PAPALII V MINISTER OF IMMIGRATION HC AK CIV-2006-404-003888

PAPALII V MINISTER OF IMMIGRATION HC AK CIV-2006-404-003888 13 July 2006IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2006-404-003888BETWEEN SIONA PAPALII Plaintiff AND MINISTER OF IMMIGRATION Defendant Hearing: 12 and 13 July 2006 Appearances: Mr A G W Webb and Mr J Sutton for plaintiff Mr M Woolford for defendant Judgment: 13 July 2006(ORAL) JUDGMENT OF LANG J [on application for interim relief]Solicitors: Crown Solicitor, P O Box 2213, Auckland Sinsia Law, P O Box 22853, Auckland Counsel: Mr A G W Webb, P O Box 106215, Auckland[1] Mr Papalii is a Samoan National. He is also an overstayer in this country. As a result, a removal order has been served upon him. He is due to be deported to Samoa tonight. [2] Mr Papalii has now issued judicial review proceedings in this Court seeking a declaration that both the removal order and the decision to execute the order are invalid. He has also applied for interim relief under s 8 of the Judicature Amendment Act 1972. The interim relief that he seeks is a declaration that the defendant not take any action to remove him from New Zealand until such time as the substantive judicial review proceedings have been determined. [3] During the hearing it became clear that there could be no challenge to the validity of the removal order. The only issue can be the validity of the decision to execute that order. [4] In order to understand the basis upon which Mr Papalii advances the present application it is necessary to have regard to his immigration history in New Zealand.Mr Papalii's immigration history[5] Mr Papalii arrived in New Zealand on 20 October 2002, having been issued with a three month visitor's permit on his arrival. The visitor's permit expired on 20 January 2003. Mr Papalii was not eligible for an extension of that permit, because he had been in New Zealand on a visitor's permit for more than nine months during the previous 18 months. [6] At the time that his visitor's permit expired Mr Papalii applied to stay in New Zealand longer in order to care for his elderly mother. He told the Immigration Service that there was no-one else in his family that could undertake that task. The Immigration Service told Mr Papalii at that time that he could not stay in New Zealand indefinitely notwithstanding his mother's circumstances. The Service agreed, however, to issue a further visitor's permit to Mr Papalii in order to allow his family to make alternative arrangements for his mother's care. This permit wasvalid until 16 March 2003. Mr Papalii was advised at this time that no further permits would be issued to him. [7] Mr Papalii had not left New Zealand by the time the permit expired on 16 March 2003. As a result, he was unlawfully in this country from the following day, 17 March 2003. [8] The Immigration Service heard nothing further from Mr Papalii until 31 March 2004, when he made an application under s 35A of the Immigration Act 1987 ("the Act") for a work permit. He made this application on the basis that he had been married to a New Zealand resident on 11 October 2003, and that his wife was pregnant. Mr Papalii told the Immigration Service that he had been in a relationship with his partner for two years. He also told the Service at this time that he had engaged an agent to obtain a work permit, but the agent had failed to carry out his instructions. This explanation was accepted by the Immigration Service, and it issued a work permit for a further six month period to enable Mr Papalii to apply for residence on marriage grounds. He was again told that no further permits would be issued if he failed to lodge an application for residence within the required time frame. [9] Mr Papalii's work permit expired on 19 February 2005. He had failed to file an application for residence by that time, and as a result he was again unlawfully in this country from 20 February 2005. The Immigration Service did not hear from Mr Papalii again until 10 March 2005, when he telephoned to check on a residence application which he said had been lodged by an agent at the end of January 2005. Although he was advised at this time that no residence application had been filed, Mr Papalii took no further steps until 17 June 2005, when he again applied for a work permit under s 35A of the Act. However, the cheque that accompanied this application was dishonoured and returned by the bank. The application was refused by the service on several grounds, one of which was that he had already claimed on a previous occasion that his status as an overstayer had been brought about through the fault of an agent.[10] On 8 September 2005 Mr Papalii telephoned the Immigration Service and was told at this time to leave the country because his permit had expired. Four months later, on 15 January 2006, Mr Papalii made a further application under s 35A of the Act. The Immigration Service refused to consider that application as it was entitled to do under the section. Nothing further was heard from Mr Papalii. [11] On 6 June 2006 the Immigration Service received anonymous information that Mr Papalii was working unlawfully at an insulation business in Penrose. An Immigration Officer visited that business on 7 June 2006 in the company of police officers. Mr Papalii was identified at that time, but before he could be apprehended he departed from the premises in a car belonging to another worker. [12] Mr Papalii was eventually located by the Mt Wellington police at his brother's address on 2 July 2006. A removal order issued under s 54 of the Act was served upon him and he was then detained under s 59 of the Act. Mr Papalii has been custody awaiting removal from New Zealand since that time. [13] During his time in custody both Mr Papalii and his wife have been interviewed by officials from the Immigration Service. Notwithstanding the information given to the officials during these interviews, they have declined to allow him to stay in New Zealand. They have decided that they will execute the removal order and, as I have already indicated, this is due to occur later today. [14] Against that background I now turn to consider the grounds relied upon by Mr Papalii in advancing the present application.Mr Papalii's claim[15] The statement of claim sets out three grounds upon which Mr Papalii asks that the decisions made by the Immigration Service be reviewed. The first is that it placed undue weight on matters that reflected on Mr Papalii's character. The second is that it gave insufficient weight to the fact that Mr Papalii's present status has been brought about through the negligence of his Immigration Consultant. The third ground is that the Service failed to properly take into account the effect of theremoval order on Mr Papalii's two infant children. They are now aged 18 months and one months respectively. [16] Each of these grounds must, however, be viewed in the light of the statutory context within which the decisions to execute the removal order was made. For that reason it is necessary at this point to have regard to the statutory scheme contained within the Act.The statutory scheme[17] The starting point of s 4 of the Immigration Act 1987 ("the Act"). It provides as follows:4 Requirement to hold permit, or exemption, to be in New Zealand(1) A person who is not a New Zealand citizen may be in New Zealand only if that person is— (a) The holder of a permit granted under this Act; or (b) Exempt under this Act from the requirement to hold a permit. (2) Any person who is in New Zealand in contravention of subsection (1) of this section is deemed for the purposes of this Act to be in New Zealand unlawfully. [(3) The fact that an application for a permit has been made by or for any person does not— (a) Render the person's presence in New Zealand lawful; or (b) Give the person a right to remain in New Zealand while the application is considered; or (c) Give the person a right to apply for or be granted any other permit pending determination of the application; or (d) Inhibit removal procedures under this Act.][18] It is clear from the wording of s 4 that a person will be deemed to be in New Zealand unlawfully if he or she is not a New Zealand citizen, does not hold a permit issued under the Act and is not exempt from a requirement to hold a permit. Moreover, s 9 of the Act makes it clear that the grant of a temporary permit is very much a matter of discretion and not a question of entitlement.[19] There is no dispute in the present case that Mr Papalii is not a New Zealand citizen and that he does not currently hold a permit granted under the Act. Neither is he exempt from a requirement that he hold a permit. As a result, there is no dispute that he is presently in New Zealand unlawfully. He is therefore subject to Part II of the Act, which is concerned with persons who are in New Zealand unlawfully. [20] Section 45 of the Act requires any person who is unlawfully in New Zealand to leave the country unless that person holds or is subsequently granted a permit. This obligation arises regardless of whether the person arrived in New Zealand without a permit, or remained in New Zealand after the expiry or revocation of a permit. [21] Persons who are unlawfully in New Zealand have a right to appeal to the Removal Review Authority against the requirement that they leave the country. Any such appeal must, however, be brought within 42 days of the day upon which the person came to be unlawfully in the country: s 47(2)(a). Such an appeal can only succeed if the Authority is satisfied that there are exceptional circumstances of an humanitarian nature which would make it unjust or unduly harsh for the person to be removed from New Zealand, and that it would not in all the circumstances be contrary to the public interest to allow that person to remain in New Zealand: s 47(3). Mr Papalii has never exercised any right of appeal, and is now out of time to do so. [22] During the course of argument Mr Woolford referred me to the provisions of s 7(4), 35A and 130 of the Act. These demonstrate that in deciding whether or not to issue a permit both the Minister of Immigration and officials in the Immigration Service have an extremely wide discretion vested in them. [23] Moreover, once a decision has been made to issue a removal order, that order must be executed in accordance with s 59 of the Act. This permits any member of the police to arrest the person who is the subject of the removal order without warrant and to place him or her in detention pending removal on a craft that isleaving New Zealand. The only means by which the removal order can be overridden is for it to be cancelled under s 58 of the Act. [24] On a literal reading of the statutory provisions, once a removal order has been served the person who is the subject of that order will simply be detained and then placed on a craft that is leaving New Zealand. The Act does not make any specific reference to the international instruments to which New Zealand is a party. It has therefore fallen to the Immigration Service as a matter of policy to ensure that these obligations are adhered to. It seeks to do this through the so-called Humanitarian Interview that is conducted after the removal order has been served. Given the statutory regime, the only way in which a potential breach of New Zealand's international obligations could be avoided would be by cancellation of the removal order under s 58 and the subsequent issue of a further permit. [25] The interview must therefore be viewed in that light. It provides the necessary information to enable the official carrying out the interview to decide whether or not execution of the removal order may result in New Zealand breaching its international obligations, or whether for any other reason the removal order should be cancelled and a fresh permit issued. I interpolate that it is open to both the Minister of Immigration and officials of the Immigration Service to issue a fresh permit to a person at any time notwithstanding the fact that that person may be unlawfully in the country. [26] The Immigration Service has developed a standard printed form that its officials use when conducting such interviews. This is known as the "Humanitarian Questionnaire". It was obviously developed to ensure that, regardless of the strict wording of the Act, a person is not removed from New Zealand in contravention of New Zealand's obligations under international law or in circumstances where they ought to be permitted to remain here on humanitarian grounds. New Zealand's international obligations are contained in several instruments to which New Zealand is a signatory. These include the International Covenant on Civil and Political Rights 1966, the Optional Protocol to that covenant, the Convention on the Rights of the Child 1989 and New Zealand Reservations to that convention.[27] The questionnaire contains three sections, or stages. The first stage is designed to obtain information regarding the personal circumstances of the person to be removed. Once the first stage has been completed the official completing the questionnaire must decide whether further information is required to enable a decision to be made as to whether the person's removal will accord with New Zealand's obligations under international law. The second stage is completed only if information obtained in the first stage of the questionnaire reveals that further investigation and assessment is required. The second stage is designed to obtain further information of a personal nature to enable a proper decision to be made as to whether execution of the removal order will be in conformity with New Zealand's obligations under international law. The third stage contains the assessment and recommendation by the Immigration Officer as to whether or not the person who is the subject of a removal order should be removed from New Zealand. [28] The claims that are now made by Mr Papalii must therefore be viewed in the light of the context to which I have referred. Before considering them I also need to consider the test that is to be applied in any application for interim relief in the present context.The test to be applied[29] Mr Woolford referred me to Esekielu v Attorney-General (1993) 6 PRNZ 309, in which Hammond J considered the test to be applied to interim orders in the context of immigration cases. His Honour said (at 313):In general terms, from the point of view of the State, it has a significant interest in protecting its borders and services of various kinds against utilisation by persons who are not entitled to the protection and support of that State. From the point of view of the affected individual, the question of whether that individual is entitled to that protection and those services is a very significant one. If the threshold test is set too low — as merely raising a question which is not trivial (which is what the House of Lords meant by "serious") — interlocutory relief would be gained on just about every application. And it must be borne in mind that the processes under the immigration legislation in New Zealand themselves involve a serious vetting exercise, culminating in certain appeal procedures which can (and routinely do) reach as high as the Minister of Immigration. 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 that 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. Somehow, the notion seems to have crept into the jurisprudence that it is the plaintiff who is being deprived of something, rather than a requirement that the plaintiff demonstrate entitlement, after due review by the agencies of the State. If New Zealand had a somewhat antiquarian immigration statute, and inadequate appeal procedures on humanitarian grounds, then one's view might be otherwise as to the way in which the law should operate in this area. But it does not. The immigration legislation has been reviewed and appropriate procedures are in place.[30] This approach was adopted by Heath J in Zakshevsky v Minister of Immigration (HC AK M669/02, 11 June 2002) and it is also described as "a sensible approach" by the learned authors of McGechan On Procedure (at JA 8.05). [31] I therefore accept Mr Woolford's submission that Mr Papalii must establish that there is a real contest between the parties and that he has a respectable chance of succeeding in that contest. With that test in mind, I now turn to consider the discrete claims advanced by Mr Papalii.Mr Papalii's claims[32] Mr Papalii advanced the present application on the basis that three separate issues need to be determined at a substantive hearing before he is removed from New Zealand.Character issues[33] Mr Papalii alleges that the Immigration Officer who interviewed him and made the decision that the removal order was to be executed placed undue weight on matters relating to his character. In particular, he alleges that undue weight was placed on the incident that occurred when the Immigration Officer and police officers arrived at his work place on 7 June 2006. The evidence of the Immigration Officer is to the effect that at that time Mr Papalii took another worker's car and almost ran over a police officer who tried to stop him leaving. This incident was referred to in the second stage of the Humanitarian Interview under the heading "Arethere any character considerations?" In response to this question the Immigration Officer has stated: There are serious charges which NZ Police are looking at laying against this client, which are serious enough to possibly prevent the issue of any further permit in future. [34] Mr Webb makes the point that no charges have been laid by the police and that there is in any event another side to the story. He says, albeit from the bar, that the Immigration Officer was not personally present when the incident occurred, and that there is an entirely innocent explanation for Mr Papalii's departure from his workplace on 7 June 2006. He therefore contends that undue weight has been placed on this particular issue by the Immigration Officer. [35] There is no doubt that some weight was placed by the Immigration Officer on issues relating to Mr Papalii's character. In Stage 3, the decision section of the questionnaire, the Immigration Officer recorded that Mr Papalii "has character issues including transience and absconding, which would warrant a custodial removal". [36] As matters stand, however, I have only the Immigration Officer's version of events. Mr Papalii himself has not sworn an affidavit in support of his application. As a result, I cannot give any real weight to the submission that there is an innocent explanation for what occurred on 7 June 2006. The fact that no charges have been laid is also equivocal. The fact that Mr Papalii is about to be removed from New Zealand may well have prompted the police not to lay charges at this point. [37] In any event, this issue must be viewed in the light of the context to which I have already referred. Mr Papalii was not being interviewed for a visitor's permit or a work permit. The issue of his character may well have been relevant had the Immigration Officer decided that there was a risk that New Zealand would not be meeting its international obligations if it removed Mr Papalii from New Zealand, or that for any other reason the renewal order should be cancelled and a fresh permit issued. Until that decision was made, however, issues relating to Mr Papalii's character were by and large irrelevant.[38] Moreover, Mr Papalii had acknowledged during the interview that he had been convicted of assaulting his wife and that he had received a sentence of 200 hours community service on that charge. There were also considerable periods during which, even after his permit had expired, he was not in contact with the Immigration Service. These issues entitled the Immigration Officer, in my view, to conclude that Mr Papalii was a person who presented with "character issues". Had the official needed to consider whether a further permit should be granted, those were undoubtedly issues that would need to be taken into account. For present purposes, however, I do not consider that the manner in which Mr Papalii's character was considered by the Immigration Officer gives rise to a serious contest between the parties.The negligence of Mr Papalii's agent[39] Mr Papalii contends that the Immigration Officer failed to take into account the fact that Mr Papalii's unlawful status in New Zealand had been brought about by the negligence of his Immigration Consultant. [40] Again, I do not consider that this issue was strictly relevant to the issues that the Immigration Officer was required to consider. Like the character issue, it may well have been an issue that would have been relevant if the Immigration Service had reached the conclusion that consideration should be given to cancelling the removal order and issuing Mr Papalii with a further permit. Until that stage was reached, however, the reason underlying Mr Papalii's unlawful status was of peripheral relevance. [41] There are difficulties with Mr Papalii's explanation in any event. Even now, he can say no more than that the Immigration Consultant was a person called "Cecilia". He cannot provide Cecilia's surname, her address or any other identifying characteristics. In addition, there is the pertinent fact that Mr Papalii had already apparently been let down by an agent, and as a result been unlawfully in the country, after his visitor's permit expired on 16 March 2003. From that point on Mr Papalii ought to have been alert to the need to ensure that his agent had in factcarried out his instructions. I therefore do not consider that any real weight should, or could, have been given to this particular issue by the Immigration Officer.The effect of Mr Papalii's removal on his children[42] I agree with Mr Woolford that this is the only ground on which Mr Papalii potentially has any chance of success. [43] New Zealand's international obligations include obligations to acknowledge that: [a] the family is the natural and fundamental group unit of society and is entitled to protection by society and the State. [Art 23 of the Covenant] [b] Every child shall have, without any discrimination as to race, colournational or social originthe right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State. [Art 24 of the Covenant] [c] Party States shall ensure that a child is not separated from his or her parents against their will . [unless it is determined by competent authorities subject to judicial review] that separation is necessary for the best interests of the child [Art 9(1) of the Convention] [44] These obligations required the Immigration Service to give due consideration to Mr Papalii's family situation and, in particular, to ensure that his children were not separated from him unless that was necessary and in their best interests. [45] In developing his argument on this point Mr Webb submitted that in considering the present application the Court should apply s 4(1) of the Care of Children Act 2004. It provides as follows:4 Child's welfare and best interests to be paramount(1) The welfare and best interests of the child must be the first and paramount consideration— (a) in the administration and application of this Act, for example, in proceedings under this Act; and(b) in any other proceedings involving the guardianship of, or the role of providing day-to-day care for, or contact with, a child. [46] Mr Webb conceded, however, that s 4(1)(a) can have no application in the present proceeding because it does not involve the administration or application of the Care of Children Act 2004. It could only apply by virtue of s 4(1)(b) on the basis that it involves, in a very broad sense, Mr Papalii's day to day care for, or contact with, his children. [47] I note, however, that the Care of Children Act 2004 replaced the Guardianship Act 1968. That Act also contained a provision (s 23(1)) making the interests of the child paramount in any proceedings where any matter relating to the custody or guardianship of a child was in question. Notwithstanding the existence of this provision, the Court of Appeal has held that the wording used in the international instruments to which New Zealand is a party must be applied. InPuli'Uvea v Removal Review Authority (1996) 2 HRNZ 510 the Court said (at 517): As indicated, all the other treaty provisions run back into the two central propositions about the best interests of the child being a primary consideration of the decisionmaking and the importance of the family unit. The question which we must consider is whether the Authority did comply with the obligations relating to those matters. We note that those obligations are stated in broad and relative terms : for instance under article 3 of the Convention the best interests of the child is a (not the) primary (and not paramount) consideration. [48] I therefore propose to proceed on the basis that the welfare and best interests of Mr Papalii's children are a primary consideration in the present context rather than the paramount consideration. [49] In any event, I consider that little turns on the wording to be used in the present context. The important issue in the present case was whether or not Mr Papalii's removal from New Zealand was likely to separate him from his children. Mrs Papalii had confirmed in her interview, however, that she proposed to return to Samoa with her husband if he was removed from New Zealand. This meant that the family unit would not be split up if the order was executed.[50] The questionnaire contained numerous questions relating to the effect that the execution of the removal order would be likely to have on Mr Papalii and his family. All of these were no doubt designed to ensure that the interviewer was able to make an informed decision regarding the extent to which the execution of the removal order would be in conformity with New Zealand's international obligations. The answers that were given to these questions led the interviewer to reach the following conclusion in the final section of the questionnaire: The client's partnership appears to be stable and genuine, however, given that the partner does not work in NZ and has the right to work in Samoa, there is no reason to separate the family unit. [51] Although somewhat convoluted, this conclusion reflects the fact that execution of the order will result in the whole of Mr Papalii's family returning to Samoa. [52] During argument Mr Webb suggested that the best interests of the children would be served by their remaining in New Zealand. He submitted that residence in New Zealand would provide them with far greater benefits in life than they would be likely to receive if they were to return to Samoa. He also submitted that the children's wider family was based here in New Zealand and that they would not have the benefit of contact with their wider family if they were returned to Samoa. The difficulty with this submission is that there is absolutely no evidence to support it. Mrs Papalii makes no mention of this issue in her affidavit and, as I have said, Mr Papalii has elected not to place any evidence at all before the Court himself. [53] This argument also overlooks the fact that Mr Papalii's children are New Zealand citizens and their return to Samoa will not affect their status in this regard. Should they wish to, they will be able to return to New Zealand in the future and take advantage of the benefits that Mr Webb referred to in his submissions. [54] Moreover, there is nothing to prevent Mr Papalii from renewing his application for residence after he returns to Samoa. [55] To my mind, the critical issue given the very young age of Mr Papalii's children was that they not be separated from their parents. If Mrs Papalii had toldthe Immigration Officer that she would remain in New Zealand if her husband was removed, that issue would need to have been considered. As it was, she told the Official that she was returning to Samoa. The net result of this is that the integrity of the family unit will remain intact. [56] I am satisfied that the interviews that were conducted with both Mr Papalii and his wife were sufficiently detailed to provide the Immigration Officer with sufficient information to make an informed decision regarding the likely effect of the removal order on the family as a whole. Given that execution of the removal order would leave the family intact, the Immigration Officer was entitled to conclude that it would not breach New Zealand's international obligations. I am therefore satisfied that there is no real contest between the parties in relation to this issue either.Result[57] For the reasons I have given Mr Papalii cannot establish any real contest on the three issues that he advances in support of his application for interim relief. The application must therefore be dismissed.Costs[58] Although Mr Woolford sought costs at the conclusion of the delivery of this judgment I declined to make an order. Costs should lie where they fall.Stay of execution[59] I raised with Mr Sutton and Mr Webb the issue of a possible stay of execution of this judgment to enable Mr Papalii to lodge an appeal against my decision. I record that no stay of execution was sought. The Immigration Service is therefore free to deport Mr Papalii today. Lang J