ZULKIFLI V MINISTER OF IMMIGRATION HC AK CIV 2007-404-7908

ZULKIFLI V MINISTER OF IMMIGRATION HC AK CIV 2007-404-7908 19 December 2007IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2007-404-7908BETWEEN NUROMA ZULKIFLI Plaintiff AND MINISTER OF IMMIGRATION Defendant Hearing: 19 December 2007 Counsel: JS Foliaki for Plaintiff AR Longdill for Defendant Judgment: 19 December 2007ORAL JUDGMENT OF RODNEY HANSEN JSolicitors: Inder Lynch, P O Box 76-745, Manukau for Plaintiff Meredith Connell, P O Box 2213, Auckland for Defendant[1] The plaintiff, Ms Zulkifli, faces imminent removal from New Zealand. She seeks an interim order that no steps be taken to remove her pending the hearing of her application for judicial review, in which she challenges the decision of an immigration officer, Ms McGilvary, that there are no compelling reasons why her removal should not be implemented. [2] The application first came before the Court on 14 December. Williams J dealt with the application on an urgent basis, as Ms Zulkifli was due to be removed from New Zealand the following day. He had reservations whether Ms Zulkifli had made out a case for an interim order. He described his decision as "a close run thing that may turn out not to be justified". He, accordingly, made an order for interim relief on the basis that the matter would be reviewed by the Duty Judge on 20 December. In the meantime he directed certain steps to be taken which I will describe in more detail later in this judgment. The hearing was brought forward to today because of pressures on the Duty Judge List tomorrow. There is no suggestion that either party has been prejudiced by that.Background[3] Ms Zulkifli is a 66-year-old Indonesian national. She has lived in New Zealand since 15 March 2000 when she was granted a visitor's permit on arrival. She was subsequently granted two further visitor's permits. The last expired on 28 February 2001. She has been unlawfully in New Zealand since 1 March 2001. Further applications for a visitor's permit were declined on 5 March 2001 and 4 April 2001. [4] Since November 2006, when Ms Zulkifli was advised by Immigration New Zealand to depart the country by 12 December 2006, there have been a number of inconclusive dealings between her agent and Immigration New Zealand. Earlier this year, at the time she made a submission to the Associate Minister of Immigration, she said she would depart New Zealand voluntarily if her application was unsuccessful. She was subsequently advised that if she did not depart by 20 July2007, she would risk being served with a removal order. That has serious consequences because it precludes the subject of the order from re-entering New Zealand for a period of five years. [5] On 3 December 2007, Ms Zulkifli was located at an address in Mt Albert. She initially declined to confirm her identity. She was taken into custody and her identity was established. She was then served with a removal order and, pursuant to a non-statutory procedure implemented by Immigration New Zealand consequent on the decision of Tavita v Minister of Immigration [1994] 2 NZLR 257 (CA), Ms McGilvary undertook a humanitarian interview to determine whether there were any grounds which might justify deferring implemention of the removal order. Ms Longdill helpfully referred me to the judgment of Asher J, Qiong and ors v Minister of Immigration [2007] NZAR 163 which, at [22] – [32], provides a helpful review of the history and purpose of humanitarian interviews. It is Ms McGilvary's decision, consequent on the humanitarian interview, which is the subject of challenge in this proceeding. [6] Following Ms McGilvary's decision on 11 December, representations were made to the Associate Minister of Immigration asking for his intervention to prevent removal. In his decision, made on 14 December 2007, he said that having carefully considered representations made on behalf of Ms Zulkifli, he had decided that intervention was not justified and that removal proceedings should continue.Hearing before Williams J[7] The substantive grounds on which review is sought focus on the claimed failure of the immigration officer to properly consider and assess the medical condition of Ms Zulkifli for the purpose of her decision. There is particular reliance on the claim that Immigration New Zealand procedures require that when conducting a humanitarian review all medical and related issues should be referred to Immigration New Zealand medical referees and specialists. This was based on Mr Foliaki's understanding that such a provision was part of the manual of procedures of Immigration New Zealand.[8] When the application for interim relief came before Williams J, there was exhibited to the supporting affidavit a medical report from a general practitioner, Dr Alia Al-Rubyee, dated 3 December 2007, which read as follows:This letter is to confirm that the above mentioned patient suffers from the following problems: 1 Advanced osteoarthritis of both knees 2 Dyslipedemia 3 Depression 4 Chronic recurrent gastritis. Mrs Zulkifli started to feels severe pain in both knees for the last few weeks worsen. She is not fit for long travelling for long distance with this advanced stage of osteoarthritis. She is currently under investigation and treatment and needs to be referred to psychiatrist as well. Please don't hesitate to contact me for any other information.[9] At the hearing before Williams J, Ms Longdill produced two earlier versions of the medical certificate which were in broadly similar terms but which were dated 8 March 2007 and 30 November 2007 and a brief report dated 10 December 2007 by a general practitioner who had seen Ms Zulkifli at the Auckland Regional Women's Correctional Facility where she was held. The report read:Nuroma is currently well and has no medical condition that is of concern. Accordingly, there is no reason why she should not be sent on a flight back to Indonesia.A letter from the Health Unit of the Department of Corrections dated 14 December 2007 was to similar effect. It said of Ms Zulkifli:Currently not receiving medication from us. Fit to travel.[10] Williams J said that the medical evidence before him was unsatisfactory and it was also unfortunate that the relevant provisions of the operations manual were not before the Court. Accordingly, in making provision for his interim order to be reviewed, he directed the following steps to be taken (at [19]):a) There needs to be put in evidence any passages from Immigration New Zealand's Operation Manual which declare its obligations as far as medical inquiries and obtaining medical reports are concerned relating to persons about to be deported – that is to say, persons in the plaintiff's position. b) Dr Al-Rubyee is to provide a full report concerning the plaintiff's medical status including her capacity to travel. That report should detail his relationship with the plaintiff and the treatment he has given her over the period he has been her general practitioner. If that treatment includes reference to a psychiatrist, and he has a report from that source, that report should also be included. Those reports are to be furnished to Ms Longdill by no later than Tuesday, 18 December 2007 at 5:00pm. Immigration New Zealand is then to have an opportunity to respond with further reports should it be considered appropriate.[11] He went on to say at [20]:It needs to be emphasised that the orders just made are on a narrow basis. It may turn out to be the position that, once the additional information is provided, it demonstrates the plaintiff cannot show any possibility of reviewable error. It may be that Immigration New Zealand will have complied with its requirements. Accordingly there may, at that stage, be no basis on which Ms Zulkifli is entitled to remain in New Zealand. On the other hand, of course, that may not turn out to be the case.Response to directions[12] In an attempt to comply with Williams J's directions, a further certificate by Dr Al-Rubyee has been produced. It is dated 18 December. It reads as follows:I have not examined this patient since the last time. She was suffering from: 1 Advances osteoarthritis of both knees 2 Dyslipedemia 3 Depression 4 Chronic recurrent gastritis. Unless I examined her again I cannot give her considered opinion but from my experience as a medical practitioner the osteoarthritis only worsen with passage of time as the aging process start to set in. Giving the above letter I still maintain my premises opinion that I believe that she is unfit to traveling for long distance.The report does not respond to Williams J's request that Dr Al-Rubyee detail his relationship with Ms Zulkifli and the treatment he has given her. [13] In response to the direction to put in evidence relevant passages from Immigration New Zealand's operations manual, there has been produced an extract with reference A4.45, Second opinion assessments by Immigration New Zealand medical assessors (residence applications). It provides that in the case of applications for residence, in circumstances where the assessment of an Immigration New Zealand medical assessor is disputed by a medical opinion from a medical practitioner or relevant professional, both the assessment and the further opinion are to be referred to a different Immigration New Zealand medical assessor for a second opinion. [14] Mr Foliaki acknowledges that this provision has no direct application to Ms Zulkifli's circumstances but relies on it by analogy as providing the basis for an obligation on an immigration officer carrying out an humanitarian interview, who is faced with conflicting medical opinions, to obtain the opinion of a specialist.Decision under review[15] It is necessary now to give a more detailed account of the way in which the medical issues were dealt with by Ms McGilvary in coming to her decision. She intended to carry out the humanitarian interview on 3 December when Ms Zulkifli was first taken into custody but rescheduled it for the following day at the request of Ms Zulkifli's son and her then lawyer. Before doing so she enquired of Ms Zulkifli's health and special needs. In an affidavit, which was not before Williams J but has been filed for the purpose of today's hearing, she says that she was conscious of Ms Zulkifli's age and wanted that information so she could make a decision whether Ms Zulkifli should stay in custody or whether a non-custodial removal was a viable option. [16] Ms Zulkifli advised her that she had osteoporosis in her knees, cholesterol issues (but no other heart problems), a bad cough and perhaps diabetes because she went to the toilet all the time.[17] The humanitarian interview itself was carried out on 4 December 2007 in the absence of Ms Zulkifli's son and lawyer who had not arrived at the appointed time. In the standard questionnaire completed at the time, she recorded in response to the question, "Do you have any health problems or special needs?", "Taking medication for three months for high cholesterol, problems with my knee – osteoporosis – can't walk in the morning – arthritis or rheumatism". [18] Following the interview and after the arrival of Ms Zulkifli's son and lawyer, who was not at this time Mr Foliaki, Ms McGilvary was provided with the two further medical reports of Dr Al-Rubyee. The first was a typewritten document in similar terms to the report of 3 December quoted in [8] above. It is a typewritten document with handwritten alterations. The date of 8 March 2007 had been amended to 30 November 2007 and there are several other relatively minor alterations which are of no consequence for the purpose of this proceeding. [19] The second report was written by a doctor to whom Dr Al-Rubyee had referred Ms Zulkifli for an opinion. It read:Thank you for seeing the above mentioned patient who is 65 year old lady with depression problem in form of poor sleep, tearful, poor appetite, she has problem with her residency status, she is on prozac caps her depression problem is mainly due to settlement issues. She has other medical problems 1 chronic recurrent gastritis 2 severe bilateral osteoarthritis 3 Dyslipidemia Your kind opinion would be much appreciated.[20] Ms McGilvary gave Ms Zulkifli's lawyer access to her original humanitarian interview notes and agreed to provide him with a summary of those notes. She asked him and Ms Zulkifli's son to provide her with submissions or further information by 7 December 2007. She subsequently typed up the bullet points from the humanitarian interview and faxed them to the lawyer. She agreed to extend the time for him to provide submissions to 10 December.[21] She reviewed the two medical reports and then asked the medical staff of the Auckland Regional Women's Correctional Facility to assess Ms Zulkifli's medical condition and provide an updated assessment of her ability to travel. In response, she received the report dated 10 December quoted in [9] above. [22] Ms McGilvary was also provided with a report from the New Zealand Police who are required to provide a clearance before a custodial removal from New Zealand. That was sent on 10 December 2007. It read as follows:I completed the risk assessment and faxed it through on Friday 1315 hrs. ARWCF medical reported she is not on any medication for anything. They have evidence of high blood pressure and osteoporosis. The doctor has noted in his report that she is to be removed in 7 days of so. No psychiatric issues have been reported to staff and none have come to light. She has no thoughts of self harm. There is no indication from ARWCF medical staff that she is not ok to travel. With the doctor having noted she is going within 7 days, I take this to mean he has no problems with her going.[23] Ms McGilvary deposes that the following day, 11 December 2007, she reviewed the file and reached her own decision that removal should proceed. After setting out Ms Zulkifli's immigration history, she considered relevant humanitarian issues. Her decision includes the following passage dealing with medical issues"... She claims she is on medication for high cholesterol, osteoarthritis in both knees, dyslipidemia which from the client's comments appears to be an early form of diabetes (Wikipedia advises that Dyslipemia is a disruption in the amount of lips in the blood) Chronic recurrent gastritis (stomach ulcers) and depression mainly caused by worry about her immigration status. INZ had the client assessed while she was in ARWCF and have been subsequently advised that the client is not on any medication for anything, the doctors have advised INZ that they have evidence that the client suffers from high blood pressure and osteoporosis but not evidence of diabetes.[24] Later in the report she detailed the medical advice she had obtained from the prison and the police. Her decision concluded as follows:Having considered the above I must also have regard to the interests of the state in determining who should reside within its borders and the right to regulate and control entry, residence and expulsion of persons not lawfully in NZ. It's noted that Nuroma Zulkifli by choice remained in NZ unlawfully for 6 years and 9 months and made no attempt to regularise her status or toleave New Zealand since the Minister of Immigration advised her to depart on 29 January 2007. Client does not qualify for a permit under current Government policy. I have carefully weighed up all of the factors set out above and New Zealand's obligations under International Law including the International Covenant on Civil and Political rights 1966, the optional Protocol to that Convention, the convention on the Rights of the child 1989 and New Zealand's reservations to that Convention and do not consider that there are any significantly compelling reasons to allow her to remain in NZ therefore removal should continue.Submissions[25] In arguing for an extension of the interim order, Mr Foliaki conceded that there are no direct requirements in the Immigration New Zealand operations manual requiring an immigration officer to obtain a further specialist opinion in the circumstances which confronted Ms McGilvary. However, he contends that her conduct was, nevertheless, improper in that she had taken it upon herself to consider medical matters and to resolve the conflict in the medical evidence. He submits that when there are two opposing opinions in relation to a deportee's general health or fitness to travel, the immigration officer is under a duty to obtain the opinion of an appropriately qualified specialist. He submits that, in light of the evidence that the plaintiff had a psychiatric condition and had received medication for it in the past, she should have been referred for psychiatric examination and that the steps taken to verify her general medical condition were inadequate in all the circumstances. [26] Ms Longdill submits that the plaintiff has failed to show any real contest. She says the evidence shows the medical issues were considered fully. The decision was not unreasonable and no reviewable error has been shown. She submits there is no requirement, as a matter of law or procedure, for an immigration officer in the position of Ms McGilvary to obtain specialist advice in the face of unequivocal evidence that Ms Zulkifli was fit to travel. She criticises the failure of Ms Zulkifli to provide an up-to-date report which would meet the concerns expressed by Williams J. She points out that even at this stage there is nothing to show when Ms Zulkifli was last examined by Dr Al-Rubyee and notes that, on the basis of hislatest report and a prognosis of a continuing deterioration in her osteoporosis, she would never be fit to travel.Discussion[27] The established test for the grant of interim relief where judicial review is sought is set out in the judgment of Hammond J in Esekielue v Attorney-General(1993) 6 PRNZ 309. He said at 313:It seems to me therefore, that whilst the individual applicant should not be required to demonstrate a very strong probability of success on the merits, the kind of matters that tha individual must establish in support of a claim to interlocutory relief must be more than a showing that the question is not merely trivial. I would have thought both that there must be a real contest between the parties, and that the applicant has a respectable chance of succeeding in that contest.[28] The statement of claim pleads four causes of action. The fourth based on legitimate expectation relates to the decision of the Associate Minister and is no longer relied on. The first cause of action is that Immigration New Zealand did not provide the plaintiff with a fair opportunity to be heard by its failure to fully and properly consider her medical condition and her humanitarian circumstances in totality. In order for her to be "properly heard", it is claimed that the immigration officer should have referred Ms Zulkifli to a specialist for an opinion. The second cause of action is that there was a failure to take into account all material and relevant considerations by failing to fully consider the medical reports provided. There is also a claim that Ms McGilvary took into account information as to Ms Zulkifli's medical condition obtained from the internet search of the Wikipedia site. The third cause of action is based on pre-determination and complains that in failing to obtain further medical advice Ms McGilvary pre-determined her decision in that she failed to properly consider the psychiatric and medical reports and other information available. [29] In a further affidavit filed by the Minister of Immigration for the purpose of today's hearing, an officer of the Department of Labour deposes that he has checked the operation manual for any reference to medical issues in the removal context. He confirms there are no such procedures and that provisions such as those produced onbehalf of Ms Zulkifli today relate to an entirely different area of immigration. The officer then goes on to set out the standard procedure adopted when medical issues are raised during the removal process. He states that Ms McGilvary acted in accordance with standard procedures and that the steps she took to obtain updated medical assessments were taken after consultation with him as her supervisor. [30] I am satisfied that Ms Zulkifli has failed to show an arguable case or a real contest between the parties in relation to any of the causes of action relied on. In my view, the steps Ms McGilvary took after being put on notice by Ms Zulkifli and her advisors that there were relevant medical issues were appropriate and adequate to the situation. There was no indication that the reports by Dr Al-Rubyee were based on recent examinations. All of the indications were that they were based on an examination some seven or eight months earlier. (That impression has not been dispelled by the further report produced in response to Williams J's direction.) In my opinion, it was sufficient for Ms McGilvary to alert the authorities to the medical conditions disclosed by Ms Zilkifli and, having received responses in unequivocal term to specific enquiries about Ms Zulkifli's fitness to travel, she was entitled to come to her decision on the basis of those assessments. [31] There is nothing to the complaint that she wrongly took into account findings from an internet site. As appears from the passage in her report quoted in [24] above, the internet enquiry was made simply for the purpose of determining the meaning of one of the medical terms used in Dr Al-Rubyee's report. There is no suggestion that there was any improper reliance on that information. [32] The assessments relied on by Ms McGilvary have been further vindicated by further assessments carried out over the last few days in anticipation of today's hearing and an updated medical report expected pursuant to Williams J's direction. A full assessment was carried out by the Regional Forensic Psychiatry Service at the Mason Clinic which found that Ms Zulkifli had no psychiatric history and was not currently in need of any psychiatric treatment. A further report from Dr Cleland based on an examination on 19 December states:[Ms Zulkifli] has been seen and examined by me with an interpreter present. She is well and suffers from no medical problems. There is no reason whyshe should not fly back to her country. She does not require a medical escort or any medications.Although it is unnecessary for my decision, on the basis of this information, I am reassured that Ms Zulkifli suffers from no relevant physical or psychiatric condition which could warrant the grant of interim relief.Result[33] For these reasons, the application for relief fails. I decline to extend the order by Williams J. There is no impediment to Immigration New Zealand implementing the order for removal.