Immigration Minister Kris Faafoi. Photo / Mark Mitchell
OPINION:
A total of 441 people have arrived in New Zealand from Afghanistan following the fall of Kabul to Taliban forces. While the evacuation operation has come to an end, Afghan nationals with valid visas need to rely on commercial flights to come to New Zealand.
If that isn't hard enough, what about those who are eligible to come to New Zealand but because of Immigration NZ processing delays they're potentially in grave danger?
Livingston & Livingston principal Digby Livingston told me the situation is dire for one family he's representing, who are eligible and have applied for residence under the Refugee Family Support Category.
The family has strong connections to New Zealand and resources set aside for support and accommodation; they have exhausted all alternative options to avoid the Taliban; and the Taliban's takeover is likely to render their residence application in vain, he says.
The application was registered for the Refugee Family Support Category in November 2017 by a family member who came to New Zealand as a refugee in May 2005. Immigration New Zealand took two years and seven months to process the registration, by which time one of the children turned 25, rendering her ineligible to complete the residence process.
Consequently, the 25-year-old woman and her 23-year old sister are of eligible age to be forced to marry Taliban soldiers, which has been widely reported on and is increasingly of concern to human rights activists. Likewise, the male adult children may be compelled to be conscripted into the Taliban army, he says.
"There is no doubt that the future of female rights in Afghanistan is dire and that the family is in great danger," Livingston said.
"I appreciate that there are limits on immigration and refugee quotas, especially given the risks around Covid-19, but this situation is different as the family have been waiting to become New Zealand residents since November 2017.
"They've gone through the correct processes, and it's unethical and unfair that they may be inducted into the Taliban because of New Zealand bureaucracy. Hadn't the process taken so long the eldest daughter would still be eligible."
Livingston applied for a Critical Purpose Visitor Visa on humanitarian grounds while the family's residence application was determined. Immigration NZ declined the application saying the family didn't have "a critical purpose for travel to New Zealand".
Failing that, Livingston has called on Immigration Minister Kris Faafoi to give a special direction granting residence visas in a bid to uphold New Zealand's obligations under the Convention on the Elimination of Discrimination against Women, which was ratified in 1985.
Livingston says Article 16 of the convention grants women freedom to choose their spouses and enter into marriage with free and full consent. "Forced marriage to a Taliban soldier equates to torture and rape".
Under section 378 of the Immigration Act, the immigration minister of the day has discretionary powers to grant a special direction order in relation to visa matters.
Green Party MP Golriz Ghahraman has written to Associate Minister of Immigration Phil Twyford and Faafoi in support of the request for ministerial intervention.
"The family would have been here had it not been for the delay. We can't use the argument that they're not here because they don't have residency. Our institution is failing them. We have a duty of care. Unlike our allies - Canada, the UK, Australia and others have all committed to bringing back a set number of at-risk Afghans. New Zealand hasn't."
Faafoi says the Government has approved 1254 visas for Afghan nationals to come to New Zealand, 441 have subsequently arrived in the country.
"The Government continues to work on what further options might be possible, and I have spoken with former Afghan interpreters in recent days about that, as well as what support local Afghan communities here in New Zealand could provide for those who are coming here from their former homeland."
Immigration New Zealand couldn't speak to the specific case for privacy reasons, but Border and Visa Operations acting general manager Stephanie Greathead said "we understand the uncertainty that those remaining on the ground in Afghanistan are facing, and empathise with the difficult situations that many individuals find themselves in".
The Refugee Family Support Category allows former refugees who have resettled in New Zealand to sponsor family members to join them. There's a two-tier system with a quota of 600 people each financial year, which was previously 300 places, she says.
"It is important to note that these visa applications can be complex, and therefore can take some time to process.
"As Immigration New Zealand is legally unable to process applications for individuals who are not likely to meet entry requirements, the majority of processing for offshore applicants is on hold.
"While Immigration Officers continue to process applications for the RFSC up until the point that they may be decided, INZ is unable to decide these applications while these applicants are outside of New Zealand and border restrictions remain in place.
"But while visa processing is currently paused for almost all offshore applicants due to border restrictions, people in Afghanistan can continue to request a border exception to travel to New Zealand, or submit an application under partnership."
Tangentially, Livingston's clients' situation isn't the first of its kind. In September an Afghan man waiting to know if he could get a visa to join family in New Zealand was killed while attempting to flee Pakistan, for example.
The man was one of 70 Community Law Waikato applicants waiting for a hearing in the Wellington High Court. The 70 were part of the refugee reunification quota of 300 that the Government had agreed to bring to New Zealand in 2020 but visas were put on hold after the borders closed in March 2020.
The request for interim orders was not granted, but the judgment recognised the "Catch 22" situation Immigration NZ's actions had placed on the families.
Justice Cooke accepted that there was an argument that the outcome was not rational. The judicial review case is due to be heard in November.
- Sasha Borissenko is a freelance journalist who has reported extensively on the law industry.
Since the US election Bluesky use has skyrocketed 300% to 3.5 million daily users.