NAIDU v MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2021] NZHC 3502

NAIDU v MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2021] NZHC 3502 [16December 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2021-404-471[2021] NZHC 3502BETWEEN MONIKA NAIDUAppellantAND MINISTRY OF BUSINESS, INNOVATIONAND EMPLOYMENTRespondentHearing: 13 December 2021 (via VMR)Counsel: J L Holden for AppellantP R McNabb for RespondentJudgment: 16 December 2021JUDGMENT OF BREWER JThis judgment was delivered by me on 16 December 2021 at 3 pmRegistrar/Deputy RegistrarSolicitors/Counsel:Jennifer Holden (Auckland) for AppellantMeredith Connell (Auckland) for RespondentIntroduction[1] Ms Naidu pleaded guilty to the following charge:Did supply information to an immigration officer in respect of a visitor's visaapplication for Bin Bin QUILA knowing it [was] misleading in a materialrespect.Particulars: In that Monika NAIDU provided information to show that BinBin QUILA was a bona fide visitor's visa applicant, when the true purpose ofthe application was for Bin Bin QUILA to remain in New Zealand to work.[2] The maximum penalty for the offence is seven years' imprisonment and/or afine of $100,000.1[3] On 4 March 2021, Judge PJ Sinclair refused Ms Naidu's application to bedischarged without conviction.2 The Judge fined Ms Naidu $1,000.[4] Ms Naidu now appeals the refusal to discharge without conviction.Technically, she appeals her conviction and her sentence, but essentially my task is toassess the merits of Ms Naidu's case and if I conclude that Judge Sinclair should havedischarged Ms Naidu without conviction then I will allow the appeal.[5] Ms Naidu applied to adduce further evidence on the appeal, namely twoaffidavits from her (sworn on 26 November 2021 and 9 December 2021) and anaffidavit from Ms Higgins (affirmed on 26 November 2021). To an extent theseaffidavits could be regarded as updating Ms Naidu's situation, although there is forcein the respondent's submission that they can also be characterised as a "second bite ofthe cherry". I decided to admit the affidavits as evidence in the appeal because theydo have some relevance to the issues before me, this is a criminal appeal and theinterests of justice are against excluding relevant material from consideration.Background[6] Ms Naidu originally faced three charges. Two were withdrawn as part of acharge bargain. However, the summary of facts was not changed and so the facts on1 Immigration Act 2009, s 342(1)(b).2 Ministry of Business Innovation & Employment v Naidu [2021] NZDC 5498.which the withdrawn charges were based became aggravating features of the admittedcharge.[7] It is necessary to reproduce the summary of facts in full:Introduction1. The defendant in this matter is a New Zealand citizen, MonikaNAIDU.2. In August 2017, whilst residing and working in Singapore, theDefendant employed Bin Bin Tasi QUILA, a Filipino National,through a Singapore Employment Agency as a "live in" ForeignDomestic Worker to complete household domestic chores. Herremuneration was $650 SGD per month.3. QUILA has limited English language ability and no understanding ofNew Zealand visa processes or requirements.Background4. The defendant planned to return to New Zealand from Singapore inearly 2018 to temporarily reside with her husband, Devendra NAIDU,at the couple's premises at 308A Hillsborough Road, Hillsborough,Auckland, whilst her husband intended to have a planned surgery.5. The defendant planned to bring QUILA to New Zealand with her sothat she could continue to work for the defendant and her husband astheir live in domestic worker.6. Accordingly, whilst in Singapore, QUILA assisted by the defendantapplied for a visitor visa to travel to New Zealand and work for thedefendant. She was subsequently issued a specific purpose work visa,by the Bangkok Office of Immigration New Zealand (INZ). Thedefendant was QUILA's sponsor and contact person for the visaapplication and communicated with INZ about the visa.7. The work specific visa allowed QUILA to work as a Domestic Helperin New Zealand for the defendant. The visa was issued for a period oftwo months from QUILA's first arrival in New Zealand. A conditionof the visa was that she was required to travel to New Zealand before21 May 2018.8. On 27 February 2018 QUILA arrived in New Zealand. Uponpresentation of her visa to a border official she was granted entrypermission and a visa, valid until 27 April 2018.Visitor's Visa Application 17007639 and Sponsorship9. Following her arrival in New Zealand, QUILA worked continuouslyfor the defendant as a Domestic Helper at the defendant'sHillsborough Road address.10. Sometime prior to 26 March 2018 the defendant provided QUILAwith an INZ visitor visa application form and instructed her to signthe declaration on page 13. QUILA signed the visa application withher usual signature.11. On 26 March 2018 the defendant submitted a visitor visa applicationto INZ in the name of QUILA. The application form contained thehandwriting of the defendant throughout.12. The application was given the INZ application number 17007639.13. The name and address details for communication in respect of theapplication at section B3 of the form contained the defendant'spersonal phone and email address.14. The application was accompanied by an INZ1025 Sponsorship Formfor Temporary Entry, two letters and various supporting documents.15. The completed visa application contained a number of misleadingdetails. In particular;• Amitesh SINGH was listed as a friend of QUILA at section B7 ofthe form. SINGH is the nephew of Devendra NAIDU (thedefendant's husband). She had met him briefly on one or twoprevious occasions and had never been formally introduced tohim.• The purpose of the visa at section G2 of the form stated thatQUILA was visiting family/friends and on holiday/vacation.QUILA did not intend to visit family or friends or to holiday orvacation in New Zealand.• The declaration by person assisting the applicant at section K ofthe form was not completed or signed by the defendant.16. The defendant also submitted to INZ with the visa application a letterdated 26 March 2018. That letter was signed by the defendant. It statedthat she was the employer of QUILA and that she was giving QUILAleave for 6 months while she (the defendant) was travelling betweencountries. The letter further stated that QUILA was in New Zealandand would like to take the opportunity to see more of this country.17. That letter was misleading as QUILA had not been given leave by thedefendant, she intended to keep working for the defendant.18. The INZ 1025 Sponsorship Form for Temporary Entry was completedby both the defendant, who provided her details as the name andaddress for communication at section C16 of the form, and byAmitesh SINGH. Included with the Sponsorship Form was a letterfrom Amitesh SINGH stating that QUILA was staying at his place,7 Commodore Drive, Lynfield, Auckland.19. That letter was misleading as QUILA had at all times resided at thedefendant's address in Hillsborough and had never stayed at SINGH'saddress.20. On 21 May 2018 INZ sent a letter addressed to QUILA advising thatINZ did not believe QUILA was a bona fide visitor visa applicant. Theletter was posted to the defendant's home address and emailed to thedefendant's personal email address, as provided by the defendant inthe visa application.21. The defendant responded to INZ by email on 28 May 2018 stating shehad spoken to QUILA and attaching travel plans for QUILA tosightsee in New Zealand.22. The email and attachments contained misleading details. In particular;• The defendant had not granted leave to QUILA to look aroundNew Zealand;• QUILA had no plans to travel around New Zealand to Rotorua orQueenstown as suggested by the defendant.• The purported travel booking in Queenstown was not actually abooking, but rather a screenshot of a shopping basket which wasneither confirmed nor paid for.23. The application was declined by INZ on 31 May 2018. The letter fromINZ declining the visa was emailed to the defendant on that day.QUILA was not aware that an application for a visitor's visa had beenmade, or declined.24. QUILA had no intention to holiday or vacation in New Zealand. Shedid not plan to travel around New Zealand at any stage. QUILA wasin New Zealand to work as a Domestic Helper for the defendant andat all material times intended to, and did, work in that capacity for thedefendant.25. QUILA had no friends or relatives in New Zealand and did not planto visit or stay with anyone. At all material times she lived with thedefendant at her Hillsborough address.26. A visitor visa does not allow the holder of the visa to undertakeemployment or work while in New Zealand.27. QUILA's specific purpose work visa expired on 27 April 2018. Shebecame unlawfully in New Zealand from 29 April 2018.28. For the duration of her stay in New Zealand QUILA lived at thedefendant's address in Hillsborough. She was a live in DomesticHelper who worked from Monday to Saturday from approximately6.30 am to 9.30 pm. QUILA received free accommodation and boarddue to the nature of her employment with the defendant.29. QUILA continued to live at the defendant's residential addressfollowing the expiry of her work visa and continued to work for thedefendant as her Domestic Helper, until 4 July 2018.30. The defendant paid QUILA $650 a month for her work as a domestichelper from February to March 2018. In April 2018 and May 2018QUILA continued to be paid for her work.31. On 4 July 2018 QUILA asked the defendant for payment of heroutstanding salary. An argument ensued and QUILA was expelledfrom the address. She had been unlawfully in New Zealand for 66days at that time.32. QUILA departed New Zealand on 9 July 2018.Interview with defendant33. On 30 April 2019 the defendant was spoken to by an ImmigrationOfficer. The Defendant stated;• QUILA was her employee who lived at her residential address;• Her handwriting appeared throughout the visitor visa applicationform because QUILA had made three attempts to complete theapplication and required assistance;• Amitesh SINGH had met QUILA a number of times and theyknew each other;• After QUILA's work visa expired she remained living at thefamily address as a guest of the family and did not work as adomestic helper.• QUILA was paid 100% everything she was owed.• The defendant was responsible for 15 countries in the Asia PacificRegion for work and could travel at any time.34. The Defendant has further stated that payments she made in April andMay 2018 were paid to third parties, as QUILA owed money to thoseparties.35. The Defendant has not previously appeared before the New ZealandCourts.36. The defendant has agreed to pay $5,000 in reparation to QUILA.Judge Sinclair's decision[8] Judge Sinclair addressed Ms Naidu's application for a discharge withoutconviction in the required three-step process. The Judge first assessed the gravity ofthe offending, secondly identified the direct and indirect consequences to Ms Naiduof a conviction, and thirdly assessed whether the identified consequences were out ofall proportion to the gravity of the offending.3Gravity of offending[9] As to the gravity of the offending, the Judge found:• The immigration system relies upon the honesty of applicants. Breachesof the immigration process and dishonesty strike at the heart and theintegrity of the immigration system. Those who offend against it shouldbe treated sternly and robustly. These comments apply to Ms Naidu'soffending.• Ms Naidu's actions were premeditated. They took place over a reasonablylengthy period of time and Ms Naidu's self-serving motive was to retainMs Quila's domestic services.• A starting point of imprisonment is appropriate.• Remorse is not a mitigating factor.• The pre-sentence report recommendation is one of community work.• Ms Naidu is a person of good character with no previous convictions.• Credit is due for Ms Naidu's guilty plea.• Ms Naidu has paid Ms Quila the $5,000 overdue wages to which she wasentitled.[10] The Judge assessed the overall gravity of Ms Naidu's offending "as betweenlow to moderate but closer to moderate".3 Sentencing Act 2002, s 107.Direct and indirect consequences[11] Ms Naidu raised three consequences for her if a conviction was entered. Thefirst was that a conviction would impact on Ms Naidu's employment and business.The second was an adverse impact on her employment prospects in the future. Thethird was that a conviction would adversely impact on Ms Naidu's ability to travel tocare for relatives.[12] The Judge noted that Ms Naidu was then working as a managing director andpart-owner of a company which operated a licensed restaurant and bar. The Judge didnot consider there to be a nexus between a conviction being entered and any adverseimpact on the operation of the restaurant and bar.[13] As to employment prospects, the Judge noted Ms Naidu's advice that she hasan Honours Degree in Physics, a Post-Graduate Diploma in Computing, and technicalcertificates in marketing, sales and the IT industry. Ms Naidu's work experienceincluded multinational companies. It was submitted for Ms Naidu that a cleancriminal record is an essential consideration for multinational companies when hiringstaff to work in IT.[14] The Judge said:[32] Again, I am not satisfied you have established a real or appreciablerisk that your employment prospects would be thwarted with a conviction ofthis type. Your submissions that your ability to obtain employment would behampered, are vague and speculative. You state "you hope that one day youwill secure employment in Singapore". I agree with the informant that areference to a prior employment agreement does not reach or meet the real andappreciable test.[15] As to the claimed obstacle to travel, the Judge said:[35] You have not provided any evidence that a conviction would preventor restrict your ability to travel and enter Singapore, or that there arealternative entry processes available to you in the event a conviction isentered. There is no evidence before me your entry would be prevented. Inany event, it is possible you may need to disclose that you have been charged,even if a conviction is not entered.Proportionality[16] The Judge considered that the direct and indirect consequences to Ms Naidu ofa conviction did not outweigh the gravity of her offending. The Judge did not,accordingly, have to decide whether the direct and indirect consequences were out ofall proportion to the gravity of the offending.The appeal[17] The grounds of Ms Naidu's appeal are summarised by Ms Holden in herwritten submissions:a) that her personal circumstances have changed since the applicationwas made in the District Court and there is fresh evidence by way ofan updated affidavit from Ms Naidu to support how a conviction isimpacting her ability to find work; andb) there is fresh evidence in the form of an affidavit from an IT recruiter,Ms Zoanne Higgins, setting out the position for a candidate likeMs Naidu trying to secure an IT role with a conviction; andc) that the assessment of the gravity of the offending is too high; andd) that the consequences of a conviction were not fully advanced in theDistrict Court, and therefore the sentencing Judge did not have all therelevant material before her to assess the direct and indirectconsequences of a conviction.[18] Ms Holden first addressed the Judge's assessment of the gravity of theoffending. Ms Holden accepted that the offending itself was moderately serious.However, in her submission, the Judge should have classified the overall gravity ofthe offending as low because of Ms Naidu's personal mitigating factors. Ms Holdenemphasised, in particular, that the $5,000 paid to Ms Quila was "not an insignificantamount of money to pay in reparation".[19] Ms Holden contended further that the Judge was too harsh in her assessmentof the credit that should be afforded for Ms Naidu's plea of guilty. The charges werelaid in October 2019 and Ms Naidu pleaded guilty promptly in December 2020 whentwo of the charges were withdrawn and the charge to which she pleaded was amendedby deleting the words "false or" from the phrase in the offence description "knowingit was false or misleading in a material respect". In Ms Holden's submission, a creditof at least 20 per cent could be afforded to Ms Naidu for her guilty plea.[20] As to the direct and indirect consequences of a conviction, Ms Holdenemphasised the updated evidence picture provided by the new affidavits. These makethe primary focus of the appeal Ms Naidu's ability to get work in the IT sectorfollowing her conviction.[21] Ms Naidu deposes that she no longer works in the restaurant and bar business.That is because her marriage ended in April 2020 following which Ms Naidu hasapplied for roles in the IT sector in both Singapore and New Zealand. Ms Naidu hasbeen unable to find employment. She deposes she applied for a role in Singapore witha company called Red Hat, which is a worldwide enterprise IT company. Ms Naiduwas invited to apply for a role as a Sales MDF Programme Manager. Ms Naiduprovided her CV, and went through a selection process which included three interviewswith the company's senior management team. Ms Naidu deposes that she thenreceived a call discussing an offer of employment and the need for background checks.It was at that stage Ms Naidu advised the company of her conviction. In a subsequenttelephone call, Ms Naidu was told the company was looking for a candidate who willnot have a barrier to travelling to Singapore when the borders open and who has aclean record.[22] Ms Naidu deposes that she has further applied to New Zealand businesses buthas not progressed beyond the application filing stage. One company required her tocomplete a pre-application form which included a question as to whether she had anycriminal convictions. Ms Naidu then received a reply stating she had not been selectedfor the next stage of the recruitment process. Ms Naidu believes this was because ofher conviction.[23] Ms Higgins, who provided an affidavit, is an experienced IT recruiter.Ms Higgins has her own recruitment consultancy business.[24] Ms Higgins deposes that Ms Naidu would be considered a high risk employeein the IT industry because of the type of conviction she has. Ms Higgins considersthat Ms Naidu would be unlikely to secure a position in the IT industry at a seniorlevel if her conviction is disclosed. Ms Higgins is also of the view that Ms Naidu'sexperience is sought after in the market but her conviction will be a barrier toemployment because it will shape assessment of her character.[25] Ms Holden submits:3.28 Based on the evidence now before the Court, it is submitted that thereis a real and appreciable risk that Ms Naidu will struggle to gainemployment with a conviction of this kind. There is a stigma for fraudthat will be associated with the conviction. It is unlikely thatMs Naidu, if put side by side with another candidate who does nothave a conviction, will be selected for the role.3.29 Ms Naidu is 45 years of age. She has worked in the IT industry since2002. She is well qualified and experienced as a Product Managerand Account Manager. If her conviction stands, her ability to findwork will be very difficult. This offence cannot be considered underthe Clean Slate Act for 7 years, that means Ms Naidu will be 52 yearsof age. As she gets older, and is out of the workforce, it will be harderfor her to find employment.[26] Turning to the proportionality test, Ms Holden submits that the effect ofMs Naidu's conviction on her ability to find a job at a senior level in the IT industryis a consequence out of all proportion to the gravity of her offending, even if heroffending were to be seen as being towards the moderate end of the scale.Discussion[27] Ms Naidu set out to manipulate the immigration system so that she could retainMs Quila's services as a live-in domestic employee. Her offending was premeditatedand multifaceted. She enlisted the help of another person, Amitesh Singh, who gavea letter giving false information.[28] When INZ sent a letter to Ms Quila saying it did not consider her to be a bonafide visa applicant, Ms Naidu aggravated her offending by providing more misleading(false) documentation.[29] Ms Naidu continued to enjoy Ms Quila's services after INZ declined to grantthe visa sought and Ms Quila became an illegal overstayer.[30] Throughout this period of offending, Ms Naidu misled Ms Quila and tookadvantage of her ignorance of the New Zealand immigration system.[31] The charge to which Ms Naidu pleaded guilty has a maximum penalty of sevenyears' imprisonment and/or a fine of $100,000. That is a measure of Parliament'sresolve to maintain the integrity of the immigration system. As Judge Sinclair said,the immigration system relies upon the honesty of applicants and those who offendagainst it should be treated sternly and robustly.[32] In my assessment, the gravity of Ms Naidu's offending itself, beforeconsidering personal mitigating circumstances, was at the upper end of moderate. Astarting point of imprisonment was required.[33] The only personal mitigating factors are Ms Naidu's previous good characterand her entry of a plea of guilty.[34] As to the former, Ms Naidu is entitled to significant credit. She has had anunblemished record into her early 40s. She has contributed to her community.However, this was not a single incident of impulsive offending. I would reduce anotional starting point of imprisonment by 10 per cent for this factor.[35] I would not allow a 20 per cent reduction for the entry of a plea of guilty asMr Holden submits is appropriate. The charges were laid in October 2019 andMs Naidu's plea was entered in December 2020. Although two charges werewithdrawn and the remaining charge altered in one respect, this was largely cosmetic.The summary of facts was unchanged and by her plea Ms Naidu accepted the conductdescribed in it. The charge bargain has benefited Ms Naidu by reducing the numberof convictions on her record. But it does not reduce her culpability. I would allow adiscount of 15 per cent to allow for the fact that a trial was not necessary.[36] Ms Naidu is not entitled to a discount for the $5,000 she belatedly paid toMs Quila That was not reparation. That was payment of a debt; Ms Quila'soutstanding wages.[37] Accordingly, I agree with Judge Sinclair's assessment of the overall gravity ofMs Naidu's offending as low to moderate, and more to the moderate end of the range.[38] I do not know how Judge Sinclair went from a starting point of imprisonmentto a fine of $1,000. Her reasons are not included in the record of her decision on theapplication for discharge without conviction. On first principles, Ms Naidu shouldhave been sentenced to at least community work, as recommended in the pre-sentencereport. Ms Naidu is fortunate in that regard.[39] As to consequences, I accept that the conviction is hampering Ms Naidu'semployment prospects at the senior level of the IT industry. Indeed, there is a real andappreciable risk that it would continue to do so.[40] The issue is whether the impact of the conviction on Ms Naidu's employmentprospects is a consequence out of all proportion to the gravity of her close to moderateoffending against the immigration system.[41] I have concluded that it is not. I find myself in agreement with Judge Sinclair.[42] A natural consequence of a conviction for dishonest and deceptive conduct isthat prospective employers will be cautious in employing the convicted person in aposition of trust. Ms Naidu is seeking employment at a senior level in positions whichconfer trust. It is not to be presumed that a responsible employer seeking the skillswhich Ms Naidu possesses will reject her summarily upon learning of the conviction.But, it will be a factor against her.[43] In my view, one factor to take into account in weighing this consequence ofthe conviction is that the Court should be reluctant to conceal from an employerdeciding whether they can confidently repose trust in a prospective employee, mattersrelevant to that decision.[44] I conclude that the consequence relating to Ms Naidu's employment prospectsat the senior level of the IT industry is not disproportionate to the gravity of heroffending, let alone out of all proportion to the gravity of her offending.Decision[45] The appeal is dismissed.________________________________Brewer J