NIAZI v THE MINISTER OF IMMIGRATION [2016] NZHC 2282

NIAZI v THE MINISTER OF IMMIGRATION [2016] NZHC 2282 [27 September 2016]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCIV 2016-409-932[2016] NZHC 2282BETWEEN SHAIMA NIAZI AND BENJAMINMAHDI YAZDANIApplicantsAND THE MINISTER OF IMMIGRATIONFirst RespondentCHIEF EXECUTIVE OF THEMINISTRY OF BUSINESSINNOVATION AND EMPLOYMENTSecond RespondentHearing: 26 September 2016Counsel: D Lewis for Applicant (by leave)C Paterson for RespondentsN Tiffen, amicus curiaeJudgment: 27 September 2016JUDGMENT OF HEATH JThis judgment was delivered by me on 27 September 2016 at 2.00pm pursuant toRule 11.5 of the High Court RulesRegistrar/Deputy RegistrarSolicitors:Meredith Connell, AucklandCavell Leitch, ChristchurchCopy to:International Justice Advocates Ltd, Auckland[1] Ms Shaima Niazi and her son, Benjamin Yazdani, arrived at Christchurch Airport on Saturday 24 September 2016. Benjamin is about six months old. Theyexpected to receive a visitor's visa for three months on arrival. As Danish citizens,they were entitled to that, provided they were travelling for bona fide purposes and could satisfy support conditions.[2] An immigration officer denied access to both at the border. An urgent application was filed yesterday by Mr Lewis, a research assistant with International Justice Advocates Ltd. He acted, essentially, as a representative of Ms Niazi whowas unable to be at Court. Mr Lewis had been in touch with Ms Niazi's husband inDenmark, Mr Estamullah Yazdani. Because of the urgency of the situation and Ms Niazi's inability to obtain advice from counsel, I granted leave for Mr Lewis to represent Ms Niazi's interests before me.[3] Ms Niazi is from Afghanistan. She married Mr Yazdani about three years ago in a traditional Afghani ceremony in Afghanistan. Another ceremony was held in Denmark earlier this year. Both are now Danish citizens, as is their son. After considering the papers filed, I issued a Minute, following which an undertaking was given on behalf of Immigration New Zealand not to take steps to deport Ms Niazi and her son, pending further order of the Court. At that stage, they had been scheduled to leave on a flight to Singapore, which was departing from Christchurch at 11.50am.[4] I decided to appoint amicus curiae, Ms Tiffen. I thank her for her prompt attention to the tasks that I asked her to perform. She went to Christchurch Airport and spoke with Ms Niazi.[5] Ms Niazi did admit to lying to the immigration officer by saying that she had met the person whom she was meeting in Palmerston North in a refugee camp. In fact, they are cousins. It is hard to understand why that might have been said. I was told by Ms Tiffen that Ms Niazi has a relatively good command of the English language.[6] Ms Niazi was unaware that a friend of Mr Yazdani, Dr Ghulam, had gone to Christchurch Airport to meet her and her son. Mr Yadzani last saw Dr Ghulam about 15 years ago, and Ms Niazi has never met him.[7] A senior immigration officer, Mr Darby, informed Ms Tiffen of the concerns that were held by immigration officers as to the bona fides of the visit and Ms Niazi's ability to support herself while in New Zealand. Viewed from theperspective of an immigration officer deciding whether to allow Ms Niazi and her son to enter New Zealand at the border, it is difficult to see how that decision could be considered to be unreasonable, in the administrative law sense. There were ample grounds to support it.[8] I am asked to issue an interim order under s 8 of the Judicature Act 1972 which would have the effect of permitting Ms Niazi to enter New Zealand with her son for two weeks. That is sought on the basis of correspondence that Mr Johnson, of International Justice Advocates Ltd, has had with Mr Yazdani and others associated with him. That includes Dr Ghulam, and Ms Niazi's cousin.[9] Section 8 of the Judicature Amendment Act 1972 provides:8 Interim orders(1) Subject to subsection (2) of this section, at any time before the final determination of an application for review, and on the application of any party, the Court may, if in its opinion it is necessary to do so for the purpose of preserving the position of the applicant, make an interim order for all or any of the following purposes:(a) Prohibiting any respondent to the application for review from taking any further action that is or would be consequential on the exercise of the statutory power:(b) Prohibiting or staying any proceedings, civil or criminal, in connection with any matter to which the application for review relates:(c) Declaring any licence that has been revoked or suspended in the exercise of the statutory power, or that will expire by effluxion of time before the final determination of the application for review, to continue and, where necessary, to be deemed to have continued in force.(2) Where the Crown is the respondent (or one of the respondents) to the application for review the Court shall not have power to make any orderagainst the Crown under paragraph (a) or paragraph (b) of this section; but, instead, in any such case the Court may, by interim order,—(a) Declare that the Crown ought not to take any further action that is or would be consequential on the exercise of the statutory power:(b) Declare that the Crown ought not to institute or continue with any proceedings, civil or criminal, in connection with any matter to which the application for review relates.(3) Any order under subsection (1) or subsection (2) of this section may be made subject to such terms and conditions as the Court thinks fit, and may be expressed to continue in force until the application for review is finally determined or until such other date, or the happening of such other event, as the Court may specify.[10] Section 8 of the Judicature Amendment Act 1972 enables the Court to make an order prohibiting any respondent to an application for review from taking any further action that is, or would be, consequential on the exercise of a statutory power. In this case, the statutory power is to deport. Yet, the relief sought involves not only preventing deportation but also requiring the grant of an entry visa.[11] In order to grant interim relief, the Court must be of opinion that it is"necessary" for an interim order to be made for the purpose of preserving theposition of an applicant. The relevant test was set out by Hammond J in Esekielu v Attorney-General,1 in which the Judge held there must be "a real contest between theparties and an applicant must have a respectable chance of succeeding in that contestbefore an interim order should be made".[12] I am conscious of recent changes to the immigration legislation that suggeststhat this Court's role should be limited to strict review rather than a merits-based assessment of the decision in issue. That approach is appropriate when dealing with decisions made at the border.[13] At a telephone conference held at 4pm yesterday, Ms Tiffen relayed to meconcerns expressed by immigration officers about Ms Niazi's ability to supportherself in New Zealand and her reasons for travelling here. Apparently, Ms Niazi told her that she had come to visit her cousin in Palmerston North and was taking1 Esekielu v Attorney-General (1993) 6 PRNZ 309 (HC) at 313. See also Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA).time away from her husband as there had been some difficulties with the marriage. Notwithstanding those comments, I received information that her husband had been assisting her to visit and a return flight had been booked to Denmark in about two months time.[14] After hearing from Ms Paterson, for the respondents, and Messrs Lewis and Johnson at a telephone conference held at 5.30pm yesterday, I formed the view that the threshold test has not been met.[15] While Ms Tiffen reported that the information provided by Mr Johnson may well be sufficient to enable a fresh application to be considered, it is by no means certain that it would be granted. It cannot be said, in my view, that the border decision made not to allow Ms Niazi and her son to enter New Zealand was wrong, in an administrative law sense.[16] In those circumstances, at the close of the 5.30pm conference, I dismissed the application for interim relief. I did so, on the basis of an assurance that Ms Niazi would be able to stay at the airport overnight and would not be separated from her child. I understand that Ms Niazi and her son returned to Denmark on a flight leaving Christchurch for Singapore this morning.[17] I treat the application filed as an originating application. As no purpose would be served by continuing the proceeding, it too is dismissed.________________________________P R Heath JDelivered at 2.00pm on 27 September 2016