Why is the Government reviewing Karel Sroubek's case and what could happen next?
This article appeared on Stuff on 31 October 2018.
Immigration Minister Iain Lees-Galloway has come under fire for granting residency to convicted drug smuggler Karel Sroubek.
The Czech national came to New Zealand on a friend's passport and is now serving time in Auckland South Prison for importing MDMA with a street value of $375,000.
Lees-Galloway originally said he did not make the decision "lightly", but could not divulge his reasoning for privacy and legal reasons. However, he said on Wednesday new information had come to light, and he was reviewing the decision.
So why was the Minister involved in the first place, and why might he be able to review his decision? Here's what we know so far.
WHY WAS THE IMMIGRATION MINISTER LOOKING AT HIS CASE IN THE FIRST PLACE?
Mr Sroubek has a residence visa. However, it was granted under a false identity – that of his friend, Jan Antolik. This is because he used Jan's passport to travel to New Zealand.
Entering New Zealand and/or getting residence under a false identity means Mr Sroubek is deemed to have been unlawfully in New Zealand since he entered or obtained the visa under his friend's name. That means he is able to be deported.
Mr Sroubek is unlikely to have any right to appeal to the Immigration & Protection Tribunal against deportation. This is because the time frame in which he could appeal expired 42 days after he obtained a visa under the false identity.
Therefore, it is likely that Mr Sroubek's only real hope of being able to remain in New Zealand was to ask Immigration Minister Iain Lees-Galloway to intervene.
WHAT ABOUT THE DRUG CONVICTION? DOES THAT HAVE AN IMPACT?
Yes. A resident visa holder can be deported if he receives a prison sentence for five years or more within 10 years of being granted residence. Mr Sroubek was sentenced to five years and nine months for bringing MDMA into the country within 10 years of being granted residence.
If Mr Sroubek had used his real name to get residence, he could have appealed to the Immigration & Protection Tribunal against being deported. He would have needed to show that he had exceptional circumstances of a humanitarian nature that would have made it unjust or unduly harsh to be deported.
However, as Mr Sroubek used a false identity, he has lost his ability to appeal to the Immigration & Protection Tribunal.
WHAT DID THE MINISTER DECIDE TO DO?
The Minister decided to grant Mr Sroubek residence in his own name, as long as he met certain conditions. In particular, the Minister told Mr Sroubek that he needs to obtain a passport or travel document in his own name, which might not be easy as the Czech government will not be pleased with him using another citizen's passport.
He also has to keep out of trouble for five years from the date he is released from prison.
WHY DID THE MINISTER DECIDE TO DO THIS?
The Minister's decision is at his absolute discretion, so he does not need to explain why he made it. However, it is possible that the Minister made the decision because he believes that Mr Sroubek has a valid claim for refugee or protected status.
Any foreign national who is inside New Zealand can claim refugee or protected status. This is even if the person is here unlawfully, such as Mr Sroubek.
Refugee status must, under an international convention, be granted where someone has a well-founded fear of persecution due to reasons of race, religion, nationality, membership of a social group or political opinion.
An individual can also be recognised as a protected person if there are substantial grounds to believe that he or she would be subject to torture or arbitrary loss of life or cruel treatment if returned home.
It is not uncommon for people to be granted refugee or protected status, even if they are from a "highly developed successful nation", as the Czech Republic has been described.
For example, there are several cases where women have been granted refugee or protected status on the grounds of domestic violence in other "highly developed and successful" nations.
In Mr Sroubek's case, he may be subject to threats to his life, due to having purportedly witnessed a murder.
Therefore, it seems likely that the Minister believed that Mr Sroubek may have needed New Zealand's protection and was prepared, as part of a government that adheres to its international obligations, to do so.
Of course, Mr Sroubek could have made a refugee or protected person claim and it could have been successful. Therefore, the Minister's decision may also have been a pragmatic one, to save the immigration system and the Immigration and Protection Tribunal from having to determine the case.
THEN WHY IS THE MINISTER RECONSIDERING HIS POSITION NOW?
If it is correct that Mr Sroubek travelled back to the Czech Republic, it indicates that he may not have a well-founded fear of being persecuted there or substantial grounds to believe that he would be subject to torture or arbitrary loss of life.
In that case, Mr Sroubek may not need protection and also may not be successful in claiming refugee or protected status.
The Minister may not have known that Mr Sroubek travelled back to the Czech Republic when he made the decision to allow him to stay.
CAN THE MINISTER CHANGE HIS MIND?
The Minister decided to cancel Mr Sroubek's liability for deportation. However, this does not prevent Mr Sroubek from becoming liable for deportation on other grounds.
For example, if Mr Sroubek did withhold information from the Minister, then he may be guilty of an offence under the Immigration Act, which could in turn trigger liability for deportation.
The Minister also decided to grant Mr Sroubek a new residence visa. Therefore, Mr Sroubek could be liable for deportation if the Minister is satisfied that new information has become available which was relevant at the time the Minister granted the residence.
WHAT ARE THE LIKELY OUTCOMES?
It is difficult to know, without all the background, whether Mr Sroubek did return to the Czech Republic and if he did, whether he does not have a sound claim to refugee or protected status.
However, it is to be hoped that he was not dishonest in his request to the Minister. This could make it difficult for other, perhaps more deserving, cases to be given the benefit of the doubt in the future.
To read the article in Stuff click here.
Nicola Tiffen has expertise across a range of immigration related matters including work visas, residence, partnership visas, investor residence applications, employer accreditations, work-to-residence visas, special direction requests, medical or character waiver requests, citizenship applications, appeals to immigration and protection tribunals and entrepreneur work visa and residence applications.