WelcomeWelcome2010 Criminal Bar 2010 Criminal Bar

AssociationAssociation

Annual ConferenceAnnual Conference6 August to 8 August 20106 August to 8 August 2010

Queenstown, NZQueenstown, NZ

Poor Tom HanksPoor Tom HanksHe has Immigration IssuesHe has Immigration Issues TooToo

http://www.youtube.com/watch?v=r0Js07B_H4Q

The Interplay Between The Interplay Between Immigration & Immigration & Criminal LawCriminal Law

What happens when a client lodges an What happens when a client lodges an INZ Application but has a Criminal INZ Application but has a Criminal

History?History?

By Marcus Beveridge and Christine TerryBy Marcus Beveridge and Christine Terry Queen City LawQueen City Law

www.queencitylaw.co.nzwww.queencitylaw.co.nz

Summary of PresentationSummary of Presentation7 7 Topics to Look Forward ToTopics to Look Forward To

1. Warrants & Detention1. Warrants & Detention

2. Temporary v Residency Applications2. Temporary v Residency Applications

3. Is Good Character a crucial factor? 3. Is Good Character a crucial factor?

4. If client is denied permit given criminal history, can anything be 4. If client is denied permit given criminal history, can anything be done?done?

5. Any hope for the really bad people?5. Any hope for the really bad people?

6.6. A couple of war storiesA couple of war stories

7.7. Upcoming Changes in Immigration Act 2009Upcoming Changes in Immigration Act 2009

Let’s Look at The INZ ManualLet’s Look at The INZ Manual

What is it? What is it? Contains Immigration Residency policy (harder to Contains Immigration Residency policy (harder to

meet; no wriggle room) & Temporary Immigration meet; no wriggle room) & Temporary Immigration Policy (easier to meet policy because intent is not Policy (easier to meet policy because intent is not to stay long-term)to stay long-term) Must meet residence policy or find exception, which is Must meet residence policy or find exception, which is

decided on a discretionary basis by Minister decided on a discretionary basis by Minister Under new Act (effective 29/11/10) Minister delegates this Under new Act (effective 29/11/10) Minister delegates this

power to Senior Officials. power to Senior Officials. More discretion to issue temporary visaMore discretion to issue temporary visa

Where can I find it? Where can I find it? www.immigration.govt.nz/opsmanual/index.htmwww.immigration.govt.nz/opsmanual/index.htm

Warrants & DetentionWarrants & Detention

If in custody, right to counsel If in custody, right to counsel (Act s 140)(Act s 140)

Only Police (not Immigration Officer) Only Police (not Immigration Officer) can actually detain the person can actually detain the person (Act ss (Act ss 59,60,128, 128B)59,60,128, 128B)

Detain Immigrant for up to 72 hours Detain Immigrant for up to 72 hours withoutwithout warrant; District Ct can then warrant; District Ct can then issue warrant of commitment for issue warrant of commitment for further 7 days but not indefinitelyfurther 7 days but not indefinitely

Temporary v Residency ApplicationsTemporary v Residency Applications

The Residency Path hinges on Good The Residency Path hinges on Good Moral CharacterMoral Character (IOM A5.25 & A5.26)(IOM A5.25 & A5.26)

The Temporary Path does not to the The Temporary Path does not to the same degreesame degree (IOM: A5.40 & A5.45)(IOM: A5.40 & A5.45)

Residency PathResidency PathINZ Operational Manual Sec. A5.25INZ Operational Manual Sec. A5.25 Applicant who is or was: Applicant who is or was:

Convicted of any offence against Immigration or involving Convicted of any offence against Immigration or involving drugs, dishonesty, sexual nature, violence, drunk driving, drugs, dishonesty, sexual nature, violence, drunk driving, driving with a blood or breath alcohol excess; ordriving with a blood or breath alcohol excess; or

Imprisoned; orImprisoned; or Provided false, misleading, forged, or withheld material in the Provided false, misleading, forged, or withheld material in the

course of applying for INZ visa or permit; orcourse of applying for INZ visa or permit; or In a public speech/comments/broadcast/distributed/published a In a public speech/comments/broadcast/distributed/published a

document that argues that one race is inferior or superior to document that argues that one race is inferior or superior to another or used hostile language to insight discrimination; or another or used hostile language to insight discrimination; or

Member of group that promotes discrimination based on Member of group that promotes discrimination based on colour, race, ethnicity, national origin (but not gender or sexual colour, race, ethnicity, national origin (but not gender or sexual orientation??); or orientation??); or

If supporting another person’s INZ application, made If supporting another person’s INZ application, made false/misleading/forged statements. false/misleading/forged statements.

is normally is normally ineligibleineligible for residence visa or permit for residence visa or permit unless unless granted a character waivergranted a character waiver

Residency PathResidency PathHow do you get a Character Waiver?How do you get a Character Waiver? INZ Operational Manual Sec. A5.25.1 INZ Operational Manual Sec. A5.25.1

INZ officers must INZ officers must notnot automatically automatically declinedecline

residence applications on character residence applications on character groundsgrounds

[but]… consider surrounding[but]… consider surrounding

circumstances… [to see if circumstancescircumstances… [to see if circumstances

are] compelling enough to justify waivingare] compelling enough to justify waiving

the good character’ requirement.the good character’ requirement.

Residency PathResidency PathHow do you get a character waiver?How do you get a character waiver?Sort of a “Totality of the Circumstances” TestSort of a “Totality of the Circumstances” Test

INZ Operational Manual Sec. A5.25.1—7 factors INZ Officers Look at INZ Operational Manual Sec. A5.25.1—7 factors INZ Officers Look at toto

determine if waiver is granted: determine if waiver is granted:

1.1. Seriousness of offense; Seriousness of offense;

2.2. More than 1 offense?; More than 1 offense?;

3.3. Significance of false info (can applicant supply Significance of false info (can applicant supply credible explanation for providing false info?); credible explanation for providing false info?);

4.4. How long ago did the relevant event occur?; How long ago did the relevant event occur?;

5.5. Does Applicant have immediate family here?; Does Applicant have immediate family here?;

6.6. Does Applicant have strong emotional/physical Does Applicant have strong emotional/physical ties here?; ties here?;

7.7. Will Applicant’s potential contribution to NZ be Will Applicant’s potential contribution to NZ be significant? significant?

Residency PathResidency PathWhat INZ What INZ may v mustmay v must do when deciding to do when deciding to

grant a character waiver.grant a character waiver.

A5.25.1(d):A5.25.1(d): INZ officers INZ officers maymay also consult National INZ Office also consult National INZ Office andand

Compliance with “fairness and natural justice requirements”Compliance with “fairness and natural justice requirements”

A5.25.1(e):A5.25.1(e): INZ officers INZ officers mustmust record consideration of record consideration of

Surrounding circumstances, noting all factors taken into Surrounding circumstances, noting all factors taken into account,account,

and the reasons for granting/denying waiverand the reasons for granting/denying waiver

A5.25.1(f):A5.25.1(f): Any decision to waive good character requirement Any decision to waive good character requirement

mustmust be made by seconded visa officer or an officer with be made by seconded visa officer or an officer with schedule schedule

1 delegations.1 delegations.

Residency Application ExampleResidency Application Example

Applicant has a offense of Driving having consumed excessive alcohol,

which does not carry a prison sentence with the conviction. He wants to apply for

Residency

Applicant has a offense of Driving having consumed excessive alcohol,

which does not carry a prison sentence with the conviction. He wants to apply for

Residency

Character waiver (IOM A5.25.1(b))

Character waiver (IOM A5.25.1(b))

Normally, will not be issued a

residence visa or permit(IOM A5.25(h))

unless:

Normally, will not be issued a

residence visa or permit(IOM A5.25(h))

unless:

Temporary PathTemporary PathINZ Operational Manual Sec. A5.40INZ Operational Manual Sec. A5.40 Applicant who is or was: Applicant who is or was:

Convicted of offense against immigration; or Convicted of offense against immigration; or Provided false, misleading, forged, or withheld material in Provided false, misleading, forged, or withheld material in

the course of applying for INZ visa or permit; orthe course of applying for INZ visa or permit; or At the time of application, charged w/ offense under Sec At the time of application, charged w/ offense under Sec

7(1) (see “Bad People” slide 22) or under investigation or 7(1) (see “Bad People” slide 22) or under investigation or wanted for questioning for this offense; or wanted for questioning for this offense; or

Imprisoned; Imprisoned; If supporting another person’s INZ application, made If supporting another person’s INZ application, made

false/misleading/forged statements then…false/misleading/forged statements then…

Will not normally be issued a temporary visaWill not normally be issued a temporary visa

or permit unless granted a character waiver. or permit unless granted a character waiver.

Temporary PathTemporary PathHow do you get a Character Waiver?How do you get a Character Waiver?

INZ Operational Manual Sec A5.40.1—INZ officers INZ Operational Manual Sec A5.40.1—INZ officers must must notnot

automatically decline application & look at: automatically decline application & look at: Significance of false info (can applicant supply credible Significance of false info (can applicant supply credible

explanation for providing false info v. intent to explanation for providing false info v. intent to deceive?); and deceive?); and

Are there compelling reasons to travel to NZAre there compelling reasons to travel to NZ

Then, officer must record reasons for Then, officer must record reasons for granting/denyinggranting/denying

application and, if declining must raise an “Alert” application and, if declining must raise an “Alert” against against

the applicant. the applicant.

Temporary Application ExampleTemporary Application Example

Applicant has a offense of Driving having consumed excessive alcohol,

which does not carry a prison sentence with the conviction

He wants to apply for a Temporary visa or permit

Applicant has a offense of Driving having consumed excessive alcohol,

which does not carry a prison sentence with the conviction

He wants to apply for a Temporary visa or permit

No Character Waiver needed because this was not an offense

that carries a prison sentence with it

(IOM A5.40)

No Character Waiver needed because this was not an offense

that carries a prison sentence with it

(IOM A5.40)

Example 1:Example 1:Successful Character WaiversSuccessful Character Waivers

Facts & ProcedureFacts & Procedure: Residence App. lodged under : Residence App. lodged under Samoan Quota Scheme –denied because Samoan Quota Scheme –denied because provided false provided false information to INZ 3 times information to INZ 3 times

IssueIssue: Appeal – character waiver? : Appeal – character waiver? LawLaw: (IOM: A5.25.i: submitted false/ misleading/omitted : (IOM: A5.25.i: submitted false/ misleading/omitted

info in the course of applying for a New Zealand visa or info in the course of applying for a New Zealand visa or permit), INZ needed to establish whether, on the permit), INZ needed to establish whether, on the balance of probabilities, it was more likely than not that balance of probabilities, it was more likely than not that the applicant committed such an act the applicant committed such an act

HeldHeld: Yes, INZ to review intent of applicant to mislead : Yes, INZ to review intent of applicant to mislead coupled with weighing all seven factors under A5.25.1 coupled with weighing all seven factors under A5.25.1 plus any further relevant factors plus any further relevant factors

(RESIDENCE APPEAL NO:  16246, 21 July 2009)(RESIDENCE APPEAL NO:  16246, 21 July 2009)

Residency PathResidency PathHow do you get a character waiver?How do you get a character waiver?Sort of a “Totality of the Circumstances” TestSort of a “Totality of the Circumstances” Test

INZ Operational Manual Sec. A5.25.1—7 factors INZ Officers Look at INZ Operational Manual Sec. A5.25.1—7 factors INZ Officers Look at toto

determine if waiver is granted: determine if waiver is granted:

1.1. Seriousness of offense; Seriousness of offense; 2.2. More than 1 offense?; More than 1 offense?; 3.3. Significance of false info (can applicant supply Significance of false info (can applicant supply

credible explanation for providing false info?); credible explanation for providing false info?); 4.4. How long ago did the relevant event occur?; How long ago did the relevant event occur?; 5.5. Does Applicant have immediate family here?; Does Applicant have immediate family here?; 6.6. Does Applicant have strong emotional/physical Does Applicant have strong emotional/physical

ties here?; ties here?; 7.7. Will Applicant’s potential contribution to NZ be Will Applicant’s potential contribution to NZ be

significant? significant?

Example 2:Example 2:Unsuccessful Character WaiversUnsuccessful Character Waivers

Facts & Procedure:Facts & Procedure: Fiji applicant under Fiji applicant under skilled migrant. Did not declare conviction: skilled migrant. Did not declare conviction: Fiji crim. records say convicted for assault Fiji crim. records say convicted for assault w/bodily harm. w/bodily harm.

IssueIssue: Appeal– character waiver?: Appeal– character waiver? LawLaw: A5.25 (g) denial unless waiver.: A5.25 (g) denial unless waiver. HeldHeld: Denied. INZ was right to deny : Denied. INZ was right to deny

because he had criminal conviction and because he had criminal conviction and failed to disclose on residence application.failed to disclose on residence application.

(RESIDENCE APPEAL NO:  16357, 15 Jan 2010)(RESIDENCE APPEAL NO:  16357, 15 Jan 2010)

Easy v Hard Character WaiversEasy v Hard Character Waivers

Easier to get character waivers for Easier to get character waivers for lying/forged documents because of lying/forged documents because of mens rea element.mens rea element.

BUTBUT Harder to get character waivers for: Harder to get character waivers for:

Sexual offensesSexual offenses Violent acts Violent acts

WHY? WHY?

Good Character Waiver Cases to Good Character Waiver Cases to Take a Look AtTake a Look At

Mens Rea Element:Mens Rea Element: Chiu v MinisterChiu v Minister, 9942 NZLR541 , 9942 NZLR541 RRB 161959RRB 161959

Appeals Residence Review Board re: the Appeals Residence Review Board re: the obligation of Applicants to notify INZ of obligation of Applicants to notify INZ of any relevant changes. (s. 34(g)) If any relevant changes. (s. 34(g)) If applicants don’t, then this is cause for applicants don’t, then this is cause for denial under SM3.5denial under SM3.5 RRB 15025RRB 15025 RRB 15141RRB 15141

What options are there for What options are there for complex cases?complex cases?

Overstayers or Criminal Histories?Overstayers or Criminal Histories?

Most clients have 2 options:Most clients have 2 options: (1) Appeal under section 35A(1) Appeal under section 35A (2) File a ‘Special Direction Request’ (2) File a ‘Special Direction Request’

under section 130 (total Discretion of under section 130 (total Discretion of Minister)Minister)

11stst Option– Appeal under s 35A Option– Appeal under s 35A Section 35ASection 35A (discretion of Immigration (discretion of Immigration

officers if no deportation, removal, or officers if no deportation, removal, or permit or/and if person not subject to Sec. permit or/and if person not subject to Sec. 7(1) = “really bad people”)7(1) = “really bad people”) This allows case officers a grant of permit in This allows case officers a grant of permit in

special cases. Hinges on discretion!special cases. Hinges on discretion! In New Immigration Act = s 61: ability to get In New Immigration Act = s 61: ability to get

residence permit despite not meeting policy. residence permit despite not meeting policy. Policy is definitely relevant but not necessarily Policy is definitely relevant but not necessarily the deciding factor.the deciding factor.

If revocation of residency permit, appeal If revocation of residency permit, appeal under under section 22section 22 (humanitarian grounds) (humanitarian grounds)

If You Don’t Ask, You Don’t GetIf You Don’t Ask, You Don’t Get

Main Point of s. 35 A= Main Point of s. 35 A=

total discretion on an ad hoc basistotal discretion on an ad hoc basis

If you’re going to make an appeal, give INZ If you’re going to make an appeal, give INZ ALLALL

compelling evidence UPFRONT. It’s okay to compelling evidence UPFRONT. It’s okay to include include

documentation such as: documentation such as: Are there natural born Kiwi kids here? Are there natural born Kiwi kids here? Is the appellant a viable part of the work force? Is the appellant a viable part of the work force? Good character ? (we will discuss this later on)Good character ? (we will discuss this later on) Owe any money to the Crown? (Pay this before filing)Owe any money to the Crown? (Pay this before filing)

22ndnd Option: s 130 Option: s 130 Special Direction RequestSpecial Direction Request

The Minister may from time to time give to the DOL, The Minister may from time to time give to the DOL, or to any other immigration officer or to any visa or to any other immigration officer or to any visa officer, either in writing or orally, a special direction officer, either in writing or orally, a special direction in respect of—in respect of— (a)(a) Any person, permit, visa, or document; or Any person, permit, visa, or document; or (b)(b) Any 2 or more persons, permits, visas, or  Any 2 or more persons, permits, visas, or

documents where by reason of any specific event, documents where by reason of any specific event, occurrence, or unusual circumstances there is a occurrence, or unusual circumstances there is a common link between those persons, permits, common link between those persons, permits, visas, or documents,—visas, or documents,—

in relation to any matter for which such a direction is in relation to any matter for which such a direction is contemplatedcontemplated

TOTAL DISCRETION!TOTAL DISCRETION!

Justice’s discretion not to grant warrant Justice’s discretion not to grant warrant

((S60, sub-s(3) of Act)S60, sub-s(3) of Act) A Judge may issue a warrant of commitment on the application of A Judge may issue a warrant of commitment on the application of

an immigration officer if satisfied on the balance of probabilities an immigration officer if satisfied on the balance of probabilities that the person in custody is the person named in the removal that the person in custody is the person named in the removal order and that any of the following applies:order and that any of the following applies:

(a)(a)  A craft is likely to be available, within the proposed period A craft is likely to be available, within the proposed period of the warrant of commitment, to take the person from New of the warrant of commitment, to take the person from New Zealand:Zealand:

(b)(b)  The practical difficulties that meant that the person could The practical difficulties that meant that the person could not be placed on an available craft within 72 hours are not be placed on an available craft within 72 hours are continuing and are likely to continue, but not for an continuing and are likely to continue, but not for an unreasonable period:unreasonable period:

(c)(c)  The other reasons the person was not able to leave New The other reasons the person was not able to leave New Zealand within the 72-hour period are still in existence and are Zealand within the 72-hour period are still in existence and are likely to remain in existence, but not for an unreasonable likely to remain in existence, but not for an unreasonable period:period:

(d)(d)  In all the circumstances it is in the public interest to make a In all the circumstances it is in the public interest to make a warrant of commitment.warrant of commitment.

BUT… Justice in Koshiya case had discretion to BUT… Justice in Koshiya case had discretion to decide not to issue warrantdecide not to issue warrant

What About the Really Bad What About the Really Bad People?People?

People who Normally will not be Granted any People who Normally will not be Granted any type of visa under Sec. 7 of the Acttype of visa under Sec. 7 of the Act Imprisoned for 1+ years (1)(a)(b)Imprisoned for 1+ years (1)(a)(b) Removal Order (1)(c)Removal Order (1)(c)

Make this go away by getting cancellation of removal Make this go away by getting cancellation of removal order under sec. 58 (officials can do it, not necessarily order under sec. 58 (officials can do it, not necessarily minister) minister)

BUT Must pay Crown. BUT Must pay Crown. Ever been deported from NZ or other country (1)(d)Ever been deported from NZ or other country (1)(d) Terrorists (e-g) Terrorists (e-g) People who the Minister believes are bad (h-i)People who the Minister believes are bad (h-i)

But can still lodge Application depending on what But can still lodge Application depending on what type of visa they are seekingtype of visa they are seeking

Bad People Seeking ResidencyBad People Seeking Residency

Bad people normally ineligible for

Residency unless:

(IOM A5.20)

Person is eligible for visa or permit under

Govt Residence Policy

Special Direction(7(3)(a)(ii) Imm. Act)

(most can be done by officials)

Person is already a holder of a

returning resident’s visa who returns to NZ during currency

of that visa

Bad People Seeking TemporaryBad People Seeking Temporary

Bad People normally ineligible for temporary visa or permit unless:

(IOM A5.35)

Otherwise eligible for visa or permit under temporary entry

AND

Special Direction from the Minister

(Sec 7(3)(a)(ii) of Imm. Act)

INZ is a demi-godINZ is a demi-god INZ has discretion to revoke a Residency INZ has discretion to revoke a Residency

Permit if procured by administrative error, Permit if procured by administrative error, fraud, forgery, false, misleading, or fraud, forgery, false, misleading, or concealment of relevant info (Immigration concealment of relevant info (Immigration Act, sec. 20)Act, sec. 20)

Internal Affairs has discretion to deprive Internal Affairs has discretion to deprive citizenship if procured by fraud, false citizenship if procured by fraud, false representation, willful concealment, or representation, willful concealment, or mistake (Immigration Act, sec. 17); but mistake (Immigration Act, sec. 17); but this is much harder to do this is much harder to do However, if there is deprivation of citizenship, However, if there is deprivation of citizenship,

person barred only for 5 years. Can they apply person barred only for 5 years. Can they apply again? Theoretically yes.again? Theoretically yes.

I AM INZ

DISCRETIONDISCRETION is often the is often the KEYKEY

Treat INZ respectfully and they may go the Treat INZ respectfully and they may go the extra mile for you. extra mile for you.

INZ essentially holds significant INZ essentially holds significant discretionary power ( even more under discretionary power ( even more under new Act) and at this face-to-face level new Act) and at this face-to-face level considerable progress can often be made.considerable progress can often be made.

If no joy next steps may include appeal If no joy next steps may include appeal (RRB / new appeal process from November (RRB / new appeal process from November this year this year Immigration and Protection Immigration and Protection Tribunal ) , special direction, Court (judicial Tribunal ) , special direction, Court (judicial review/Crown law etc) review/Crown law etc)

A couple of War Stories A couple of War Stories

DOL v KoshiyaDOL v Koshiya, CRI-2007-055-00265, , CRI-2007-055-00265, 7 Sept. 20077 Sept. 2007

Facts & ProcedureFacts & Procedure: Respected Muslim : Respected Muslim Cleric; overstayer; exhausted all formal Cleric; overstayer; exhausted all formal remedies; INZ issued warrantremedies; INZ issued warrant

IssueIssue: Should DOL grant warrant? : Should DOL grant warrant? HeldHeld: No, voluntarily leave instead based : No, voluntarily leave instead based

on Judge’s discretionon Judge’s discretion Further examples : I) world class violinist Further examples : I) world class violinist

II) incarcerated lawyer III) Aussie II) incarcerated lawyer III) Aussie motorcycle club membersmotorcycle club members

Relevant ChangesRelevant ChangesNew Act effective 29/11/10New Act effective 29/11/10

Biometric provisions to combat ID Biometric provisions to combat ID fraud fraud

Universal Visa System like Australia Universal Visa System like Australia If Deportation Order in Force, they can If Deportation Order in Force, they can

still remain here lawfully while they still remain here lawfully while they appealappeal

1 tribunal replacing 4 tribunals1 tribunal replacing 4 tribunals Detention/Monitoring based on level of Detention/Monitoring based on level of

risk v just a general 6 month limitrisk v just a general 6 month limit

Highlighted New Provisions Affecting Highlighted New Provisions Affecting Criminal Clients with Immigration ProblemsCriminal Clients with Immigration Problems

Streamlined Deportation ProcessStreamlined Deportation Process

Act 1987: Separate provisions for removal, revocation, deportationAct 1987: Separate provisions for removal, revocation, deportation

Act 2009: balancing efficiency v fairness in 1 Provision : Act 2009: balancing efficiency v fairness in 1 Provision : Person can lawfully be in NZ while they appeal Person can lawfully be in NZ while they appeal

(even working and studying if visa allows it) (even working and studying if visa allows it) Minister can suspend deportation order via a Minister can suspend deportation order via a

“good behavior bond”“good behavior bond” If offender has been sentenced for 2+ yrs, may If offender has been sentenced for 2+ yrs, may

NOT be released for deportation until they served NOT be released for deportation until they served either 2 years or 1/3 of their sentence, whichever either 2 years or 1/3 of their sentence, whichever is lessis less

Minister can order early release of any foreign Minister can order early release of any foreign national (not just resident offenders) from prison national (not just resident offenders) from prison

If Deported, What is the Period of If Deported, What is the Period of Prohibition?Prohibition?

Under new Immigration Act 2009 (effective 29/11/2010)Under new Immigration Act 2009 (effective 29/11/2010)

If unlawfully in NZ for:If unlawfully in NZ for: not more than 12 months = 2 year barnot more than 12 months = 2 year bar More than 12 months = 5 year barMore than 12 months = 5 year bar 22ndnd or subsequent time = 5 year bar or subsequent time = 5 year bar Sufficient reasons for temporary visa holder to be deported Sufficient reasons for temporary visa holder to be deported

(discretion based) = 5 year bar(discretion based) = 5 year bar

BUT if visa granted based on false id, fraud, forgery, character BUT if visa granted based on false id, fraud, forgery, character issue not disclosed, refugee status cancelled because of fraud, issue not disclosed, refugee status cancelled because of fraud, residence class holder convicted of offense, person of residence class holder convicted of offense, person of threat/risk then, threat/risk then,

PERMANENT BAR!PERMANENT BAR!

If leave NZ voluntarily, then NOT subject to any bar on entry If leave NZ voluntarily, then NOT subject to any bar on entry (Koshiya case)(Koshiya case)

Highlighted New Provisions Affecting Highlighted New Provisions Affecting Criminal Clients with Immigration ProblemsCriminal Clients with Immigration Problems

4 Tribunals Merged into 14 Tribunals Merged into 1

The Immigration & Protections Tribunal replacesThe Immigration & Protections Tribunal replaces

the 4 existing appeal bodies for purposes ofthe 4 existing appeal bodies for purposes of

judicial economy (streamline the appeal process). judicial economy (streamline the appeal process). Act of 1987: more than 1 ground for appeal = Act of 1987: more than 1 ground for appeal =

multiple appealsmultiple appeals Act of 2009: single appeal = if more than 1 grounds Act of 2009: single appeal = if more than 1 grounds

for appeal, appeals must be lodged together. for appeal, appeals must be lodged together. Prime Minister will designate either the Min of Justice or DOL Prime Minister will designate either the Min of Justice or DOL

or a new dept?or a new dept?

Highlighted New Provisions Affecting Highlighted New Provisions Affecting Criminal Clients with Immigration ProblemsCriminal Clients with Immigration Problems

Detention & Monitoring Detention & Monitoring Act 1987: 6 month limit on immigration Act 1987: 6 month limit on immigration

detention except where foreign detention except where foreign national hinders their own departure.national hinders their own departure.

Act 2009: Tiered Detention System, Act 2009: Tiered Detention System, allowing courts greater discretion to allowing courts greater discretion to issue warrants. Detention will not be issue warrants. Detention will not be based on the level of risk the foreign based on the level of risk the foreign national representsnational represents

Handy ResourcesHandy Resources

Immigration New ZealandImmigration New Zealand immigration.govt.nzimmigration.govt.nz

Public ActsPublic Acts legislation.co.nzlegislation.co.nz

Immigration Act 2009 (effective 29 Immigration Act 2009 (effective 29 Nov. 2010) Nov. 2010) dol.govt.nz/actreview/dol.govt.nz/actreview/

Immigration Operations Manual:Immigration Operations Manual: immigration.govt.nz/opsmanual/index.htimmigration.govt.nz/opsmanual/index.ht

mm

Marcus Beveridge, Principal QCLMarcus Beveridge, Principal QCL

Firm: Queen City LawFirm: Queen City Law www.queencitylaw.co.nzwww.queencitylaw.co.nz Level 8,203 Queen Street, AucklandLevel 8,203 Queen Street, Auckland

Phone: 09 970 8810Phone: 09 970 8810

Email: marcus@queencitylaw.co.nz Email: marcus@queencitylaw.co.nz christine@queencitylaw.co.nzchristine@queencitylaw.co.nz

Q & AQ & A

Any questions ?Any questions ?