Jia v Ministry of Business Innovation & Employment
[2012] NZHC 2451
•20 September 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2012-404-005672 [2012] NZHC 2451
BETWEEN ERMOU JIA AND XIAOGUANG LI Plaintiffs/Applicants
AND MINISTRY OF BUSINESS INNOVATION
& EMPLOYMENT Defendant/Respondent
Hearing: 20 September 2012
Appearances: F Deliu for Plaintiffs
A Longdill for Defendant
Judgment: 20 September 2012
(ORAL) JUDGMENT OF ANDREWS J
Counseil/Solicitor:
F C Deliu, PO Box 68559, Newton, Auckland DX CP27007 - [email protected]
Meredith Connell, PO Box 2213, Shortland Street, Auckland 1140 DX CP24063 -
JIA AND LI V MINISTRY OF BUSINESS INNOVATION & EMPLOYMENT HC AK CIV 2012-404-005672 [20 September 2012]
[1] The plaintiffs arrived in New Zealand at around 4pm yesterday, 19 September
2012, on a flight from China. Both plaintiffs had visas for a 30 day stay in New Zealand. They were declined temporary entry permission[1] at around 1am this morning.
[1] The relevant statutory provisions as to entry permissions are ss 107–112 of the Immigration Act
2009.
[2] The plaintiffs’ applications for visas and their subsequent applications for temporary entry permissions were based on their stated intention to attend a graduation ceremony of a Ms Hong at Unitech in Auckland. Letters had been submitted in support of the applications for visas, written by Ms Hong, in which she noted that she was confirming her wish to invite each of the plaintiffs to visit her to attend her graduation ceremony, and have a short holiday in New Zealand. Ms Hong noted that she would be able to accommodate each of the plaintiffs for the whole duration of the stay in New Zealand. I note at this point that the applications for visas were also supported by an explanatory document apparently provided by the two plaintiffs concerning deposit of a sum of money. That document also notes the intention to attend “our friend’s graduation ceremony and travel in New Zealand”.
[3] At the time the aircraft arrived (I understand, more or less at its scheduled arrival time at 4pm yesterday) the graduation ceremony had ended. As it had started at 10am that morning it would in fact have ended some hours before 4pm.
[4] The plaintiffs came to the attention of Immigration officers following the discovery by Customs officers of certain documents in the luggage of one of the plaintiffs. They were then referred to the Immigration authorities. Both the plaintiffs were subsequently interviewed, with the assistance of interpreters, and, as already noted, denied entry permissions.
Proceedings
[5] The statement of claim filed on behalf of the plaintiffs alleges that the decisions to decline the plaintiffs’ entry permissions were wrong in the following
respects: breaches of Immigration policy; that they were based on irrelevant considerations; that they were based on an error of law, that they were unfair, and that they were in breach of a right to legal advice under the New Zealand Bill of Rights Act 1990.
[6] An application for an interim order to prevent the plaintiffs being returned immediately to China has also been filed. This application has been heard on an urgent basis this evening.
Test for interim relief
[7] The test to be applied in determining the interim application is that set out by Hammond J in Esekielu v Attorney-General[2]. His Honour noted that an applicant is not required to demonstrate a “very strong probability of success on the merits”, the applicants are, rather, required to show that there is a “real contest” between the parties and that the applicant has “a reasonable chance of succeeding in that contest”.
[2] Esekielu v Attorney-General (1993) 6 PRNZ 309 (HC).
[8] Before I proceed further I note that the decisions by Immigration to decline the plaintiffs temporary entry permissions were made under s 112 of the Immigration Act 2009. That provides that an applicant for entry permission is required to put all relevant information before the officer, and that the officer may determine the application on the basis of information provided. If temporary entry permission is not granted then the applicant is subject to turnaround, which means that the applicant is liable to be returned to the country from which he, or she, has come, within a very brief period of time.
Discussion
[9] I turn now to consider very briefly the grounds on which judicial review is sought in the context of determining whether there is a real contest.
[10] I deal first with the submission that the plaintiffs were denied the opportunity to take legal advice. In this respect I accept Ms Longdill’s submission that no request was made for legal advice before the decisions to decline temporary entry permissions were made. It is therefore not a factor to be taken into account in considering whether there is a real contest in respect of the decisions.
[11] I note that in reply Mr Deliu submitted that had access to legal advice been granted (and I interpolate here that Ms Longdill challenged whether access to legal advice had been prevented), the plaintiffs would have had an opportunity to make an application for reconsideration of the decisions. I note that there is no statutory right to reconsideration.
Immigration policy
[12] I therefore move to the issue of whether there has been a breach of Immigration Policy. Mr Deliu took me carefully through all of the provisions of the Immigration Policy which he considered to be relevant and pointed out those respects in which he alleged there had been a breach.
[13] I have been provided, by Ms Longdill, with copies of the transcripts of the interviews with the two plaintiffs, and in particular that of the interview with the second plaintiff, Mr Li, which is the more substantial interview. Having been through these, I am not satisfied that there has been a breach of policy such as would constitute a reviewable error. Rather, it is apparent from the interviews that all the relevant policy directives have been followed. In particular, it is clear that the concerns that the Immigration Officer had as to the bona fides of the plaintiffs’ applications for entry permissions were put to Mr Li and he was given an opportunity to comment on those concerns. In fact, it is clear that these concerns were put to Mr Li more than once.
[14] It is also apparent from the interview transcripts, the records of the preliminary decisions which are annexed to the interview transcripts, and the border
application decision summaries, that the decisions have been expressed in writing and reasons have been given for the decisions. Those decisions were clearly based on a conclusion that the plaintiffs were not bona fide applicants for temporary entry permission.
Were irrelevant considerations taken into account?
[15] That conclusion rather deals with the other matters raised by Mr Deliu so I will touch on them only briefly. The first was as to whether irrelevant considerations were taken into account. That related, in large part, to his submission that the Immigration Officers who made the decisions to decline temporary entry permissions took into account inconsistencies in statements made to the officers by the plaintiffs and by other persons spoken to. These were Ms Hong, who had been the person who had written in support of the application for visas, and Ms Qi Lu. It is apparent on reading the records of those interviews that the information given to the interviewing officer was indeed inconsistent as to why the plaintiffs had come to New Zealand, what they intended to do here, and how long they intended to stay. As I have already said in respect of s 112 of the Act, the application for a entry permission is to be determined on the basis of the information provided, and the information provided is a relevant consideration in considering bona fides of an application.
Was there an error of law?
[16] The further matter raised by Mr Deliu was what he alleged was an error of law. This is based on a reference by an interviewing officer to a so-called sponsor (Ms Hong) for the plaintiffs who, in an interview, said she did not in fact know them. Mr Deliu had submitted that as the plaintiffs had an outgoing ticket, and sufficient funds, they satisfied the requirements for entry permissions, and there was absolutely no need to consider anything to do with somebody purporting to be a sponsor. That may well be so, but the issue as to whether Ms Hong, who had effectively sponsored the applications for visas by writing a letter in support of the application for them, and the fact that she said, in answer to a question, that she did not know the
plaintiffs, was sufficient to raise concern as to the bona fides of the plaintiffs’
applications for entry permissions.
Conclusion
[17] In all of the circumstances, I am not satisfied that the plaintiffs have established a “real contest” and a reasonable prospect of succeeding in that contest.
[18] Accordingly, I decline the application for interim relief.
Andrews J
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