A man who raped a sleeping woman at a party, and who has a conviction for passport fraud, has won his appeal against deportation to India.

Photo: RNZ / 123RF / Google Maps

Tajinder Paul Singh was 29 when he was jailed for six years for the rape at a neighbour's party in Christchurch.

The Immigration and Protection Tribunal suspended his deportation liability for five years, meaning he will not be deported if he does not commit an imprisonable offence in that time.

"In all the circumstances, the tribunal finds that, to the extent the appellant continues to present a risk, this is outweighed by the public interest in keeping the appellant's family together in New Zealand," its ruling said.

The tribunal heard his 3-year-old son was unable to go to pre-school because his wife has become too unwell to take him.

It ruled, in a decision from last September that has just been released, that she and their son could not reasonably be expected to relocate to India and their best interests were in him being allowed to remain.

The tribunal heard his parents in India had disowned him and his wife had suffered depression and anxiety while he has been in prison.

Mr Singh had also been convicted of drink driving, passport fraud, dangerous driving and failing to stop after an accident.

Counsel for the Minister of Immigration argued the emotional hardship his wife and child would suffer would not be exceptional humanitarian circumstances.

"He committed a serious sexual offence against a vulnerable victim, with lasting emotional repercussions. Also, his other offending demonstrates that he has been prepared to repeatedly contravene New Zealand's laws," said the tribunal's notes of counsel's argument.

But the tribunal concluded the deterrent of the deportation suspension would add an extra incentive for Mr Singh not to re-offend.

"The tribunal is satisfied that it would not, in all the circumstances, be contrary to the public interest to allow the appellant to remain in New Zealand," it said.

Tribunal obliged to consider applicant's family - lawyer

Immigration lawyer Stewart Dalley said there was a high threshold for successful appeals to the tribunal.

In the same month that Mr Singh's case was heard, the tribunal heard two other appeals against deportation for rapists and turned them down.

Mr Dalley, who was not involved in Mr Singh's case, said applicants had to show exceptional humanitarian circumstances that would make it unjust or unduly harsh to deport them, and that it would not be against the public interest for them to stay.

Often the "exceptionality" arose from the person's family, when a resident was married to a New Zealand citizen, and had children who were also citizens, and could not be forced to leave, or when the family's living conditions would drop significantly if they returned to the deportee's home country.

In this case, he said, Mr Singh's wife suffered physical and mental health issues that could not be addressed if she went with him to India, and the interests of the child were paramount.

A Supreme Court decision within the last two years meant the tribunal had to consider the question of whether it was unduly harsh not just to the deportee but also their family, he said.

The suspension of liablility meant Mr Singh was effectively on probation, which Mr Dalley said reinforced the public interest element of the tests.

New Zealand First Leader Winston Peters said Mr Singh should not have been allowed into the country in the first place.

He said Mr Singh's string of offences marked him as a dangerous person and his family would be better off without him.

Mr Peters said the tribunal ruling made a mockery out of immigration law.

However Mr Singh's lawyer Simon Graham said his son needed his father and the separation would be extremely difficult for the young child.

He said Mr Singh's son, who was a New Zealand citizen, would suffer from lower education and health standards if he were to follow his father to India.

Mr Graham said Mr Singh had already paid for his actions by serving out a significant jail sentence.

An advocate for sexual assault victims said Singh needed counselling to understand the lasting effects of his offending.

Maggy Tai Rakena, the manager of START, a Christchurch-based sexual violence support group, said, while Mr Singh was needed by his family, his victim could not be ignored.

"When that offender can reappear in their lives, when they bump into them out at the mall or something like that, they can be really set back and go back to feeling like they did on the day that thing happened. So yeah, it can be quite distressing."