A High Court judge has asked if an Afghan facing the risk of execution due to their link to the New Zealand military would meet the threshold to get a visa.
The hearing centres on visas approved for some Afghans. Photo: 123RF
Justice Francis Cooke is considering his ruling on a group of Afghans' challenge to Covid visa restrictions ensnaring them while they are at threat from the Taliban.
Their path to a resident's visa is blocked by Covid border restrictions.
But the other route, to a special visa created last year to address Covid, is also full of hurdles.
The Crown's counsel Andrea Ewing told the judge that an Afghan under threat might qualify on humanitarian grounds for such a critical purpose visitor's visa, but it might not be enough.
"It's not aimed at mitigating worldwide suffering and nor would it fix such circumstances," Ewing said.
Some Afghans had got such a visa - 106, Ewing said - so the threshold was not impossible. RNZ is now asking Immigration NZ for a breakdown on how many Afghans got a visa on what grounds since the Taliban came to power in August.
But the visa - called a CPVV - was for people who could show they needed to come to New Zealand specifically, not anywhere else, Ewing told the court.
"We don't say the fact someone comes from a war-torn country isn't relevant but we say that ... given the limited purpose of this visa, that would not be enough.
"Put simply sir, there must be a pull, not just a push."
Community Law Waikato, which launched the legal action, says it has scores of clients who've been rejected for a CPVV, and it appeared this was being done in a formulaic way.
Their lawyers earlier told the court New Zealand had obligations because it had put civilians at risk of harm, by using them as interpreters, for example.
Justice Cooke summed up their point: "You say, 'what the New Zealand Defence Force did in Afghanistan, put this category of civilians at risk'.
"And that the obligation to protect them from harm ... continues notwithstanding that they've left."
Immigration stopped processing or issuing residents' visas from offshore applicants - even ones very far advanced - early in 2020, including from Afghans seeking to come here as Refugee Family Support.
Their lawyers say this suspension was "unlawful".
But Crown lawyer Robert Kirkness rejected that, arguing Immigration has the right to change what happens at the border, when a visa holder tries to enter.
So a visa would not be issued, if Immigration believed someone would likely be turned back due to Covid restrictions, he said.
"If you know there's a problem at that stage you are granting a visa, you're not going to grant it, because it's unfair to make someone come to New Zealand when you know there's a problem and they could lose the visa if it's cancelled."
The "real world" under Covid required screening people this way, he said.
The effect of this is to put resident's visas outside the Afghans' reach while border restrictions hold, since they are applying from offshore.
As for the critical purpose visa, Kirkness said a person could only get one if they first got a border exception; but an Immigration officer could not anticipate if that would happen, so this complicated issuing any visa in the first place.
The Afghans' lawyers said New Zealand had to live up to the Bill of Rights and international conventions in its handling of the Afghans seeking visas.
They said all the Crown decision makers, including Cabinet, had failed to have regard for New Zealand's obligations.