Criminal Law and the Immigration and Protection Tribunal

Deportation appeals at the Immigration and Protection Tribunals a fascinating area of law for any lawyer interested in how immigration law intercepts with criminal law. The difficulty, however, is that there seems at times to be a lack of understanding of the significance of a criminal conviction upon someone in New Zealand who only has permanent residence and does not yet have citizenship.

Legal Provisions

161 Deportation liability of residence class visa holder convicted of criminal offence :

(1) A residence class visa holder is liable for deportation if he or she is convicted, in New Zealand or elsewhere, —

(a)of an offence for which the court has the power to impose imprisonment for a term of 3 months or more if the offence was committed at any time—

  • (i) when the person was unlawfully in New Zealand; or
  • (ii) when the person held a temporary entry class visa; or
  • (iii) not later than 2 years after the person first held a residence class visa; or

 

(b) of an offence for which the court has the power to impose imprisonment for a term of 2 years or more, if the offence was committed not later than 5 years after the person first held a residence class visa; or

(c) of an offence and sentenced to imprisonment for a term of 5 years or more (or for an indeterminate period capable of running for 5 years or more), if the offence was committed not later than 10 years after the person first held a residence class visa; or

(d) if the offence was committed not later than 10 years after the person first held a residence class visa, and whether that visa was granted before or after this paragraph comes into force.

 

(2) A person liable for deportation under this section may, not later than 28 days after being served with a deportation liability notice, appeal to the Tribunal—

(a) on humanitarian grounds against his or her liability for deportation; and

(b) if he or she is a refugee or a protected person, against any decision of a refugee and protection officer that he or she may be deported.

 

(3) For the purposes of subsection (1)(a)(iii), (b), (c), and (d), the periods of 2 years, 5 years, and 10 years after a person first held a residence class visa are to be determined exclusive of any time spent by the person in imprisonment following conviction for any offence.

 

(4) Subsection (1)(c) applies—

(a) whether the sentence is of immediate effect or is deferred or is suspended in whole or in part:

(b) if a person has been convicted of 2 or more offences on the same occasion or in the same proceedings, and any sentences of imprisonment imposed in respect of those offences are cumulative, as if the person had been convicted of a single offence and sentenced for that offence to the total of the cumulative sentences:

(c) if a person has been convicted of 2 or more offences, and a single sentence has been imposed in respect of those offences, as if that sentence had been imposed in respect of a conviction for a single offence.

 

(5) For the purposes of this section and section 160(1), a person first holds a residence class visa—

(a) on the date on which the person is first granted a residence class visa of any type in New Zealand; or

(b) if the visa was granted outside of New Zealand, on the first occasion on which the person arrives in New Zealand and is granted entry permission as the holder of the residence class visa; or

(c) if the person arrives in New Zealand and is granted entry permission as the holder of a residence class visa following a continuous period of absence from New Zealand of at least 5 years, on the date the person first re-enters New Zealand after the continuous period of absence; or

(d) if the person is a person to whom a visa waiver applies and arrives in New Zealand following a continuous period of absence from New Zealand of at least 5 years, on the date the person first re-enters New Zealand (and is granted a residence class visa) after the continuous period of absence.

 

(6) Subsection (7) applies to a person if he or she—

(a) was exempt from the requirement to hold a permit under the former Act; but

(b) is deemed to hold a residence class visa under section 417(3) of this Act.

 

(7) For the purposes of this section, the person first holds a residence class visa—

(a) on the date he or she first entered New Zealand and was exempt from the requirement to hold a residence permit under the former Act; or

(b) on the date he or she first re-entered New Zealand and was exempt from the requirement to hold a residence permit under the former Act following a continuous period of absence from New Zealand of at least 5 years.

Legal aid

For the purposes of those who are legal aid providers, it is possible to obtain civil legal aid for deportation hearings and the Immigration and Protection Tribunal (Tribunal) itself is usually accommodating in respect of a suitable time for the hearing, and that would include the most appropriate place for that hearing to be held. Psychological reports are often needed and what rehabilitation programmes are possible.

 

The hearing itself

Hearings are held at prisons and in various courtrooms throughout the country. The Tribunal is deemed to be a Commission of Inquiry and consists of three persons on the panel and are usually made up of two lawyers and a lay person. Any victim of the offence(s) has the right to make written submissions and may seek to appear in person at the hearing.

The Tribunal may quash a Deportation Order if satisfied that it would be unjust or unduly harsh to deport the appellant from New Zealand and that it would not be contrary to the public interest to allow him or her to remain in New Zealand. The Tribunal can also issue a temporary permit for the appellant to remain in New Zealand for a specified period of time before they must leave the country.

The Tribunal looks firstly at the humanitarian circumstances of each appeal and if the Tribunal finds humanitarian circumstances it will then go on to decide if it is unjust or unduly harsh to deport the appellant. Finally if the Tribunal does consider that it is unjust or unduly harsh to deport the appellant-the Tribunal then looks at the public interest.

The hearing itself can be emotionally challenging because of the grief and distress of family members who are facing the reality of the loss of their loved family member who will not be able to visit the country again and who will often face a very difficult life in the country of origin that is at odds with the life they have experienced here in this country. Often there are no family members left behind in the country of origin, or there is very little chance of work or the particular medical care needed. Counsel has to not only address the issues in New Zealand, but also in the country of origin. Interpreters are provided by the Tribunal at the hearing.

The Tribunal hears evidence about the appellant’s age, the length of time he or she has been in the country lawfully, personal and domestic circumstances, and employment history. The Tribunal also asks questions about the offending itself and any previous offending and the interests of the appellant’s family.

For the individual that wants to live in this country, this is an incredibly important hearing and one which requires considerable time and effort from counsel. Written submissions are filed, as well as briefs of evidence from the appellants themselves and any witnesses.

Although the hearing is in open Court, there are rarely other people present. Decisions are being published on the Tribunal’s website. Name suppression is not permitted.

 

What can criminal lawyers do to help migrants avoid such hearings?

A cynical person might consider that the individual should not have committed an offence so serious that he or she came within these sections of the Immigration Act. However, given that the offending has taken place, what can criminal lawyers do to enable their clients to avoid being forced to appear at Tribunal hearings?

It may be helpful to draw to criminal counsels’ attention the importance of considering whether the charge facing their client is so serious that a conviction will mean the likelihood of a Deportation Order being served.

Realistically, criminal counsel are not always able to negotiate with the police to consider a lesser charge rather than the original charge, and if a client is found guilty of a serious offence, counsel can only do their very best in respect of representing their client, but must then accept the result. However, I would urge criminal counsel to alert their clients to the reality of a Deportation Order being served, and to be available to discuss the implications of this with their clients.

We receive calls from prisons where the inmates have been served with Deportation Orders and have no idea what to do or what the document means. Often there is a language barrier and they do not understand what the Order is and its implications. The time restrictions for filing an appeal are limited and an appeal must be served within that time.

The Tribunal proceedings are civil proceedings, and if criminal counsel are also lead providers for civil matters, they may, because of their detailed knowledge of the case, be able to represent their clients at such hearings. However, if they do not act in this area of law, I would urge them to consider advising their clients that a Deportation Order could be served and what they must do in order to keep them protected and to then be able to instruct counsel.

In some cases, being found guilty of a criminal offence means not only that the person will face the risk of losing their liberty, they also face the very serious risk of losing the right to live in this country. There is a right of appeal on an issue of law to the High Court.

For more information, We recommend the excellent website www.immigration.govt.nz and also the Practice Note for Appeals to be heard on or after April 2009.