Samoan man Shein Saena who undressed and photographed sleeping woman avoids deportation

The Immigration and Protection Tribunal said it would be unduly harsh to deport Saena. Photo / 123RF

A man who undressed a sleeping woman and took photos of her has avoided being deported from New Zealand.

Last year a judge described Shein Saena’s conduct as “embarrassing, degrading and humiliating” and as a breach of the victim’s trust, but let the Samoan man off with a discharge without conviction, partly because he would be deported if one was entered.

Despite that, Immigration New Zealand still handed Saena a deportation liability notice because he had pleaded guilty to making an intimate visual recording.

After being served with that notice Saena lodged an appeal to the Immigration and Protection Tribunal to be allowed to stay in New Zealand where he’s lived since 2017.

The main thrust of his appeal was that he was in a committed relationship and is a caring stepfather to the woman’s child. If he were to be deported then that relationship would come to an end as the woman has said she wouldn’t go to Samoa with him.

The offending related to a different woman.

Saena’s lawyer, Paulo Kundig, told the tribunal that there were exceptional humanitarian circumstances in allowing his client to stay.

He said that Saena would lose his job and be unable to support his family, bring his relationship to an end and deprive a young child of a de facto father figure.

Kundig said that deportation was a disproportionately harsh punishment compared to his offending and that Saena acknowledged how selfish and hurtful his actions were.

At a hearing in the Timaru District Court last year Judge Campbell Savage also found that deportation was a harsh punishment in comparison to the crime, which was in part why he allowed a discharge without conviction.

Judge Savage described Saena’s offending as being low to moderate and noted that he had no prior convictions to his name.

However, a conviction is not necessarily a pre-requisite to being served a deportation notice and in this case, Saena’s guilty plea was enough to spur Immigration New Zealand into giving him one.

In a recently released ruling, the tribunal found that Saena’s actions in taking photographs of a partially-dressed sleeping woman amounted to a “thoughtless, unkind and humiliating assault on her dignity”.

It weighed that offending against whether it would be unduly harsh to deprive a young child of their stepfather.

“…the tribunal is satisfied that it would not be contrary to the public interest to allow the appellant to remain in New Zealand temporarily,” the tribunal said in its ruling, opting to cancel the deportation notice.

The tribunal’s ruling means that Saena is free to pursue an application for residency in New Zealand, but noted that Immigration New Zealand may use his guilty plea to oppose it.

Saena declined to comment after being approached through his counsel.

Jeremy Wilkinson is an Open Justice reporter based in Manawatū covering courts and justice issues with an interest in tribunals. He has been a journalist for nearly a decade and has worked for NZME since 2022.