Court of Appeal rejects Kiribati national’s latest bid to avoid deportation

WARNING: This story discusses rape and may be distressing for some readers.

A fight against deportation has been dragged into its 11th year by a Kiribati national who raped a woman and is desperate to remain in New Zealand.

The man, referred to in a Court of Appeal decision released today as AW, has lived in New Zealand under a resident visa since 2008 but faces deportation after his conviction and imprisonment for sexual offending against a 21-year-old in 2010.

While the Court of Appeal’s decision doesn’t detail AW’s offending, an earlier decision by the Immigration and Protection Tribunal stated that, on the morning of the rape, he told his victim, who had been boarding with him, a false story so she would go to work with him.

After they arrived, the victim asked him where the other workers were. His response was to drive to a excluded part of the work site.

He got out of his vehicle, moved the back seat to make more room and “crudely demanded” sex.

The shocked woman refused but AW continued to rape her and threatened her with further violence if she continued to protest.

“As an additional insult to the victim, (AW) demanded afterwards that she find someone to help him as his car battery had gone flat. He threatened her with violence if she told anyone about what he had done,” the tribunal’s decision stated.

AW denied charges of rape and unlawful sexual connection but was found guilty at trial.

At his sentencing, which resulted in 10 years’ imprisonment, the judge described it as a “particularly nasty rape” and found it was well-planned, premeditated and there were no mitigating factors.

According to the Court of Appeal’s decision, AW was served with a deportation liability notice in 2013.

He appealed against deportation on humanitarian grounds but that was dismissed. An application for refugee status or protected person status was also declined.

The Immigration and Protection Tribunal dismissed his appeal against that decision and AW then turned to the High Court, seeking leave to appeal against the tribunal’s ruling.

After the High Court declined his application, AW applied to the Court of Appeal for leave to bring an appeal before the High Court.

The decision stated that his claims for refugee and protected person status were based on the risks he would allegedly face if he returned to Kiribati.

He claimed he was at risk of being killed or seriously harmed in a revenge attack, of suffering a level of socio-economic deprivation, and of his safety and wellbeing being negatively impacted by climate change.

The tribunal concluded AW did not meet the threshold for refugee nor protected person status under the relevant legislation.

In his applications to the High Court and the Court of Appeal, AW alleged the tribunal made three errors of law when determining his appeal, all of which the High Court had ruled were not arguable.

He then amended his grounds for appeal and sought leave from the Court of Appeal to challenge the tribunal’s decision on two further alleged errors of law.

While the Court of Appeal granted him leave to make the amendment, it concluded that the tribunal had not erred in law and said leave to appeal should not be granted.

David Allan, counsel for AW, told NZME he had notified his client of the result and would take instruction in the coming days as to whether he wished to take his case to the Supreme Court.

Tara Shaskey joined NZME in 2022 as a news director and Open Justice reporter. She has been a reporter since 2014 and previously worked at Stuff, where she covered crime and justice, arts and entertainment, and Māori issues.