A last minute legal bid by a group of Afghans trapped in Kabul has been turned down by the High Court.
Photo: AFP
More than 500 people in Afghanistan eligible to come to New Zealand have been left to their own fate after a bombing at Kabul airport put an end to further New Zealand Defence Force evacuation flights.
A group of six applied for an urgent injunction on Friday asking the Court to rule on Immigration New Zealand's decision to stop processing visas.
At the time the application was made to the court, the six people were either at or near Kabul Airport.
The hearing was held by telephone conference on Monday night.
Justice Cooke declined the application by saying he was satisfied their plight had been considered by ministers.
He said the focus had been on those who already had the right to enter New Zealand.
Justice Cooke said while that could be seen as an arbitrary cut off, decisions had to be made in what were difficult circumstances.
He accepted that they did have an arguable case.
Justice Cooke said the allegations that the applications were no longer processed because of the Covid-19 border controls meant that the applicants would not be able to enter New Zealand if their applications were granted, but when the evacuation attempts commenced only those who had actually been granted visas qualified for evacuation.
He said he accepted that there is an argument that the outcome in not rational.
He described it as a catch-22 with the applications not processed because the applicants could not enter New Zealand, and yet they were not eligible to be evacuated because they did not hold a visa.
Justice Cooke said that may not be consistent with the lawful exercise of the statutory powers.
He said given the fact all evacuation flights have ceased in Kabul any interim orders would not appear to have any realistic effect.
Justice Cooke said the applicants are among a larger group in humanitarian peril.
A substantive hearing is likely to be heard in the High Court next week on behalf of a wider group of 70 people as a representative group.
The case was taken to court by Community Law.
Chief executive Sue Moroney said Immigration New Zealand have been caught flat-footed over Afghanistan.
''Community Laws has been asking Immigration NZ since the beginning of this year to continue to process visa applications because of exactly these sort of situations .''
Moroney said in the judgement, Justice Cooke said they had an arguable case for a broader review which will be heard in the substantive hearing.
She said they had an attempt at getting an interim order but now the focus will be on exploring the rest of the case.
''We feel buoyed up by parts of this judgement that we think support the broader case.'
''The question is are Immigration NZ and the government correct and had the lawfully stopped the processing of people's valid residency visas for New Zealand.''
Moroney said the government has a major blind spot over visas.
''Its acting if evacuation from Kabul Airport is the only way out. That is not the only way out for people at the moment. We actually have some of our clients who have actually got themselves across the border into Pakistan now.''
She said they do not have the correct paperwork to get the rest of the distance to New Zealand.
''They had their resident visa applications decision ready. The bureaucracy has stopped processing those visas. These people have made a very risky journey, but made it across the border into Pakistan and now it's just the New Zealand Government's inability to provide the correct paperwork for them that is stopping them from being able to get safely to New Zealand where they have family members.''
She said humanitarian crises don't wait for alert levels to be lifted, they don't wait for government bereaucracies to start doing their job again. That's what we have been asking for from the beginning of this year because these situations keep evolving and people who would have otherwise have already been granted residency in New Zealand are being trapped in really unsafe situations.''
Moroney said there are still two live prospects for Community Law's Afghan clients.
The first is a different type of visa called the critical purpose visitor visa. A decision on these will be made by the end this week, she said.
''If that is not a useful process for our clients then the Judicial Review will proceed on the question of whether in fact, as the Judge has asked the question, it was lawful for the New Zealand Government to stop processing those applications and to continue to halt those visas from being processed.''