New Zealand Deportation Cases & The International Conventions: 2023, #1

By Forester

This literature examines several New Zealand deportation cases in conjunction with international instruments which New Zealand is a party; the author believes that there are many ways to inject an international convention into statutory structures of a country, the Immigration Law of New Zealand is one of the by-products of those international conventions. This is written by Paul WD Alforque, a doctor of jurisprudence, and a New Zealand lawyer who is also passionate about international law and its legal hermeneutics. He said, "The Draconian method of implementing the law regarding deportation of aliens may now be gradually dissolved". 

• Language: English
• Publisher: Forester
• Release date: Aug 14, 2023
• ISBN: 9798223269670

Book preview

PAUL W ALFORQUE

BARRISTER AND SOLICITOR OF THE HIGH COURT

Table of Contents

I  ABSTRACT ————————————————————————————————————————————-1

II  INTRODUCTION ——————————————————————————————————————————————————2

III  THEORETICAL FRAMEWORK—————————————————————————————————————————--3

IV  THE JUDICIAL BALANCING METHOD IN DEPORTATION CASES———————————————————4

A  Humanitarian Considerations————————————————————————————————--4

B  Public Interest——————————————————————————————————————————7

C  Best Interest of the Child ———————————————————————————————————-11

V  BALANCING BETWEEN MUNICIPAL LAW AND INTERNATIONAL INSTRUMENTS—————————14

A  Statutory Construction————————————————————————————————————-14

1 Auto-limitation—————————————————————————————————————————15

2 Doctrine of Consistency———————————————————————————————————-16

B  Deportation Law————————————————————————————————————————17

1 Legislation———————————————————————————————————————————-18

2 Treaties and International Instruments———————————————————————————20

VI  NEW ZEALAND OBLIGATIONS FROM INTERNATIONAL INSTRUMENTS———————————————21

A  Civil and Political Rights——————————————————————————————————-21

B  Rights of the Child——————————————————————————————————————23

C  Convention against Torture—————————————————————————————————25

VII  CASES INVOLVING JUDICIAL BALANCING IN DEPORTATION PROCESS—————————————26

A  Tavita——————————————————————————————————————————————26

B  Post-Tavita NZ cases—————————————————————————————————————27

C Foreign decisions————————————————————————————————————————28

VIII  CONCLUSION———————————————————————————————————————————————————29

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I  ABSTRACT

This research aims to see the meeting ground in the event of disagreements between the enforcement of deportation order and international instruments. With respect to deportation as a part of NZ Immigration Act 2009, it is the most fertile area of domestic law with regard to interaction with international obligations.

Deportation is an exercise of a sovereign power; it is an exclusive right of a state to control its border.¹ In contrast, international instruments are also classified by some legal scholars as soft law because it is not enacted by a Parliament or a sovereign body of a state.

Another problem is the view that an individual is merely an object of international law, which held the principle that international law operates between subjects or states; this research will also attempt to reconcile some differences in the intent of the domestic law affecting the rights of an individual and the intent of the international instruments.

This will also discuss the coexistence and collaborations of domestic and international law through judicial balancing in relation to the circumstance of an individual liable for deportation. This paper will examine the scope of judicial power to interpret the law.

The main discussion in this thesis dwells on the balancing between the enforcement of NZ Immigration Law and the compliance of international instruments as reflected in the deportation cases decided after the Tavita jurisprudence.

In the language of the Paquete Habana case it says that although the law is international in character, in a sense it is part and parcel of the municipal law of a State, inasmuch as the State by being a member of the Family of Nations, implicitly agrees to abide by its rule; just as no man is an island sufficient unto itself, so is no State capable of living today in dreadful isolation from the rest of the world.²

New Zealand, being part of the commonwealth countries, has more reason to abide and embrace international instruments; but as to what extent that its domestic laws would give way to international obligations remains a perennial question which requires judicial specimens of cases.

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¹ Ye v Minister of Immigration [2009] 2 NZLR 596 at [116]

² The Paquete Habana [1900] 175 US 677 

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II  INTRODUCTION

Deportation is a part of the sovereign act of a state to control its borders; the power of a state to control its border includes the power to expel any alien unlawfully staying within its territory.¹

However, deportation is not an arbitrary process where a government department can just execute its order immediately; the law has devised a mechanism as a procedure in carrying out a deportation order. The procedure is based on an ancient legal principle audi alteram partem which gives a party the opportunity to be heard, it is the spirit of due process of the law.

The judicial method of balancing becomes a great function in determining the outcome of