Jiao v Chief Executive of the Ministry of Business, Innovation and Employment
[2024] NZHC 3558
•3 December 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-001568
[2024] NZHC 3558
UNDER the Immigration Act 2009, Judicial Review Procedure Act 2016 and the Bail Act 2000 IN THE MATTER OF
an application by Yi Hua Jiao, Ti Hung Qiu and Yu Ling Chiao for judicial review
BETWEEN
YI HUA JIAO
First Applicant
TI HUNG QIU
Second ApplicantYU LING CHIAO
Third Applicant
AND
CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND
EMPLOYMENT
Respondent
Hearing: 21 November 2024 –
Further submissions [28 November 2024]
Appearances:
First Applicant in person Second Applicant via AVL Third Applicant via AVL
S M Perera, R M McConnell for Respondent J T Parry assisting the Court
Judgment:
3 December 2024
JUDGMENT OF WHATA J
This judgment was delivered by me on 3 December 2024
pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date: ………………………….
JIAO v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2024] NZHC 3558 [3 December 2024]
[1]The applicants challenge the decision to deport two of them. They seek:
(a)Interim orders to facilitate their return, hotel accommodation for two weeks, access to legal representation, prohibition against detention without good cause, preservation of evidence, medical and psychological assessment, and immediate financial assistance; and
(b)Disclosure.
[2]The applications are opposed.
Background
[3] Yi Hua Jiao, the first applicant, is a New Zealand citizen residing in Papatoetoe. The second and third applicants, Mr Qiu and Ms Chiao, are Ms Jiao’s niece and her partner. They are Taiwanese passport holders and ordinarily resident in that country. On 30 June 2024, Ms Chiao and Mr Qiu travelled to New Zealand from Taiwan with the intention of holidaying in Auckland. Ms Jiao accompanied them.
[4] As Taiwanese residents, Ms Chiao and Mr Qiu enjoyed a visa waiver for the purpose of travelling to New Zealand. When they arrived here, they were interviewed by border officers for the purpose of assessing whether they should be granted temporary visitor visa and permitted to enter New Zealand. According to the interviewing officers they identified the following concerns:
(a)There was a difference between what Mr Qiu and Ms Chiao said about the reason for travel.
(b)Ms Chiao was unable to provide specifics as to her plans while visiting New Zealand.
(c)Ms Chiao withheld information about Ms Jiao’s employment in New Zealand.
[5] On the basis of these concerns, the officers determined that Ms Chiao and Mr Qiu were not bona fide travellers and were declined entry. They were then referred to the Police for deportation on the next available flight. They were then detained by the Police and some hours later put on a Cathay Pacific Flight.
Affidavit evidence
[6] The respondent provided two affidavits. Mr Noor Parkar, one of the Immigration Border Officers who interviewed the second and third applicants, filed an affirmation dated 1 August 2024. Mr Kariyawasam Siriwardana, a Senior Border Officer at Immigration New Zealand, also provided an affirmation dated 2 August 2024. Mr Parkar confirms that the applicants arrived in New Zealand on 30 June 2024, and that they held a valid New Zealand Electronic Travel Authority. Upon arrival, they applied for visas and entry permission at the immigration control area of Auckland Airport. Mr Siriwardana confirms that it is usual for immigration border officers to carry out interviews with individuals seeking visas or entry permissions, at the officer’s discretion. That interview involves collecting biometric information about the passenger and questioning them about any potentially prejudicial information that may arise. Following this, the officer will recommend a decision as to whether to grant a visa or entry permission. The decision is peer-reviewed before it is finalised.
[7] Mr Parkar records that he interviewed Mr Qiu with the assistance of an interpreter. Mr Parkar states that he explained to Mr Qiu that he was concerned about what he considered were discrepancies in Mr Qiu’s comments as to his purpose for being in New Zealand. Specifically, that Mr Qiu said he was in New Zealand to support his partner Ms Chiao in her recovery from “recent surgery” to her back, but that Ms Chiao had said she underwent that surgery six years previously. Mr Parkar was also concerned that Mr Qiu intended to remain in New Zealand for three months, but had no evidence of obtaining leave from his employer in Taiwan. Mr Parkar did not consider Mr Qiu had provided satisfactory answers to his enquiries.
[8] Mr Parkar informed Mr Siriwardana of his decision to decline entry to Mr Qiu. Mr Siriwardana peer reviewed the decision and agreed with Mr Parkar’s conclusion.
Mr Parkar states that he then returned to Mr Qiu and informed him that his entry was declined because he did not meet the requirements to enter New Zealand, and that he may be turned around and removed from New Zealand on the next available flight. Mr Qiu asked for confirmation that he was not able to enter, which Mr Parkar provided, and Mr Qiu made no further comments except to say that he did not know it would be “so troublesome” to come to New Zealand. Mr Parkar told Mr Qiu that Immigration would make arrangements for his return to his port of entry and invited him to stay in the “day room” pending his departure.
[9] Mr Siriwardana records that Ms Warrington, another border officer, interviewed Ms Chiao and recommended that she did not meet the requirements for the grant of a visa. Ms Warrington was not convinced Ms Chiao was a “bone fide applicant who genuinely intended to stay in New Zealand temporarily for a lawful purpose.” Ms Warrington considered that Ms Chiao had given false or misleading information, or withheld information, at her interview. This decision was also peer reviewed by Mr Siriwardana. Ms Warrington also suspended any waiver for Ms Chiao to travel to New Zealand without first obtaining a visa.
[10] Mr Siriwardana records that following these decisions, Immigration Officer James Swan instructed Police to detain the second and third applicants under s 313 of the Immigration Act 2009.
[11] The second and third applicants each provided affidavits. Mr Qiu’s record of the events is that in June 2024, Ms Chiao told him that she would like to visit New Zealand to recover from work exhaustion. They decided to go together, with Ms Jiao. On arrival, their luggage was inspected without issue. They were then taken in for an interview with immigration officers. Mr Qiu notes that they were both exhausted from the long journey. During his questioning, Mr Qiu says he was asked questions which he answered honestly. He says the officer “repeatedly asked similar questions”. Mr Qiu was frustrated by the delay and mentioned that Ms Chiao had a “bad back” which may be causing her discomfort. Mr Qiu says that the officer then claimed their visas were not valid and that he accused them of “hiding something”.
[12] Mr Qiu says this frustrated him, as he had been truthful. He says that at that point he expressed his frustration at the unnecessary delay and says he felt that he and Ms Chiao were being discriminated against as Taiwanese citizens. Mr Qiu says that as a result of the experience, the significant costs they had incurred on travel and accommodation went to waste.
[13] Ms Chiao’s affidavit provides extensive information about the medical difficulties she experiences following an injury to her back diagnosed in 2017. Ms Chiao explains that while she had surgery six years ago, her condition is chronic and requires ongoing treatment. She says that the nuance of her condition was lost in translation during her interview but emphasises that she was honestly trying to enter New Zealand for a restful holiday with family. She says she was not aware that she needed to bring any proof of leave from her employment.
[14] Ms Chiao notes the affidavits of the respondent do not suggest any wrongdoing on the applicants’ part and she expresses confusion as to why they were denied entry. She suggests the questioning was driven by “preconceived suspicions” on the part of the border officers, exacerbated by difficulties with translation. Ms Chiao says that when the applicants were detained, the conditions were “harsh and inhumane” as they were stripped of their clothing and belongings, and denied necessary medication and adequate food.
[15] Ms Jiao is very upset at the treatment of her niece and her husband. She has been a resident in New Zealand for 30 years and wanted to give them an opportunity to enjoy what New Zealand has to offer. She says that no proper explanation has been given for the way they were treated.
Claims
[16]The Amended Statement of claim is succinct. It relevantly states:
…
4.On the evening of 30 June 2024 the Second and Third applicants arrived in New Zealand by a Cathay Pacific Flight, landing at Auckland International Airport. They held electronic visas numbered
E6706699 and E6706692 respectively, obtained under mutual visa waiver protocols between Taiwan R.O.C. and New Zealand.
6. Upon arrival, the Second and Third Applicants were detained by Immigration New Zealand officials. They were subjected to unusual searches, prolonged questioning, and subsequent detention. They were then transported by New Zealand Police, kept in unsanitary conditions, and remanded in custody at an unknown location. Their mobile phones were seized, preventing contact with relatives or legal advisors. They were denied access to any form of legal advice. The second and Third Applicants have no criminal record and no contraband was found in their luggage.
8.Due to limited English proficiency, the Second and Third Applicants could not understand the reasons for their detention and deportation. Misunderstandings
Violations of New Zealand Law:
11.The Applicants further plead:
(a)The Respondents breached the Immigration Act 2009, which emphasizes fairness and transparency in immigration procedures.
(b)The Respondents misused their authority under the Act.
(c)The prolonged detention, harsh interrogation, denial of legal access, and lack of clear communication violated the New Zealand Bill of Rights Act 1990, sections 22 (Liberty of the person) and 27 (Right to Justice).
(d)The Respondents failed to meet the service standards expected under the Consumer Guarantees Act 1993.
(e)The prolonged and unjustified detention violated the right to liberty and security under Article 9 of the ICCPR.
(f)The conditions of detention constituted violation of the right to be free from torture and ill-treatment under Article 7 of the ICCPR.
(g)The discriminatory treatment based on nationality violated their right to equality and non-discrimination under Article 26 of the ICCPR.
[17]They seek:
(i)An order compelling the respondents to disclose the documents referenced in their 2 August 2024 memorandum, as they are directly relevant to the judicial review proceedings.
(ii)Any other orders the Court deems just.
Interim relief — threshold
[18] An order for relief may be made if reasonably necessary to preserve the position of the applicants.1 If that is made out, I have a wide discretion to consider all the circumstances including the apparent strengths and weaknesses of the claim for review and the consequences private and public of granting interim relief.2
Submissions
[19] Ms Jiao, for all the applicants submits, in summary, that they have a strong case of unlawful detention and deportation, hard interrogation and unfair questioning, inadequate translation services, breach of the visa waiver protocol, intimidation, harsh treatment and unsanitary conditions, violation of their freedom of movement, intrusive search and violation of privacy as well as denial to access to legal representation.
[20] A key component of their case is premised on the fact that they enjoyed as Taiwanese citizens a visa waiver entitlement, and while this did not give rise to a right, strictly speaking to entry, refusal needed to be clearly justified and was not. On the contrary, they say that the respondent treated them unlawfully and in breach of their fundamental rights and legitimate expectation that they would be granted entry based on the waiver protocol.
[21] She also contends they will suffer irreparable harm to their health, emotional wellbeing, and immigration reputation, apart from the financial detriment suffered, if interim relief is not granted. This harm includes the aggravation of existing medical conditions, psychological trauma and the disruption of family reunion. She further contends that the respondents have misrepresented the case law, make unsubstantiated factual claims and have mischaracterised the public interest..
[22] At the hearing Ms Chiao and Mr Qiu confirmed that the interpretation was very poor, that they were very uncomfortable while being interviewed, that the rooms they were kept in were dark and cold and they were not given enough food. Ms Chiao also
1 Judicial Review Procedure Act 2016, s 15; Carlton & United Breweries Ltd v Minister of Customs
[1986] 1 NZLR 423 (CA) at 430 per Cooke J, and at 431 per Richardson J.
2 At 430.
says she was asked to take her clothes off and searched. Mr Qiu says he was also touched and searched. They also say that they are law abiding citizens in Taiwan and cannot understand why they were treated so poorly. They say that what they said to the Officers was true and they had no reason to mislead them. It was the first time they had been interrogated. They believe they have been discriminated against. Ms Chiao and Mr Qiu also speak of the trauma they have suffered as consequence of their treatment. Ms Chiao refers to deep shame she has felt as consequence of being deported, and that she has need counselling to cope.
[23] I do not propose to separately summarise the argument for the respondent as it largely features in my assessment.
Assessment
[24] I commence by acknowledging the frustration of the applicants and I accept they are truthful when saying that the entry process was traumatising for them. I can readily appreciate that after a long journey, to a foreign country and markedly colder climate, undergoing an interview process in a sterile environment would have been very difficult for them. It is also reasonably clear from the information before me that there may have been some miscommunication between the applicants and the officers. This is not to criticise the officers — I am not in a position to make any sort of final evaluation as to the merits of the applicants’ claims. But I think it is fair to observe the process would have been very emotionally confronting for Ms Chiao and Mr Qiu. And, for the purpose of my evaluation, I am also prepared to accept their evidence that they did not intend to mislead the officers and that they would have suffered considerable shame on their return to their homeland.
[25] Be that as it may be, I am not prepared to grant the interim orders for the following reasons.
[26] First, the applicants’ interim orders are not necessary to preserve their position. As Ms Perera submits, there is no right of entry into New Zealand without approval by Immigration New Zealand. More specifically, s 14(1) of the Immigration Act states:
A person who is not a New Zealand citizen may—
(a)travel to New Zealand only if the person—
(i) is the holder of a visa granted under this Act and the travel is consistent with the conditions of the visa; or
(ii) is a person to whom a visa waiver applies (whether authorised by regulation or special direction); and
(b)enter and be in New Zealand only if the person is the holder of a visa granted under this Act and he or she has been granted entry permission.
[27] Subsection (1)(b) is particularly relevant here — the visa holder (including persons holding visa waivers) must have been granted entry permission to enter New Zealand.
[28]Section 46 reinforces this basis point — it states:
(1) The granting of a visa does not of itself entitle the holder to be granted entry permission.
(2) Subsection (1) applies except if the visa granted is—
(a) a permanent resident visa; or
(b) a resident visa, and the visa was granted in New Zealand.
[29] Regulation 18 of the Immigration (Visa, Entry Permission, and Related Matters) Regulations 2010 provides for entry. It states:
(1) The requirement to hold a visa permitting travel to New Zealand is waived for a person described in Schedule 2 if—
(a) they meet the condition of holding a valid ETA in accordance with Part 4A; or
(b) that condition does not apply.
…
(2) To avoid doubt, in order to enter and stay in New Zealand a person to whom this regulation applies must, on arrival, still apply for—
(a) a visa (under regulation 7, 8, or 11, as the case may be); and
(b) entry permission (under regulation 24).
[30]Regulation 24 outlines the process to be followed:
(1) An application for entry permission must be made at an immigration control area.…
(5) The immigration officer processing an application may require the applicant to do 1 or more of the following before determining the application:
(a) be interviewed by an immigration officer:
(b) produce further information or evidence (including photographs) that the officer thinks necessary for him or her to determine the application:
(c) undergo a medical examination or another medical examination, as the case may be.
[31] A similar fact pattern to the present case was addressed by Collins J in Oosterveen v Ministry of Business, Innovation and Employment.3 As he observed there in relation to travel visa holders:
Entry permission
[24] The granting of a visa to a person outside New Zealand does not in itself entitle the holder of that visa to be granted entry permission. Rather, the effect of a visa granted outside of New Zealand is that the holder of the visa has permission to “apply for entry permission”. In addition, a visa indicates that “at the time the visa [was] granted, there [was] no reason to believe that the holder [would] be refused entry permission if the holder’s travel is consistent with the conditions of the visa relating to travel”.
[32] It follows that an interim order the effect of which is to demand entry into New Zealand, does not “preserve” an existing right of entry, but rather generates such a right. The following observation of Collins J in Oosterveen also resonates here:
Status quo
[44] Ms Oosterveen’s application for interim relief does not preserve her position. Rather, if I were to make the orders she seeks she would be significantly better off because she would be permitted entry to New Zealand in circumstances where she has no right to be granted permission to enter New Zealand. Granting the orders sought would also have the effect of me usurping the decision which INZ is currently required to make either under s 65(1)(b) of the Act if Ms Oosterveen remains out of New Zealand or under s 108(5) of the Act if Ms Oosterveen travels to New Zealand. I am not prepared to usurp the statutory functions and responsibilities of INZ in the way urged by Ms Oosterveen.
3 Oosterveen v Ministry of Business, Innovation and Employment [2014] NZHC 1709, [2014] NZAR 1091.
[33] Quite appropriately Ms Perera brought the decision off Kaur v Ministry of Business, Innovation and Employment to my attention.4 In that case two persons with work visa travelled home to India, intending to return to New Zealand. However, when they returned, they were denied entry. But, significantly, the effect of not returning put their work visas at risk. The Court was satisfied that this risk could have justified interim relief. There is however no such risk in this case. I note for completeness my disagreement with Ms Jiao’s submission that Ms Perera mischaracterised the effect of this decision. She did not.
[34] Overall, it follows that there being no right of entry, an interim order granting such entry would not preserve the applicants’ position. Rather it would distinctly improve it.
[35] Second, I do not consider that save for the effect of deportation itself, the alleged “irreparable harm” is sufficiently connected to the decision to decline entry. Rather, these “harms” were in existence prior to the refusal to grant entry. At most entry would alleviate these existing harms. The effects of deportation (cost, inconvenience, shame) are simply a corollary of refusal to permit entry. Those effects alone cannot justify interim relief.
[36] Third, the claimed reasons for review, relating specifically to the interview process, are not obviously strong. There is very little to suggest failure to have regard to relevant considerations or dismiss irrelevant considerations or failure to follow proper procedure or that the officers otherwise acted in bad faith or unreasonably. It is not enough to baldly assert discrimination or unfairness. There must be something upon which to graft claims of this kind.
[37] I pause however, as did counsel assisting, in relation to the alleged problems with the interpretation and NZBORA considerations. While stringent standards of the interpretation are not required,5 as stated by the Court of Appeal in Attorney-General v Udompun, as a general rule the requirements of fairness could not be met if a person
4 Kaur v Ministry of Business, Innovation and Employment [2012] NZHC 3563 at [47]. I leave to one side the contention made by Ms Perera that Kaur may have been wrongly decided given the scheme of the Immigration Act.
5 Attorney-General v Udompun [2005] 3 NZLR 204 (CA), at [90] and [95].
did not understand the questions put and therefore have a fair opportunity to answer.6 I am not in a position to evaluate the strength of this claim without a copy of the transcript of the interview. This is then linked to a second issue, raised belatedly in submissions filed on the day of the hearing and only vaguely pleaded at present, as to whether, and if so when, NZBORA might be activated in the interview process and whether it was properly engaged in relation to the police arrest and detention. These issues were not matters upon which the respondent was ready to argue. However, in submissions filed after the hearing Ms Perera submits that the law is settled – the applicants were not subject to ‘detention’ by virtue of the immigration processing at the airport, citing R v Boateng, R v Bynon-Powell and Udompun v Minister of Immigration.7 In any event, in the absence of clear pleading of facts, for present purposes, I simply note that both these matters may be deserving of consideration at the substantive hearing, and nothing I say here should be taken to have expressed a firm view on them. I also record for the benefit of counsel assisting, that if NZBORA claims of this type are ultimately properly made, then the Court would be assisted by Mr Parry adopting a contradictor role and providing submissions on them. Ms Perera agreed.
[38] Finally, while it is not necessary for me to address the balance of convenience, I am satisfied that the public interest in the maintenance of the efficient operation immigration system greatly outweighs the private interests of the applicants. That is not to diminish their concerns. But they are seeking mandatory orders effectively requiring the respondent to bring them to New Zealand and provide accommodation for them. Whatever the potential strength of their claim, there is simply no basis for placing that burden on the immigration system.
Disclosure
[39] Finally, turning to the application for disclosure — the applicants seek production of all documents that are capable of proving or disproving issues of fact in the proceedings. They say these include documents or parts of documents relied upon
6 At [89].
7 R v Boateng (1999) 5 HRNZ 450 HC; R v Bynon-Powell [2002] NZAR 157 (CA) at [31].
Udompun v Minister of Immigration (2003) 7 HRNZ 238 HC at [87].
to deny entry, which Immigration New Zealand is not prepared to release in an unredacted form.
[40] I accept that prima facie disclosure should be made of information relevant to the decisions to remove the second and third applicant from New Zealand. That is my starting point. Section 70 of the Evidence Act 2006 provides a public interest exception to the production of some information as follows:
(1) A Judge may direct that a communication or information that relates to matters of State must not be disclosed in a proceeding if the Judge considers that the public interest in the communication or information being disclosed in the proceeding is outweighed by the public interest in withholding the communication or information.
(2) A communication or information that relates to matters of State includes a communication or information—
(a) in respect of which the reason advanced in support of an application for a direction under this section is one of those set out in sections 6 and 7 of the Official Information Act 1982; or
(b) that is official information as defined in section 2(1) of the Official Information Act 1982 and in respect of which the reason advanced in support of the application for a direction under this section is one of those set out in section 9(2)(b) to (k) of that Act.
(3) A Judge may give a direction under this section that a communication or information not be disclosed whether or not the communication or information is privileged by another provision of this subpart or would, except for a limitation or restriction imposed by this subpart, be privileged.
…
[41] Section 6 of the Official Information Act 1982 also provides conclusive reasons for withholding information:
(a)To prejudice the security or defence of New Zealand or the international relations of the Government of New Zealand; or
(b)To prejudice the entrusting of information to the Government of New Zealand on a basis of confidence by—
(i)The government of any other country or any agency of such a government; or
(ii)Any international organisation; or
(c)To prejudice the maintenance of the law, including the prevention, investigation, and detection of offences, and the right to a fair trial; or
[42]As Ms Perera helpfully summarised:
(a)Claims under s 6 must be well founded and state with some precision why non-disclosure is justified;8
(b)A claim for immunity under s 6 is not confined to content but how the information has been gathered,9 and can extend to “innocuous” information that, when considered alongside other information, could prove damaging to security interests.10
(c)Where information is already in the public domain this means there can be no claim to harm, but whether it is sufficient in the public domain is a matter of evidence.11
[43] I would also add that the public interest in non-disclosure must be balanced against the public interest in in the effective administration of justice, and the balancing is the Court’s task.12 Having said that, the Court must recognise its own limitations when assessing, for example, whether non-disclosure is in the national interest.13
[44] Helpfully, in this case, I have had the benefit of an affidavit by Peter Elms, National Manager – Border at the Ministry for Business, Innovation and Employment who has explained the provenance of the redacted material and he has provided unredacted copies of the relevant documents. He explains that the information sought relates to a “Risk Targeting Programme” (RTP) designed to manage risk offshore. This programme will normally trigger a process offshore for engagement with an overseas person before they come to New Zealand. If, however, that process is not followed overseas and the risk is identified too late, an alert will be placed on the New Zealand Customs database and will be addressed with the passenger on arrival.
8 Dotcom v Attorney-General [2019] NZCA 412, [2019] 3 NZLR 397.
9 At [22].
10 Choudry v Attorney-General [1999] 2 NZLR 399 (CA) at [30].
11 Dotcom v Attorney-General, above n 7, at [27]
12 At [31].
13 At [32].
Mr Elms confirms that the redacted material relates to the RTP criteria and produced a copy of the relevant material used, unredacted.
[45] With the benefit of Mr Elms affidavit, his explanation of the RTP, and a copy of the relevant material, I am satisfied like counsel assisting that the relevance of this material is low. I also accept that maintaining confidentiality in the RTP criteria is a legitimate reason for redaction — publication of those criteria may undermine the efficacy of the RTP process.
[46]Given all of this, I am satisfied that the order for disclosure should be declined.
Outcome
[47] I am not satisfied that the interim orders sought are necessary to preserve the applicants’ position. Nor do I consider that the disclosure of the redacted material is necessary (it being of low probative value) or justified having regard to public interest in the efficacy of the RTP.
Costs
[48]The Respondent is entitled to its costs on a 2B basis.
Whata J
Solicitors / Counsel:
Crow Law, Wellington
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