Where to for drug smuggler?

An Immigration NZ probe into Karel Sroubek’s residency has been completed but the public and the minister must wait for the jailed drug smuggler to see it first.

But even if it finds grounds for Immigration Minister Iain Leesgalloway to revoke his decision, kicking the 37-year-old Czech national out of New Zealand could be a long, complicated process as legal battles look likely.

Immigration NZ general manager Stephen Dunstan confirmed yesterday the initial review of Sroubek’s case was complete.

The findings have been presented to Sroubek and he can comment and provide his views on any possible decision.

Sroubek has until November 23 to respond and can challenge a decision to revoke his residency. His options include a judicial review or seeking refugee status. A judicial review involves the court restraining an official decision maker.

Immigration NZ will review Sroubek’s comments before the case is presented to the minister.

The minister initially stood by his residency decision but numerous revelations were made about the information he was given and he ordered a review.

Travelled back home

Court documents showed Sroubek travelled to Europe in 2009, and his mother confirmed this week he returned to his homeland that year under his fake name. This was despite implications that Sroubek’s safety was at risk if he returned to the Czech Republic.

It has since been revealed the file the minister viewed did not include documentation showing Sroubek returned to Europe. It is understood all decisions related to Sroubek’s bail applications, variations to his bail and a parole board report (made two days before the decision) were also not included in the file.

Complex scenario

Whatever the outcome, one thing made clear by immigration experts is Lees-galloway can’t just change his mind and reverse his decision because he wasn’t given information. To revoke residency, it has to be shown information provided by the applicant was somehow misleading, deliberately incomplete or perhaps criminal.

Sroubek’s former lawyer, Simon Laurent, said what would happen if the minister reversed his decision was legal territory that had not been traversed much at all. In order for there to be reasonable basis for the minister to overturn his decision, the information not given to him would have to be fundamentally different and make a material difference to the outcome and not already reasonably available.

Laurent believed Sroubek’s past criminal history would not count as decisive information.

‘‘All those relevant matters should have been traversed and if they weren’t, then it’s just their own fault.’’

If Immigration NZ could prove Sroubek made landfall in the Czech Republic, that would seriously undermine the grounds the minister used to make his decision, Laurent said.

Proper reasons

Grant Illingworth QC specialises in judicial reviews and has worked on numerous immigration cases.

If the minister revoked his decision, he would have to find the power in the Immigration Act and have proper reasons, Illingworth said.

‘‘My understanding is, it would be within the powers of the minister to revoke if he was satisfied there had been a false statement made, which had procured that ministerial decision.’’

There were provisions within the act that allowed a previous decision to be revoked, such as information being obtained by fraud, he said. But if the minister made an error of law or acted unreasonably or unfairly in making his decision, then a judicial review would be available as a means of challenge, he said.

Done deal

Victoria University senior law lecturer Dean Knight said usually once a decision was made and communicated by a minister, it was a done deal.

There was limited ability to change or revisit a minister’s decision, unless the information provided by the applicant was deliberately incomplete or fraudulent. If the minister changed his mind outside the narrow circumstances, Sroubek might have a good legal challenge, Knight said.

However, this case was complicated by the fact the decision was made at the minister’s discretion but he believed the courts could still look at a decision made under discretion and ask if it was unreasonable.

Yesterday, Justice Minister Andrew Little said there still had been no extradition request from the Czech Republic over Sroubek.