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Criminal Law & the Deportation Review Tribunal
(Carole Curtis - NZLawyer, issue 118, 7 August 2009)

Deportation Tribunal work is 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
The legal provisions where the Minister of Immigration has authority to sign a Deportation Order are set out in section 91(1) of the Immigration Act 1987, subsections (b) and (d) of which state:

“Subject to sections 93, 93A, and 112, the Minister may, by order signed by the Minister, order the deportation from New Zealand of any holder of a residence permit who – …

(b) Is convicted (whether in New Zealand or not) of 2 offences committed within 5 years after that person is first granted a residence permit, each of those offences being an offence for which the Court has power to impose imprisonment for a term of 12 months or more;

(d) Is convicted (whether in New Zealand or not) of an offence committed within 10 years after that person is first granted a residence permit and is sentenced to imprisonment for a term of 5 years or more, or for an indeterminate period capable of running for 5 years or more.”

Under section 91(1), the Minister has the discretion to decide whether or not to order deportation from New Zealand. When the Minister of Immigration decides to order deportation, it has serious consequences for individuals and their families.

Deportation is not restricted to migrants, it can also apply to persons who have been convicted of offences who are also recognised as refugees under section 129X of the Immigration Act and Article 33.2 of the United Nations 1951 Convention relating to the Status of Refugees (Refugee Convention).

Section 129X of the Immigration Act states:

“No person who has been recognised as a refugee in New Zealand or is a refugee status claimant may be removed or deported from New Zealand under this Act, unless the provisions of Article 32.1 or Article 33.2 of the Refugee Convention allow the removal or deportation.”

The Minister of Immigration is empowered to order the deportation under section 91(1) of the Immigration Act, and a Deportation Order is then served upon the individual who has been convicted of such offences. Any appeal must be received in Wellington by the Ministry of Justice within the 21-day period in accordance with section 106 of the Immigration Act.

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 Deportation Review 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 (section 105A).

Section 105(1) states that 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 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 (section 104). 

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.

I would also recommend after the criminal hearing that if it is apparent that deportation is a real possibility, then counsel should attend the Immigration interview with their clients and make submissions to the Minister before the decision is made by the Minister to sign the Order. There can be very compelling reasons that the Minister may not know about and may take in to consideration.

For more information, I recommend the excellent website and also the Practice Note for Appeals to be heard on or after April 2009.

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