charge of ‘perverting the course of justice’ in February 2020. This led to his being issued a Deportation Liability Notice on 29 June 2020.
AC through his counsel brought a case on humanitarian grounds to the IPT.
At the time of the IPT hearing – AC was still waiting trial for the charges before him. His counsel at IPT pointed out that he had the presumption of Innocence under the Bill of Rights Act (BORA) and intended to contest the charges laid against him in court.
Does Immigration New Zealand have this power?
The Immigration and Protection Tribunal declined AC’s appeal and ruled that among other things the presumption of innocence for the criminal charges were not grounds of a humanitarian nature – those being exceptional circumstances. While the presumption of innocence applies – Immigration New Zealand has the power under s157(5) of the Immigration Act to deport temporary visa holders like AC for sufficient reason including ‘criminal offending’.
What is ‘criminal offending’?
In this instance ‘criminal offending’ has been interpreted to be ‘being charged with a crime’ rather than being convicted of a crime. This open interpretation of ‘criminal offending’ is of concern as it is not dependent on being convicted of a crime. This decision appears to leave the power under s157(5) of the Immigration Act at the discretion of the Immigration Minister and its delegates at Immigration New Zealand. If being charged with a crime is ‘criminal offending’ why not also include accusations of criminal offending? Why not also an Immigration Officer ‘reckoning’ that there is ‘criminal offending’ by a temporary visa holder.
The openness of the term ‘criminal offending’ under the Immigration Act as used by Immigration New Zealand and affirmed in this decision at IPT is highly problematic. It undermines the presumption of innocence and the Bill of Rights Act.
Immigration New Zealand overreach?
Over many years a number of countries have used Immigration Law as an auxiliary to the criminal law. New Zealand has in the past criticised Australia for deporting New Zealanders to New Zealand (many of whom left New Zealand in infancy).
For temporary visa holders caught up in the Criminal Justice System it appears Immigration New Zealand is doing the same and arguably worse it as the New Zealanders deported from Australia were often convicted of serious crimes not merely being ‘charged’ with a serious crime.
Does a deportation stop you from defending yourself in court?
In AC’s case, Immigration New Zealand advised that no deportation action would occur until such time as his case was resolved. This is a common approach for Immigration New Zealand to take when criminal trials are yet to happen and a DLN liable visa holder has pled not guilty.
Does this raise any issues for you?
If you have been served with a Deportation Liability Notice or this decision raises questions for you, please contact Idesi Legal.
