XUE v THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2013] NZHC 3561

XUE v THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT[2013] NZHC 3561 [20 December 2013]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2013-404-5232[2013] NZHC 3561BETWEEN ZHIANG XUEPlaintiffAND THE CHIEF EXECUTIVE OF THEMINISTRY OF BUSINESS,INNOVATION AND EMPLOYMENTDefendantHearing: 20 December 2013Appearances: S J M Mount for PlaintiffW N Fotherby for DefendantJudgment: 20 December 2013(ORAL) JUDGMENT OF LANG J[on application for interim relief]Solicitors: Meredith Connell, AucklandCopy to: S J M Mount, Auckland[1] Mr Xue is a Chinese National. Since 2010, however, he has been residing andworking in New Zealand under a visa enabling him to work in this country. Mr Xuetravelled back to China on a business trip earlier this month. His flight back to NewZealand arrived at Auckland International Airport yesterday morning. When Mr Xuepresented his arrival card to Customs and Immigration officials, it recorded that he didnot have in his possession more than 200 cigarettes. It subsequently transpired that hehad 480 cigarettes in his possession.[2] Mr Xue was subsequently interviewed by both Customs and Immigrationofficials. The Immigration official who interviewed Mr Xue concluded that he hadmade three misleading statements. On that basis she decided to deny Mr Xue entrypermission under s 109(1)(c) of the Immigration Act 2009. By operation of law,therefore, Mr Xue's work visa expired.1[3] Mr Xue's counsel applied orally for interim relief last night. I granted relief,and directed that the matter be brought on for hearing before me today. This afternoonI have heard submissions from both counsel regarding the issue of continuation ofinterim relief. I now give my decision in relation to that issue. I do so against thesomewhat unsatisfactory background that there is no formal originating documentbefore the Court setting out the challenge that Mr Xue wishes to make to the decisionmade by the Immigration official.[4] In the time available it has not been possible for counsel to prepare and fileoriginating documents and a supporting affidavit. As a result it is necessary for me todeal with the issue of interim relief on the basis of the documents produced by bothcounsel, and the submissions that each has made. To some extent it is inevitable thatmy decision must be made by statements made from the Bar. That is unavoidablegiven the urgency with which it has been necessary to deal with his matter.Background[5] In order to understand the issue the proceeding will raise it is necessary to payfurther regard to the factual background surrounding Mr Xue's arrival in New Zealand1 Immigration Act 2009, s 107(4).yesterday. The documentary evidence that is before me confirms that a Customsofficial spoke to Mr Xue as he was walking through the corridors of the airport beforearriving at Customs and Immigration checkpoints. He was spoken to by a Customsofficer, and asked if he had any cigarettes. He told the officer he had 200 cigarettes inhis possession. He subsequently told officials that following this encounter he hadspoken to his mother via the internet, and she told him that she had placed an extracarton of cigarettes in his luggage. He was unable to provide supporting evidence forthis assertion, however, because he said he had changed his sim card, and all evidenceof a conversation had been wiped from his cell phone.[6] After speaking to his mother, Mr Xue did not change the declaration on hisarrival card confirming he was entering New Zealand with no more than 200cigarettes. He subsequently said that he was not aware that he could change thatdeclaration. Nor did Mr Xue tell the Customs officer at passport control about theexcess cigarettes.[7] When Mr Xue arrived at the Customs area, officials indicated that his bag wasabout to be searched. At that point he declared the extra cigarettes that he wascarrying. He was then interviewed briefly by a Customs officer. No record appearsto have been kept of this conversation. Importantly for present purposes, however,Immigration New Zealand relies upon statements allegedly made by Mr Xue toCustoms officials at this point. One of these is relevant for present purposes. Thiswas that he allegedly told the Customs official that he did not declare the cigarettes soas to avoid paying duty, and that he was aware that he needed to pay tax.[8] At that point Mr Xue was fined approximately $400 for importing in excesscigarettes. Arrangements were then made for him to be interviewed by an Immigrationofficer. The Immigration officer made reasonably detailed notes of topics discussedduring this interview. During the interview, the Immigration officer asked Mr Xuewhether he had ever been spoken to by the New Zealand Customs Service. Thisquestion appears to have been asked in the context of a discussion about theimportation of cigarettes into New Zealand. Mr Xue replied to the effect that he hadnever been spoken to by the Service.[9] The Immigration official also asked Mr Xue why he had brought the cigarettesinto New Zealand without declaring them. He told the Immigration official that hehad failed to declare the cigarettes because he was scared. When the Immigrationofficial put to Mr Xue the fact that he had earlier told a Customs officer that he did notdeclare the excess cigarettes to avoid paying duty, Mr Xue denied having said that tothe Customs official.[10] The Immigration officer formed the view that Mr Xue was deliberately makingfalse statements and misleading her. She concluded her interview with the followingwords:You have not been truthful with me. At the very beginning of this interviewyou were warned to tell the truth during this interview and that it is an offenceto provide me with any material information that is misleading. Despite thiswarning you have attempted to mislead me. This makes me believe that Icannot trust anything that you have told me during this interview regardingthe excess cigarettes, including your claims that you were unaware that theywere in your luggage.This means that you are likely to be refused entry permission to be in NewZealand today.[11] The Immigration official then discussed the case with her colleagues. On herreturn, she advised Mr Xue that she had decided to refuse him entry permission toNew Zealand and that she proposed to cancel his working visa and place him on aplane back to China. She advised him that her decision was based on the fact that hehad made a false declaration on his arrival card, and that he had also supplied falseinformation to her.Grounds of review[12] Although no formal statement of claim has yet been filed, counsel for Mr Xuewill seek to judicially review the Immigration officer's decision on two grounds.[13] The first is that the Immigration official based her decision in part at least onirrelevant considerations. These arise out of mistakes of fact by Mr Xue. In otherwords, the official was basing her decision on matters she believed he had told herwhen in fact he had not intended to impart that information at all.[14] Secondly, counsel will argue that Mr Xue was denied his right to counsel unders 23 of the New Zealand Bill of Rights Act 1990 ("NZBORA"). This limb of theargument will be based on the fact that Mr Xue says that he sought on severaloccasions to obtain the services of a lawyer, but the Immigration officer refused toallow him access to legal advice. She did not permit him to obtain access to legaladvice until after she had made her decision and directed him to wait in the transit areabefore being placed on the plane back to China.[15] Counsel for Mr Xue seeks interim relief permitting Mr Xue to remain in NewZealand until his application for judicial review has been heard. He points out thatalthough Mr Xue can pursue an application for judicial review from China, it will bemuch more difficult for him to prepare and file affidavits and to instruct his counsel ifhe is forced to do that from China.Applicable principles[16] Counsel are agreed regarding the test to be applied in relation to interim ordersunder s 8 of the Judicature Amendment Act 1972. In Chen v Department of Labour,Woolford J referred to this as follows:2[25] The test for an interim order was set out by Hammond J in Esekielu vAttorney-General as follows:It seems to me therefore, that whilst the individual applicant should not berequired to demonstrate a very strong probability of success on the merits,the kind of matters that that individual must establish in support of a claimto interlocutory relief must be more than a showing that the question is notmerely trivial. I would have thought both that there must be a realcontest between the parties, and that the application has a respectablechance of succeeding in that contest.[Woolford J's emphasis].[26] The Court of Appeal adopted the same approach in Parmanadan vMinister of Immigration, stating:... the appellant cannot obtain relief from this Court unless he canestablish that he has at least a respectable chance of success in relation tohis challenge to his proposed removal.[27] The Court of Appeal also stated an applicant must:2 Chen v Department of Labour HC Auckland CIV-2011-404-7827, 7 December 2011 at [25]–[27]....also show that the making of an interim order is appropriately necessaryto preserve his current status, an issue which must be addressed in thecontext of the scheme and purpose of the legislation.[17] The Court of Appeal adopted a similar approach in Parmanadan v Minister ofImmigration.3 The essential issue, therefore, is whether the grounds relied upon byMr Xue have a respectable chance of success.Taking into account irrelevant considerations[18] Counsel for Mr Xue accepts that, however it is viewed, Mr Xue's arrival cardcontained false information because he was undoubtedly carrying out 480 cigarettesin his luggage when he had declared he was carrying no more than 200. Theconversation that he allegedly had with his mother does not assist him, because heobviously ought to have corrected his arrival card after he became aware from hismother that she had placed additional cigarettes in his luggage. His explanation thathe did not believe that he was entitled to alter his arrival card carries little weight.[19] Counsel contends, however, that the Immigration officer clearly did not baseher decision solely on the basis that he attempted to bring too many cigarettes intoNew Zealand. He submits that this is evident from the fact that the documentrecording the Immigration officer's decision specifically refers to other false andmisleading information that Mr Xue provided. These clearly relate to his varyingexplanations as to the reason why he had brought the excess cigarettes into NewZealand and the fact that he had denied having any previous contact with the CustomsService.The different explanations[20] I do not consider that the two explanations are necessarily inconsistent witheach other. Clearly Immigration New Zealand believes that Mr Xue's statement thathe did not declare the cigarettes because he wanted to evade excise duty was a correctstatement of the reason why he had not declared the cigarettes. It views his subsequentexplanation to the Immigration officer he did not declare them because he was scaredas being false. I do not, however, consider that the first explanation nevertheless3 Parmanadan v Minister of Immigration [2010] NZAR 424.excludes the second. The fact that he did not declare the cigarettes because he wasscared does not, however, amount to a very cogent reason for not declaring them.[21] Of more importance in the present context, however, is that when Mr Xue wasbeing interviewed by the Immigration officer he immediately denied any suggestionthat he had earlier told a Customs official that he had brought the cigarettes into NewZealand in order to evade duty. The only evidence supporting the stance taken byImmigration New Zealand on this point is a notebook entry by a Customs officialsaying:Admitted he's familiar w/concessions and didn't declare to evade duty.[22] It is not possible in the present context to determine whether the Customsofficial correctly recorded Mr Xue's explanation to him. I consider that there is somedoubt regarding this particular issue. If Mr Xue did not tell the Customs official thathe had failed to declare the cigarettes so as to evade duty, then obviously that particularground is rendered very much weaker. That issue can only be determined once theevidence of both the Customs official and Mr Xue is available.Previous dealings with New Zealand Customs Service[23] I also have some difficulty in assessing the weight that can be given to MrXue's response to a question about his previous dealings with the New ZealandCustoms Service. On the material presently available, the Immigration officer doesnot appear to have made it clear to Mr Xue that she was asking him whether he hadhad any previous dealings with the Customs Service in relation to the importation intoNew Zealand of items exceeding the specified limits. Rather, the question appears tohave been put in a manner that was sufficiently vague for Mr Xue to reasonably believethat he was being asked about dealings with Customs officials generally rather than inthe specific sense that was obviously intended. Again, until the true position is knownregarding this issue it is difficult to see what weight the Immigration officer couldrealistically have placed on it.The breach of right to counsel[24] In the time available counsel for Mr Xue has not been able to develop thissubmission, nor to locate relevant authorities. I suspect that it may be difficult tomaintain given the fact that the detention in question did not precede Mr Xue's arrestor the commencement of criminal proceedings. Although the detention was certainlydetention under enactment, it occurred at a time prior to the point, I suspect, where MrXue officially entered this country. It occurred in circumstances where he was at riskof being refused entry. I think it may be difficult for Mr Xue to argue that thecircumstances that pertained at that time gave him the right under s 23 of the NZBORAto seek advice from a lawyer.Conclusion[25] Taking these factors into account, I remain troubled by the Immigrationofficer's reliance on the statements allegedly made to her by Mr Xue during theinterview. I consider that they may not necessarily have been of particular relevanceto the inquiry the Immigration officer was undertaking. Clearly, however, they formeda significant part of the Immigration officer's decision.[26] I have therefore concluded that Mr Xue has met the relatively low threshold ofestablishing that he has a respectable argument that ought to be permitted to proceed.Interim relief[27] Mr Xue needs time to properly instruct his counsel and to file evidence insupport of his application for judicial review. Immigration New Zealand accepts thatsome limited relief might be granted to him for this purpose. It is not prepared,however, to countenance the prospect that he should be permitted to work whilst inNew Zealand. This will cause some difficulty for Mr Xue and his employer, becauseMr Xue is the sales manager for an airline and has 37 staff working under him. Hiscounsel advises me that the airline is entering a busy period, and his employer willneed his assistance during the next few weeks.[28] I accept the difficulties that Mr Xue and his employer will now face. It seemsto me, however, that any interim relief should go no further than permitting Mr Xueto properly instruct his counsel and to file the necessary documents in relation to hisapplication for judicial review. I am not prepared to go further and to directImmigration New Zealand to permit Mr Xue to enter New Zealand on a work visa. Iconsider that would be going too far in the circumstances of the present case.[29] I therefore grant Mr Xue interim relief under s 8 of the Judicature AmendmentAct 1972. Given this finding, Immigration New Zealand has undertaken that it willnot attempt to return Mr Xue to China prior to 31 January 2014. I direct that Mr Xue'sapplication for judicial review and supporting affidavits are to be filed and served priorto that date.[30] The proceeding is to be listed for mention in the judicial review list onThursday, 13 February 2014 at 9.00 am. At that date the proceeding will be timetabledtowards an urgent fixture.__________________________Lang J