Grounded Kiwis Group Inc v Minister of Health
[2022] NZHC 832
•27 April 2022
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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV 2021-485-556
[2022] NZHC 832
UNDER the Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules IN THE MATTER OF
an application for judicial review
BETWEEN
GROUNDED KIWIS GROUP INCORPORATED
Applicant
AND
MINISTER OF HEALTH
First Respondent
MINISTER FOR COVID-19 RESPONSE
Second Respondent
CHIEF EXECUTIVE FOR THE MINISTRY OF BUSINESS, INNOVATION AND
EMPLOYMENTThird Respondent
Hearing: 14 and 15 February 2022 Counsel:
P J Radich QC and L I van Dam for Applicant
A Boadita-Cormican, C A Griffin and I S Auld for Respondents
Judgment:
27 April 2022
JUDGMENT OF MALLON J
Table of contents
INTRODUCTION AND SUMMARY [1]
BACKGROUND FACTS [24]
The pandemic [24]
Introduction [24]
Variants [25]
GROUNDED KIWIS GROUP INCORPORATED v MINISTER OF HEALTH [2022] NZHC 832 [27 April 2022]
Tests, treatment and vaccines [27]
The risk to public health [29]
NZ Government’s policy [41]
MIQ [45]
Introduction [45]
Capacity and scale [51]
Allocation of MIQ places [59]
Managing demand (prior to the Relevant Period) [64]
The Relevant Period (the virtual lobby) [104]
The Relevant Period (other steps to manage the demand) [112]
Summary of measures to address demand [132]
Offline allocations [133]
Background [133]
Emergency allocations [134]
Time-sensitive allocations [137]
Group allocations [139]
Grounded Kiwis [140]
Introduction [140]
The call to come home [141]
Grounded Kiwis’ evidence [149]
The procedural history of the claim [163]
THE RIGHT TO ENTER [165]
The content of the right [165]
A justified limit [170]
Deference [172]
Case examples and commentary [176]
ASSESSMENT [205]
The limiting measures [205]
Prescribed by law [211]
Legislative framework [211]
Voucher requirement, prescribed MIQ period and testing [213]
Virtual lobby [216]
Group allocations [217]
Purpose of limit [251]
Voucher requirement, prescribed MIQ period and testing [251]
Virtual lobby [255]
Group allocations [257]
Rationally connected to the purpose [265]
Voucher requirement, prescribed MIQ period and testing [265]
Virtual lobby [266]
Group allocations [267]
No more than reasonably necessary [268]
The law [268]
Voucher requirement, prescribed MIQ period and testing [270]
Virtual lobby [321]
Group allocations [344]
Proportionality [345]
MIQ after the Delta outbreak [345]
A bright line test: three months delay [362]
EMERGENCY ALLOCATIONS [365]
Criteria [365]
Errors of law [366]
Issues [366]
Fourteen days of a person’s intended date of departure [370]
The “no other option” criterion [386]
MIQ PROCESS OVERALL [405]
RELIEF [430]
Appendix one – key events from New Zealand’s perspective Appendix two – key events relating to MIQ
Appendix three – offline criteria during Relevant Period Appendix four – Grounded Kiwis affidavits
Appendix five – legislative framework
INTRODUCTION AND SUMMARY
[1] Every New Zealand citizen has the right to enter New Zealand.1 It is a fundamental freedom that in New Zealand can be limited by the state only if that limit is prescribed by law and demonstrably justified in a free and democratic society.2
[2] In response to the COVID-19 pandemic, restrictions were placed on overseas New Zealanders’ right to enter their country. From 10 April 2020 until 28 February
1 New Zealand Bill of Rights Act 1990 [BORA], s 18(2).
2 Section 5.
2022 all arrivals, including New Zealand citizens, were required to enter Government-managed isolation facilities (MIQF) and to submit to medical testing. This was a key component of the Government’s strategy involving a zero tolerance of cases of COVID-19 in the community (elimination strategy).
[3] For much of the period over which the restrictions were in place, demand for MIQF outstripped capacity. This meant that New Zealanders experienced difficulties and delays in the exercise of their right to return to their country. This proceeding concerns whether the restrictions were lawful as a justified limitation on the right to enter New Zealand in a free and democratic society.
[4] The proceeding is focused on the restrictions placed on New Zealand citizens over the period 1 September 2021 to 17 December 2021 (the Relevant Period).3 Those restrictions required that a person entering New Zealand have a voucher for a place in MIQF at which they were required to isolate.4 The voucher could be obtained prior to travelling to New Zealand via a virtual lobby (an online process) or by application to the Ministry of Business, Innovation and Employment (MBIE) (an offline process). During the period at issue and until 14 November 2021, the isolation period in a MIQF was 14 days. From 14 November 2021, the isolation period changed to seven days in MIQF, followed by isolation at home until receiving the result of a negative day 9 test.
[5] The applicant (Grounded Kiwis) was incorporated to advocate for New Zealand citizens and residents impacted by the restrictions. It does not challenge the Government’s decision to pursue, in response to the COVID-19 risk, an elimination strategy for the period that it did. Nor for the most part does it challenge the Government’s decision that entry into New Zealand be subject to a MIQ system. Its challenge concerns aspects of the system which it says operated as unjustified limits on the right to enter. It also challenges the way decisions were made for groups entering MIQ and the approach that was taken to applications for places in MIQ under one of the emergency categories.
3 This was to ensure that the case was able to proceed on an urgent basis. Grounded Kiwis’ position remains that the MIQ system breached s 18(2) from an earlier time and it reserves its right to bring a claim for an earlier time.
4 There are other requirements that are not the subject of Grounded Kiwis’ challenge.
[6] First, Grounded Kiwis submits that the requirement to have a voucher to enter MIQ and to isolate in MIQ for 14 days limited the right to enter in an unjustified way. The voucher system was a flow management tool that operated to limit the right to enter because the demand for a place in MIQ significantly exceeded the available places during the Relevant Period. Grounded Kiwis submits that a shorter period of isolation along with an updated and testing protocol should have been implemented at an earlier stage. It also says a self-isolation model should have been given conscientious consideration at an earlier stage. It says the MIQ requirements restricted the right to enter New Zealand in a way that was not proportionate following changes that permitted those who had contracted the virus in the community and their close contacts to self-isolate in October 2021. It says these requirements were also not proportionate when they denied New Zealand citizens entry for more than three months.
[7] Secondly, Grounded Kiwis submits that allocations for MIQ places that were made to groups through an offline process limited the right to enter New Zealand because those allocations removed places that could have been available to New Zealand citizens. It submits that, although this offline process began in September 2020, it was not prescribed by law until 20 November 2021. It also says that MBIE failed to publish criteria for them until 1 September 2021 and that the Chief Executive of MBIE unlawfully delegated decisions on them to a group of ministers. It also says that some group allocations did not serve a purpose sufficiently important to justify curtailing a citizen’s right to enter.
[8] Thirdly, the online system through which a voucher in MIQ could be obtained during the Relevant Period, described as a virtual lobby, operated as a lottery. Grounded Kiwis submits this limited the right to enter New Zealand because of the low odds in the lottery and because it was wholly randomised. The length of time a person had been waiting to enter New Zealand was not factored in. Grounded Kiwis submits this was not ameliorated by the emergency allocations available through an offline process because there was no criterion based on the length of the time a person had been trying to return.
[9] Lastly, Grounded Kiwis submits that MBIE applied an unlawful approach to one of the emergency categories. It submits this was because MBIE wrongly interpreted the requirement that the application be made with 14 days of “intended departure” as “intended arrival”. It submits it was also because MBIE adopted such a high threshold to the requirement that a person have “no other option”, and failed to take into account a person’s financial position or physical or mental health, that the category was deprived of any meaning.
[10] Overall, Grounded Kiwis submits that, in the context of a chronic lack of MIQ capacity, decisions about MIQ were made through the single lens of public health risks. It submits that these decisions should have been with a bifocal lens that included the fundamental right of citizens to enter their country. It submits that failure to do so resulted in New Zealanders enduring substantial delays in returning and considerable suffering and that this was not justified.
[11] The respondents submit that the restrictions imposed on the right to enter New Zealand were justified as part of the Government’s public health response to the pandemic. They say that, faced with the most serious threat to public health that New Zealand has ever experienced, the Government put in place a multifaceted strategy involving a range of measures of which the MIQ system was a crucial part.
[12] The respondents say that no system for overseas arrivals that limited citizens’ right to enter the country in a lesser way would have been as effective at reducing the public health risk. They say that, far from a bifocal lens, citizens’ right to enter New Zealand was at the forefront of the MIQ system and it allowed many thousands of citizens to do so. They say the suite of public health measures implemented required sacrifices and forbearance, but they were made for the benefit of all New Zealanders. They have enabled New Zealanders to enjoy protection and the fulfilment of the right to the highest attainable standard of health during the pandemic. That in turn benefits returning New Zealanders.
[13] On the first of the specific matters challenged by Grounded Kiwis, the respondents submit a flow management system was an inherent and unavoidable part of any border managed quarantine system. They say the voucher requirement was
better than alternative systems at enabling health authorities to anticipate and meet the health and other needs of passengers. They say there was no alternative to a 14-day quarantine period prior to the change to a 7-day period that was less rights-limiting and that could have achieved the objective of preventing and limiting the public health risks in accordance with the Government’s elimination strategy. They say a self-isolation model was not a reasonably available alternative until vaccination rates had increased. They say the requirements were proportionate to the public health risks and a delay of three months or more for a returning New Zealander does not necessarily render it disproportionate.
[14] On the group allocations, the respondents submit they were prescribed by law. They were citizenship-neutral and therefore available to, and mainly used by, New Zealanders and they mitigated some of the economic and social impacts of the COVID-19 response. The criteria were published throughout the Relevant Period and so the fact that they were not published prior to 1 September 2021 is irrelevant. Although the process for approving them did not align with what was prescribed, the respondents say the decisions were made by a group of Ministers who were appropriately placed to make those decisions.
[15] On the virtual lobby, the respondents submit that, within the confines of a necessarily limited supply of MIQ space, this system aided New Zealanders’ right to return to the greatest extent possible. It did so by improving the performance issues of the online system it replaced. It successfully enabled many New Zealanders to return, including many of those who filed evidence for Grounded Kiwis. Although the virtual lobby did not have a priority system, the respondents say that emergency allocations were available to ensure that, outside the virtual lobby, New Zealanders with an urgent requirement to enter New Zealand could do so.
[16] Lastly, the respondents submit that officials correctly understood the “14 days of intended departure” requirement for emergency allocations. They say that evidence of any error about this in an individual case is not evidence of a system error. They also say that the “no other option” criterion was correctly applied. They say that this was an intentionally narrow category and was not intended as a general visa expiry category.
[17] I have determined that the requirement for arrivals to have a voucher in MIQF did not in and of itself amount to an unjustified infringement of New Zealanders’ right to enter their country. The requirement to isolate in a MIQF for a period of 14 days (until 14 November 2021) and then for 7 days (from 14 November 2021) were reasonable and proportionate limits on the right to enter while those requirements were in place. Other options would not sufficiently have achieved the public health objectives the Government had legitimately determined to pursue.
[18] This was so even when, from mid-October 2021, those in the community who had the virus and their close contacts were not required to quarantine or isolate in a MIQF (subject to some exceptions) due to the severe constraints on MIQ availability at this time. Expert advice was that border arrivals as a cohort presented different public health risks to community cases and their contacts and a precautionary approach was appropriate while vaccination rates increased. In the meantime, following the High Court’s decision in Bolton v Chief Executive of the Ministry of Business, Innovation and Employment in late October 2021, there was, at least in theory, greater potential scope for individuals to obtain permission to self-isolate.5 A pilot for a wider self-isolation model was also underway.
[19] Group applications were prescribed by law during the Relevant Period. It has not been established that group allocations as a category improperly curtailed New Zealanders’ right to enter their country. However, individuals may have been facing unreasonable delays and there should have been a system to enable such individuals to be allocated a place as well. There were process errors in the way the group allocation system operated, although it is not suggested that these errors impacted upon overseas arrivals who were experiencing unreasonable delay.
[20] The virtual lobby was the main pathway through which overseas New Zealanders could exercise their right to enter their country. It was not an appropriate mechanism where demand significantly exceeded supply and those seeking to access that supply had a fundamental right that was potentially impacted to different degrees. The virtual lobby did not prioritise New Zealand citizens over
5 Bolton v Chief Executive of the Ministry of Business, Innovation and Employment [2021] NZHC 2897, [2021] 3 NZLR 425.
non-citizens and nor did it prioritise on need or the delay experienced by a citizen. The offline emergency process was too tightly constrained to address this deficiency. The respondents have not shown that a less rights impairing MIQ system was not reasonably available and that would have sufficiently achieved the Government’s public health strategy during the Relevant Period.
[21] In particular, the respondents have not shown why an online system could not have prioritised New Zealand citizens over others or prioritised based on the time period that a person had been seeking to return. Nor have the respondents demonstrated that wider criteria for offline applications and a corresponding greater number of rooms allocated for those applications were not reasonably available alternatives to the system as it operated. The emergency allocation process as it operated was an inadequate method of seeking to ensure that New Zealanders could return if they were facing unreasonable delays or had a need to return that warranted priority. There appears to have been no proper system to gather information from overseas New Zealanders about this. This information would have enabled system changes to be considered to better give effect to the right of citizens to return while still meeting the Government’s public health aims. It was inevitable that the system would operate unjustly in some individual cases because of this.
[22] While there is no bright-line test that restrictions preventing a person from being able to enter their country for a three-month period cannot be justified, the evidence indicates that at least some New Zealanders experienced unreasonable delays in exercising their right to enter. The MIQ system did not have an adequate mechanism for identifying them. Although MIQ was a critical component of the Government’s elimination strategy that was highly successful in achieving positive health outcomes, the combination of the virtual lobby and the narrow emergency criteria operated in a way that meant New Zealanders’ right to enter their country could be infringed in some instances in a manner that was not demonstrably justified in a free and democratic society.
[23]My reasons follow.
BACKGROUND FACTS
The pandemic
Introduction
[24] The term COVID-19 refers to coronavirus disease caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2). As is now well-known, it was first identified in December 2019 in Wuhan, China, and since then, it has spread globally to create the most significant pandemic event since the Spanish flu of 1918. As at 16 December 2021, there were 270,791,973 confirmed cases of COVID-19 and 5,318,216 deaths reported to the World Health Organisation (WHO). The true number of cases and deaths will be higher than the confirmed cases.6 A timeline of some of the key events from New Zealand’s perspective is set out in Appendix one to this judgment.
Variants
[25] As the pandemic has unfolded, new variants (genetic mutations) have emerged. Depending on those changes and their public health significance WHO classified them as “variants of interest” or “variants of concern”.7 Since the start of the pandemic until 26 November 2021, WHO has designated five variants of concern: Alpha, Beta, Gamma, Delta and Omicron.
[26] For present purposes, the Delta and Omicron variants are the most relevant. New Zealand had its first Delta community outbreak (initially centred in Auckland) in August 2021. New Zealand’s first case of Omicron was detected at the border on 16 December 2021 and there has since been a widespread community outbreak in the first few months of this year that, at the time of this judgment, continues.
6 The pandemic has continued on. As at 4 February 2022, WHO has recorded 380,321,615 confirmed cases of COVID-19, resulting in 5,698,741 deaths. Again, this is a figure likely to significantly understate the true number.
7 Variants of interest have changes that affect the virus’ characteristics (for example, transmissibility, disease severity, or immune, diagnostic or therapeutic escape) and, putting it broadly, have impacts to suggest an emerging risk to global public health. Variants of concern meet the definition of variants of interest but also have demonstrated changes at a degree of public health significance involving increased transmissibility or a detrimental change in epidemiology, increased virulence or change in clinical disease presentation, or decreased effectiveness of public health and social measures or available diagnostics, vaccines or therapeutics.
Tests, treatment and vaccines
[27]There are several ways to test for COVID-19. They include:
(a)Polymerase chain reaction (PCR) testing by nasopharyngeal or oropharyngeal swab that is processed in a laboratory.8 It is highly accurate and for much of the pandemic it has been the most commonly used test in New Zealand. It was used to test all arrivals at the border while they were in MIQ from June 2020.
(b)PCR testing of a saliva sample (saliva testing). From April 2021 the Ministry of Health was satisfied that this could be used for surveillance testing of border workers and returnees. It was first used as a prototype in Canterbury to inform national rollout from 28 June 2021. The phased rollout to border workers commenced on 11 August 2021.
(c)Rapid Antigen testing (RAT). These are individual test kits that do not require a laboratory to process. They can be self-administered and take 15 minutes to produce a result. They are less reliable than a PCR test. Their reliability is improved when a person is highly infectious. Pilots in Auckland metro hospitals (high-risk settings) ran from September to October 2021. A point-of-arrival pilot in Auckland commenced on 31 October 2021. A phased rollout of RATs commenced on 15 December 2021 when Aucklanders were permitted to leave their region. As is well-known, during the current Omicron outbreak their use has become widespread.
[28] When the COVID-19 virus emerged there were no known effective therapeutic treatments or vaccines available. The Pfizer/BioNTech vaccine was the first to receive emergency validation from WHO on 31 December 2020 and recommendation on 8 January 2021 from WHO’s Strategic Advisory Group of Experts on Immunization.9
8 A PCR test is a molecular test technique that uses selective primers to “copy” segments of an RNA sequence.
9 The AstraZeneca/Oxford vaccine received emergency validation on 15 February 2021 and SAGE recommendation on 21 April 2021: World Health Organization “WHO lists additional COVID-19 vaccine for emergency use and issues interim policy recommendations” (Press release, 7 May 2021).
Between October 2020 and December 2020 the Government made contractual arrangements with Pfizer/BioNTech to purchase up to five million COVID-19 vaccines.10 Medsafe provisionally approved the Pfizer vaccine on 3 February 2021 and New Zealand began vaccinating border workers on 20 February 2021 followed by the families and household contacts of this workforce. The rest of the vaccine rollout occurred in stages during 2021.
The risk to public health
[29] Dr Ashley Bloomfield, the Director-General of Health, who has played a critical advisory role to the Government’s response to the pandemic and has provided an affidavit for this proceeding, said it is hard to overstate the risk COVID-19 posed, and (as at the time of his affidavit sworn on 17 December 2021) continued to pose, to the public health of New Zealand. As the respondents put it in their submissions, the pandemic is arguably both the most serious threat to public health New Zealand has ever experienced and the most significant global disruption to lives and livelihoods since World War II.
[30] In response to the risk posed by the virus, one of the public health measures put in place by many countries was to require people to stay at home subject to limited exceptions. The most restrictive of New Zealand’s stay at home orders was implemented under the Government’s “Alert Level 4” and colloquially referred to as “lockdown”. New Zealand first went into Alert Level 4 at 11.59 am on 25 March 2020.11
[31] At that time, modelling work indicated that with substantial uncontrolled spread in New Zealand, 34 per cent of the population would be symptomatic, on the worst day there would be 1,450 to 1,700 patients requiring ICU hospital care which was around 10 times more than the capacity, estimated deaths would be at least 12,600–33,000 and the burden of hospitalisations and deaths would fall disproportionately on Māori and Pasifika communities and those aged over 60 years.
10 Other vaccine candidates were pursued during this period as well.
11 Appendix one provides the details of when all or parts of New Zealand were subject to these orders.
[32] Stay at home orders were part of a suite of public health measures that New Zealand adopted at various points in the pandemic. Others included school closures, restrictions on public gatherings, testing and contact tracing, border controls, restrictions on internal movements, requirements to wear face coverings and vaccine policies.
[33] Dr Bloomfield confirmed that these public health measures were all geared towards reducing the incidence of infection, illness and death across New Zealand’s population. This included seeking to ensure a reduction in illness and death from other diseases that would result if our hospital system became overwhelmed with COVID-19 cases (as occurred in other countries).
[34] Decisions about these public health measures had to be made in an evolving situation. As Dr Bloomfield described it, matters were “evolving fast and hugely significant judgement calls were being made quickly, usually on incomplete or very emergent information”. The precautionary principle, where reasonable efforts to reduce risk need not await scientific certainty, applied. Dr Bloomfield described New Zealand’s “aces” in responding to the pandemic as achieving high vaccination rates, and having vigorous testing and contact tracing and border controls. He said that giving up any of these measures too soon could have led to severe consequences.
[35] Dr Bloomfield said that “looking back” it was possible to see a number of points where there was a “step-change” in what was happening with the virus. Delta was significantly more transmissible than the original variant and became the dominant variant globally when it emerged. It “fundamentally changed the game” and put considerable pressure on New Zealand’s public health response resources. The volume of contacts was six times the number of close contacts as that identified in association with all the previous community outbreaks in New Zealand.
[36] At the time of the Delta outbreak, New Zealand was in the midst of its Pfizer vaccine rollout to the eligible population. Two doses of the Pfizer vaccine were effective against infection, symptomatic disease and hospitalisation for Delta cases, but protection against Delta waned over time. This indicated the need for a third (booster) dose after several months. As at the end of the day on 15 December 2021,
94 per cent of eligible New Zealanders (aged 12 and up) had received a single dose of Pfizer’s vaccine and 90 per cent were fully vaccinated.
[37] Omicron was designated as a variant of concern because it had characteristics (namely, the number of mutations in the spike protein) that gave rise to the potential for enhanced transmissibility and/or a degree of immune escape. There were also concerning initial epidemiological reports from South Africa, including signals of an increased risk of reinfection. Many of its characteristics were unclear at the time of Dr Bloomfield’s evidence.
[38] Dr Bloomfield’s evidence was that a precautionary approach and agility have been critical features of New Zealand’s response. He said New Zealand’s response involved considered decision-making, built on science and evidence, and with the safety and wellbeing of New Zealanders as the paramount consideration. One measure of success in the public health response to date that he referred to was “excess mortality”. In the 18-month period since January 2020, New Zealand recorded the sixth lowest figure. Dr Bloomfield said a cautious approach was appropriate because the potential health consequences of getting the balance wrong were “very serious indeed”.
[39] A comparison was made with Scotland because it has a similar population and demographic to New Zealand. As at 30 November 2021, and despite implementing public health measures including several “lockdowns”, it had experienced 724,983 cases and 9,562 deaths related to COVID-19. That was within the range indicated by the modelling referred to above if the virus had been allowed to spread substantially in New Zealand.
[40] Since Dr Bloomfield’s affidavit, there has been continued uptake of the first and second doses of the Pfizer vaccination and a third booster shot has been rolled out to respond to the Omicron wave. This third shot is understood to reduce the risk that a person will become seriously unwell from contracting Omicron.12 With the several thousands of daily cases of Omicron that New Zealand experienced, PCR testing and
12 Vaccination rates have been regularly reported and the efficacy of the booster shot has been mentioned regularly in public announcements.
contact tracing were quickly overwhelmed and reported cases predominantly now come from RATs.13
NZ Government’s policy
[41] From March 2020, New Zealand pursued an elimination strategy. This strategy is discussed in Dr Bloomfield’s evidence as well as by Hon Chris Hipkins. Minister Hipkins was initially the Minister of Health but became the Minister for COVID-19 Response in November 2020 (the Minister). In the latter capacity he was responsible for all aspects of the Government’s ongoing response to COVID-19, including matters relating to the MIQ system, border management, testing and contact tracing systems, and managing any resurgence of the virus.14
[42] The Minister’s evidence explained that the elimination strategy did not have a goal of no new cases. Rather, it was a strategy of zero-tolerance towards new cases. It had four key components (referred to as “pillars”) involving:
(a)“Keep it out”: this was about keeping COVID-19 out of the New Zealand community through border controls. It involved rigorous quarantine procedures and other measures at the border that prevented a person who arrived in New Zealand while infected with the virus from infecting a person in the community and “seeding” an outbreak.
(b)“Prepare for it”: this involved putting in place public health measures in the absence of community transmission to ensure early detection of any community outbreaks, to allow for rapid contact tracing and isolation, and to slow the spread of the virus in the event an outbreak was seeded. More recently, it also included vaccination to build up personal and population immunity.
13 Daily cases were above 20,000 in February but are now less than 10,000. Total deaths are presently in the mid-600s.
14 Before that, between 19 June 2020 and 6 November 2020, Hon Megan Woods was responsible for the MIQ system while responsibility for imposing requirements on people to be isolated and quarantined rested with Hon Chris Hipkins as Minister of Health.
(c)“Stamp it out”: this involved testing, contact tracing, quarantine, isolation and case management to eliminate COVID-19 as quickly and efficiently as possible from the community. It also involved population-wide social distancing requirements to prevent the spread of the virus, while outbreaks were contained and eliminated.
(d)“Manage the impact”: this included efforts to strengthen the public health system.
[43] The Minister said the policy objective was to have public measures at the border that reduced the likelihood of a community outbreak being seeded from overseas to as close to zero as possible. The Delta outbreak challenged the elimination strategy but the Government continued its attempts to “stamp out” the outbreak in areas outside of Auckland while vaccination rates increased. The Delta outbreak led to a transition to a new strategy, in October 2021, of managing and attempting to contain the outbreak. Strict border controls were maintained to prevent further outbreaks from seeding, including in areas outside of Auckland and in previously unaffected populations, and to prevent the arrival of new variants of concern. The Minister’s evidence was that the Government’s tolerance for the risk of an outbreak being seeded by a person arriving in New Zealand from overseas was very low. As at 21 December 2021 (when the Minister’s evidence was sworn), this continued to be the case throughout the Delta outbreak centred in Auckland.
[44] It was envisaged that, as vaccination uptake allowed, the strategy would rely more on vaccination to slow the spread of the virus rather than relying so heavily on border controls, travel restrictions and social distancing measures, while also seeking to avoid outbreaks of new variants of concern. Consistent with this approach, New Zealand citizens are now able to return without being required to enter MIQ and vaccinated returnees are also not required to self-isolate.
MIQ
Introduction
[45] In late February and March 2020, while cases of COVID-19 overseas were rising and countries were taking measures to address this, countries including New Zealand were making decisions about their borders. The significance of the decision is well captured in a Cabinet paper on 12 March 2020 that said:
We are reaching a critical decision point for our border. Implementing border restrictions at a very large scale could make the difference in our long term economic pathway. There is a tipping point, where your decisions at the border will either put New Zealand on a trajectory that: a. manages the public health risk effectively (containing clusters of outbreak in New Zealand), while supporting the economy to bounce back rapidly … or b. isolates New Zealand from the world and results in a shock to our economy which has deep and long lasting adverse impacts, including on wellbeing …
[46] Initially, New Zealand had placed travel bans on arrivals from specific countries. From 14 March 2021, most arrivals were required to self-isolate. The decision was then made to close our borders to everyone but New Zealanders (with some limited exceptions) from 11.59 pm on 19 March 2020. A Cabinet paper dated 19 March 2020 recommending tighter border controls explained the issues associated with requiring tourists to self-isolate as follows:
Over the last few days, we have seen multiple instances of non-compliance from visitors in particular. There have been increasing and credible reports from the hospitality, accommodation and conservation sectors that visitors are not complying with self-isolation requirements, and have no intention of doing so. Existing phone lines are receiving a growing volume of calls reporting non-compliance by people perceived to be visitors. Spot checks by Police since 17 March 2020 have also revealed that recent arrivals to New Zealand do not have a clear understanding of self-isolation requirements.
[47] The measures in place from 10 April 2020 included a requirement for all arrivals by air15 to isolate (that is, be separated if they had a confirmed diagnosis of the disease) or quarantine (that is, be separated because they would potentially develop the disease) in a MIQF.16 This requirement remained in place for the balance of 2020 and throughout 2021 (including during the Relevant Period). The quarantine period
15 There are some complexities with maritime arrivals. These are not the focus of the proceeding so the Minister’s evidence does not discuss them.
16 Dr Bloomfield noted that we have tended to use “self-isolation” as the term when a person is self-quarantining at home to distinguish this from quarantining in a MIQF.
was 14 days until 14 November 2021, at which time it changed to seven days along with a period of self-isolation while awaiting the result of day 9 test. On 23 December 2021 the period in MIQ was amended to 10 days.
[48] From early on, it was also recognised that New Zealand would need to reconnect with the world at some point and that it would be necessary to have measures that balanced the need for continued flows of people and goods across the border with risk. From about June 2020, work began on a long-term strategy about this.17 A first step in opening the border was pursuing quarantine-free travel (QFT) with low-risk countries. The initial focus was on Australia, Cook Islands, Niue and Tokelau. QFT with Australia commenced in April 2021 but was short-lived due to multiple community outbreaks of COVID-19 in that country. These outbreaks led to on and off pauses in QFT with particular states of Australia but ultimately an indefinite suspension of the QFT arrangement on 23 July 2021.
[49] After the experience with Australia (including that genome sequencing linked the outbreak of the Delta variant in Auckland to the New South Wales (NSW) Delta outbreak), the focus shifted to achieving sufficiently high vaccination rates so that greater risk of border incursions would be acceptable. For returning New Zealanders, this point was reached in stages in February and March 2022 when they were no longer required to enter MIQ.18
[50] A timeline of the key events relating to MIQ is Appendix two to this judgment.19
Capacity and scale
[51] The MIQ system was set up under urgency during a time of national emergency. Initially, in March 2020 when most people were permitted to self-isolate,
17 This was termed the “Reconnecting New Zealanders” strategy.
18 This was part of the “Reconnecting New Zealanders” strategy, which depended on the development of the elimination strategy and advice from the Skegg and Roche advisory groups. Cabinet agreed to a risk-based approach on 9 August 2021 and steps to operationalise the reconnecting strategy.
19 In addition to the affidavits and the Joint Bundle of Documents (comprising approximately 4,927 pages, all of which I have read), the respondents’ detailed chronology has assisted with this and the chronology that is Appendix one.
only one hotel was commissioned. With the move to mandatory isolation or quarantine in managed facilities in April 2020, 15 additional hotels were commissioned. By July 2020 there were 32 facilities and, by late November 2021 there were 33 facilities.20
[52] The 33 facilities equated to 6,368 contracted rooms. That did not equate to rooms available for overseas returnees. Rooms were set aside for operational needs (staff accommodation, testing and equipment rooms) and contingencies. Rooms taken out for maintenance and ventilation issues also reduced capacity.21 Cohorting, introduced from May 2021, also reduced capacity.22 Quarantining infected community cases and their close contacts in MIQFs also reduced availability for overseas arrivals.
[53] As MIQ expanded and developed, the budget increased. For the 2021/2022 year, the operating budget was just under $1 billion. This was only a little less than the 2021/2022 budget to vaccinate every person in New Zealand. As at December 2021, there were 5,563 full time equivalent people working in MIQFs. This included 1,200 New Zealand Defence Force personnel, 238 police officers, 156 aviation security staff, with border workers, hotel staff, general security and health workers making up the balance. In addition, 767 MBIE staff worked directly in the MIQ area supporting the Government’s policy objectives.
[54] From around June and over subsequent months, MBIE carried out exploratory work, as directed by Cabinet, on further suitable facilities and potential alternatives to the MIQ system. The options canvassed during this period included campervans, communal accommodation, cruise ships, smaller accommodation providers such as motels, establishing bespoke facilities for certain groups (such as for sports events), serviced apartment buildings, and a temporary accommodation village in the South Island that had previously been used for workers that became available for purchase.
20 The 33rd facility was brought on in part to pick up the loss of capacity that would arise when one of the Wellington facilities was to be decommissioned due to issues with it.
21 For example, only 50 per cent of contracted rooms at a Wellington facility were usable because of poor ventilation.
22 This involved a MIQF receiving international arrivals within 96 hours of each other and then locking down to new arrivals until the original cohort had completed their 14-day isolation period.
[55] By February 2021 all these avenues were not recommended. Bespoke facilities were not pursued because of the concern that they would divert workforce needed at other facilities. The idea of a sports-based facility in Queenstown was also rejected because of this, as well as on costs grounds, and because it was not located close to a hospital. The accommodation village was not recommended by MIBE officials because the rooms were basic and not up to the standard of the existing MIQFs, there was not funding to purchase the village and bespoke logistic and operational requirements would need to be established and take time. Other options had similar issues and some would involve compliance issues.
[56] In August and September 2021, at a time of considerable demand on MIQ (discussed further below), at the Minister’s request officials were providing advice about whether further facilities could be commissioned. The initial advice given on 3 August 2021 was that three hotels (of many considered) were most suitable but there was not the workforce to support them and, without an adequate workforce, that would increase the risk of COVID-19 entering the community. By September 2021 funding was being sought for two of these facilities. In the end, only one of these was feasible. The other option, in Rotorua, had challenges due to the lack of an available workforce in the area and consistent iwi opposition to it.
[57] The Minister explained in his evidence that the Government was not willing to compromise on standards as this would increase the risk of a community outbreak.23 When the various alternatives to MIQ were being considered, Auckland had experienced a community outbreak that had led to an “Alert Level 3” lockdown for Auckland in August 2020. Further, a significant outbreak had occurred in Victoria, Australia between June and September 2020 and a subsequent Victorian Government inquiry identified that it had been seeded by lapses in protocols by private security guards in quarantine hotels.
23 Kathryn Rush, a Principal Advisor at MBIE, set out the “must have” criteria for a MIQF in her evidence. This included proximity to a hospital and lab testing, an appropriate earthquake safety rating, access to onsite fresh air and exercise, perimeter control and ventilation.
[58] With an essentially finite MIQ capacity of the standard and with the support considered necessary, the issue was how to allocate that capacity between competing demands.
Allocation of MIQ places
[59] From April 2020 until 2 November 2020, anyone lawfully able to enter New Zealand needed only to secure a flight. On arrival they would be transported to a MIQF. Initially, only New Zealand citizens or resident visa holders were lawfully able to enter. Ministers allowed case-by-case exceptions for critical workers or for humanitarian reasons, but the bar was set very high. By September 2020, the classes of workers who could be designated essential workers expanded and were assessed against criteria set by a group of Ministers delegated this task. Exceptions for groups were also to be made, again subject to criteria.
[60] From 2 November 2020 everyone was required to have a confirmed place in a MIQF before they could enter the country. A confirmed place was obtained by securing a voucher. The voucher could be obtained via an online system (MIAS) (initially operating on a first come, first served basis and subsequently the virtual lobby system) or an offline system. The offline system was for essential workers, group allocations and other time-sensitive travel where applicants could not obtain a place via the online system. This is discussed further below.
[61] The number of rooms available via the online and offline systems changed over time. As at 25 August 2021 (that is, leading into the Relevant Period), a briefing from MBIE to the Minister advised that approximately 25 per cent of MIQ spaces were allocated manually with the following breakdown: MIAS (4,500 rooms); emergency (700 rooms); other time-sensitive travel (200 rooms); and group allocations (800 rooms, but currently temporarily increased to 1,000 rooms).24
24 This breakdown is a bit unclear because the paper also refers to 1,000 rooms for QFT. From other briefing papers to the Minister I understand that the group allocation of (temporarily) 1,000 rooms was (or included) rooms set aside for New Zealanders returning from Australia when QFT was paused and then suspended. I am unclear whether this included rooms that were also set aside for other contingencies.
[62] The 4,500 MIAS rooms appears to be inclusive of the manual (offline) allocations because the respondents’ submissions say that MIQ operational capacity was 4,500 rooms per fortnight for much of 2021 and then reduced to 4,000 rooms per fortnight. If that is correct, then as at 25 August 2021 the number of rooms allocated through the online system was around 2,600 per fortnight (but less any rooms being used for community Delta cases or other contingencies). This number is broadly consistent with Grounded Kiwis’ analysis. Grounded Kiwis refers to a later briefing to the Minister that sets out the allocation of rooms from mid-August 2021. That number was around 2,100 rooms per fortnight because 570 rooms per fortnight were being used to quarantine community cases in the Delta outbreak.25
[63] Evidence for the respondents does not set out how many rooms per fortnight were available for the Relevant Period. The evidence is provided in terms of operational capacity over a 33-day period as at 17 December 2021.26 The evidence does say that at this time the fixed room caps for offline allocations were: time-sensitive travel (200 rooms); emergency allocations (800 rooms); group allocations (800 rooms) and healthcare workers (300 rooms).27 From an operational capacity of 4,000 rooms per fortnight,28 that would indicate 2,100 rooms per fortnight were allocated via the online system (subject to any additional rooms set aside for contingencies). This is consistent with Grounded Kiwis’ view based on information on MIQ’s website as at 20 December 2021.
Managing demand (prior to the Relevant Period)
[64] When the decision was made in April 2020 that everyone was to enter MIQ, demand was expected to be low for several months. This was because travel restrictions in many countries limited commercial airline routes. By June and July 2020, demand had reached the point where it was necessary to commission additional MIQFs. By the end of July, when 32 MIQFs had been commissioned, officials expected demand for MIQ spaces to continue to increase and to outstrip
25 Their analysis refers to an annexure to a briefing paper. The annexure is not included in the Joint Bundle of Documents.
26 Kathryn Rush said there were 7,000–9,000 rooms in MIAS per 33 days as at 17 December 2021.
27 Unused rooms in these caps were released back into MIAS.
28 As per the respondents’ submissions.
supply in the short term. At this time international air travel services had begun to increase as other countries relaxed border controls.
[65] As there was limited capacity to commission new facilities and alternative quarantine arrangements under consideration were not available, it was necessary to have a flow management system. Initially the flow management system involved caps on the number of passengers that airlines could transport to New Zealand.29 This was set up quickly because of the urgent need to ensure that the capacity of MIQ was not overwhelmed. However, under this system it became apparent that MIQ capacity was underutilised because airlines were not meeting their assigned quotas.
[66] MIAS was an online system developed through July to September 2020, with the pilot in October, and the system going live in early November 2020. The system provided information that enabled MIQ to have more accurate information about arrivals that enabled better utilisation rates and allowed MIQ staff to better match people to suitable facilities. It was a first come, first served model. Officials advised that the system did not include a prioritisation function and that it would be necessary to have some places allocated offline. It was also envisaged that work would be carried out to enable some prioritisation through MIAS.
[67] By 13 October 2020 officials were predicting that the target utilisation of MIQ (90 per cent) was expected to be reached by mid-December 2020. The uptick in demand from late November was expected to come from New Zealanders wanting to return for Christmas as well as a large cohort of New Zealanders resident in the UK, USA and Australia who would be looking to return due to the expiration of visas and lack of financial support (the UK furlough scheme was being phased out in October and the wage subsidy was being gradually phased out in Australia). There was also a large cohort of New Zealand Government personnel and their families deployed offshore who were due to return at the end of the year, having completed their assignments.
[68] By 5 November 2020 officials briefed the Minister that “due to unprecedented demand” MIQ was operating at near full capacity. This was thought to be due to an
29 The same system the Australian Government used.
awareness campaign about MIAS and the global epidemiology outlook (resulting in a significant increase in airline ticket uptake, with some airlines having oversold their quota and experiencing fewer “no shows”30).
[69] On 22 December 2020, the Cabinet Business Committee agreed to “improvements” to the allocation of MIQ space. These included having a target of 10 per cent of rooms (up from seven per cent of arrivals over recent months) used by critical workers and ring-fencing of 75 per cent of rooms for use by New Zealanders “to protect their legal right to return home”.31 It was also proposed that a “transparent legal basis for prioritising and allocating rooms to people entitled to enter and whose entry was time-critical” would be established.
[70] In February 2021 officials advised there was “very high demand” for MIAS vouchers, with availability “extremely limited” and rooms fully allocated until the end of March. By the end of February 2021 MIAS vouchers were fully booked through to the end of May. Officials advised that a final contingent of vouchers would be released over the April/May period but officials expected these to be fully booked within 24 hours of release.
[71] In March 2021 officials advised that demand for places in MIQF exceeded capacity and it was “highly likely that demand for MIQ space will continue to outstrip supply”.
[72] A potential solution to this was QFT with Australia. While this had been under consideration for some time, there was a range of complications with getting it underway.32 It was eventually able to be put in place in April 2021. At the time, officials expected this arrangement would free up 1,000 to 1,300 rooms a fortnight. Over 5,000 MIQ vouchers for arrivals from Australia were cancelled over the booking period from April to September 2021 by travellers or officials because they would no longer be needed with the QFT arrangement.
30 People purchasing tickets but not turning up for their flight.
31 It was envisaged that these proposals could be implemented through amendments to the Air Border Order issued under the COVID-19 Public Health Response Act discussed later in this judgment.
32 This is discussed in the Minister’s evidence.
[73] Initially, QFT appeared to be successful in managing demand for MIQ. In April 2021 officials advised that the uptake of vouchers through MIAS releases for the April to July period had been slower than for previous releases but it was too soon to identify a demand trend.
[74] Kathryn Rush, a Principal Advisor with MBIE involved in MIQ since its inception, provided the Court with the following graph that showed utilisation of operational capacity for the period 1 March to 31 July 2021.
[75] However, utilisation rate does not correlate directly with demand. Evidence from Theodora Livas, a policy manager at MBIE, clarified that the graph does not show when rooms for travel on each day within the period of the graph were made available to book. This is also not clear from other evidence before the Court. However, it does seem that rooms were released in a graduated fashion rather than being made available all at once.33 Also at this time, the evidence filed by Grounded Kiwis (discussed further below) indicates that users were having difficulties with MIAS.34 Amongst those difficulties was matching places in MIQ with flights.35
[76] Ms Livas also explained that the graph does not identify the impact that undertaking additional maintenance on MIQF had on capacity over this period. She
33 For example, a briefing from MBIE to the Minister on 24 March 2021 discussed a new system in which voucher releases on MIAS would be released for time periods up to six months in advance (compared with the previous three month period) but MBIE would not be releasing all vouchers available for the period online at once.
34 For example, RO said that she began trying to obtain a voucher in June 2021 and “was desperate to obtain an MIQ spot for any time that was possible and plan my life around that”. See Appendix four.
35 For example, SD created an account on MIAS in June 2021. He had to cancel places because they did not match with available flights for those dates. It may be that he was seeking a place in July or August when, in Ms Rush’s words, the occupancy rate was “extremely high”.
said that over April, May and June 2021, MIQ undertook responsive remediation of ventilation systems in some facilities, as well as accelerating regularly scheduled maintenance (to reduce maintenance in later, higher demand periods). This utilised some of the unused capacity. She said this was enabled by the reduced demand for rooms over this period. However, it is not clear when the decisions to accelerate maintenance were made. This means it is also not clear how much notice those seeking to return had, in order to make potential use of the availability of places in MIQ, before they became unavailable because of maintenance work.36
[77] Those matters aside, it is fair to say that this graph provides support for the Minister’s evidence that “there have been times when MIQ has had surplus capacity” at least during the period shown in the graph. However, that period appears to have been the only period when that was so after the move from the airline quota system to the MIAS system.
[78] The documents show that officials advised the Minister in May 2021 that over late 2020 and early 2021 demand for MIQ places consistently exceeded supply and from January to March 2021 there were frequently no rooms available in MIAS. Officials further advised that a new trend of falling demand had emerged over the second quarter of 2021, driven by the start of QFT with Australia, stable immigration flows and a general reduction in booking demand. It was during this time period that the Minister said at a press conference (referred to below) that now would be a good opportunity for those who want to come back to New Zealand to do so.
[79] This position was, however, short-lived. Almost from the outset, the QFT arrangement was beset with problems. There were five community incursions in Australia during the period QFT was in place. Not only was that a significant drain on the overall COVID-19 response (particularly for the Public Health team at the Ministry of Health), when QFT was paused there were large numbers of New Zealanders in Australia needing to get back to New Zealand who no longer had vouchers for MIQ to do so.
36 Some maintenance was identified as necessary shortly before QFT commenced. An MBIE briefing on 14 April 2021 advised the Minister that in “recent days” risks at two Auckland facilities meant that new returnees would not be placed in them until the issues had been resolved. This would have “implications on how many new bookings we can accommodate on MIAS”.
[80] This period coincided with public criticism of the MIAS system. For example, a RNZ article on 9 July 2021 reported that tech-savvy New Zealanders were locking others out of MIQ spots by using computer codes, rooms were disappearing in seconds, dates were released randomly at any time of the day or night and there was no queue, some people were paying freelance computer programmers to monitor the site for them amongst other things, and people were saying that it was close to impossible to get home.
[81] The difficulty in securing vouchers in MIQ increased with a decision to arrange managed return flights from NSW, which was in lockdown because of community cases of Delta. Officials advised the Minister on 11 July 2021 that these were to begin on 13 July 2021. MBIE advised that 1,000 MIQ rooms could be made available for these flights. Two hundred of these would be manually allocated under an urgent or exceptional quota and the balance would be available through booking directly with the airline. These rooms would come from 500 rooms that had been set aside for contingencies (including a QFT contingency) and cohorting underutilisation.
[82] Officials’ advice at this time included that these managed flights would be occurring when there was “no availability” on MIAS. The remaining vouchers for August, numbering around 400, that were due to be released on MIAS would be withheld to remain within safe operating parameters and to rebuild the contingency rooms.
[83] The competition for places on MIAS at this time was discussed in a further briefing to the Minister on 14 July as follows:
MIQ is experiencing increased demand pressure for spaces in MIQ, particularly on MIAS. While there was significant availability of MIAS vouchers following the introduction of QFT through until May 2021, MIQ has been running at full capacity since early July 2021, and no vouchers are currently available online. When vouchers are released, they are being rapidly booked – 3,317 released on 7 July were fully booked within 2 hours. While there may continue to be seasonal lulls, we expect that demand will outstrip supply for much of the coming year, particularly around November – January.
[84] The briefing also advised that there would be further “downward pressure on supply” over the next six months due to work on strengthening the ventilation system. A few days later, on 16 July 2021, officials were proposing “ring-fencing” of rooms
in MIAS to give New Zealanders priority access to MIQ ahead of the summer period when demand was again likely to peak.
[85] The strain on MIQ places continued for the rest of July and August 2021. The 1,000 allocated places for NSW returnees had been insufficient. Officials were especially concerned that the demand from New Zealanders in Australia for the urgent or exceptional quota had been filled and there were people whose applications had or would meet that quota’s criteria who had been unable to obtain a place. On 17 July 2021 officials proposed allocating more MIQ rooms for them (the options being 530 rooms from 28 July or 600 rooms from 2 August).
[86] The upshot was that between 13 July and 7 August 2021, 1,523 MIQ rooms were made available to support about 2,102 people to return from NSW and no vouchers had been released on MIAS for others since 7 July.
[87] During this period, on 25 July 2021, a member of Grounded Kiwis made a complaint to the Human Rights Commission that the MIAS voucher system discriminated against people with disabilities because the system relied on being the fastest person to interact with it. On 30 July 2021 Ms Birt, the chair of Grounded Kiwis, opened her petition. The petition request was as follows:
That the House of Representatives urge the government to change MIQ to create an equitable booking system, increase capacity, and consider alternatives to 14 day MIQ requirement for vaccinated returnees, to enable all Kiwis to return, consistent with the Bill of Rights Act.
[88] The stated reason for the petition was that “Kiwis abroad feel they have been abandoned and believe the MIQ system is broken, often fully booked for months with extremely limited spots taken in seconds”.37
[89] A further MBIE briefing to the Minister, on 12 August 2020, advised that about 400 vouchers that were not needed for NSW were released on MIAS in small batches in August but were all “snapped up” within five minutes of release. Officials considered that this indicated that any further voucher releases would be in similarly
37 The petition had a closing date of 30 September 2021. It received 22,888 signatures.
high demand. Officials advised that the demand on the MIAS website continued to increase as did complaints about a lack of voucher availability.
[90] The briefing provided the following table showing the increase in activity on the MIAS website from May 2021 to 10 August 2021:
Timeframe Number of unique users per day (average over timeframe) 1 – 7 May 5,139 1 – 7 June 4,944 1 – 7 July 15,047 27 July – 3 August 19,194 4 – 10 August 19,772
[91] The briefing also advised that complex cases were emerging across all states in Australia. These covered people who were not eligible for the managed return flights because they were resident in Australia; those who travelled after the pause on QFT was announced on 22 June 2021 but who now needed to return home; and others who had sudden events, such as the death of a relative or a medical diagnosis. There were also those who had been making arrangements for a planned relocation to New Zealand thinking that the lockdowns would end quickly and were now stuck. People were being referred to MFAT and it had noticed that callers with compassionate grounds for return were becoming increasingly angry and desperate because there was no way home for them at present.
[92] For those stuck in Australia and wanting to return, the plan was to require them to access and secure a voucher in MIAS, the same as any traveller from any other part of the world. It was recognised that this would increase demand for MIQ spaces in a period where MBIE was experiencing “very high demand from the rest of the world”. Prior to QFT, travel from Australia made up approximately 25 per cent of MIAS bookings. MBIE expected this demand to be similar if the suspension of QFT was extended beyond the end of September.
[93] However, to provide those seeking to return from Australia a better prospect of securing MIAS vouchers for September, officials proposed to release some of the
vouchers on dates that coincided with flights from Australia to New Zealand.38 The vouchers would be released for September over several days during mid to late August. Vouchers would also be released for October. Work was underway on a technical solution (a virtual “lobby” or “waiting room”) to manage levels of “extreme” demand on the site. However, this solution was not expected to be ready to be deployed until early September. As a result, officials said “there may be points during this voucher release where the website is unable to manage demand”.
[94] On 13 and 14 August 2021 Grounded Kiwis wrote to the Prime Minister about the dysfunction of the MIQ system, the flaws in the emergency allocation system and the lack of concern by the Government for its citizens overseas that this system conveyed. A RNZ article on 16 August 2021 raised concerns about the system and questions around how group allocations for sports teams were being made. Grounded Kiwis had begun making OIA requests. In response to one of those requests, MBIE said the current situation was an issue of demand versus supply and in periods of high demand many people would miss out regardless of the system used.
[95] On 20 August 2021 MBIE proposed changes to the emergency allocation criteria that included a new category for people who had suffered the bereavement of a close family member and needed to travel to be with their family or assist with the management of the deceased’s affairs, or needed to travel to accompany the body of the deceased back to New Zealand. It was anticipated that this could be managed within the then current 350 rooms set aside for emergency allocations. The Minister asked for this to be implemented earlier than October if possible.
[96] On 24 August 2021 MBIE briefed the Minister on a virtual lobby pilot for the MIAS website. Officials said that “as a result of … excess demand, the current MIAS website model is no longer fit-for-purpose, and requires changes to enable it to effectively manage the flow of users at peak times”. The pilot was to be for the next large release of MIQ rooms. Officials proposed that ring-fencing in MIAS to ensure New Zealanders had priority access to a majority of MIQ rooms, previously agreed to,
38 The BORA implications of this were considered. I have not set out the reason why this approach was viewed as justified in case it was intended to claim privilege over this advice as it has been elsewhere.
be deferred until sometime in September. This was to ensure clear communication to the public on the virtual lobby.
[97] The Minister had directed officials to provide advice on alternative ways of managing MIQ allocations over the high demand summer period, including an option to prioritise New Zealanders who had been overseas for an extended period. MBIE provided advice on this on 25 August 2021 with three options, the first two of which the Minister indicated he would like officials to progress:
(a)Expanding the emergency allocation criteria so that New Zealanders who left New Zealand prior to 25 March 2020 could be eligible if they could demonstrate they were within three months of their visa ending. MBIE would monitor whether the current allocation of 350 rooms per fortnight remained adequate to meet demand if this criteria was adopted.39
(b)A web-based allocation system for citizens or permanent residents who last left New Zealand prior to 25 March 2020. This would require hiring additional staff as the MIAS development team was under significant pressure, but applications could open in November 2021 for travel in December to February.
(c)Manually prioritising all bookings. This was not recommended as it would be very resource-intensive and require a high level of subjective judgement.
[98] In providing this advice, officials acknowledged that demand for vouchers was “significantly exceeding supply”, and even higher demand was expected over the upcoming November–February period, along with potential supply pressures from the ventilation review work programme. In response to these pressures, in addition to the new virtual lobby process and the recent emergency allocation criteria change, MBIE
39 The 350 room allocation contrasts with other advice that there were 700 rooms set aside for emergency allocation at this time.
was reviewing the time-sensitive travel allocation to make sure it remained fit-for- purpose and the next group allocations would not be made until April to August 2022.
[99] On the same day, 25 August 2021, MBIE provided an urgent briefing to the Minister stating it was necessary that a current MIQF be designated as a second quarantine facility as a result of Delta community outbreak in Auckland. The briefing advised that MIQ was experiencing “extreme pressures across the network” due to accommodating the final tranche of NSW managed returns, the current community outbreak, the forecast intake of people from Afghanistan arriving sooner and being larger than expected, and the potential flow-on workforce impacts of MIQ staff testing positive. The briefing advised that MIQ had “almost no ability to respond to any further concurrent events”.
[100] The briefing advised that steps were being taking to try and conserve quarantine space and free up MIQ capacity. These steps included not releasing any vouchers from 22–26 August while MBIE worked to stabilise the network, working with industry to agree to defer a cohort of workers from Vanuatu scheduled for 24 August (freeing up 150 rooms) and potentially the next cohort of workers from Samoa scheduled for 10 September, deferring the first planned red flight from Australia scheduled for 1 September to 5 September, and deferring ventilation remedial work until mid-September.40
[101] Despite these steps, officials advised the Minister that he would likely have to make “significant decisions on options for managing the severe demand for MIQ capacity over the coming fortnight”. These options could involve cancelling vouchers, not releasing any more vouchers for September, changing the community outbreak settings so that only acute cases went into MIQ, and suspending cohorting.
[102] The pressure on MIQ places led to further work on whether additional MIQ facilities could be commissioned. The advice was received on 27 August 2021. On 31 August 2021 the Minister agreed to progressing an additional Christchurch facility immediately (to “go live” with this in mid-November). He also directed MBIE to
40 Green flights did not require MIQ. Red flights were for flights from NSW where the situation was deteriorating. MIQ was required for those arrivals.
progress work on a Rotorua proposal (which MBIE had recommended against and, following the further work, continued to recommend against).
[103] By 31 August 2021 there continued to be a pause on the availability of vouchers on MIAS. Ms Birt wrote a letter complaining about this pause and contending that it was a limitation of her right to return to New Zealand. She noted that a temporary pause had been announced by MBIE on 23 August because of the current community outbreak. This was to be “for a few days” but eight days later MIAS was still on pause with no confirmed date for when it would reopen. The initial reply from MBIE was that the outbreak was a constantly evolving situation and that those who needed to travel urgently could still apply for an emergency allocation.
The Relevant Period (the virtual lobby)
[104] On 1 September 2021 MBIE provided an update advising that, due to the community outbreak, the Government had decided to extend the pause on the release of rooms on MIAS “for the immediate future”. On the same day questions were raised in the House about the position of Grounded Kiwis.
[105] By 10 September 2021 the plan was to release MIQ rooms online on 20 September 2021. This was discussed in an MBIE briefing to the Minister that noted that the last major release of rooms on MIAS was on 7 July 2021, although emergency allocations for urgent travel had remained open. Officials said this had been necessary to enable a response to “a series of crisis situations”, but the ongoing pause in releasing MIQ rooms had “impeded the ability of New Zealanders (and critical workers) to enter New Zealand, creating an escalating risk of judicial review and significant frustration for New Zealanders overseas”.
[106] Officials advised that the proposal to resume releasing rooms arose from the easing of demand for MIQ rooms with the peak from community cases appearing to have passed. It would be used to pilot the new virtual lobby. The virtual lobby was
expected to improve the experience of MIAS users41 but would not address the fundamental problem that demand far exceeded supply. Officials said that further advice would be provided in October about whether the current voucher release framework remained fit-for-purpose in light of lessons learnt from the community response.
[107] The Minister agreed to the resumption of rooms via MIAS as proposed by officials. He asked to be kept in the loop ahead of all future voucher releases and also wanted more advice on the pressure regarding emergency allocations and, in particular, whether the number of rooms allocated for this purpose needed to be increased.
[108] Grounded Kiwis conducted a survey of individuals who had used the online system following the first virtual lobby on 20 September 2021. Responses were received from 902 people. Of these, 883 entered the lobby, 213 proceeded through to the booking system and 98 secured a voucher. This equated to a success rate of 11 per cent. This success rate was broadly consistent with the MIQ data showing that 31,900 individuals entered the lobby and 3,200 rooms were booked.
[109] On 23 September 2021 Grounded Kiwis wrote to MBIE, providing feedback on technical issues with the virtual lobby. The letter went on to say:
The equity issues of using a lottery style system for what is a fundamental right of citizens, the insufficient MIQ supply to meet demand, and the failure to consider alternatives to MIQ, continue to cause immense concern, and were noted in a significant number of comments from respondents. We have not touched on those points in this letter, which we have confined to the scope of technical and systemic issues with the virtual lobby.
[110]Some of the comments from the survey respondents included:42
41 Ms Rush confirmed in her evidence that the experience with the previous system and its impacts was the driver behind the move to the virtual lobby. She said the lobby was intended as improvement because it would: (a) tell users when rooms would be released (compared with the former first come, first served model, which would crash with a significant load); (b) be transparent and fair because “no person is better placed than another in seeking a MIQ allocation”; and (c) remove the need for users to sit and constantly refresh as users would only need to engage for two hours at a publicised time each week to have the opportunity to secure a room.
42 On 27 September 2021 MBIE replied to Grounded Kiwis thanking it for the feedback and advising that some changes had been made and further changes would be considered.
Randomised allocation is not fair nor humane … There has to be prioritisation and also consideration of fully vaccinated people.
…
Absolute abuse of human rights.
…
There should be 1,000 spaces minimum, the NZ Govt is playing lottery with our lives.
…
I [don’t] need a lottery system to go back to my home. Home isolation is good enough.
…
They need more MIQ spots. Thousands of Kiwis want to get home and are STRANDED.
…
The concept is completely ludicrous. To have a lottery system when dealing with people’s lives is inhumane.
…
My issues are: this is an unfair system, a breach of human rights and a abhorrent way to treat New Zealand citizens. It’s doing nothing more than delaying the inevitable and destroying families. How does a government turn its back on its own people and then have the audacity to pontificate we should all “be kind”! Where is the government and this systems “kind”?
…
I can’t get into my country which is my BIRTH RIGHT.
…
It’s ridiculous I have to win the lottery to enter my own country … I was 19,000 this time, next time I could be 25,000. Shame!!!
…
It’s so unfair and inhumane how they’re managing this.
…
[T]here needs to be priority – someone who has been trying for months to go home could have randomly missed out and someone who decided last week to leave and come back on a holiday could have got a spot. [A]lso let fully vaxxed people do isolation at home to take the stress off MIQ.
[111] Further rooms were released over the next few months. Demand outstripped supply throughout this period as the following table demonstrates:43
Date People in queue Rooms available 20/9/21 31,900 3,200 (for September to December) 28/9/21 31,319 3,718 (for October to December) 5/10/21 28,406 3,739 (for October to January) 12/10/21 24,987 2,972 (for November to January) 21/10/21 21,368 2,103 (for December and January) 2/11/21 17,665 3,747 (for December to February) 9/11/21 16,277 4,039 (for November to February) 18/11/21 16,278 4,230 (for November to February)
The Relevant Period (other steps to manage the demand)
[112] In a briefing on 30 September 2021, MBIE advised the Minister that it was likely that more than half the demand seen in the 20 September release would still not be able to be met during 2021. Forecasting indicated that “pressure on MIQ was expected to remain very high until at least February”.
[113] In the 30 September 2021 briefing, MBIE noted that the Minister had previously agreed to implement the ring-fencing of rooms on MIAS to ensure New Zealanders would have priority access to a majority of MIQ rooms. MBIE was looking to activate ring-fencing during early October 2021 in consultation with the Minister. This would guarantee New Zealanders access to 70 per cent of MIQ vouchers. Currently, 79 per cent of MIQ vouchers were held by New Zealand citizens and residents. MBIE also recommended against an intended move to permit a wider range of temporary visa holders to travel to New Zealand before the end of 2021.44 This was because it would only add to the number of travellers, including New Zealand citizens seeking to exercise their right to return to New Zealand but unable to secure MIQ rooms.
43 This does not include the lobby rounds following the Minister’s announcement on 24 November 2021 that from mid-January 2022 New Zealanders would no longer need to use managed isolation facilities.
44 In July 2021 Cabinet agreed in principle to establish a border exception for partners and dependents of all onshore temporary work visa holders.
[114] On 8 October 2021 MBIE sought the Minister’s agreement to restrict MIAS bookings to those with a legal right to enter New Zealand. MBIE advised that this requirement could be introduced in December 2021. The reason for this proposal was that approximately 15 per cent of vouchers were held by those who did not yet have the legal right to enter New Zealand at the time they booked and led to “no-shows”. Officials estimated that the right of entry requirement could reduce the number of no shows by around 50 people per month. Officials noted that current demand for MIQ significantly exceeded supply and “[w]hen New Zealand citizens and non-citizens with visas are facing delays to enter the country, it is reasonable to restrict the booking ability of people without the right to enter the country”. The Minister agreed with the proposal.
[115] On 11 October 2021 MBIE briefed the Minister that MIQ capacity was likely to be exhausted by 13 October 2021 due to the community outbreak. MBIE had paused voucher releases for the rest of October and reduced the number of vouchers to be released for November.45 If MIQ continued to accommodate community cases, alternative levers to manage predicted volumes needed to be considered, all of which had trade-offs including public health risk and further reducing MIQ’s operating reserve.
[116] It was proposed that any existing returnees that met low risk indicators could be directed to complete their isolation at home. A similar set of criteria could be developed for community cases. Additionally, there might be cohorts or categories of people arriving in New Zealand who could be diverted from MIQ and supported to self-isolate. There were two cohorts of Antarcticans requiring over 250 rooms in Christchurch on 11 and 18 October. Other travellers might be from low risk destinations in the Pacific and from low risk states and territories in Australia, such as those from Western Australia.
[117] Officials advised that further modelling would be necessary to understand the volume of people who might fall into these groups. The numbers might not make a
45 The next lobby release was 12 October. MBIE planned to release no further vouchers for October and only 150 for November. This would mean holding back approximately 1,100 vouchers for November, until more was known about the need for capacity to support the community outbreak.
significant difference to overall capacity and could also result in significant commentary and further pressure about the options for opening New Zealand’s borders and for QFT. Any of the options would have equity implications and the implications under the New Zealand Bill of Rights Act 1990 (BORA) would need to be considered further.46
[118]Following this advice, on 12 October 2021:
(a)The Minister directed that isolation of close contacts deemed to be low risk should be at home rather than MIQ and this should be put in place immediately. Positive cases that were asymptomatic and could isolate safely at home should be encouraged to do so and this should be implemented as soon as possible.
(b)The Minister asked for a Cabinet paper prepared for “next Monday” (18 October) proposing that those travelling from all Australian states, except NSW and Victoria, bypass MIQ as long as they were fully vaccinated, have a negative pre-departure test, and self-isolate for 14 days on return in Auckland. The paper should also suggest other low risk travellers who could be treated this way. It should also include advice on how to treat those who then wanted to travel on to other parts of New Zealand.
(c)The Minister also asked for an urgent assessment of short stay MIQ options that could be quickly implemented. For example, MIQ could be reduced to seven days for those coming from lower risk locations who were fully vaccinated and in cohorts where there have been no positive cases.
(d)The Minister also agreed with deferring maintenance as required.
46 BORA, above n 1.
[119] On 19 October the Director General of Health announced that large numbers of people with COVID-19 were now being allowed to isolate at home, rather than in managed isolation or quarantine facilities.
[120] On the same day, MBIE provided a further briefing about changing the period of managed isolation for border arrivals from 14 days to 9 or 10 days, with a test on day 6/7 (to allow time for the day 9/10 test to be processed). This shift would have an impact on capacity available. If implemented on 1 November 2021, it would mean that 1,614 border arrivals would be eligible for release, although it would not be possible for all of them to be released that day. A change in length of stay would also likely reduce the number of emergency allocation applications. MBIE said there had been a “significant increase” in these applications recently and the proposed changes would allow MBIE to better manage this backlog.
[121] On 22 and 28 October, and 4 and 5 November 2021 the Ministry of Health provided briefings to the Prime Minister, Minister Hipkins and other ministers on two issues: (a) reducing the time spent in managed isolation to seven days with three days in self-isolation, commencing 14 November 2021; and (b) expanding one-way QFT for RSE workers to other eligible travellers from Samoa, Tonga and Vanuatu, as well as Tokelau from 8 November 2021.
[122] This advice ultimately refined to having a day 5/6 PCR test (in addition to the existing day 0/1 and day 3 tests). A RAT would be used only when the result of the day 5/6 test had not been received prior to an individual’s scheduled release on day 7. Assuming a negative day 5/6 PCR test or RAT test on day 7, the person would self- isolate at home and be required to have a day 9 PCR test. If that test was negative they would no longer need to self-isolate. The self-isolation period would be “light touch and high trust” but would not be available to those who were not in a position to self-isolate.
[123] Officials advised that the proposal would give rise to minimal additional risk to the community in view of developments in the science of COVID-19 transmission, infectious periods, and testing approaches, particularly around the Delta variant. It also recognised high levels of vaccination in arrivals (upwards of 75 per cent of people
over the age of 12 reported that they were at least partially vaccinated) and requirements for pre-departure testing for travellers from most countries. The approach would ensure that managed isolation continued to be justifiable and proportionate to the risk of COVID-19. It would free up rooms for community cases rather than enable increased border arrivals. However, if community cases stabilised, then it may lead to increased rooms being available for border arrivals.
[124] As a result of this advice, a reduced seven-day period in managed isolation was implemented to take effect on 14 November 2021.47 This change was published on MBIE’s website on 28 October 2021. On 5 November MBIE announced that the next room release would be on 9 November for approximately 4,000 rooms across November, December, January and February.
[125] At around the same time, changes were being made to the criteria for emergency allocations. This was discussed in a 24 October 2021 MBIE briefing to the Minister that proposed two changes. The briefing was against the background of the numbers seeking vouchers in the most recent virtual lobby (on 21 October 2021 – see above) and the numbers seeking emergency allocations in September and October
– 398 applications were approved and 163 were declined in the period 1–17 October; and 508 applications were approved and 497 were declined in September.
[126] One of the proposed changes was to clarify “category 2c”, which was for people “unable to legally remain in their current location and [who had] no other option but to return to New Zealand”. MBIE had received an increasing number of applications from people who had undertaken discretionary travel under short-term visas and had then applied under this category to return. MBIE proposed that the category require an applicant to have received a detainment or deportation notice or to have had their visa unexpectedly revoked or shortened due to circumstances outside their control.
[127] The other proposed change was to introduce a new emergency allocation “category 4” for New Zealand citizens who had been overseas since before 3 November 2020, who had been unsuccessful in their attempts to secure a MIAS
47 Meaning that those who had already spent seven days at that date would be eligible for release.
voucher through the “regular” release process and whose visa to remain in their current location had expired or would do so in the next 60 days.48 MBIE’s rationale for this category was that people who had left before 3 November 2020 would have had limited ability to anticipate the impacts of finite MIQ capacity on their flexibility to return.
[128] The advice noted that current demand for MIQ currently significantly exceeded supply. MBIE said that the 700 rooms per month currently set aside for emergency allocations had “proved adequate”49 but an increase of up to 800 rooms per month should be permitted, if needed, to accommodate additional demand. If this proved insufficient, then the existing emergency allocation categories 1, 2 and 3 would be prioritised over the new category 4, ensuring that applications under the existing criteria were not impacted. While the changes could be implemented on 22 November, MIQ capacity overall was currently under significant pressure due to the community outbreak, and the introduction of the new category might need to be delayed until December 2021.
[129] On 8 November 2021 MBIE briefed the Minister on a proposal to expand emergency allocation categories (visiting a close relative with a terminal illness or end-stage disease) to include life-threatening medical events (including accidents) from 22 November 2021. Based on previous applications, officials expected that the increase in approvals from the expanded criteria would be fewer than 10 people per month. MBIE said that approvals for emergency allocations had been “trending upwards” with 384 applications approved in the fortnight ending 24 October (up from 301 for the previous fortnight). Officials would continue to monitor whether the 800 rooms per month previously agreed to remained sufficient.
[130] After this, the focus of the advice about MIQ in November and December 2021 was on the Government’s Reconnecting New Zealanders strategy. This was the proposal that provided three pathways (low, medium and high risk) for entry into New Zealand that had been worked on since June 2020. On 15 November 2021 Cabinet
48 As discussed earlier, the regular release process had been on hold between 7 July and 20 September 2021.
49 It is unclear on what basis that view was reached.
endorsed an approach that would open the medium risk pathway to fully vaccinated New Zealand citizens and residence-class visa holders from Australia from 11.59 pm on 16 January 2022 (step one), expand, with staging as required, the medium risk pathway to fully vaccinated New Zealand citizens and residence-class visa holders by 31 March 2022 (step two), and expand the medium risk pathway to fully vaccinated foreign nationals (subject to further advice on immigration visa processing capacity and advice on the ongoing need for volume controls) by 31 May 2022 (step three).50
[131] During this period, officials recognised that the relative risk of transmission was lower from border returnees than it was for domestic community transmission. However, there remained concern about the “seeding” of new clusters in areas that did not have cases and the need to be able to cope with overall numbers of positive cases. I discuss this later in this judgment.
Summary of measures to address demand
[132] In summary, the key changes considered to respond to the overall trend of increasing demand were:51
(a)Increasing MIQ capacity and considering other kinds of facilities: in addition to the increase in capacity that led to 32 MIQFs by August 2020 and a further MIQF available from 30 November 2021, other options were considered but were all ultimately rejected by early 2021. These included bespoke arrangements for groups, other non-hotel kinds of accommodation and the possible purchase of an accommodation village.
(b)Flow management systems: initially a quota system with airlines (April to Nov 2020), then the first come, first served online and the offline process (Nov 2020 to Aug 2021) and then virtual lobby and the offline process (Aug 2021 to Feb 2021).
50 These dates were subsequently delayed due to the Omicron variant.
51 The respondents refer also to the decision to charge fees to arrivals staying fewer than 90 days (subject to exceptions) as a demand management tool. It was introduced in August 2020 but the papers at the time indicate that its principal purpose was because the cost of running the MIQ system was unsustainable.
(c)QFT with Australia: this initially freed up capacity in the April to June 2021 period but, when it was halted, caused great pressure on MIQ that intensified with quarantining Delta community cases and contacts and accommodating Afghan refugees.
(d)Pausing or reducing release of rooms on MIAS under the first come, first served system (7 July 2021–20 September 2021) and under the virtual lobby system (October 2021). Following the 7 July to 20 September pause on the release of rooms, there were large numbers in the virtual lobby with low prospects of success.
(e)Adjusting the timing of group allocations as well as the offline criteria and the number of rooms available for them: some group allocations were deferred in August 2021 until 2022; the criteria for emergency allocations was sometimes expanded (September and November 2021) and sometimes clarified or tightened (November 2021); and rooms increased to 350 per fortnight (17 February 2021) from 150, then to 700 per month at or around 25 August 2021 and then to 800 per month on 24 October 2021.
(f)Ring-fencing: proposed in November 2020, July 2021, August 2021, September 2021 and again in October 2021 but not implemented except (in effect) in relation to managed flights from Australia in July and August 2021.
(g)Immigration settings: in September 20201 not proceeding with an earlier in principle decision to broaden the border settings for partners and dependents of temporary work visa holders.
(h)Reducing the period of quarantine: implemented in November 2021.
(i)A longer-term plan to reconnect New Zealand with the world in 2022 with low/medium/high pathways: not implemented in 2020 and 2021
except the QFT arrangements with Australia (short-lived) and some Pacific Island countries (as set out in the timeline at Appendix two).
Offline allocations
Background
[133] When the borders closed, Cabinet agreed to high-level parameters for case-by- case exceptions. This was reflected in immigration instructions that allowed approved exceptions to be granted visas.
Emergency allocations
[134] With the move to a first come, first served MIAS, it was recognised that this system might not properly accommodate individuals who warranted priority because of urgent humanitarian reasons. It was also recognised that MIAS would not be able to distinguish between New Zealanders and non-New Zealanders or on the basis of need or urgency.
[135] An offline emergency allocation process was established. From the outset it was envisaged that “most air travellers should be able to secure their place in a [MIQF] via the online system” but “there will be some who find there are no places available when they need to travel”. It was envisaged that the offline system would be available only for those with a “genuine need” as opposed to those who could travel to New Zealand through MIAS with a bit of forward planning.
[136] The emergency allocation was established for this purpose and to ensure that New Zealanders did not face unreasonable delays. Assessors would make case-by-case assessments, taking into account factors including whether the applicant was a New Zealander, the reason for the travel, whether the request was time-sensitive and the applicant’s vulnerability. As discussed above, the criteria changed over time, including during the Relevant Period. The criteria in place over the Relevant Period is set out in Appendix three.
Time-sensitive allocations
[137] Time-sensitive applications were another kind of offline allocation process. They replaced the critical worker exemptions that were granted in the early months of the pandemic. When the MIAS system became operational, officials advised the Minister that it had received many ad hoc requests for MIQ places for workers who had secured visa approval as critical workers. On some of these occasions, facilitating timely entry would have had significant benefits to New Zealand. In many cases they were not eligible under the emergency allocation criteria.
[138] This led to a new offline allocation process for “time-sensitive” workers who would provide critical benefits or prevent major loss to New Zealand with criteria determined by the Minister from about March 2021. The criteria were published on the MBIE website. The criteria that applied during the Relevant Period is included in Appendix three. The criteria were set “extremely high” and applicants were advised that there was no guarantee that they would obtain a MIQ allocation even if they met the criteria as there were “limited vouchers available in each travel period”. International film production crews are an example of workers approved under the time-sensitive allocation.
Group allocations
[139] Group allocations arose out of a Cabinet decision in September 2020 to allow class exceptions to New Zealand’s closed border, in addition to exceptions for critical workers, where the class met economic, social, cultural or academic benefits that had national significance for New Zealand. Examples of group allocations that were made included New Zealand and international sports teams, seasonal employment workers and New Zealanders attending the Expo 2020 Dubai. The published criteria during the Relevant Period is included in Appendix three.
Grounded Kiwis
Introduction
[140] It might be thought by some or even many that New Zealand citizens overseas during the pandemic made their choice to be overseas. They might think that either
these citizens should have come home when they had the chance to do so at the start of the pandemic, or, if they left New Zealand during the pandemic, that they should not have done so. I set out the advice given to overseas New Zealanders or those intending to travel overseas before discussing the situation that New Zealand citizens found themselves in after that advice was given and which has led to this proceeding.
The call to come home
[141] In the early days of the pandemic, as concerns were rising, countries were closing their borders and the availability of commercial flights was rapidly declining, many countries including New Zealand were advising their nationals travelling overseas to return home while commercial options remained available.
[142]The advice to New Zealanders included:
(a)the Rt Hon Winston Peters, Minister of MFAT, addressing the media at Parliament on 18 March 2020, that New Zealanders who were overseas should “start coming home now” and that “Plan A is to get them home now on commercial flights whilst they still exist”;
(b)MFAT issuing a Safe Travel Notice on 19 March 2020 urging New Zealanders travelling overseas to consider returning home as soon as possible, and issuing a “do not travel” advisory for those planning on leaving the country that remained in place (except for countries included in QFT) until it was removed on 4 March 2022; and
(c)a further public announcement from Minister Peters on 24 March 2020 that “we have been warning New Zealanders offshore that the window for flying home is closing” and that “we are reaching a point where the best option for most New Zealanders offshore is to shelter in place”.
[143] When this advice was given officials estimated that there were around 80,000 New Zealanders temporarily overseas and a further 800,000 who resided permanently overseas. MFAT was urging overseas New Zealanders to register on SafeTravel (enabling direct contact with them) and the number registering was “surging”. The
data from SafeTravel indicated that overseas New Zealanders were concentrated in Australia, the United Kingdom and the United States, but spread throughout the world in Asia, Europe, the Pacific, Africa, South America and the Caribbean.
[144] New Zealand overseas missions and MFAT’s Consular Division were receiving increasing numbers of calls from New Zealanders. In Wellington, MFAT was receiving more than 100 calls a day. While in the week of 12 March 2020 most of the calls were seeking travel advice, by 19 March 2020 most were asking for Government assistance with repatriation. These calls were from all over the world but at that time current “hotspots” were Morocco, South America (Peru and Chile) and Europe. MFAT was considering innovative measures to assist them to return.
197 Green flights permitted a limited class of returnees to return without a quarantine requirement.
Appendix three – offline criteria during Relevant Period
Emergency Category 1 30 August – 3 September 2021
1a) New Zealand citizens or residents where a serious risk to health or safety exists for the applicant or their dependant, which requires urgent travel to New Zealand; OR
1b) Where urgent travel is required to ensure a child is provided with appropriate care and protection.
3 – 10 September 2021
1a) New Zealand citizens or residents:
i. requiring access to time-critical medical treatment for the applicant or their dependant, which has been scheduled in New Zealand and is unavailable or
inaccessible in their current location; OR
ii. requiring access to time-critical medical treatment for the applicant, or their dependent, which is scheduled overseas and has been confirmed by a New
Zealand medical specialist as being unavailable in New Zealand, and where timely return travel is unlikely to be possible if the person books through the
Managed Isolation Allocation System; OR
iii. who are in a location or situation where there is a serious risk to their safety and their only option is to return to New Zealand, taking into account
advice from the Ministry of Foreign Affairs and Trade where relevant;
OR
1b) Where urgent travel is required to ensure a child is provided with appropriate care and protection.
10 September – 21 October 2021
No changes.
21 November – 17 December 2021
1b) Where urgent travel is required to ensure a child under 18 is provided with appropriate care and protection.
Emergency Category 2 30 August – 3 September 2021
2a) New Zealand citizens or residents who are required to provide critical care for a dependant person in New Zealand and need to travel urgently to do so; OR
2b) A person whose entry to New Zealand is time-critical for the purpose of commencing work that involves delivering a critical public or health and disability service, such as the clinical and direct provision of health services required to prevent serious illness, injury or death; or the maintenance of essential infrastructure or lifeline utilities whose failure would result in significant harm or disruption to a large number of New Zealanders; OR
2c) New Zealand citizens or residents, who are unable to legally remain in their current location and have no other option but to return to New Zealand; OR
2d) New Zealand and non-New Zealand citizens, where national security, national interest or law enforcement reasons require urgent travel to New Zealand, or return travel to New Zealand is required on the completion of national security, national interest or law enforcement duties overseas.
2e) New Zealand citizens or residents:
i. entering New Zealand to visit a close relative198 who is living with a terminal illness or end-stage disease (with a life expectancy of six months or less), where timely travel is unlikely to be possible if the person books through the Managed Isolation Allocation System; OR
ii. who are living with a terminal illness or end-stage disease (with a life expectancy of six months or less) entering New Zealand to visit a close relative or to reside in New Zealand, where timely travel is unlikely to be possible if the person books through the Managed Isolation Allocation System; OR
iii. who are living with a terminal illness or end-stage disease (with a life expectancy of less than six months) who have travelled or are travelling to visit a close relative who resides overseas, where timely return travel is unlikely to be possible if the person books through the Managed Isolation Allocation System; OR
iv. who have travelled or are travelling to visit a close relative who is living with a terminal illness or end-stage disease (with a life expectancy of six months or less) and resides overseas, where timely return travel is unlikely to be possible if the person books through the Managed Isolation Allocation System.
2f) Citizens or residents of Pacific countries requiring access to time-critical medical treatment which has been scheduled in New Zealand that is unavailable in their own country, and accompanying clinical personnel or essential caregivers.
3 – 10 September 2021
No changes.
10 September – 21 October 2021
No changes.
21 November – 17 December 2021
2c) New Zealand citizens or residents whose visa to remain in their current location:
i. has expired and who have received notice from a local authority of detainment or deportation if they do not depart; OR
ii. has been unexpectedly revoked or shortened due to circumstances outside of their control.
2e) New Zealand citizens or residents:
i. entering New Zealand to visit a close relative1 who is living with a terminal illness or end-stage disease (with a life expectancy of 6 months or less) or
has recently suffered a life-threatening medical event, where timely travel is unlikely to be possible if the person books through the Managed Isolation Allocation System; OR
Emergency Category 3 30 August – 3 September 2021
198 A close relative is a spouse or partner, parent, child, brother or sister, grandparent, grandchild, spouse’s or partner’s parent.
This category had not yet been created. 3 – 10 September 2021
3) New Zealand citizens or residents who have suffered the bereavement of a close relative within seven days of the date of application and urgently need to:
a) return to New Zealand where the close relative died in New Zealand; OR
b) travel to another country, and return to New Zealand, where the close relative died in that other country, including for the purposes of accompanying the body of the deceased to New Zealand:
• where timely return travel is unlikely to be possible if the person books through the Managed Isolation Allocation System.
10 September – 21 October 2021
No changes.
21 November – 17 December 2021
No changes.
Emergency Category 4 30 August – 3 September 2021
This category had not yet been created.
3 – 10 September 2021
This category had not yet been created.
10 September – 21 October 2021
This category had not yet been created.
21 November – 17 December 2021
4a) New Zealand citizens who have been overseas since before 3 November 2020, and who have been unsuccessful in their attempts to secure a MIAS voucher through the regular lobby release process, and whose visa to remain in their current location has expired or will expire in the next 60 days.
You will be able to bring your spouse/partner and dependent child/ren if they are travelling with you and hold the right to enter New Zealand. Please provide their details as part of your application. Visa requirements and vaccination requirements may apply to those travelling with you who are not New Zealand citizens.
The time-sensitive criteria required: · being legally entitled to enter New Zealand under the border restrictions;
· having an endorsement from the relevant Government agency;
· that travel be “time-sensitive”;
· being unsuccessful in obtaining an allocation in MIAS for the date required for the work;
· undertaking work that is essential for the operation or construction of critical infrastructure or lifeline utilities; or for the continued operation of supply chains of regional or national significance; or for a critical health and disability service that was not practicably accessible in a local community or region; or for New Zealand’s national security, international obligations or relations, or national interest or law enforcement duties overseas; or for preventing lasting damage to New Zealand’s substantial economic interests; or for preventing significant disruption to government- funded research programmes;199
· where there would be significant consequences unless there is guaranteed entry or return to New Zealand within the next allocation window; and
· there is no reasonable alternative available to enable the work to take place.
The group criteria required that a group: · have a sponsoring Government agency;
· need more than 20 rooms;
· have a time-sensitive entry OR a time-sensitive need to leave New Zealand and to have certainty of return before departing;
· need to enter as a single unit OR there was no reasonable alternative pathway for them; and
· be a government priority.
To be considered a government priority the criteria was:
· National interest: returnees are usually based in New Zealand and are returning from representing New Zealand at an international event or activity of national interest; or the persons visiting New Zealand are essential to holding an event or activity considered to be in the national interest.
· Economic impact: the group is travelling to support delivery of a major investment (>$100 million) and/or a priority in the Government Major Events portfolio; the purpose for which the group is travelling is expected to generate significant economic or employment activity.
· National security or obligations under international law or international relations: the purpose for which the group is travelling is considered essential for New Zealand’s national security or New Zealand has obligations under international law or international relations.
199 This is the criteria that applied between 15 October to 17 December 2021. It was similar but not identical between 1 September and 14 October 2021.
Appendix four – Grounded Kiwis affidavits
| Period lived overseas and reasons for such | Date and reasons for return | Steps taken to return | Consequences of failed efforts | |
| KG | Moved to Australia to “broaden [their] horizons” in Sept 2016. | Began thinking about returning home once remedial work on house in NZ was completed. Commenced attempts to return in Mar 2021 | Obtained MIAS MIQ voucher in July 2021. MIQ cancelled voucher in Apr 2021 (with QFT). Complaint to MIQ Sept 2021. Participated in lottery 6 times with following queue placings: 21,405, 19,319, 23,671, 9,423, 19,750 and 1,710. Obtained MIQ voucher on 2/11/21 for 8/12/21. | Handed in notice to landlord in Nov 2021 so living in motels and AirBnBs “has been immensely stressful and feels so unnecessary”. The lottery system “resulted in stress, upset, anxiety and anger”. Without work since September. “Suffering additional expenses” for house in NZ. Attended father’s funeral through zoom. “life has been put on hold indefinitely; every day [they] went through grief, anger, despair, hopelessness, anxiety, fear.” |
| RO | Moved overseas to work in super yacht industry in 2016 and was in US. | June 2021 | Checked daily for available MIQ slots. Slept with headphones on. Wrote letter to Ombudsman, Minister Hipkins, Prime Minister, Andrew Milne, and media in Aug 2021 Entered 4 lobby rounds with following queue placings: 20,052, 15,647, 23,019 and 2,719. | MIQ system has “made it impossible to continue [her] career” in superyachts. “Desperate to obtain a spot” to come home and “put her life on hold” while trying to obtain one. Was “the most heart-breaking situation [she] had ever dealt with.” “This MIQ system [had] resulted in [her] mental health deteriorating so much that [she] had to leave [her] job despite not being able to come back to [her] home country.” |
| Obtained MIQ spot on 12/12/21 for 24/12/21. | It “plunged [her] into a depression [she had] never felt before.” | |||
| AS | NZ citizen living in the UK since 2001, having moved over there for work. | Began looking to return to NZ to spend Christmas with family and support mother with dementia. Engaged with MIQ on 18/11/20. | Secured an MIQ booking for 12/1/21 on 18/11/20. On 6/1/21 airline cancelled her flight. Used first-in, first-served from Jan-July 2021 with approximately 630 attempts. Made three lottery system attempts on 19/9/21 (coming 26,074 in the queue), 11/10/21 (15,156) and the 7th lobby (13,269). | Found the MIQ lotteries “too exhausting and [her] exhaustion levels over this process have peaked.” Inability to support mother and father has “caused [her] unbelievable stress and grief.” Gave “up hope of returning this Christmas and maybe seeing [her] mother again.” “Mental health has suffered terribly” and “has seen a GP in connection with stress” – was recommended to seek counselling. |
| Had not tried emergency allocation as she believed she was not eligible. | ||||
| CN | Travelled with wife to the US for medical and business purposes in June 2021. | July 2021 | Began looking for rooms every two to three days since July 2021. Participated in 8 lobby rounds with following queue placings: 1,529, 6,488, 16,423, 15,407, 4,251, 6,954, 9,436 and 51. Secured voucher on 18/12/21 for 17/10/21. | Uncertainty about return home “is a maddening and highly frustrating situation to be in.” Wife “will not be able to fulfil [her] condition [of residency to spend 163 days per year in NZ] unless she gets back by 8/12/21.” Now finds himself “abandoned by [his] country” and “stripped of [his] citizenship rights.” |
| CB | Works in Japan as an Assistant Professor in English in a Japanese university. Moved to Japan in 2012. | Was always intention to return to NZ to retire. Also needed to return to care for sick elderly mother and daughter. Engaged with MIQ in July 2021. | Registered with MIQ July 2021. Checked MIAS every day for hours. Entered 11 lobbies with following places in queue: 13,800, 12,018, 19,774, 17,651, 16,815, 9,499, 6,642, 6,923, 462, 581, 4,538. Wrote numerous emails to PM and other MPs. Secured voucher in lobby 10 on 30/12/21 with arrival date 20/02/22. | “Trying to make a booking became an all-consuming focus requiring hours every day, and a source of stress and anxiety.” “Experiencing [long positions in the lottery queue] … with no assurance of every being able to return home, is becoming increasingly anxious and despairing.” If unable to return to NZ before retirement, “will be unemployed and … unable to continue to rent [her] house”. Missed out on sharing granddaughter’s milestones “has been a source of great frustration and sorrow to [her].” |
| Chronic illness means she “experience[s] 24/7 pain and discomfort … [she] cannot access suitable medical treatment that enables [her] to manage [her] condition”. | ||||
| Situation “is becoming increasingly unbearable.” | ||||
| LD | NZ and Australian citizen who has been working in Perth for the last 37 years. | Decided to return to be with partner. | Participated in both MIAS systems. Wrote letters to MIQ complaint system as well as Ministers and MPs. Entered 7 lobby rounds with following queue placings: 24,108, 21,260, 22,943, 19,960, 11,943, 2,075. Secured voucher on 9/11/21 with arrival on 17/11/21. | Has been “living off [her] savings, which [she] hoped to use to set [herself] up in New Zealand” as she left paid employment and was unable to secure temporary employment. Says the “system is soul destroying. [She is] permanently anxious.” “Developed paranoia, and chest pain” and has heart palpitations. Was “distraught and wish[ed] to return to [her] homeland as soon as possible. [Her] mental health is now suffering”. |
| KP | Moved from NZ to the US for work in 1997 and became a permanent resident. | Intended to return to NZ upon retirement and to re-join family in NZ. Experiencing serious health issues and younger brother is fighting cancer. Has an autoimmune disorder. | Booked flights to NZ and MIQ space for early July 2021. Was forced to cancel MIQ space in June 2021 for personal reasons. Booked a flight to NZ for mid-Nov. Could not secure MIQ space for Oct, Nov or Dec 2021 –sat at computer for 12–18 hours daily. Began searching again in Aug 2021 after surgery. | “MIQ system has negatively impacted [her] financially” as has been “living off [her] savings and (from Aug 2021) US Social Security payments.” “The MIQ system has also adversely impacted [her] physical health … it has been difficult to be active on the MIQ booking website for more than an hour at a time, and not easy to rest, relax and sleep” after surgery. Most “devastating impact … has been the fact that [she] continue[s] to be separated from [her] family during this very difficult period.” Is “deeply saddened to say that [she] feels displaced, forgotten, abandoned and devalued by the New Zealand government.” |
| Engaged with MIQ after planning move in July 2021. | Entered 2 lobby rounds with following queue placings: 14,821 and 23,731. No voucher as at Dec 2021. | |||
| TG | Moved to the US on a student visa to study in Aug 2016. | Decided to finish his studies in NZ with his classes being held remotely due to the ongoing pandemic. | Booked a flight to NZ for Dec 2020 in June 2020 which was cancelled. Registered with MIQ in May 2021. On 18 June 2021 submitted an online enquiry with MBIE requesting assistance. | “Currently lives in fear that [he] will be deported, with the immediate consequence of being detained and the longer-term consequence of not being able to return to the United States, which would destroy [his] relationship” as visa grace period ended on 23/10/21. “This has been an extremely emotional time. It brings [him] to tears. [He] has never felt so lonely and lost. Hopelessness has been the killer for [him] – |
| Period lived overseas and | Date and reasons for return | Steps taken to return | Consequences of failed efforts | |
| Began seeking MIQ in May 2021. | On 27 June 2021 applied for emergency allocation under cat 2c (outside window). Booked flights home on 14/9/21. Applied for emergency allocation on 31/8/21 (outside window). On 2 Sept applied for emergency allocation (delayed response and missed flight). Participated in 7 lobby rounds with following queue placings: 17,790, 17,805, 10,373, 4,429, 14,309, 3,161 and 475. Secured voucher on 9/11/21 for 3/12/21. | and the feeling of hopelessness has only been exacerbated by the lottery system which pushes you down the hole further each time.” Feels “tossed aside by [his] own country … it is heart breaking.” | ||
| HW | Travelled to the UK to support younger brother following death of their father on 1/10/20. | Planned to return after about 3 months. Sought MIQ in Nov 2020 when the UK lockdown began. | Registered for MIQ in Nov 2020. Checked the MIQ page daily. Booked a flight to Sydney in June 2021 for Nov 2021 to use QFT bubble (but bubble closed). Wrote a letter to PM and received a reply from Minister Hipkins’ office. Entered 6 lobby rounds being placed 15,000, 23,000, 21,000, 17,000, 17,600 and 13,600. As at Dec 2021 she had no current voucher or offline allocation. | Found being away from family at Christmas difficult. “Mental health started deteriorating quite badly, [she] started having panic attacks and severe anxiety. For the first time in [her] life, [she] had become depressed.” “Anxiety has become significantly worse. [She was] having difficulty sleeping, and [was] tearful all the time. [She] cannot describe how much [she misses her] daughters. The uncertainty of not knowing when [she] will return home is unbearable.” Has missed milestones for daughters and “both [her] daughters are struggling.” “Mother is under huge financial strain trying to cover mortgage payments. [She] now stands to lose [her] house in New Zealand.” |
| SD | Living and working in the US since Jan 2018 as a Senior Scientist at a biotechnology company. | Regularly returned to NZ to support mother with severe depression and anxiety. After being vaccinated and with mother soon to be double vaccinated, first interacted with MIQ on 19/6/21. | Created MIQ account on 19/6/21. Engaged with first-in, first-served system numerous times. Successful a few times but had to cancel as no flights available for those places. Entered lobby four times with following queue places: 16,652, 11,637, 3,786 and 3,366. Secured voucher in lobby 7 on 9/11/21 with arrival on 14/12/21. | First-in, first-served model was “having too negative an impact on [his] mental health and wellbeing.” MIQ system has also had a negative impact on wellbeing of his mother, who “has a history of depression and anxiety. She deeply wants [him] to return home.” Worries that his absence on her birthday “along with the unknown about when [he] will ever be able to return home, will trigger her to have an anxiety attack or rekindle episodes of extreme paranoia.” Has “also experienced a significant amount of stress and anxiety through the advocacy work that [he has] been doing for Grounded Kiwis.” |
| CB | Has been working as a nurse in Australia for some time. | Regularly returned to NZ at the end of each contract. On 2/3/21 engaged with MIQ as her son passed away and needed to return to bury him. | Created an MIQ account on 2/3/21. Would spend up to 10 hours a day on system. Tried to secure emergency allocation at the same time but application was denied. On 10 Mar a complaint was made on her behalf to MIQ. On 18 Mar she secured an MIQ date for 11 June. | “Viewed [her] son’s funeral from [her] dining area via a telenet link. [She] did not get to see him” in person before he was buried. “Not being able to return to New Zealand to farewell [her] son has impacted [her] work and [her] mental health … [she has] been depressed and at times saw no purpose in living”. Has “experienced stress related physical disorders, cardiac abnormalities and other ailments.” Has felt her “human rights have been denied to re-enter NZ to tend to what is a basic need.” |
| SR | Is a psychiatrist. Flew to Australia to assist daughter with birth of second child on 22/7/21, planning to stay until 7/8/21. | Engaged with MIQ on 23/7/21. | Registered on the MIQ website on 23/7/21. Checked the MIQ website several times a day. Applied for exemption on 9/8/21 for self- isolation (declined as not currently in MIQ). Applied for emergency allocation on 9/9/21 under category 2B (rejected). Complained to MIQ on 18/9/21. Participated in 4 lobby rounds with following queue placings: 8,870, 30,357, 2,586 and 12,346. Received health worker allocation on 8/11/21 for 28/11/21. | “Can only run a very rudimentary practice remotely from Australia”. Found the lottery system “gruelling, distressing and anxiety-provoking.” Had “been in Melbourne for over three months, with no prospect of returning home this year, or in the foreseeable future. [She] feels deeply distressed.” Could not provide support to brother in NZ with chronic disease and to a close elderly friend in rest home. “Financially, the situation has been very challenging too” and was “renting a room in an AirBnB.” |
| AL | Built a house in Vanuatu after retirement and travels there over the winter months. | Made two trips to Vanuatu during the pandemic. Booked MIQ for first trip in Sept 2020. | Began using MIAS from Sept; secured a spot in Dec 2020 for 13/1/21. On second trip from NZ he looked for MIQ spaces from 4 Oct and participated in 5 lotteries. Made a complaint to Ombudsman in Jan 2021. Participated in five lobby rounds with following queue placings: 17,474, 8,524, 21,475, 7,421 and 17,773. Was able to travel through QFT scheme with Vanuatu on 8 Nov. | “Had enormous difficulty booking a spot in MIQ.” From Vanuatu only had approx two flights per month to choose from and MIAS had dates missing. “We have a shared frustration of the MIQ regime and the unresponsiveness of those who administer it.” |
| SN | Travelled to Sydney to support daughter who had to be admitted to hospital on 25/6/21. | Planned to return to NZ after two weeks. Learned on 26 June that whāngai son had been diagnosed with stomach cancer and needed to return. | Flight home on 9/7/21 was cancelled. Submitted an emergency ground application on 16/7/21. Participated in MIAS first-in, first-served and missed out on “red flights”. Made emergency allocation requests on 25 and 30 Aug, 1 and 9 Sept 2021 (declined). Entered MIQ lottery on 20/9/21 and booked MIQ for 17/10/21. | “The emotional and mental anguish in not being able to be there to support [his whāngai son] and the whanau with [the] stomach removal surgery has been significant.” “Spouse lost her employment; this has affected [them] financially and has created no small amount of upset and emotional mental anguish.” Relationships with community and local iwi “have suffered as [he] has not been visible and present”. “In 34 years of policing, this experience has been the most challenging, the most emotionally taxing and has created the most stress.” |
| Period lived overseas and | Date and reasons for return | Steps taken to return | Consequences of failed efforts | |
| JS | Decided to travel to Perth to visit children on 15/8/21 with a confirmed flight home on 25/9/21. | Engaged with MBIE when border closed at end of Aug 2021. | Registered with MBIE at the end of Aug. Participated in six lobby rounds with following queue placings: 9,085, 14,494, 18,734, 17,362, 16,889 and 2,002. Secured a spot in MIQ on 2/11/21 for 16/12/21. | “At time [she] felt like [she] would ‘crack’”. “Some days [she] would cry for most of the day. [She has] had pains in [her] chest” and “can’t sleep properly.” “Mental state has deteriorated at times to the point that [she] began to think that it would be great to join her [deceased] husband.” |
| BB and RS | Travelled as husband and wife to Australia to visit their son and family on 17/7/21. Intended to stay for a month. | Engaged with MIQ when it was clear that travel bubble would not open in Sept 2021. | BB: Entered lobby 6 (17, 047 in queue) and lobby 8(16,243) but holding no current voucher as at December 2021. RS: Registered with MIQ in September 2021. Wrote to Dr Bloomfield requesting acceptance on flight from Australia with All Blacks team. Participated in three lobby rounds with following queue placings: 3,367, 17,047 and 16,243. No voucher or offline allocation as at Dec 2021. | “Strongly resent[s] being exiled from [his] homeland by government decree.” “This will be the first time in more than 25 years that [he] has been unable to attend a family Christmas.” Has “incurred substantial costs as a result of having to stay in Western Australia”. Understands his “eligibility for New Zealand Superannuation will be at risk if [he is] overseas for more than 26 weeks.” |
| TV | Moved to Singapore with family in Dec 2019 for work with a technology company. | With arrival of Covid the family decided to move back to NZ. Did not engage with MIQ until June due to work obligations (family returned first). | He engaged with first-in, first-served for hours in June 2021. Also attempted lottery system. Applied for emergency allocation under criteria 2c in Oct 2021 (declined). Contacted the Singapore government who advised that NZ must allow return. Applied for emergency allocation under category 2a (declined). Entered 4 lobby rounds with following queue placings: 18,421, 17,807, 22,215 and 990. Secured an MIQ room on 12/10/21 for 8/11/21. | Had “been on medication for anxiety since 2013, however the situation made the distress and anxiety far worse that it has been in many years.” “Being separated from [his] wife and boys over this period was extremely stressful”. “Started hearing about people had managed to book a spot [with the lottery], and this was really hard to stomach.” As he “was unable to secure a MIQ spot, could no longer earn an income [after his role was dissolved], and faced threat of penalties … for staying beyond [his] short term visitor pass, the situation became even more stressful”. “Was concerned for [his] own wellbeing and considered checking into a psychiatric hospital for help.” |
| BG | Flew to El Salvador on 10/11/20 after its borders opened to be with long- distance partner. | Became pregnant and was in EL Salvador on an expiring tourist visa so prepared to return home with partner in Mar 2021. | Applied for partner’s critical purpose visa to enter NZ in Mar 2021 (granted 13/6/21). Booked flights to NZ for 4–7/8/21 (no MIQ spots available). Applied for emergency allocation 15/6/21 under category 1b (not within window). Made an emergency allocation application 25 July (request for more evidence). On 25/7/21 made third emergency allocation application under category 2c (declined). On 4 Aug they flew to LA. Applied for emergency allocation three more times under category 1a (declined). Filed a judicial review on 6/9/21 – MBIE agreed to reconsider decision within 24 hours and granted allocation 72 hours later. | “The stress of the whole situation was immense. [She] was struggling mentally, emotionally and financially, and [she] was concerned she would end up overstaying … with a new-born baby with no way to earn income to support the child.” She “can’t believe the way the New Zealand Government treated [them], and the stress [they] went through.” |
| CA | Moved to Cayman Islands with husband in 2016. | Regularly returned to NZ to visit family and decided by 2/11/1 to try and see family. | Entered the lobby three times: lobby 6 (12,526 in queue), lobby 7 (9044) and lobby 8 (3214). Secured voucher in lobby 8 on 18/11/21 with arrival due 4/2/22. | “As 2021 has gone on [she has] become more and more desperate to see [her] family in New Zealand. This is now something which [she thinks] about daily and which frequently makes [her] tearful.” “A combination of [her] fear that [she] could not cope with two weeks locked in a hotel room with an 18 month old and a 3 year old and the stories of people in much more desperate circumstances than [her] trying to get home, have made [her] hold off on” MIQ. “It is very upsetting to have no end in sight”. |
| MC | NZ citizen born in Australia and has worked overseas, but considers NZ home. | Decided to try to return to NZ to support her stepfather and grandmother who have health issues in June 2021. | Used the first-in, first-served system between June and Aug 2021. Emailed PM on 12/7/21 requesting another system. Participated in three lottery rounds on 20 and 28 Sept (placed 22,111 and 9,651 respectively), and 5 Oct 2021 (placed 3,140). Booked an MIQ voucher for 1 Dec on 5 Oct 2021. Prepared documentation to apply under emergency allocation if her MIQ booking was cancelled as stepfather was critically ill. | The first time participated in the lottery she “was so upset, distracted and inconsolable that [she] called her boss and took a half-day off”. MIAS “felt dystopian and extremely psychologically unsettling.” “This situation has been all-consuming and has had a terrible impact on [her] mental health. On 8 July 2020 [she] commenced medical treatment for [her] anxiety, which started early in the pandemic”. Has “also had to take time off work”. |
| PM | A pilot employed in Hong Kong and commutes from Auckland for job. Due to the pandemic, returned to Hong Kong for work in June 2020 while family remained in NZ. | Had been trying to gain a place in MIQ to get home before Christmas. Entered into 9 lobby rounds with following queue placings: 19,306, 2,594, 14,327, 18,151, 7,743, 1,829, 4,662, 14,505 and 967. Secured a MIQ position for 19/11/21 but could not get time off work to travel. Secured voucher in lobby 9 on 25/11/21 for 25/01/2022. | “The 2 weeks of isolation required for MIQ in NZ has been the main factor restricting my movement” and a “six-week period of time off would mean 2 weeks at home”. Engaging with MIQ “is analogous to trying to win the lottery.” “This was an extremely stressful experience, having to align time off from work, limited flight schedules to NZ and the lottery”. “This situation has placed an incredible amount of strain on [his] marriage and family life. All children require the input and influence of both their parents”. “The lack of innovation from our border control authorities regarding methods of isolation has been very frustrating to watch, especially as [he travels] round the world with [his] job and [sees] the varied and successful methods used by other border authorities.” |
Appendix five – legislative framework
The COVID-19 Public Health Response Act 2020 (the COVID-19 Act) 4 Purpose200
The purpose of this Act is to support a public health response to COVID-19 that—
(a) prevents, and limits the risk of, the outbreak or spread of COVID-19 (taking into account the infectious nature and potential for asymptomatic transmission of COVID-19); and
(b) avoids, mitigates, or remedies the actual or potential adverse effects of the COVID-19 outbreak (whether direct or indirect); and
(c) is co-ordinated, orderly, and proportionate; and
(ca) allows social, economic, and other factors to be taken into account where it is relevant to do so; and (cb) is economically sustainable and allows for the recovery of MIQF costs; and
(d) has enforceable measures, in addition to the relevant voluntary measures and public health and other guidance that also support that response.
9 Minister may make COVID-19 orders201
(1) The Minister may make a COVID-19 order in accordance with the following provisions:
(a) the Minister must have had regard to advice from the Director-General about—
(i) the risks of the outbreak or spread of COVID-19; and
(ii) the nature and extent of measures (whether voluntary or enforceable) that are appropriate to address those risks; and
(b) the Minister may have had regard to any decision by the Government on the level of public health measures appropriate to respond to those risks and avoid, mitigate, or remedy the effects of the outbreak or spread of COVID-19 (which decision may have taken into account any social, economic, or other factors); and
(ba) the Minister must be satisfied that the order does not limit or is a justified limit on the rights and freedoms in the New Zealand Bill of Rights Act 1990; and
(c) the Minister must have consulted the Prime Minister and the Minister of Justice, and may have consulted any other Minister that the Minister of Health thinks fit; and
(d) before making the order, the Minister must be satisfied that the order is appropriate to achieve the purpose of this Act.
…
11 Orders that can be made under this Act202
(1) The Minister … may in accordance with section 9 or 10 (as the case may be) make an order under this section for 1 or more of the following purposes:
(a) to require persons to refrain from taking any specified actions that contribute or are likely to contribute to the risk of the outbreak or spread of COVID-19, or require persons to take any specified actions, or comply with any specified measures, that contribute or are likely to contribute to preventing the risk of the outbreak or spread of COVID-19, including (without limitation) requiring persons to do any of the following:
…
(vi) be isolated or quarantined in any specified place or in any specified way:
…
(viii) report for and undergo a medical examination or testing of any kind, and at any place or time, specified and in any specified way or circumstances:
…
(x) satisfy any specified criteria before entering New Zealand from a place outside New Zealand, which may include being registered to enter an MIQF on arrival in New Zealand:
…
From 20 November 2021 the Act included provisions concerning the allocation of places in MIQF:
32K Chief executive responsible for operation of managed isolation allocation system
(1) The chief executive is responsible for the operation of the managed isolation allocation system.
(2) The chief executive must ensure that the managed isolation allocation system does not at any time permit the issue of more confirmed allocations than the number of available allocations.
Section 32L provided that the Minister must determine the apportionment between the issue of online and offline allocations.
32M Online allocations
(1) Online allocations to MIQFs may be issued on a basis that the Minister decides.
(2) In making a decision under subsection (1), the Minister must take into account—
(a) the right of New Zealanders under section 18(2) of the New Zealand Bill of Rights Act 1990 to enter New Zealand; and
(b) the need to mitigate, so far as possible, the social, economic, and other impacts of COVID-19.
(3) The basis on which online allocations to MIQFs are issued may—
(a) distinguish between different classes of persons entering New Zealand (for example, between New Zealanders and non-New Zealanders); and
(b) prioritise allocations as between different classes of persons; and
(c) reserve for a particular class, or any classes, of persons a specific proportion of allocations.
32N Offline allocations for individuals and groups
(1) Offline allocations to MIQFs may be issued to persons who meet the eligibility criteria determined by the Minister.
(2) An offline allocation may be—
(a) an individual offline allocation:
(b) a group offline allocation.
(3) In determining the eligibility criteria under subsection (1), the Minister must take into account—
(a) the right of New Zealanders under section 18(2) of the New Zealand Bill of Rights Act 1990 to enter New Zealand; and
(b) the need to mitigate, as far as possible, the social, economic, and other impacts of COVID-19.
(4) The chief executive must determine individual offline allocations on the basis of the eligibility criteria determined under subsection (1) for those allocations.
200 COVID-19 Public Health Response Act 2020 (as enacted 13 May 2020). Subsections (ca) and (cb) were introduced on 6 August 2020.
201 Subsection (1)(ba) was introduced on 6 August 2020.
202 Section 11(1)(x) was introduced on 6 August 2020 to permit an order that required a confirmed place in a MIQF before being permitted to enter New Zealand.
(5) The Minister must determine group offline allocations on the basis of the eligibility criteria determined under subsection (1) for those allocations.
(6) The chief executive must publish on the responsible agency’s Internet site—
(a) the eligibility criteria determined under subsection (1) for individual offline allocations and group offline allocations; and
(b) approved group offline allocations.
The COVID-19 Public Health Response (Air Border) Order (No 2) 2020 (the Air Border Order) This imposed requirements on persons arriving in New Zealand by air. Its purpose was “to prevent, and limit the risk of, the outbreak or spread by COVID-19” by imposing these requirements.203 It was amended several times. As relevant, from 7 September 2020, it required all arrivals to New Zealand to report for and undergo medical examination and testing for COVID-19 as soon as practicable on arrival at the designated security area.204 It also required that arrivals be isolated or quarantined in accordance with the Isolation and Quarantine Order with some exemptions.205 As at 3 November 2020, it also required that the person have a “confirmed allocation” to enter a MIQF and to produce evidence of that.206 A “confirmed allocation” meant a confirmed allocation in the managed isolation system …”.207 The “managed isolation allocation system meant “a Web-based managed isolation allocation system operated on behalf of the New Zealand Government”.208 From 9 April 2021 to 20 November 2021, a “confirmed allocation” meant “the meaning given by clause 15H of the COVID-19 Public Health Response (Isolation and Quarantine Order) 2020” (see below).209 Evidence of a “confirmed allocation included “written evidence of a confirmed allocation (for example, a voucher)”.210 A “managed isolation and allocation system” was defined as “the meaning given by clause 15 H of the COVID-19 Public Health Response (Isolation and Quarantine) Order 2020” (see below).211 The COVID-19 Public Health Response (Isolation and Quarantine) Order 2020 (the Isolation and Quarantine Order) This set out the requirements for people who must be isolated or quarantined and restrictions on entry to a MIQF. The purpose of the Isolation and Quarantine Order was to prevent, and limit the risk of, the outbreak or spread of COVID-19 by setting out those requirements and imposing those restrictions.212 It was amended several times. As relevant, from 6 September 2020 it required a person to isolate or quarantine for 14 days and to report for testing as directed by a medical or health protection officer.213 From 13 November 2021 the period was amended to seven days if the chief executive of MBIE was satisfied that the person met “low risk indicators” (a defined term that included whether the person had a negative result from a test).214 Also relevant, from 6 September 2020 it provided that a person must not enter MIQF unless “they are authorised or required by law to enter the MIQF”.215 From 9 April 2021 to 20 November 2021, it defined “confirmed allocation” as meaning “a confirmed allocation issued under the managed isolation system to a low- risk MIQF.”216 A “managed isolation allocation system” was defined as “a managed isolation allocation system operated by or on behalf of the New Zealand Government.”217 A “low-risk MIQF” meant “an MIQF designated … for the purposes of isolation and quarantining people in a way appropriate for people with a low risk of transmitting COVID-19.”218 From 9 April 2021 to 20 November 2021 it contained details of how a person could obtain a “confirmed allocation” for MIQF as follows:
15J Issue of confirmed allocations
(1) A person may obtain a confirmed allocation by—
(a) registering on the managed isolation allocation system online portal and obtaining a voucher (an online allocation); or
(b) applying to the chief executive in the form approved by the chief executive and submitting supporting evidence (an offline allocation).
(2) The Minister must determine the apportionment between the issue of online allocations and offline allocations.
15K Online allocations
(1) Online allocations to low-risk MIQFs may be issued on a basis that the Minister decides.
(2) In making a decision under subclause (1), the Minister must take into account—
(a) the right of New Zealanders to enter New Zealand; and
(b) the need to mitigate, so far as possible, the social, economic, and other impacts of COVID-19.
(3) The basis on which online allocations to low-risk MIQFs are issued may—
(a) distinguish between different classes of persons entering New Zealand (for example, between New Zealanders and non-New Zealanders); and
(b) prioritise allocations as between different classes of persons; and
(c) reserve for a particular class, or any classes, of persons a specific proportion of allocations.
15L Offline allocations
(1) Offline allocations to low-risk MIQFs may be issued to persons meeting the criteria decided by the Minister and published from time to time by the chief executive on MBIE’s Internet site.
(2) A person may apply to the chief executive for an offline allocation and the chief executive must, as soon as is reasonably practicable, determine that application.
(3) If the chief executive is satisfied that an application meets the criteria, the chief executive may issue to the applicant an offline allocation to a low-risk MIQF.
From 20 November 2021 online and offline allocations were provided in the Act rather than in the Isolation and Quarantine Order 2020 and further detail about them was included.
203 Clause 3.
204 Clause 8(2).
205 Clause 8(3).
206 Clause 8(2A)(a). The Air Border Order in force from 3 November 2021 provided a specific exemption from the requirement to have a confirmed allocation for diplomatic and consular officials, the New Zealand Defence Force and aircrew members. From 15 January 2021 there was also a specific exemption for arrivals by air from Antarctica.
207 Clause 4.
208 Clause 4.
209 Clause 4(1).
210 Clauses 4(1)(a) and 8(2A).
211 Clause 4(1).
212 Clause 3.
213 Clauses 8, 9 and 10.
214 Clauses 4, 8, 9 and 10.
215 Clause 17(1)(b).
216 Clause 15H.
217 Clause 15H.
218 Clause 4(1).
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