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CCH Learning Immigration Law Conference 2019

What’s happening in the Courts

Immigration Case Law Update

Richard McLeodMcLeod & Associates

Legal challenges to Ministerial, IPT, INZ and s 106 decisions

1. Judicial review challenges of Ministerial decisions

2. Court challenges of Immigration & Protection Tribunal (IPT) and Immigration New Zealand(INZ) decisions:

(a) Challenges by MBIE / Minister of Immigration of IPT decisions(b) Challenges by individual appellants of IPT and INZ decisions

3. Other noteworthy legal challenges

4. Recent judgments on impact of immigration consequences on s 106 discharge withoutconviction applications.

Judicial review of ministerial decisions – “absolute discretion” under s 61

Starting points

• The untrammelled nature of s61’s absolute discretion “gives bleak prospects for judicial review unless Wednesburyunreasonableness can be identified”. Unless an “extraordinary circumstance” of Wednesbury unreasonableness isidentified, the courts can’t intervene; Zhang v The Associate Minister of Immigration [2016] NZCA 361 [28 July2016], 14.

• Wednesbury unreasonableness “is conduct falling only within the narrow scope of a decision so unreasonable thatno reasonable authority could ever consider imposing it”. That would include a decision “outside the limits ofreason”, “so outrageous in its defiance of logic or of accepted moral standards”, or “so absurd that [the decision-maker] must have taken leave of his senses”; Singh v Associate Minister of Immigration [2016] NZHC 2888, 8, 25;Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2 NZLR 537 (CA) at 545.

• Error of law, taking into account irrelevant considerations and failing to take into account relevant considerationsare not instances of Wednesbury unreasonableness or reviewable errors in the context of a decision under s 61;Singh v Associate Minister of Immigration [2016] NZHC 2888 [1 December 2016], 8, 25.

• Judicial review proceedings “should not be brought simply because a reasonable decision maker might have cometo a different decision…[particularly] in the case where the decision is at the decision maker’s absolute discretion”;Feifei Ning v Minister of Immigration [2016] NZHC 1856 [10 August 2016], 14.


Going on the attack: the Minister’s Briefing Papers

Singh v Associate Minister of Immigration [2018] NZHC 44

Dean v Associate Minister of Immigration [2018] NZHC 2455

Kartseva v Associate Minister of Immigration [2018] NZHC 1115

An error or omission in a ministerial briefing paper such that the Minister was led to an irrational decision might result inthe Minister’s decision being impugned. All argued that the Minister’s decisions were Wednesbury unreasonable in that theImmigration Resolutions Team Briefing Papers provided to the Minister were flawed in material respects. Dean argued theBriefing Paper was “deficient, imbalanced and contained errors, leading to an irrational decision”. Kartseva argued theBriefing Paper “wrongly superseded or interfered with” the decision, “lacked analysis or recommendation” and “dweltunduly on the negatives and insufficiently on the positives”. Singh argued, amongst other things, that the Briefing Paperfailed to take into account New Zealand’s international obligations under the International Covenant on Civil and PoliticalRights (ICCPR), while Dean argued the DDM himself failed to do the same.


Going on the attack: the Minister’s Briefing Papers

Courts found none of the decisions were found to be unreasonable in the Wednesbury sense:

• “In circumstances where there is no obligation on the part of the Minister to take any specific matter into account it will bea rare occasion in which an applicant will be able to establish irrationality based on error or omission in a briefing paper. Inparticular, the Court will need to be satisfied that on a reasonable assessment of all the information available to theMinister he or she could not be expected to make a rational decision. In that context, I would adopt the “somethingoverwhelming” terminology from Wednesbury itself.” (Singh v Associate Minister of Immigration)

• A Briefing Paper’s lack of any recommendation to the Minister which option he/she should decide on “is not a matter for criticism. It was for [the Minister or DDM] to reach a decision, not the author of the paper”. (Kartseva v Associate Minister of Immigration)

• Unlike an immigration officer acting under s 177 the Minister is not obliged in a s 61 request to have regard to New Zealand’s international obligations, still less to give effect to them in some particular way or at all:

“The circumstances would have needed to be such that ‘to overlook [the obligations] raises Wednesbury unreasonableness’. Again this isa reflection of the Court’s reluctance to intervene in respect of what is an executive decision involving an exceptional power”

(Singh v Associate Minister of Immigration, quoting Zhang v Associate Minister of Immigration [2016] NZCA 361,[2016] NZAR 1222 and citing Devi v Minister of Immigration [2017] NZHC 728)

Judicial review of ministerial decisions under s 190(5)

Other Ministerial challenges

Goundan v Immigration and Protection Tribunal [2018] NZHC 1756

Argued: The INZ file was a relevant mandatory consideration which the Minister did not read.

Held (Van Bohemen J): The Associate Minister is not required to consider the INZ file when deciding pursuant to s 190(5)whether to grant residence class visas as an exception to the Instructions following a Tribunal recommendation under s188(1)(f) that there are special circumstances warranting the Minister’s consideration. The Tribunal's decision accuratelyand comprehensively summarised the matters to the special circumstances of applicant and her family. Application forreview dismissed.

Matua v Minister of Immigration [2018] NZHC 2078

Partnership Residence application by a Samoan woman in a 7 year relationship with NZ citizen declined because shedeclined to remove her 21 year old intellectually disabled daughter from her application when INZ ruled she did not haveacceptable standard of health. IPT considered there were special circumstances of the appellant that warrantedconsideration by the Minister as an exception to the applicable residence instructions.

Judicial review of ministerial decisions under s 190(5)

Matua v Minister of Immigration [2018] NZHC 2078 (cont)

Held (Woodhouse J): Associate Minister failed to consider the possibility of granting the appellants a residence visa subjectto conditions under s 190(5)(b), possibly because the IPT decision had misstated his options as being to either grantresidence visas as an exception to the Instructions or to decline to so grant them.

At [112] Woodhouse J found that “[t]he power to impose conditions is an integral part of the power provided for” and “thefactual context of this case illustrates the importance of the power to impose conditions” (15 factors were identified injudgment). The Associate Minister’s failure to consider that amounted to a reviewable error.

In the alternative Woodhouse J found [124] – [125] that the Associate Minister “would not have made a decision with suchharsh and unjust consequences if he had fully realised and understood what the consequences would be, and alsounderstood that not only did he have the power under s 190(5) to avoid such grave consequences by granting visas, butalso to do so subject to conditions should conditions be required”.

Considering the decision from that perspective only revealed four further errors, any one of which constituted an error oflaw requiring the Associate Minister’s decision to be set aside.

Decision set aside and referred back to the Minister for reconsideration of the Tribunal’s recommendation.

Court challenges of Immigration & Protection Tribunal decisions

What is the meaning of an “excluded person” in s 15 Immigration Act, and what are the limits ofthe Tribunal’s jurisdiction?

Chief Executive of MBIE v EM [2018] NZHC 2437

EM had been subject to 3 year re-entry ban from Australia but ticked “No” to EOI question whether he’d been excludedfrom any country. INZ declined his residence application saying he had provided false or misleading information or withheldrelevant information, and his exclusion brought him within s 15.

Relevant statutory provision - jurisdiction:

S 187 (2) However, no appeal lies under this Act in respect of—… (b) a refusal of the Minister or an immigration officer to grant a residence class visa or entry permission to anexcluded person; or… (d) a refusal of the Minister or an immigration officer to grant a residence class visa to a person who has beeninvited to apply for a visa, if a ground for the refusal is that the Minister or officer determines that the person,—

(i) whether personally or through an agent, in expressing his or her interest in obtaining an invitationto apply for a visa, submitted false or misleading information or withheld relevant informationthat was potentially prejudicial to the person;


Chief Executive of MBIE v EM [2018] NZHC 2437 (cont)

IPT decided to first address the jurisdictional issue raised by s 187(2)(b) on the basis that if EM was not considered“excluded” under s 15, no jurisdictional issue then arose under 187(2)(d). It found that EM was not in fact “excluded” fromAustralia, s 15 of the Immigration Act did not apply, EM had not provided false or misleading information, and it hadjurisdiction to hear his residence appeal which it then allowed on the basis of INZ error.

MBIE sought leave to appeal and judicially review the decision, expressing its concern “at the prospect of the Tribunalassuming jurisdiction on the basis of the Tribunal’s view of the facts as to whether a person supplied false or misleadinginformation or withheld information”, as that approach conflicts with s 187(2)(d)(i).

Held (Clark J): It was seriously arguable the IPT erred in its interpretation and application of s 187(2)(d)(i); on the plainterms of subs (d) the jurisdictional bar was engaged. It was also seriously arguable the IPT erred in its interpretation of“excluded” and this question is of general and public importance.

MBIE granted leave appeal and judicially review both findings.


Is the Tribunal obliged, notwithstanding s 228(2) of the Act, to seek any information includingforeign law and legislative facts further to that provided to it in an appeal?

Minister of Immigration v Dongmei Wu [2017] NZHC 2514

Section 228 provides:

228 Information Tribunal may consider (1) When considering an appeal or a matter, the Tribunal may seek information from any source. (2) However, the Tribunal is not obliged to seek any information, evidence, or submissions further to those provided by the appellant or the affected person and the Minister, the

chief executive, or a refugee and protection officer (as the case may be), and may determine the appeal or matter only on the basis of the information, evidence, and submissionsprovided by those persons.

Minister sought leave to appeal an earlier decision in Wu v Minister of Immigration [2016] NZHC 3194, which had found:

1. The Tribunal erred in law in not according any weight to post-hearing email information it had received, being the “onlyinformation it apparently had about a New Zealand citizen child’s citizenship status in the country to which its decision wouldsend her” and which was “consistent with information on which it had based its own previous decisions”.

2. The Tribunal not only had a duty to consider the email information it had received, but at least in the case of a New Zealandcitizen child who is not separately represented and relies on the best efforts of their parents, it has a legal duty to considerthe “foreign law and legislative facts upon which it has previously relied in its decisions as to the implications of deportationon a New Zealand citizen child’s rights and interests”.

3. (in obiter) s 228 of the Act does not completely negate the Tribunal’s duties.


Minister of Immigration v Dongmei Wu [2017] NZHC 2514 (cont)

Minister claimed the appeal was seriously arguable in that:1. Palmer J erred in finding the Tribunal had to attribute weight to the post-hearing email, as opposed to considering it, which

the Tribunal did.2. the decision “leaves the door open for an applicant to make any contention unsupported by evidence”. It also materially cuts

across s 228 and will cause problems for the Tribunal “across the board”.3. the Tribunal can’t be required to take account of “legislative facts” not put before the Tribunal by either party, which is

contrary to the clear language of s 228.

Held (Hinton J) granted leave to the Minister to appeal to the Court of Appeal but noted (quoting Supreme Court in Ye v Minister ofImmigration):1. “… the provisions of the United Nations Convention on the Rights of the Child (UNCROC) mean that the provisions of the Act

should be interpreted ‘so that the interests of New Zealand citizen children are always regarded as an importantconsideration in the decision-making process’”;

2. “The Supreme Court in Ye held that when the need arises, such as when parents cannot adequately represent the child’sinterests, there must be an obligation on state officials to be proactive in identifying those interests so they can properly betaken into account. The Court [in Ye] said it could not accept the argument that officers are never obliged to look beyondwhat parents may advance in the interview process”.


Is the Tribunal obliged, notwithstanding s 226 of the Act, to inquire further into the impact ofdeportation on a NZ citizen child?

Section 226 (“Proceedings on appeal or matter”) provides:

(1) It is the responsibility of an appellant or affected person to establish his or her case or claim, and the appellant or affected person must ensure that all information, evidence, and submissions that he or she wishes to have considered in support of the appeal or matter are provided to the Tribunal before it makes its decision on the appeal or matter.

Hai v Minister of Immigration [2019] NZCA 55 [15 March 2019]NZ resident who between 1998 and 2012 applicant defrauded WINZ of $115,470 and became liable for deportation under s161. In 2010 he began a relationship with his current partner and with her had 3 young children aged 5, 4 and 1 year at thetime of the Tribunal’s decision. Tribunal found that exceptional humanitarian circumstances existed but it would not beunduly harsh / unjust to deport Hai.

In the High Court Woolford J declined Hai’s applications for leave to appeal and judicial review. However, the Court ofAppeal granted leave to appeal to the High Court under s245(1), on the basis of 11th hour evidence (affidavits from ateacher of Hai’s two young daughters and from a consultant forensic psychiatrist) which had not been provided to theTribunal or to the High Court, but which it allowed into evidence.


Hai v Minister of Immigration [2019] NZCA 55 [15 March 2019] (cont)

On the basis of the new evidence the Court found:

1. “It is seriously arguable that the Tribunal came to its view of the impact of Mr Hai’s deportation on all three ofthe younger children without a proper evidential foundation”;

2. “While the Act is clear that it is for the appellant to adduce the necessary evidence to support his appeal inthe Tribunal, the focus here is not on Mr Hai, but on his children. The potential impact of their particularneeds on Mr Hai’s immigration status is a consequence, but not a driver, of that assessment. If the Tribunal’sassessment was wrong in fact (we of course have no view on that question other than the point is arguable),then it would not be in the interests of justice to allow that assessment to stand. Thus a punctiliousadherence on appeal to the requirements of s 226 of the Act would be inconsistent with the scheme of theAct and New Zealand’s commitments under the UNCROC. In our view, the correct approach where the focusof the question is the interests of the children, is to err on the side of allowing the issues to be properlyventilated in a substantive appeal.”


How far can the Tribunal go in ordering a humanitarian appellant be granted a temporary visa“for the purposes of getting his or her affairs in order” in s 216(1)(b)?

Chief Executive of the Ministry Of Business, Innovation and Employment v Singh [2018] NZHC 272

Under s 216(1)(b) of the Immigration Act the IPT, upon declining an appeal against deportation, may grant atemporary entry class visa for up to 12 months "if the Tribunal considers it necessary to enable the appellant toremain in New Zealand for the purposes of getting his or her affairs in order". Singh’s further student visaapplication was declined because he submitted fraudulent bank documents. The IPT declined his s 207 humanitarianappeal, but ordered he be granted an 8 month temporary student visa for the purpose of allowing him to completethe course of study he had been denied a further student visa for.

Held: the phrase "getting his or her affairs in order" means “organising those personal, legal or financial mattersthat, by reason of personal need or obligation (legal or moral) must be attended to so that deportation would notleave the individual concerned, or those associated with him or her, disadvantaged”. The delay which the IPT orderbrought about was not merely giving him the chance to “finish off” his study, but to undertake a substantial part ofit. Completing a course of which less than half had been undertaken could not truly be termed a part of Singh’saffairs that had to be put in order.


Can the Tribunal consider an appellant’s absence of fault in the conduct giving rise todeportation liability as a factor relevant to its “exceptional humanitarian circumstances” and“unduly harsh / unjust” assessment in s 207(1)(a) of the Act?

Minister of Immigration v Q [2018] NZHC 3173 [4 December 2018]

A couple were issued DLNs after false evidence was provided by the husband in his wife’s Residence application,unbeknownst to her. In her s 207 humanitarian appeal the IPT found there were exceptional humanitarian circumstancesdue (amongst other factors) to her complete innocence in respect of the fraud, and that it would be unjust or unduly harshto deport her due to her lack of culpability. The Minister was granted leave to appeal on a question of law.

Held (Gendall J): It would be an error of law to count absence of fault alone as a justifiable humanitarian circumstance.However, “it is not an error of law to consider the respondent’s absence of fault in this case as a general additional factorrelevant to the assessment of whether the other humanitarian circumstances present are sufficiently exceptional overall tomake out the very high threshold test in s 207(1)(a) of the Act. This includes a consideration too of whether, in all thecircumstances, deportation would be unjust or unduly harsh and whether it would be contrary to the public interest toallow the applicant to remain in this country” (at [44]).

A complete absence of fault could also lower the level of exceptional humanitarian circumstances needed whenconsidering the “unjust or unduly harsh” stage of s 207(1)(a) (at [42]). Appeal dismissed.


Can the Tribunal consider the underlying fairness of the liability for deportation when assessingthe “exceptional humanitarian circumstances” / “unjust or unduly harsh” or “public interest”limbs in s 207(1) of the Act?

Li v Chief Executive of the Ministry of Business, Innovation and Employment [2017] NZHC 2977

INZ issued Mr Li a Deportation Liability Notice (DLN) on the basis he breached the conditions of his work visa by “working”for his wife’s air conditioning company. He said he was only helping his wife out, and was not employed by, or “working”for, her company. The IPT considered it had no jurisdiction to decide his underlying liability for deportation in ahumanitarian appeal. Li sought leave to appeal the IPT’s decision and to apply for judicial review of the DLN decision.

Argued (R Harrison QC): The Supreme Court in Guo stated the question of whether deportation is “unjust or unduly harsh”“is to be assessed in the light of the reasons why the appellant is liable for deportation”.The essential fairness of the liability for deportation forms part of the overall circumstances for consideration in ahumanitarian appeal in terms of the requirements for “exceptional circumstances” or deportation being “unjust or dulyharsh” or as part of the “contrary to public interest” inquiry.It should therefore be open to the Tribunal, when determining an appeal on humanitarian grounds –1. to consider the legal validity of the ground on which liability for deportation and/or issuance of a DLN is allegedly based;2. to consider any material shortcomings of the INZ investigations leading to the conclusion there is sufficient reason todeport or issue a DLN.


Li v Chief Executive of the Ministry of Business, Innovation and Employment [2017] NZHC 2977 (cont)

Held (Palmer J): The scheme of the Act deliberately distinguishes between humanitarian appeals (s 207) and appeals onliability (“on the facts”, see s 201). Appeals on the facts do not extend to this category of temporary work visa: “The Actattaches rights of appeal to the underlying reasons for other sorts of deportations. It does not do so for liability todeportation on grounds of breaching conditions of a temporary work visa. Parliament did not intend to provide such a rightof appeal. I do not consider it is seriously arguable it did” (at [19]).

“The focus of a humanitarian appeal, for all the sorts of deportation for which it is available, is on the humanitarianconsequences of deportation, assuming the reasons for deportation are legally valid. The Tribunal does not havejurisdiction on a humanitarian appeal to determine the validity of underlying liability to deportation. I do not consider it isseriously arguable it does, so I decline leave to appeal.” (at [2]).

Is this finding correct? If, as Gendall J in Minister of Immigration v Q found, it is not an error of law “to consider therespondent’s absence of fault … as a general additional factor relevant to the assessment of whether the otherhumanitarian circumstances present are sufficiently exceptional overall to make out the very high threshold test in s207(1)(a) of the Act”, should the Tribunal also consider the validity of underlying liability for deportation in the same way?

Possible scenario: DLN wrongly issued to Partnership Visa holder for a s 157(5) reason; or DLN wrongly issued to a genuinevictim of migrant exploitation (see Rupal v Immigration and Protection Tribunal [218] NZHC 422 [14 March 2018], whichfound “these assertions [of exploitation] do not amount to an exceptional circumstances of a humanitarian nature”)

Court challenge of Immigration New Zealand decision

Is judicial review of INZ decisions concerning deportation liability available as of right under s247 or is leave required under s 249?

Li v Chief Executive of the Ministry of Business, Innovation and Employment [2017] NZHC 2977 (1 December2017)

Held (Palmer J): Subjects of a DLN issued by INZ can apply for judicial review of the decision leading to the DLN as of rightunder s 247, and do not firstly require the Court’s leave to do so under s 249.

Although the IPT can’t determine the validity of a DLN in a humanitarian appeal, that “is not a licence for officialunlawfulness, if it exists. Section 18(4) of the Bill of Rights and art 13 of the International Covenant on Civil and PoliticalRights (ICCPR) implicitly require there to be a means by which the lawfulness of deportation can be challenged. That can beachieved by the supervision of the Court on application for judicial review.”

Parliament can’t have intended to restrict a DLN recipient’s right to judicial review under s 27(2) of the Bill of Rights by requiring them to first take a hopeless humanitarian appeal to the IPT: “Section 6 of the Bill of Rights, the principle of legality and common sense militate strongly against such an interpretation of s 249(1)”.

Court challenge of Immigration New Zealand decision

Li v Chief Executive of the Ministry of Business, Innovation and Employment [2018] NZHC 1171 (23 May2018) (Judgment No. 2 of Palmer J)

The MBIE has challenged the decision that s 249 does not apply and that judicial review can be applied for as of rightunder s 147.

Leave to appeal to the Court of Appeal has been granted on this point.

Crown argued (and Court accepted) that there are now conflicting High Court authorities on the relationship between ss247 and 249, between Li and Liu v Immigration New Zealand [2014] NZHC 195, and this creates legal uncertainty. In Liu,Fogarty J had considered that s 249 does not oust judicial review so it cannot be classified as a privative clause attracting“hostile judicial interpretation”, and that it’s not open to the High Court to judge whether the requirement for the recipientof a DLN to appeal to the IPT in the first instance is inefficient, even where the appeal would be hopeless.

Palmer J: “There is clearly public interest in applicants, the Crown and the courts knowing the legal course of actionrequired when potential deportees wish to challenge official decisions underlying a decision to deport them” (at [30]).

Court challenge of Refugee Status Branch decision

Does s 249 prevent judicial review of a Refugee Status Branch decision until after the claimant’sappeal to the Tribunal has been finally determined?

H (SC 52-2018) v Refugee and Protection Officer [2018] NZSC 79

The Supreme Court’s answer was “NO”, in certain cases like this where the decision under challenge was made without anyconsideration of the substantive matters at issue and where nothing in the decision of the Refugee and Protection Officer(RPO) indicated that he had given any consideration to the appellant’s claim to refugee status.The Court found that while s 249 provides that no review proceedings may be brought in respect of a decision unless anappeal is made to the Tribunal and is finally determined, it operates in practice to preclude judicial review of the RPO’sdecision and is effectively a privative provision. On that conclusion, it noted:

“Given the constitutional importance of judicial review, reinforced as it is by s 27(2) of the Bill of Rights Act, the courtsapproach privative clauses cautiously and in particular will give anxious consideration to their interpretation andapplication…. judges should be slow to conclude that an ouster provision precludes applications to the High Court for judicialreview alleging unlawfulness of any kind….What is required is a construction of s 249 that recognises Parliament’s intention toprevent duplicative proceedings but also preserves the ability of the Court to supervise the exercise of public power andprevent injustice occurring when a statutory process fails because the decision-maker acts unlawfully and an injusticeresults.” (at [63])

Appeal allowed and matter remitted to High Court for hearing of the substantive judicial review application.

In brief: other noteworthy Court judgments onIPT and INZ decision-making

Other noteworthy judgments

Li v Immigration and Protection Tribunal [2018] NZHC 174

In granting leave to appeal and bring judicial review under s 249, Duffy J found there were seriously arguable breaches ofnatural justice by an INZ Business Immigration Specialist during a reconsideration of an Entrepreneur Residence applicationfollowing a successful IPT appeal, and that it was seriously arguable the IPT failed to cure those breaches in a furtherappeal. The substantive High Court proceeding will address important questions such as the circumstances in which ahearing before the Tribunal may cure a breach of natural justice by INZ and the proper interpretation of the scope of ss 58and 228 of the Act.

Patel v Minister of Immigration [2018] NZHC 2616 / Shen v Minister of Immigration [2018] NZHC 919

Both cases involved NZ residents served DLNs under s 158 for fraud and concealment in their applications over whethertheir relationships were genuine and stable. Both Tribunal appeals were declined. The High Court decision in Patelconsiders the meaning of the term “concealed” in ss 158 and 202 of the Act, while Shen (and in particular the IPT decisionunder consideration) considers whether “exclusivity” is a mandatory relevant threshold criterion of a stable marriage.

In brief: other noteworthy Court judgments onIPT and INZ decision-making

Wenzel v The Minister of Immigration [2019] NZHC 1005 [9 May 2019]

A judgment which underscores why Australian clients who are residing in New Zealand on Residence Class visas would bewell-advised to apply for Variation of Travel Conditions or (if eligible) a Permanent Resident Visa.

In New Zealand Wenzel was convicted of fraud and sentenced to 3 years imprisonment. Following release he travelled toHong Kong, but while attempting to return to New Zealand he was offloaded from a flight pursuant to s 15(1)(b) of the Act(conviction of offence for which sentenced to 12 months prison or more). Sought judicial review.

Held (Gault J): Wenzel was not the holder of a Resident Visa as it had expired when he departed New Zealand. Had hebeen, INZ would have been required to grant him entry permission under s 17(2). Without a Resident Visa, he could onlyreturn on a temporary visa which without a special direction he was now precluded from obtaining because of s 15.Moreover, the refusal to grant him a special direction was not reviewable owing to the privative clause in s 186(3).

Criminal cases - Impact of Immigration consequences on s 106 applications for discharge without conviction

Carroll v Police [2018] NZHC 2930 On appeal High Court quashed Carroll’s conviction and granted him a discharge without conviction because a s 106application was erroneously not advanced in the District Court (Carroll blamed his lawyers for not telling him theimmigration risks of pleading guilty). Court considered the immigration (potential deportation) consequences of convictionto be “out of all proportion to Mr Carroll’s offending”.

Rahim v R [2018] NZCA 182 On appeal the Court of Appeal quashed Rahim’s conviction and granted him a discharge without conviction because theDistrict Court Judge had understated the nature of the immigration risk to him. Having quoted an affidavit opinion byimmigration lawyer Simon Laurent that Rahim was “likely to be deported” if convicted, the DCJ incorrectly stated thatRahim “becomes liable for deportation” if convicted. Based on that error the DCJ then erred in classifying the consequentialrisk as “somewhere between the middle to the higher end of the scale of seriousness but not at the extreme end”.

Police v Dsouza [2018] NZHC 1317Police appealed to High Court against the District Court’s s 106 discharge of Dsouza without conviction, arguing (in part)that the DCJ had overstated the significance of the immigration consequences in saying they were “dire” and there was noreal and appreciable risk Dsouza would be deported if convicted. Police cited case law to effect that discharges withoutconviction shouldn’t be given merely because of difficulties with immigration and to do so would be usurping the authorityof INZ. Court held the DCJ did not misdirect himself on the immigration consequences, which would be “significant”.

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