Correction: This article was published under an incorrect name before. The author is Simon Laurent.

Another strand in the Dotcom saga, that first surfaced in 2014, has just reappeared after an enquiry by the New Zealand Herald.  I was one of those approached for comment before the paper released its story yesterday.

As most people know, Dotcom is locked in proceedings instituted by the US authorities to extradite him to face charges for copyright infringement – or fraud, depending on what works to enable extradition to be valid in the New Zealand jurisdiction.  However, he was also found to have concealed past criminality when he applied for NZ Residence, not once, but twice.

This has opened the door for the Minister of Immigration to declare him liable for deportation under section 158 Immigration Act 2009 where, in the course of making his Residence application, “any relevant information was concealed”.  Criminal convictions are relevant.  In this case, he was caught for dangerous driving here in 2009, before he got Residence in 2010, and that could be his undoing.

In another report I was quoted as saying that Dotcom could get around this if he could show that he did not intend to deceive Immigration.  If I said that, then it was wrong.  The mere fact that the information was withheld is enough to invoke liability for deportation.

The problem is that if Kim Dotcom is deported then he would be required to return to Germany which is his country of nationality – or somewhere else that will take him.  This would very likely frustrate the aims of the US in seeking to extradite him – that is, haul him back into the States to stand trial.  If New Zealand was to trigger deportation then this could harm our diplomatic relations with the American administration. .

It is most likely for this reason that Immigration has sat so long on the case.  The decision to initiate the deportation process lies with the Minister, and apparently it has not yet been put formally before him.  Further delay, however, could create a problem with depriving Mr Dotcom of his Resident Visa.

Once someone becomes liable for deportation in this way, they have a right of appeal to the Immigration & Protection Tribunal.  An appellant can succeed if they show that they have “exceptional circumstances of a humanitarian nature that would make it unjust of unduly harsh” for them to be deported.  This has been described as a “stern test” expressed by “stringent statutory wording” (Minister of Immigration v Jooste).  Whether having Mega-dollars at your disposal is an exceptional circumstance is questionable.

However, the longer Dotcom remains in New Zealand, the more he may be able to amass reasons that would make it unjust or unduly harsh to deport him.  He has already resided here for most of this decade.  He has settled, no doubt made connections of a business and personal nature.  He has married a New Zealander.  His children have spent years growing up here.  It may not be a foregone conclusion that an appeal would fail.

In my view, there are valid reasons for Immigration to sit on its hands for the time being.  Apart from political and diplomatic damage, taking action now would undo years of effort put into the extradition proceedings.  And deportation will remain a valid option for some years yet, even if extradition falls over.  But deferring the matter for too long could erode Immigration New Zealand’s ability to make deportation liability stick.