Top court quashes deportation order but Tongan's fight not over

In March 2010 Helu was served with a deportation order but appealed to the Immigration and Protection Tribunal to quash it. Photo / Thinkstock

The Supreme Court has quashed the deportation of an Auckland man who has fought for five years against being sent back to Tonga, where he has not lived since he was 6.

But his fight is not over as the court ordered the Immigration and Protection Tribunal to reconsider his case, saying it "erred" in its approach when making the initial deportation decision.

Samuela Faletalavai Helu was born in Tonga and came to New Zealand with his parents and sister when he was 6. Apart from spending six months at a boarding school in Tonga when he was 13, he has no connection with his birth country. In January 2008 Helu, then 17, was involved in the robbery of a convenience store. He brandished and "fired" a realistic-looking toy pistol. Cigarettes, chips and sunflower seeds were stolen during the robbery.

While on bail he was charged with a raft of offences including disorderly behaviour, threatening and assault with intent to rob.

Helu was sentenced to two years in jail. Upon release Helu was eligible for deportation under the Immigration Act 1987 because he had committed an offence for which he was sentenced to more than 12 months' imprisonment within five years of obtaining a residency permit.

His parents had only obtained that permit when Helu was 12.

In March 2010 Helu was served with a deportation order but appealed to the Immigration and Protection Tribunal to quash it.

The tribunal upheld the order, saying while it was unduly harsh to deport Helu, it was not persuaded that it was in the best interests of the public for him to stay in New Zealand.

Helu then sought a judicial review of the decision in the High Court and Court of Appeal. Both upheld the decision. He then appealed to the Supreme Court which ruled that the tribunal made errors in its decision-making process and ordered it to reconsider - effectively quashing the deportation order.

In the Supreme Court decision, released yesterday, Chief Justice Dame Sian Elias said in determining its decision the tribunal did not give enough weight to the "compassionate factors" personal to Helu and his family.

"I am of the view that the tribunal's conclusion failed to take into account a number of matters that ought to have been considered ... in particular the disruption to the family unit, Mr Helu's youth and his identity with New Zealand," Dame Sian said.

Helu could not be reached yesterday and his lawyer Mary Tuilotolava could not comment as the case was still before the court.