Court gives reprieve to working couple

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A couple had been issued with a deportation liability notice by Immigration New Zealand (INZ), raising concerns on their character by alleging that they, at the time of applying for residence, had not disclosed their Australian history of having been excluded from there.

INZ gave the couple a limited time to appeal against deportation.

The couple have lived in New Zealand for nearly 10 years on different visas issued by INZ from time to time. The husband is a Chef and the wife has been a partner in a business.

Prior to coming to New Zealand, the husband had lived in Australia for nearly 10 years. They had been running a restaurant in Sydney which was doing quite well.

However, at some stage their work visa was not extended and their request for Ministerial Intervention was declined and they became unlawful in Australia.

They were detained and allegedly excluded from Australia.

Undisclosed facts

INZ asserted that this fact was never disclosed by the applicants in any of their applications and in the most recent application for residence.

The couple appealed to the Immigration and Protection Tribunal on humanitarian grounds against their liability for deportation. They were self-represented before it. The Tribunal declined their appeal.

They then engaged lawyers to leave to appeal to the High Court and filed for leave to Judicial Review of the INZ decision declining their visa.

Lawyer appointed

At the hearing before the High Court, their lawyer Gurbrinder Aulakh argued that INZ had wrongly concluded that his client had been excluded.

He raised several legal points as well as procedural errors in the decision making by INZ and the Tribunal.

The High Court observed, “Although Mr Aulakh raised what could be good points in respect of both, the arguments do not presently appear to be so burning that they could overcome the very long delay and absence of excuse for it.”

The applicant, through their lawyer Mr Aulakh, then approached the Court of Appeal for leave to appeal.

Mr Aulakh argued that the Tribunal had failed to adhere to the legal requirements envisaged in the Act and had also failed to appreciate the wider humanitarian circumstances of the applicant.

He further argued that these legal points were of wider public importance and therefore required indulgence of the Court.

Intervention sought

Although the Court of Appeal declined to intervene, it observed that it was open for the applicant to seek special directions from the Minister under the Act.

The applicant, again through Mr Aulakh sought the Ministerial Intervention and special direction to cancel the liability deportation order. He contended that the application be considered based on the observations made by the High Court and the Court of Appeal.

The detailed application was delegated by the Ministry to a senior INZ officer, and upon its consideration, the character history of the couple was waived and the deportation liability notice was put on hold for them to re-apply for an appropriate visa in the stipulated timeframe.

The couple then applied for and have now been granted a work visa.



Barrister Gurbrinder Aulakh

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