Fleeing the Taliban: Judicial review and the fall of Kabul

Fleeing the Taliban: Judicial review and the fall of Kabul
Afghan Nationals v The Minister for Immigration [2021] NZHC 2261

At a time when the experience in some courts is of delays and a lack of resources, the judgment of His Honour Justice Cooke shows the High Court acting with remarkable urgency during alert level-4 Covid restrictions.

The judgment records that the Judge first heard about the need for an urgent telephone conference on Friday afternoon, 27 August. The Judge scheduled a telephone conference for Saturday 28 August at 3pm, and gave directions for an urgent hearing of an application for judicial review.

In the afternoon on Monday 30 August, counsel for the applicants indicated there was now a need for an urgent application for interim orders for visas to be issued. The Judge scheduled a telephone conference for 8pm to hear the application. He understood a decision was required that evening.

The judgment does not record what time the conference ended, but the decision was issued later that night. It is highly likely the midnight judicial oil was being burned.

The judgment itself is understandably concise, dealing with the application for interim relief under section 15 of the Judicial Review Procedure Act 2016. This provision is designed to preserve the position of an applicant for judicial review pending determination of the substantive application.

On an application for an interim order the Court will typically consider whether an order is necessary to preserve the applicant’s position, the strengths and weaknesses of the applicant’s case, and whether refusal to grant interim relief would effectively deprive the applicant of a remedy at the substantive hearing.

The Minister of Immigration had stopped processing residency visa applications for certain Afghan nationals with New Zealand “associations” (presumably, Afghans who had worked for the New Zealand forces in Afghanistan) due to Covid-19 border controls, which meant the applicants would not be able to enter New Zealand if their visas were granted. But only Afghans who had been granted visas now qualified for evacuation, and the Minister had not addressed the unprocessed applications following the fall of the Afghan government to the Taliban. The Judge accepted that this situation was something of a “catch 22”, that might not be consistent with the lawful exercise of statutory powers. He also noted that the applicants were in a perilous situation and their lives were at risk.

There were, however, powerful countervailing considerations. As part of the short-term emergency response, the Minister had considered who should be eligible for evacuation, and the focus had been on those who already had a right to enter, such as citizens, residents and visa holders. Further, the evacuation effort was now closed, the New Zealand Defence Force operation having ended on 26 August and with no possibility that New Zealand evacuees could be included on the remaining US flights (the US operation being due to end on 31 August 2021). Granting interim orders would not have any realistic effect.

The Court also noted that it would not have been prepared to direct that temporary visas be issued, because the Court did not have all the necessary information. All that the Court might have done would be to direct the Minister to urgently make decisions on the grant of visas on humanitarian grounds. Following this difficult balancing exercise, the Court declined to grant relief.