Deportation liability can arise in a number of different ways.  These are set out under sections 154 – 163 of the Immigration Act 2009. 

 

Deportation liability

There are a range of reasons which would trigger Immigration to serve a deportation liability notice. From our experience, we find that Immigration will normally serve a deportation liability notice in the following circumstances:

  1. a person has committed a criminal offence (high probability); or

  2. a visa was issued in error, or

  3. a person has overstayed unlawfully; or

  4. there is an allegation of immigration fraud (for example a person has used a false passport) (high probability).

If you are liable for deportation you will generally have a right of appeal to the Immigration and Protection Tribunal.  There are exceptions to this general right of appeal.  For example, if the Immigration Minister has determined that you may pose a “threat or risk to security” under section 163 of the Act.

 

Time for filing your appeal

The first important issue for consideration is to determine the time period for filing your appeal with the Immigration and Protection Tribunal.  Normally the time period is 42 days from the date that you become unlawful, or received a decision from Immigration to decline your visa, or from the date you are served with a deportation liability notice.

The time period for filing your appeal is strict.  There are no provisions under the Act which allow for an extension of time.  If you file your appeal on day 43 you will be out of time and will have lost your right of appeal to the Tribunal.

If you are out of time you may have an option to retrigger the time period to file your appeal.  This will largely be dependent upon the facts in your case and any steps Immigration may take.

 

Grounds for your appeal

The second issue for consideration is to determine whether you can appeal on humanitarian grounds (as this is the most common appeal).    

Appeals of this nature can be challenging.  They require a substantive understanding of New Zealand case law, legislation and the various Human Rights Conventions.

Section 226(1) of the Immigration Act 2009 expressly places the responsibility on you to establish your case.

Section 207 of the Act provides that:

    (1)   The  Tribunal must  allow  an  appeal  against  liability for  deportation on humanitarian grounds only where it is satisfied that

           (a) there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appeallant to be deported from New Zealand; and

           (b) it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand.

As to whether circumstances are exceptional, the Supreme Court noted in Ye v Minister of Immigration, at [34] that they “must be well outside the normal run of circumstances” and, while they do not need to be unique or rare, they do have to be “truly an exception rather than the rule”.  This view was endorsed in the case of Minister of Immigration v Jooste..

In determining whether the exceptional circumstances of a humanitarian nature would make it unjust or unduly harsh for you to be deported, the Tribunal must weigh the gravity of the offending, and any other adverse considerations, against the compassionate factors favouring you remaining in New Zealand: Galanova v Minister of Immigration.

In Jooste Justice Katz stated [53] that:

“[any] appeal must fail at the first hurdle if there are no exceptional circumstances of a humanitarian nature.”

If you have children then the focus of the appeal can shift towards the child’s rights which are protected under relevant Human Rights Conventions.  The Conventions recognise that a child’s rights are a primary consideration.  A child’s rights are specifically contained in the following Conventions:

  1. The United Nations Convention on the Rights of the Child.

  2. The International Convention on Economic Social and Cultural Rights.

 

Conclusion

If you have been served with a deportation liability questionnaire (first step in the process), a deportation liability notice or have become unlawful in New Zealand it is recommended that you contact a lawyer as a matter of urgency and obtain advice. 

 

 

Young Hunter Immigration Team

Simon Graham

Senior Associate

sgg@younghunter.co.nz

 

Christine Le Beau

Senior Solicitor

cll@younghunter.co.nz

 

Adam Curtin

Solicitor

akc@younghunter.co.nz

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