Afghan nationals win court hearing against Immigration New Zealand

The RNZAF evacuated a number of New Zealanders and Australians in August, but many Afghanis with ties to New Zealand are still stuck in Afghanistan. Photo / NZDF

The New Zealand High Court has ruled that Immigration New Zealand (INZ) was wrong to stop processing decision-ready visa applications by Afghan nationals - including some trying to be reunited with family in Hamilton - because of Covid-19 and wrong to not make an exception on humanitarian grounds.

In August, Community Law Waikato undertook a judicial review and took the New Zealand Government to court to seek a ruling on behalf of more than 70 Afghans who applied for residence visas before last year's lockdown.

The ruling says that the rules in place at the time the applications were made must stand and that applying new ones, such as restrictions on who could come into the country because of Covid-19, falls outside the law.

Head of Community Law Centres Aotearoa Sue Moroney says: "We won! INZ have been instructed to consider and determine the visa applications promptly. The next step is for INZ to comply with the judgment and process the visas. Those granted visa [holders] can then get assistance from [the] Government to come to New Zealand."

She says the ruling also says Immigration New Zealand was wrong not to consider the applications on humanitarian grounds.

Minister of Immigration Kris Faafoi has been limited in his comments at this point.
"Officials are working through the judgment. We need to work through the judgment carefully."

His office said there won't be further comment while the judgment and its implications are under consideration.

The ruling has given hope to many Afghan nationals with families still stuck in dangerous situations. One is a former Afghan interpreter who worked for the NZDF for 10 years and now lives in Hamilton.

Publishing his real name could put his family in danger so he asked to be referred to only as KD. He filed visa applications for his sister and two brothers together with their spouses and children, a total of 16 people, in 2017.

Waikato Herald reported KD's situation in September when his family, including his pregnant sister-in-law, fled from their home to Kabul and had to hide in the mountains.

"My family is stuck in Kabul with their lives in danger. [They are] struggling, they cannot go outside or go back to their old house. I feel scared every second knowing that the Taliban could kill them at any moment."

Although the court ruling gave him hope, it doesn't guarantee INZ would grant all visas, but it means that their applications will have to be considered as soon as possible.

"The court's decision was made very recently and we are not sure what is going to happen. I'm hoping for good news from [INZ] soon. We are hoping that this decision will be able to help them and allow them to escape Afghanistan, especially now that my brother's baby was born.

"I'm wishing that we will be able to bring them here as soon as possible, for the safety of all of them, especially their newborn baby."

KD and a third brother, who was also an interpreter for the NZDF, together with their wives and children, have been living in New Zealand since 2015. All the paperwork for his extended family has been done, including immigration medicals and support letters from several local MPs, but Immigration NZ still had not processed the visa application.