Last-ditch legal action by desperate Afghan nationals trapped outside Kabul airport has been rejected by a New Zealand judge, who while accepting their "lives are at risk", found there was nothing he could do to help them.
An urgent High Court injunction application came before Justice Francis Cooke on Friday afternoon.
Filed by a group of Afghan nationals, it sought to challenge decisions of the Minister of Immigration Kris Faafoi and the chief executive of the Ministry of Business, Innovation and Employment (MBIE) to stop processing visa applications after the deteriorating security situation in Afghanistan which had fallen under Taliban control.
They also wanted to fight the decision to not address the position of unprocessed visa applications when evacuating Afghan nationals after the withdrawal of US forces and their allies.
Justice Cooke held an urgent hearing via telephone conference last night, with lawyers arguing on behalf of six Afghans who had made residency applications from March 2018, with the last received on May 12 this year.
"As I understand the allegations, the applications were no longer processed because the introduction of the Covid-19 border controls meant that the applicants would not be able to enter New Zealand if their applications were granted," Justice Cooke wrote in a judgment released this morning.
"But when the evacuation attempts commenced only those who had actually been granted visas qualified for evacuation.
"I accept that there is an argument that this outcome is not rational. The visa applications were not processed because the applicants could not enter New Zealand, and yet they were not eligible to be evacuated because they did not hold a visa. That is a catch 22 that may not be consistent with the lawful exercise of the statutory powers."
The group were "obviously in a perilous situation and their lives are at risk", the judge accepted, noting that they might not be able to be evacuated from Kabul airport.
The judge was provided a copy of a document prepared for the Cabinet Covid Committee on August 19 as Faafoi updated other ministers.
It included a proposal that the group to be evacuated from Afghanistan only include New Zealand citizens, residents and those with visas.
The position of those who had applied to come to New Zealand was addressed with the document recording, "There are also Afghanistan citizens who have visa applications that have not been processed. I do not consider it is a priority to fast track processing for this group at this point as part of the short-term emergency response. We could explore this option later."
Justice Cooke said while matters have developed since that time, the point is that the ministers had considered who should be eligible for the evacuation efforts, and the focus was on those who already had the right to enter.
"That could be said to be an arbitrary cut off, but in such difficult circumstances hard decisions need to be made," the judge said.
The judge also noted that given that evacuation from Kabul airport was now "effectively closed to other than US nationals" - and with news this morning that the last US planes had left and Taliban were celebrating with gunfire into the air - "any interim orders will not appear to have any realistic effect".
"The reality is that the applicants are among a larger group in humanitarian peril," the judge said.
"I have been advised that there have been approximately 600 expressions of interest with respect to temporary entry.
"A decision has been made to seek to address the plight of these people by other means. It was and is not anticipated they can be evacuated from Kabul airport. It is hoped that they may find another way out of Afghanistan.
"And the respondents are in the process of addressing applications to allow them to come to New Zealand if they are able to, and if they meet the relevant criteria."
In concluding, Justice Cooke was satisfied from the assurances he had been given that the plight of the Afghans had been considered by ministers "and difficult decisions have been made".
"It is not appropriate for the court to cut across these decisions by way of interim relief. For these reasons I have decided to decline the application," the judge's decision says.