D2.40 Deportation (25/07/2011)

D2.40.1 When deportation order may be served

See also Immigration Act 2009 s 175

1. An immigration officer or a constable may serve a deportation order on a person:
   1. where the person has been served with a deportation liability notice that does not give the person 14 days to give good reason why deportation should not proceed, and the person has no right of appeal against liability for deportation, as soon as the person has been served with the notice;
   2. where the person has been served with a deportation liability notice that allows the person 14 days from the date of service to give good reason why deportation should not proceed, and the person has no right of appeal against deportation, on or after the earlier of:
      • if the person does not provide submissions as to good reason why deportation should not proceed, 15 days from the date of service; or
      • if the person purports to give good reason, and the person to whom the reason is provided determines that deportation should continue, the day after the person is notified of that determination:
   3. where the person has a right to appeal under the Immigration Act 2009 against liability for deportation, on or after:
      • the expiry of the period for lodging such an appeal, where the person has not lodged such an appeal;
      • the day after the appeal is withdrawn, if the person withdraws an appeal to the Immigration and Protection Tribunal (the Tribunal);
      • the day that is 28 days after the Tribunal determines an appeal against deportation, where the person lodged such an appeal and the liability for deportation was upheld (but subject to subparagraph (iv));
      • where the person has lodged an appeal to the High Court under section 245 of the Immigration Act 2009:

      ~ if the appeal is withdrawn, the day after the withdrawal;

      ~ if the liability for deportation is upheld, the day after the date on which the person was notified of the determination of the appeal;

   4. in the case of a person in respect of whom an order is made under section 163 of the Immigration Act 2009, as soon as that order is made;
   5. in the case of a person who has breached the conditions stated in a notice or order suspending his or her liability for deportation under sections 172(2) or 212(1) of the Immigration Act 2009, the later of:
      • 28 days after service of a deportation liability notice on the person under sections 172(3) or 212(3)(a) of the Immigration Act 2009, as the case may be; and
      • any applicable day determined under (a)(iii) above;
   6. if the person was the holder of a limited visa and paragraph (i) does not apply, as soon as the visa expires.
2. A person may be served with a deportation order earlier than otherwise allowed under (a) above if the person so requests.
3. A deportation order may be served on a person inside New Zealand or, if the person still holds a visa, outside New Zealand:
   1. by personal service by an immigration officer (or by another person on behalf of an immigration officer); or
   2. by registered post addressed to the person's New Zealand address or an address supplied under section 57(2) of the Immigration Act 2009.
4. A deportation order may be served on a person at any reasonable time of day or night, meaning:
   1. at a residence, only between the hours of 7.00 am and 9.00 pm, so long as the time of service is reasonable in the circumstances; and
   2. at a workplace, at any time that the workplace is in operation, including weekend operating hours, so long as the time of service is reasonable in the circumstances; and
   3. at a workplace that is also a residence, only between the hours of 7.00 am and 9.00 pm, so long as the time of service is reasonable in the circumstances.
5. A deportation order may only be served at a residence, or a place that is both a residential and business premises, outside the hours detailed in (d)(i) and (iii) above, after a request:
   1. giving reasons why the order needs to be served outside those hours; and
   2. specifying the time for which approval is sought to serve the order,

   has been approved by the General Manager responsible for Border Entry and Compliance.

D2.40.5 Content of deportation order

See also Immigration Act 2009 s 176

1. A deportation order must specify:
   1. that the person named in the order is ordered to be deported from New Zealand; and
   2. that any visa held by the person will be cancelled when the person is deported; and
   3. the provision of the Immigration Act 2009 under which the person became liable for deportation; and
   4. the ground or grounds for deportation; and
   5. the period of any prohibition on entry to New Zealand that the person named in the order is subject to; and
   6. the consequences of attempting to return to New Zealand during the period of prohibition; and
   7. any costs or estimate of costs to the Crown of the deportation, and the requirement to repay those costs.
2. A deportation order must be signed by:
   1. the Governor-General, if the order is made under section 163 of the Immigration Act 2009; or
   2. an immigration officer, in any other case.

D2.40.10 Deportation order may be cancelled

See also Immigration Act 2009 s 169

1. An immigration officer may, in his or her absolute discretion, cancel a deportation order served on a person to whom section 154 of the Immigration Act 2009 applies.
2. Nothing in (a) above gives a person a right to apply for the cancellation of a deportation order. However, an immigration officer must consider cancelling the deportation order of a person who is in New Zealand if the person provides information to the officer concerning his or her personal circumstances, and the information is relevant to New Zealand's international obligations.
3. If an immigration officer does consider cancelling a deportation order, whether by way of a purported application or his or her own motion, the officer must have regard to any relevant international obligations, but otherwise:
   1. may make a decision as he or she thinks fit; and
   2. in doing so, is not under any obligation, whether by implication or otherwise:
      • to apply any test or any particular test and, in particular, the officer is not obliged to apply the test set out in section 207 of the Immigration Act 2009; or
      • to inquire into the circumstances of, or to make any further inquiry in respect of the information provided by or in respect of, the person who is the subject of the deportation order or any other person.
4. Whether or not an immigration officer considers cancelling a deportation order:
   1. he or she is not obliged to give reasons for any decision, other than the reason that this subsection applies; and
   2. section 23 of the Official Information Act 1982 does not apply in respect of the decision.
5. However, to the extent that an immigration officer does have regard to any international obligations, the officer is obliged to record:
   1. a description of the international obligations; and
   2. the facts about the person's personal circumstances.

D2.40.15 Executing deportation order

See also Immigration Act 2009 s 178

1. A deportation order may be executed once it has been served on the person subject to the order.
2. A deportation order may be executed by:
   1. taking the person into custody; and
   2. escorting the person (or arranging for the person to be escorted) to an airport or port; and
   3. ensuring that the person is placed on board a craft and detained there until the person leaves New Zealand.
3. A deportation order may be executed in respect of a person who is serving a sentence of imprisonment in a prison only if the Minister of Immigration has ordered the release of the person in accordance with section 55 of the Parole Act 2002.

D2.40.20 Meaning of deported

See also Immigration Act 2009 ss 10, 179

A person is deported from New Zealand if:

1. the person leaves New Zealand (whether or not at the expense of the Government of New Zealand):
   1. on or after the date on which a deportation order may be served on the person under section 175 of the Immigration Act 2009; or
   2. after a deportation order has been served on the person; or
   3. while he or she is subject to a prohibition on entry to New Zealand under section 179 or 180 of the Immigration Act 2009; or
2. the person is served with a deportation order when he or she is outside New Zealand; or
3. the person was deported from New Zealand under the Immigration Act 1987.

Note: A person who is deported under (a)(i) above but leaves voluntarily and at their own expense, may not be subject to a period of prohibition on entry (see D2.45(b)).

Effective 25/07/2011