3 Nov 2021

NZ-affiliated Afghans unfairly denied visas, court told

9:56 pm on 3 November 2021

Lawyers acting for Afghans unable to get visas to come here have told the High Court the government has not acted fairly.

18072016 Photo: Rebekah Parsons-King. Wellington High Court.

Wellington High Court Photo: RNZ / Rebekah Parsons-King

The High Court in Wellington is hearing a challenge to decisions by Cabinet, the Minister of Immigration, and Immigration New Zealand.

The Afghans applied for visas before Covid hit, but are caught up in delays linked to border closures.

Emergency moves to evacuate people since the Taliban took over in August have not applied to them, as New Zealand has prioritised Afghans who helped New Zealand agencies over there.

Their lawyer told the court the two cases named, which represent 70 others, are at "significant risk".

Wendy Aldred said all the Crown decision-makers, from Cabinet on down, had "failed to have regard for New Zealand's international obligations".

The Cabinet had not acted "fairly or reasonably", she told the court.

Among those hit by delays is a woman who cannot get out of Afghanistan because Immigration in this country has held her passport for three years, even though it decided to stop issuing the Refugee Family Support visas 18 months ago.

The two cases argued in court were directly related to people who were employed by New Zealand and "they fear for their lives", Aldred said.

But they had not fit the "narrow" definition of humanitarian reasons applied by the Crown, she said.

Community Law Waikato is taking the case to the High Court.

It argues Immigration's decisions are "unlawful". Its appeal to Immigration Minister Kris Faafoi back in May for intervention failed.

Aldred told the court the "blanket" denial to visa processing or issuing did not allow any individual cases to be argued.

Since August, and the Taliban takeover, the situation has got much worse for the applicants.

Aldred read out a statement of an Afghan now settled here, of his fears for his family still in Afghanistan who are of Hazara ethnicity so at greater risk.

This man worked for the NZDF in Bamiyan province, including interpreting.

He said it would be easy for the Taliban to find that out and identify his family.

In the evacuation, his group asked New Zealand to take them saying "if we are left in Afghanistan we will be killed because we worked for you", his statement read out by Aldred said.

His family were now hiding in Kabul. If he could not get through on the phone once a week "I worry they have died", the court heard.

Community Law has argued that Cabinet, by restricting urgent resettlement in August to Afghans (and their immediate families) who had helped New Zealand agencies such as the Defence Force during the deployment, "misconceived the nature and scope of the risk created by the New Zealand presence in Afghanistan".

All 70 or so applicants had applied for a new type of visa, the new critical purpose visitor's visa created under Covid.

The Crown had suggested this was the correct route for them to go down. But all were knocked back by INZ - despite being "in pretty dire straits", Aldred said.

Community Law said in notes, that "INZ has applied and continues to apply a gloss ... to confine 'humanitarian reasons' to focus on circumstances pertaining to New Zealand".

Immigration New Zealand first stopped processing the refugee family support visas, then restarted this but is still not making any final decisions on them.

The High Court hearing continues.

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