Declare or Face Deportation

Last week, we saw the deportation of World No.1 Tennis player, Novak Djokovic from Australia after a ten-day legal battle. Novak travelled to Melbourne in early January 2022 to participate in the Australian Open with the hope of winning his 21st Grand Slam title. He was stopped by border officials at Melbourne airport and questioned about his vaccination exemption documents. Australian border officials claimed that his medical exemption was not sufficient to enter Australia. However, this was not the only issue, as it all started with his travel declaration document.

Novak failed to declare his previous travel history on his travel document for Australia. He released a statement on 12 January 2022 admitting that his agent “ticked the wrong box” on his travel declaration before entering Australia. Novak confessed that this was a “human error” and “not deliberate”. Novak’s assistants had incorrectly declared that he had not travelled anywhere in the 14 days before departing for Melbourne. However, it was confirmed that he did travel to Spain. Novak’s non-declaration issue gave rise to his deportation saga regardless of his popularity and the importance of participating in this tournament. Novak’s visa has been cancelled twice by Australian officials and the Australian Immigration Minister, Alex Hawke. He was deported from Australia on 16 January 2022 after losing his appeal.

New Zealand immigration laws are no different. We have seen a number of people coming to us after they have had deportation liability notices or have become liable for deportation. People can become liable for deportation on several grounds, such as:

  • being unlawful in New Zealand;
  • breaching visa conditions;
  • being convicted of an offence within two years of obtaining Resident Visa;
  • providing false or misleading information or withholding information from Immigration NZ in a previous application (e.g. failure to declare).

Withholding or failing to declare information to Immigration NZ

A person can become liable for deportation where any information provided in relation to the person’s application for residence class visa or entry permissions was fraudulent, forged, false, misleading, or any relevant information was concealed. See s158 of the Immigration Act 2009.

We have recently noticed an increase in the number of people who have become liable for deportation for false declarations or withholding material information from Immigration New Zealand in previous visa applications. It does not matter whether the individual’s actions were deliberate or a human error. The mere fact that information was false or withheld from Immigration New Zealand is enough to invoke liability for deportation.

For example, we have come across a recent case where the whole family is liable for deportation due to a wrong declaration on the initial residence application. They recorded their dependent child as “single” when that was not the case. According to the residence instructions, for an applicant to include their dependent child in the residence application, one of the requirements is for the child to be single. Immigration New Zealand came to know that the child was actually in a partnership when Immigration New Zealand issued the resident visas. As a result, the whole family now runs the risk of losing their Resident Visas.

It is also important to note that liability for deportation could arise if a person other than the person holding the residence class visa provides information that was false, fraudulent or conceals relevant information.

What happens when you become liable for deportation?

For people who have Residence, the process is usually this:

1. Immigration New Zealand Resolutions will send a letter to the individual stating that consideration is being given to serving them with a deportation liability notice and inviting them to comment on why service of the notice should not proceed.

2. Once Immigration New Zealand Resolutions team receives the individual’s comments, Immigration will prepare the file and briefing notes for a Delegated Decision Maker – or in some cases the Minister or Associate Minister of Immigration – to review the case and decide whether to:

(a) issue a deportation liability notice; or

(b) cancel the deportation liability notice; or

(c) issue a deportation liability notice but then suspend deportation for a specified period of time.

Where deportation liability is suspended, it is usually for 3 or 5 years, subject to conditions.

If the Resolutions team decide to proceed with deportation, the individual will be served with a deportation liability notice.  The individual can then file an appeal against deportation with the Immigration and Protection Tribunal within 4 weeks of the Notice being served on them.

The Tribunal hearing will be a semi-formal court hearing and the individual can bring witnesses to explain why they should keep their Residence.  Immigration usually sends a lawyer to attend, and can present witnesses as well.  The Tribunal issues a written decision after the hearing.

It is, however, not an easy task to win such an Appeal. You have to show that there are “exceptional humanitarian circumstances”, which justify keeping their Resident Visa. Something exceptional is “unusual” or “out of the ordinary”, and it is a high threshold to meet. If you cross that hurdle, you then need to show that it would not be “unjust or unduly harsh” to be deported. The seriousness of the offence that led to the individual’s deportation liability will be an important factor to be weighed up against everything else in their favour.

People on temporary visas (like Work Visas) don’t normally get any advance warning that Immigration plans to take action against them. The first thing they know of it is when they get the deportation liability notice. They then need to decide quickly whether there is any point in appealing, and then get the appeal in before their time runs out.

Consequences of deportation

The effects of being deported are serious. If deported, a person is likely to face a period of prohibition on returning to New Zealand (see s 179 Immigration Act 2009). If someone is deported under s158 of the Immigration Act 2009 (providing false information), it imposes permanent prohibition from re-entering New Zealand. Being deported may also negatively affect a person’s ability to apply for visas to other countries. For example, in New Zealand, a person deported at any time from any country is subject to s 15 exclusion, preventing them from being granted any visa at all unless granted a Special Direction by the Minister of Immigration. Being deported is therefore not something to be taken lightly. The classic example is Novak Djokovic, who could face a three-year ban from re-entering Australia. The impact of this means he could no longer compete in future events.

Therefore, it is crucial to be open and upfront with Immigration New Zealand in all your visa applications. It is important to read the questions on Immigration New Zealand’s application forms. With that said, we understand that some people could face these situations for various reasons. Also, some of the words used in the visa application questions have particular legal meanings which can be misunderstood. We can assist people in explaining their circumstances when responding to Immigration NZ Resolutions to show why deportation should not proceed.

If you are a temporary or a resident visa holder and become liable for deportation, it is important to seek legal advice on dealing with your deportation liability notices. Being deported is serious and can impact the visa holder, and any family included in the application. Contact us for professional help.

This entry was posted in Immigration Appeals, Immigration Industry, Immigration Problems, Immigration Visas and tagged , , , , , . Bookmark the permalink.

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