OPINION: How can someone who is acquitted of a crime still be deported from New Zealand?
If the person holds a temporary visa in New Zealand, it can happen.
Even if the court wishes to protect a person’s right to remain in New Zealand by allowing a discharge without conviction, Immigration New Zealand can — and often will — serve a deportation liability notice (DLN), forcing them to leave New Zealand.
Since the Supreme Court’s Bolea judgement in May this year, judges in New Zealand have been considering a person’s immigration status when deciding whether to grant a discharge without conviction for a crime.
If receiving a conviction would mean that the person is liable for deportation, this is one of the factors the judge will consider when deciding whether to convict.
A discharge without conviction helps people who hold resident visas – INZ cannot deport them if they haven’t been convicted of a crime.
However, for people who hold temporary visas, such as work visas or student visas, simply pleading guilty to a crime – which is the first step towards being granted a discharge without conviction – is enough for INZ to issue a DLN.
This is because the Immigration Act gives unlimited powers to INZ to decide what constitutes a “character matter” or “criminal offending”.
One common reason people appear in court is for driving charges, such as careless driving, dangerous driving, or driving with excess breath alcohol.
For a minor offence to which someone pleads guilty, the judge might approve a discharge without conviction, while also ordering the payment of costs or reparations.
My client, who holds a work visa, was recently discharged without conviction for careless driving causing injury, and was required to pay $7500 in reparations to the victim.
However, because my client pleaded guilty in order to receive a discharge without conviction, INZ can issue him a DLN.
This would effectively force him to leave New Zealand within 28 days before he is served a deportation order.
“INZ can simply ignore the court’s determination and still proceed with the DLN, even when the judge finds that a conviction would have adverse consequences beyond the seriousness of the offence,” explains Alastair McClymont, an experienced immigration lawyer (who was commenting in general, not about this case in particular).
McClymont told me about his Indian client who was required to leave New Zealand, even though he wasn’t required to go to court. This was the timeline of events:
McClymont considers there is an unresolved legal conflict between the Sentencing Act – which allows judges to discharge people without conviction – and the Immigration Act, which permits INZ to issue deportation liability notices to temporary visa holders, even though they haven’t been convicted of any crime.
INZ’s discretion in serving deportation liability notices is “almost entirely unfettered”, which leads to travesties of justice, Mr McClymont says.
I would like to see the Immigration Act amended so that INZ cannot override a judge’s wish not to have a person deported who has been discharged without conviction.
DISCLAIMER: This article does not constitute immigration advice. Individuals need to seek personal advice from a New Zealand licensed immigration adviser or lawyer to assess their unique situation. Ankur can be contacted at info@visamatters.co.nz.
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