Ministerial discretion and indiscretion

The Minister (and Associate) of Immigration has discretion in immigration matters. This is generally a good thing as the complexity of individual cases means a non negotiable enforcement of the rules can lead to some unfair outcomes.

There are cases where someone may have lived here for 15 or 20 years, built a business, started a family, and it transpires their paperwork wasn’t in order.

Ministers generally get three types of cases:

  1. Easy call to allow to stay
  2. Border line calls
  3. Easy call to not allow to stay

Now with border line calls, reasonable people may disagree. Sometimes the applicant may get the benefit of the doubt as the impact on NZ by allowing them to stay is minor and the impact on their family by making them leave is major.

The Karel Sroubek case was not a border line call. It may have been when his use of a fake identity was first detected. At that stage he had no criminal record or associations and was running a successful business.

But when Lees-Galloway considered his application he was a convicted criminal, serving a five year term for drug dealing. He was a known gang associate and had been charged twice before for offences.

The Parole Board said he was a liar and the Court of Appeal pretty much said the same also.

This was an easy “no”.

Aspects which make the Minister’s decision even worse are:

  • Sroubek it seems didn’t even apply for residency. He just asked not to be deported. For some reason the Minister threw in permanent residency without even being asked!
  • The officials (I understand) did not recommend Sroubek be allowed to stay. So this was the Minister’s independent decision.
  • He accepted Sroubek’s version of events without asking for any proof or verification. Did he read or ask for the Parole Board decision? the Court of Appeal ruling? Did he ask officials to check if he had travelled back to the Czech Republic (it now emerges he has twice)

This was never a border line call. You may give the benefit of the doubt to an applicant when they have a clean record. But when someone has a serious criminal record, you don’t give them the benefit of the doubt. Their case has to be over whelming for you to consider not deporting them, let alone gifting them residency.

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