Chen v Department of Labour HC Auckland Cciv 2011-404-007827

[2011] NZHC 1965

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2011-404-007827

BETWEEN  BIDE CHEN Plaintiff

ANDTHE DEPARTMENT OF LABOUR Defendant

Hearing:         7 December 2011

Appearances: F C Deliu for the Plaintiff

N Whittington for the Defendant

Judgment:      7 December 2011

JUDGMENT OF WOOLFORD J

Solicitors/Counsel:

Dr F C Deliu, DX CP27007, Auckland. Meredith Connell, DX CP24063, Auckland.

CHEN V THE DEPARTMENT OF LABOUR HC AK CIV 2011-404-007827 7 December 2011

[1]      The plaintiff has been served with a deportation order under s 175 of the Immigration Act 2009 (the Act), and taken into custody.   He is to be escorted to Auckland Airport tonight where he will be placed on board a commercial flight to Bejing.

[2]      Mr Chen now seeks an interim order pursuant to s 8 of the Judicature Amendment Act 1972 preventing the execution of the deportation order until his substantive application for judicial review of an immigration officer‘s decision not to cancel the deportation order under s 177 of the Act is heard and determined.

Background

[3]      Mr Chen has held various permits to be in New Zealand since 2007.  In that time he has studied English, obtained a graduate diploma in information technology from AIS, and worked in administration and IT sales, and also as an IT technician.

[4]      His work visa expired on 24 August 2011.   He did not seek its renewal. However, about the time of its expiry, he instructed Choice International Group to lodge an application for a visitor‘s visa on his behalf to give him sufficient time to research possible business opportunities and organise the necessary documentation for some other type of visa, such as a business visa.

[5]      His application for a visitor‘s visa was declined in mid-September 2011.

[6]      Mr Chen then spoke with his previous employer who made him a job offer conditional on obtaining another work visa.   Mr Chen then instructed Choice International Group to apply for a further work visa based on the job offer from his previous employer. An application was never lodged however.

[7]      In October 2011, Mr Chen attended an interview with New Zealand Customs, on  behalf  of his  prospective employer,  in  relation  to  the importation  of certain products into New Zealand.

[9]      After the initial interview by New Zealand Customs, and before the second interview on 5 December 2011, New Zealand Customs contacted Immigration New Zealand inquiring about the immigration status of Mr Chen.   Immigration New Zealand informed New Zealand Customs that Mr Chen was unlawfully in New Zealand  and  was  liable  for  deportation.    An  immigration  officer,  Mr  Simpson, advised New Zealand Customs that he was available to serve a deportation order if required.  New Zealand Customs then advised Mr Simpson of the time and place of the interview at Auckland Airport on 5 December 2011.

[10]     Mr Chen returned on 5 December 2011 when he completed a video interview with New Zealand Customs.  At approximately 11:00 am, after the video interview was completed, Mr Simpson spoke with Mr Chen.   He completed a statement in which Mr Chen confirmed his identity, address and immigration status.  Mr Simpson served a deportation order on Mr Chen.  Mr Chen was then placed under arrest by the  Auckland  Airport  Police  pursuant  to  s  313  of  the  Immigration  Act  2009. Mr Simpson gives evidence that he was present when Police explained Mr Chen‘s rights to him.  Mr Chen was then taken to the Auckland Airport Police Station and processed.

[11]     At 12:00 pm, Mr Simpson completed an interview with Mr Chen at the Auckland Airport Police Station.  This interview was recorded on a standard form called a Record of Personal Circumstances.

[12]     Following the completion of the interview, Mr Simpson signed the form under the words:

I have carefully considered the person‘s personal circumstances and any applicable international obligations.  I am not obliged to provide reasons for my decision by virtue of s 177(4)(a) of the Immigration Act 2009.  I consider that deportation should proceed.

[13]     The Immigration Act 2009 came into force on 29 November 2010, repealing the Immigration Act 1987.

[14]     Section 3 of the Act sets out the general purpose of the Act:

3        Purpose

(1)       The purpose of this Act is to manage immigration in a way that balances the national interest, as determined by the Crown, and the rights of individuals.

(2)       To achieve this purpose, the Act establishes an immigration system that—

(a)      requires persons who are not New Zealand citizens to—

(i)       hold a visa to travel to New Zealand; and

(ii)      hold a visa and be granted entry permission to stay in New Zealand; and

(b)       provides  for  the  development  of  immigration  instructions (which set rules and criteria for the grant of visas and entry permission) to meet objectives determined by the Minister, which may include objectives such as—

(i)        contributing to the New Zealand workforce through facilitating access to skills and labour; and

(ii)      supporting families; and

(c)       allows for the management of the immigration aspects of border control, by setting requirements that apply to persons arriving in New Zealand or who are intending to arrive in New Zealand; and

(d)       provides a process for implementing specified immigration- related international obligations; and

(e)       includes mechanisms to ensure that those who engage with the immigration system comply with its requirements, including mechanisms that—

(i)        enable immigration officers to gather information in relation to visa holders, employers, and education providers to determine compliance with obligations in respect of the system; and

(ii)      prescribe the system for the deportation of people who are not New Zealand citizens and who fail to

comply with immigration requirements, commit criminal offences, or are considered to pose a threat or risk to security; and

(f)       establishes a specialist tribunal to consider appeals against decisions made under this Act and to consider humanitarian appeals; and

(g)       supports the settlement of migrants, refugees, and protected persons.

[15]     The  Immigration Act  2009  has  at  its  forefront  the  principle  of  personal responsibility for immigration status, in that persons other than New Zealand citizens are obliged  to  ensure that  they are on  a valid  visa  at  all  times  whilst  in  New Zealand.1

[16]     There are various protections built into the Act which allow immigrants to challenge  adverse  decisions  as  they  arise.    Part  7  of  the Act  sets  out  various provisions which allow decisions to be reconsidered, appealed or subject to review proceedings.

[17]     Strict  time  limits  apply  for  all  statutory appeals  to  the  Immigration  and Protection Tribunal.  There are only limited rights of appeal from the Tribunal to the High Court.2   There is a statutory time frame on bringing review proceedings.3   All of this indicates a Parliamentary intention to ensure a streamlined process, which ensures that appeals and challenges to decisions are dealt with expeditiously.

[18]     A person who is unlawfully in New Zealand has a right of appeal to the Immigration and Protection Tribunal which can be exercised within 42 days after first becoming unlawfully in New Zealand.4

[19]     A person not on a valid visa is obliged to leave New Zealand.5

1      Section 14.

2      Appeals from the Tribunal on a point of law require the leave of the High Court and must be brought within 28 working days: s 245.

3      Section 247: review proceedings must be brought within 28 days.

4      Section 154.

5      Section 18.

[20]     Once a person is unlawfully in New Zealand and has either not exercised their right of appeal within the 42 day period, or the appeal has been unsuccessful, they can be subject to deportation, which is provided for in Part 6 of the Act.

[21]     The Act contemplates deportation orders being executed once served.  They are executed by:

(a)       taking the person into custody; and

(b)      escorting the person to an airport; and

(c)       ensuring that the person is placed on board a craft and detained there until the person leaves New Zealand.6

[22]     The particular provision at issue in this case is s 177 of the Act, under which an immigration officer retains a very broad discretion to cancel a deportation order which has been served.   There is no right of appeal from such a decision, which comes very much at the final stage of the immigration process.

[23]     Section 177 provides:

177     Deportation order may be cancelled

(1)       An immigration officer may, in his or her absolute discretion, cancel a deportation order served on a person to whom section 154 applies.

(2)       Nothing in subsection (1) gives a person a right to apply for the cancellation of a deportation order. However, an immigration officer must consider cancelling the deportation order of a person who is in New Zealand if the person provides information to the officer concerning his or her personal circumstances, and the information is relevant to New Zealand's international obligations.

(3)       If  an  immigration  officer  does  consider  cancelling  a  deportation order, whether by way of a purported application or his or her own motion, the officer must have regard to any relevant international obligations, but otherwise—

(a)      may make a decision as he or she thinks fit; and

(b)      in  doing  so,  is  not  under  any  obligation,  whether  by implication or otherwise,—

6      Section 178.

(i)        to  apply  any  test  or  any  particular  test  and,  in particular, the officer is not obliged to apply the test set out in section 207; or

(ii)      to inquire into the circumstances of, or to make any further   inquiry   in   respect   of   the   information provided by or in respect of, the person who is the subject of the deportation order or any other person.

(4)      Whether  or  not  an  immigration  officer  considers  cancelling  a deportation order,—

(a)      he or she is not obliged to give reasons for any decision, other than the reason that this subsection applies; and

(b)      section 23 of the Official Information Act 1982 does not apply in respect of the decision.

(5)      However, to the extent that an immigration officer does have regard to any international obligations, the officer is obliged to record—

(a)      a description of the international obligations; and

(b)      the facts about the person's personal circumstances.

[24]     A useful description of the scheme and purpose of the Act and, in particular, s 177  is  contained  in  the  decision  of  Lang  J  in  Babulal  v  Chief  Executive, Department of Labour.7   Lang J notes that s 177 was enacted in its current form as a direct legislative response to a 2009 Supreme Court decision and represents Parliament‘s endeavour to restrict the scope of judicial review while at the same time ensuring that regard is paid to New Zealand‘s international obligations.

Test for Interim Order

[25]     The test  for an  interim  order was  set  out  by Hammond  J  in  Esekielu  v

Attorney-General8 as follows:

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 application has a respectable chance of succeeding in that contest (emphasis added).

7      Babulal v Chief Executive, Department of Labour HC AK CIV 2011-404-1773 29 September

2011 at [9] – [22].

8      Esekielu v Attorney-General (1993) 6 PRNZ 313.

[26]     The Court of Appeal adopted the same approach in Parmanadan v Minister of Immigration,9 stating:

... the appellant cannot obtain relief from this Court unless he can establish that  he  has  at  least  a  respectable  chance  of  success  in  relation  to  his challenge to his proposed removal.

[27]     The Court of Appeal also stated an applicant must:

...also show that the making of an interim order is appropriately necessary to preserve his current status, an issue which must be addressed in the context of the scheme and purpose of the legislation.

Statement of Claim

[28]     The statement of claim seeks judicial review of two decisions.

[29]     The first, made by New Zealand Customs on a date prior to 5 December

2011,  was  ―to  induce the plaintiff to  attend  the premises  of the  [New  Zealand Customs] on false pretences.‖  It is alleged that that decision is ―ultra vires, in that [New Zealand Customs] has no law enforcement, immigration or other powers to mislead persons to be detained for overstayer immigration violations and thus entrap the plaintiff contrary to law.‖

[30]     The second decision challenged, is that of Immigration New Zealand on

5 December 2011, to continue with the plaintiff‘s deportation.  It is alleged that that decision was not one made in accordance with law in that it:

(a)       failed to take into account relevant considerations; (b) breached the plaintiff‘s right to counsel

(c)      was a breach of natural justice; and

(d)      was otherwise unlawful on an innominate ground.

9      Parmanadan v Minister of Immigration [2010] NZAR 424.

[31]     Dealing with the first decision challenged, that of New Zealand Customs. Mr Whittington  advises  that  he  does  not  have  instructions  from  New  Zealand Customs but, nonetheless, has made useful submissions.  He submits that anything New Zealand Customs may have done has no factual or logical connection to the decision of the immigration officer on 5 December 2011 to continue with the plaintiff‘s deportation.    The interaction  between  the New Zealand Customs  and Immigration New Zealand merely facilitated the service of a deportation order.

[32]     Mr Whittington observes that Immigration New Zealand receives information from a wide range of people in the community as to the whereabouts of those unlawfully in New Zealand and that there was  nothing untoward about the co- operation  in  this  case  between  New  Zealand  Customs  and  Immigration  New Zealand.

[33]     Mr Whittington refers to Principle 11(e) in s 6 of the Privacy Act, which enables Government Departments to share information between themselves for the purposes of maintenance of the law.

[34]     I also  raised  with  Mr  Deliu  the possibility of  the existence of  a  formal agreement between New Zealand Customs and Immigration New Zealand to share information, which is permitted in terms of the Immigration Act 2009.

[35]     I am of the view that the plaintiff has not been able to establish an arguable case  for  some  actionable wrong  in  respect  of  New  Zealand  Customs  advice to Immigration New Zealand.

[36]     In this proceeding the plaintiff seeks an interim order staying his deportation. The basis for that is, in essence, the decision of Immigration New Zealand not to cancel the deportation order.   Any decision of the New Zealand Customs to co- operate with Immigration New Zealand in the location of the plaintiff is also too remote in those circumstances.

[37]     As to the second decision challenged in this proceeding, it is alleged by the plaintiff that Immigration New Zealand failed to take into account relevant considerations, which were the availability of a job offer from his former employer, which would have enabled the plaintiff to regain his lawful immigration status in New Zealand, and the fact that he had instructed an immigration adviser to lodge a fresh application.

[38]     The plaintiff submits that, given the wide discretion which was available to the immigration officer in terms of s 177 of the Immigration Act 2009, it is entirely possible that the immigration officer could have reached a different decision as to whether or not to proceed with the plaintiff‘s deportation if he had been aware of the job offer and of the imminent filing of a further application for a work visa.

[39]     With  respect  to  the  plaintiff‘s  argument,  I  have  considered  the  details contained in the Record of Personal Circumstances interview, and it seems to me that the immigration officer was well aware of the opportunity for further work in New Zealand.  I am of the view that it can be inferred from the answers given by the plaintiff in the interview that the immigration officer knew that the plaintiff would be able to secure further work.

[40]   Under the general pleading of failure to take into account relevant considerations, the plaintiff also submits that the immigration officer failed to have regard to New Zealand‘s international obligations.   Two international instruments are referred to in the written submissions.  They are the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, and/or, article 36(1)(a) of the Vienna Convention of Consular Relations 1963.

[41]     The  Body  of  Principles  were  adopted  by  the  United  Nations  General Assembly by resolution on 9 December 1988.  They express best practice but are not binding on New Zealand.  The Vienna Convention, on the other hand, is binding on New Zealand but article 36(1)(a) has, in my view, not been breached in this case.  It provides  for  the  freedom  of  communication  with  consular  officials.    Mr  Deliu

argues, on behalf of the plaintiff, that the Body of Principles adopted by the General Assembly should guide interpretation of the Vienna Convention.  However, I am of the view that, even bearing those principles in mind, article 36(1)(a) is plain on its face and has not been breached.

[42]     In reply submissions, Mr Deliu referred also to the International Covenant on Economic Social and Cultural Rights and, in particular, Articles 1 and 6 relating to the right of all peoples to freely pursue their economic development, which includes the right to work and furthermore, to have these rights safeguarded by the State.

[43]     Based on the articles as cited to me by Mr Deliu, I am of the view that, although they do express general principles which are binding on New Zealand, they do not assist in the present case, especially in an immigration context where rights are more limited than elsewhere because of the countervailing principle that States are free to determine who should reside and work within their territory.

[44]     Further, the plaintiff alleges a breach of his right to counsel.  In an affidavit sworn on 6 December 2011, the plaintiff states that he wanted to see a lawyer but the immigration officer told him it would take too long for a lawyer to come to see him so he insisted that he proceed with the interview without a lawyer.   The plaintiff submits that this is supported, to some extent, by the Record of Personal Circumstances interview where in answer to the question ―Do you wish to consult a lawyer or licensed immigration adviser before completing this record of personal circumstances‖ the ―yes‖ box is ticked although the lawyer/adviser name is specified as Choice New Zealand Group, which is the plaintiff‘s immigration adviser.

[45]     An affidavit sworn by the immigration officer explains the circumstances of the entry in the Record of Personal Circumstances.  He states that when Mr Chen indicated that he wanted to consult with the New Zealand Choice Group, he went into more detail for Mr Chen as to the content of the interview and said that he would be asking about his personal background, family circumstances, whether he had any children, his employment history, financial factors, his health and character. He denies advising the plaintiff that it would take too long for a lawyer to come to the Airport Police Station.

[46]     Mr Simpson refers to the response of Mr Chen, which he has recorded in the same  section  of  the  interview  form,  that  Mr  Chen  could  tell  him  everything. Mr Chen‘s response led the immigration officer to believe that he no longer wished to consult with his immigration adviser.  Mr Simpson goes on to state that he then completed the remaining sections of the Record of Personal Circumstances and that at no stage did Mr Chen renew his wish to see or speak with his immigration adviser.

[47]     Mr Deliu, in his written submissions, submits that this a breach of s 23 of the New Zealand Bill of Rights Act 1990, in that the plaintiff had a right to a lawyer, which was refused in this case.  However, as I read s 23 of the New Zealand Bill of Rights Act, it does not apply to a non-lawyer, such as an immigration adviser.

[48]     If I am wrong in that, I also take the view that, given Mr Simpson‘s record of Mr Chen‘s reply, that Mr Chen waived the right to speak with his immigration adviser.  As noted by Mr Whittington, the interview was to enlicit personal details from Mr Chen, which Mr Chen would need to answer in any event, even if his immigration adviser was present.

[49]     Next, a breach of s 27 of the New Zealand Bill of Rights Act 1990 is alleged by the plaintiff.   The plaintiff submits that he was denied an interpreter at the interview and that Mr Simpson did not properly explain to him what was occurring.

[50]     In his affidavit sworn on 6 December 2011, the plaintiff states that he made it clear to the immigration officer that his English was not very good and although he could understand some general words, he could not understand everything, nor the legal documents which were brought to the interview.

[51]     In response, Mr Simpson, in his affidavit, refers to the fact that Mr Chen had just submitted to a video interview with New Zealand Customs in which there was no  lawyer  or  interpreter  present.    He  refers  also  to  the  plaintiff‘s  answer  in section B3 of the Record of Personal Circumstances, in which Mr Chen confirmed that he understood him.  He states that he does not recall Mr Chen telling him that he did not understand legal documents but states that, in any event, it is his job to

explain things to people in plain English.   He says he did so to Mr Chen and confirmed with him that he understood him.

[52]     Mr  Simpson  also  says  that  he  has  been  an  immigration  officer  for approximately  three  years  and  regularly  comes  across  people  who  have  learnt English as a second language.   Where he has any concerns about their ability to communicate with him in an interview, he would stop the interview and arrange for an interpreter.

[53]     After Mr Chen‘s advice that he understood him, and also taking into account that he had just completed a video interview with New Zealand Customs, he decided he did not need to take this step.  Mr Simpson felt he was able to communicate with Mr Chen well.  He also refers to a number of answers in the form, which indicated to him that Mr Chen was well able to understand and communicate in English.   In particular, he refers to answers recorded which are almost verbatim.   He does not recall having to repeat any questions to Mr Chen during the interview.  Nor does he recall not being able to understand anything that Mr Chen was telling him.

[54]     Again, the basis of complaint here is that if an interpreter had been available, Mr Chen may have been able to advise the immigration officer of the fact that he did have a job offer and that an application was about to be made for a further work visa. I have, in any event, reached the view noted above that the immigration officer knew that the plaintiff would be able to secure further work so that, even if an interpreter was required, of which I am doubtful, the lack of an interpreter did not make any material difference to the outcome of the case.

[55]     The final ground set out for challenging the decision of 5 December 2011 is what is said to be a material misrepresentation to induce the plaintiff to execute documentation.

[56]     The plaintiff states that during the interview Mr Simpson brought a number of legal documents to him to sign.  Initially he was reluctant to sign those documents because he did not understand what they were about but Mr Simpson said he would

let him stay in New Zealand but only if he signed those documents.  Although he did not understand what he was signing he felt he had no choice but to sign those forms.

[57]     Again, Mr Simpson explains it differently.  He states that clients are given the opportunity to sign a deportation order merely as proof of service.  On each occasion he tells the client that they do not have to sign it and by doing so they are only accepting  that  they  have  received  a  copy.    He  says  he  carefully explained  the document to Mr Chen before he signed it and specifically said that he was signing only that he had received a copy.  At no stage did he tell Mr Chen that if he signed any documents he could stay in New Zealand.

[58]     Whether a client signs  documents or not  does  not affect the deportation process, so again even if the plaintiff‘s account is true, it would not have had any material impact on the process.

Conclusion

[59]     By way of conclusion, after having carefully considered all material placed before me, I am of the view that in terms of the test set out in Esekielu, the plaintiff has not established that there is a real contest between the parties and that he has respectable chance of succeeding in that contest.

[60]     The real basis for the challenge is that the decision of the immigration officer may well have been different if he had knowledge of the job offer.  The failure to afford counsel and an interpreter to Mr Chen is bound up with this in as much as it is submitted that if both counsel and an interpreter were present there was more chance of the immigration officer being aware of the job offer.

[61]     However, the legislative scheme is such that s 177 gives absolute discretion to an immigration officer.   I take the view on the evidence before me that the immigration officer was aware of the possibility of further employment opportunities for the plaintiff in New Zealand.  In those circumstances, I am also of the view that it is  most  unlikely  that,  even  if  the  formal  job  offer  had  been  provided  to  the

immigration officer, that there would have been any difference in the outcome of the case.

[62]     Even if the plaintiff were to establish some procedural improprieties, that does not affect, in my view, the likely substantive outcome in the proceedings.

[63]     In  addition,  I  have  in  mind  the  comments  of  the  Court  of  Appeal  in

Parmanadan where it is stated:

[10]     To  be  more  specific,  the  corollary  of  an  ultimately  successful challenge by the appellant to his removal will be a grant of permission to reside in New Zealand.  In other words, the end point of the whole process (which may include reconsideration of his case by an immigration officer) will be either the appellant‘s removal, or him being permitted to stay in New Zealand. Armed with such permission, the appellant, even if removed in the meantime, will be able to return to New Zealand. So allowing him to be removed would not compromise his legal rights should his challenge to removal be ultimately successful.

[11]     This   is   not   to   deny   that   there   may   be   particular   adverse consequences of a proposed removal which might warrant the making of an interim order. But the likelihood of such adverse consequences should be established by evidence and assessed in the context of both a legislative scheme under which the overstayer is necessarily illegally in New Zealand and is under a legal duty to leave10  (subject to a right of ‗appeal‘ to the Removal   Review   Authority   on   humanitarian   grounds11),   and   also   a legislative policy under which those who break the rules are not to be advantaged over those who comply.12

[64]     The plaintiff has not been able to establish to my satisfaction the likelihood of adverse consequences which might warrant the making of an interim order.   As discussed with counsel, if the plaintiff wishes to proceed with the substantive application, he is able to do so from overseas.   There is scope for the plaintiff‘s participation in such proceedings by way of video conferencing if leave is granted by the High Court for oral evidence.   I am also of the view that instructions can be

received by counsel readily from overseas.

10     Immigration Act 1987, s 45. See also ss4 and 34.

11     Immigration Act 1987, s 47.

12     As expressed in the Long Titles to the Immigration Amendment Acts 1991 and 1999.

[65]     In those circumstances the application for an interim order is dismissed.

……………………………….

Woolford J