Krokova v Minister of Immigration HC Auckland CIV 2010-404-5674
[2010] NZHC 1618
•7 September 2010
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2010-404-005674
UNDER the Judicature Amendment Act 1972
IN THE MATTER OF an application for judicial review
BETWEEN MARKETA KROKOVA Applicant/First Plaintiff
AND IVAN FEKO Applicant/Second Plaintiff
ANDMINISTER OF IMMIGRATION Respondent/Defendant
Hearing: 6 September 2010
Appearances: C Curtis for Applicants/Plaintiffs
A Longdill for Respondent/Defendant
Judgment: 7 September 2010 at 4.30 p.m.
JUDGMENT OF VENNING J
This judgment was delivered by me on 7 September 2010 at 4.30 pm, pursuant to Rule 11.5 of the
High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Marshall Bird & Curtis, Auckland
Meredith Connell, Auckland
KROKOVA AND ANOR V MINISTER OF IMMIGRATION HC AK CIV-2010-404-005674 7 September
2010
Application
[1] The applicants, who are citizens of the Czech Republic, have been served with removal orders under the Immigration Act 1987. They have been unlawfully in New Zealand since July 2005. They have two children, one, who was born in New Zealand before July 2005 and is a New Zealand citizen (S), and the other who was born after that date, (A). A has also been named in the removal order.
[2] In the substantive proceedings, the applicants seek to review the decisions to remove them and seek orders granting them permits to remain in New Zealand. In the meantime, the applicants seek interim relief under s 8 of the Judicature Amendment Act 1972 to prevent the defendant from taking any further steps to remove them until their substantive judicial review proceedings are heard.
Background
[3] The applicants arrived in New Zealand on 23 October 2000. Both applied for refugee status three days later. The first plaintiff was pregnant when she arrived in New Zealand. S was born on 30 May 2001. In a decision delivered on 7 September
2001 a refugee status officer declined the applicants’ refugee applications.
[4] The applicants appealed to the Refugee Status Appeals Authority (RSAA). The RSAA dismissed their appeals on 16 May 2002 as the applicants failed to appear.
[5] Subsequently, after receiving an explanation for the non-appearance, the
RSAA set aside its decision and reheard the appeal on 4 and 5 April 2005. On 28
June 2005 it dismissed the appeals on their merits.
[6] From November 2000 to July 2005 the applicants were in New Zealand on a series of work and visitors’ permits whilst they awaited the final disposition of their refugee claim.
[7] Following dismissal of the appeal the applicants’ permits were revoked with effect from 25 July 2005. The applicants have been unlawfully in New Zealand since that date.
[8] On 12 August 2005 the applicants appealed to the Removal Review
Authority (RRA) against their requirement to leave New Zealand.
[9] On 9 May 2006 A was born. As the applicants were unlawfully in New
Zealand at the time she is not a New Zealand citizen.
[10] On 30 October 2006 the RRA dismissed the applicants’ appeal.
[11] In February 2007 the applicants (and on behalf of A) applied to the Minister of Immigration for a special direction to grant them residence. On 20 March 2007 the Associate Minister of Immigration declined to intervene.
[12] The applicants then applied to this Court for judicial review of the decision to remove them. On 8 November 2007 those review proceedings were discontinued because the applicants made a further application for refugee status.
[13] On 25 June 2008 the refugee status officer declined the applicants’ second application for refugee status. Again, the applicants pursued an appeal to the RSAA. On 16 December 2008 the RSAA dismissed that appeal.
[14] On 13 January 2009 the applicants’ immigration adviser wrote to Immigration New Zealand advising that the applicants had accepted they must leave New Zealand and were in the process of applying to renew their passports so they could leave.
[15] As a consequence Immigration New Zealand resolved to suspend removal action until 28 February 2009.
[16] On 24 February 2009 the family again made a further request for intervention from the Minister of Immigration. On 27 May 2009 the Associate Minister of Immigration again declined to intervene.
[17] On 9 August 2010 immigration officers served the applicants with removal orders. A, as a dependent child, was named in the removal order relating to Ms Krokova. Mr Feko was taken into custody.
[18] The applicants were then interviewed by two immigration officers. The standard form Record of Personal Circumstances was used in each case. The standard questions were supplemented by additional questions specific to the applicants’ cases. The officer who interviewed Ms Krokova also interviewed S.
[19] Following completion of the interviews Immigration New Zealand received further submissions and material from the applicants’ immigration advisor on 12
August 2010.
[20] On 13 August 2010 after consideration of all the material on file and the further submissions the officers made the decision to proceed with removal.
[21] These proceedings followed.
The test on an application for interim relief
[22] On an application for interim relief such as this the Court must consider if there is a real contest between the parties and whether the applicants for interim relief have a respectable chance of succeeding in that contest: Esekielu v Attorney- General;[1] Singh v Minister of Immigration[2] and Parmanadan v Minister of Immigration.[3]
[1] Esekielu v Attorney-General (1993) 6 PRNZ 309 at 313.
[2] Singh v Minister of Immigration [2009] NZCA 50.
[3] Parmanadan v Minister of Immigration [2010] NZAR 424.
[23] In Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd[4] the
[4] Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 2 NZLR 385
Privy Council confirmed that in this context:[5]
[5] At 388.
A litigant may only invoke interference by the Court with such a decision if the litigant pleads plausible allegations which, if substantiated at the trial, will demonstrate that the decision was not reached in accordance with law.
In Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155 at p 1173 Lord Brightman said:
"Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will . . . under the guise of preventing the abuse of power, be itself guilty of usurping power.''
[24] In addition the Court must consider it necessary to grant interim relief to preserve the parties’ position: s 8 of the Judicature Amendment Act.
The applicants’ case
[25] The applicants are Roma. Roma people face discrimination in the Czech Republic. Both applicants have given evidence during the course of the various hearings and appeals that they were subject to discrimination and physical assault because of their ethnicity. Ms Curtis noted that the various decisions relating to the applicants recognised that discrimination existed but considered it fell short of persecution.
[26] Ms Curtis’ principal submission was that in making their decision to confirm the removal of the applicants the defendant’s officers could not have taken proper account of the fact S was a citizen of New Zealand who, whilst protected from discrimination in New Zealand, would be subjected to discrimination in the Czech Republic if forced to go to that country because of the removal of his parents. Ms Curtis submitted it was inevitable that S would be returned to the Czech Republic as there was no choice, citing the reasoning of Glazebrook J in: Ye v Minister of
Immigration.[6]
[6] Ye v Minister of Immigration [2009] 2 NZLR 596 at [102] – [107].
[27] Ms Curtis submitted that if the reviewing officers were aware of S’s citizenship they failed to take proper account of it because, if they had taken proper account of it, they could not have made the decision to confirm the removal.
[28] The second applicant, Mr Feko, was sentenced to imprisonment in absentia by a Czech Court for a criminal matter. He denies committing any crime. Ms Curtis submitted that if he is removed to the Czech Republic he will immediately be
imprisoned upon arrival and it will be impossible for him to return to New Zealand in the event the review proceedings were successful, so that it was necessary to protect his position by interim orders.
[29] The specific matters pleaded for the applicants are:
•that the officers acted manifestly unreasonably and substantively unfairly in failing to properly consider the rights of S when, as a New Zealand citizen, he would be subject to discrimination in the Czech Republic;
•that the officers failed to take into account relevant considerations, namely the further material relating to the discrimination that was forwarded to the officers on 12 August before making their determination on 13 August.
•that the assessment of S’s humanitarian circumstances was incorrect and therefore unlawful and a breach of natural justice;
•that the officers took into account irrelevant considerations, particularly the character grounds relating to the second plaintiff Mr Feko; and
•that the applicants had legitimate expectations that the second applicant would have an adequate opportunity to answer the charges brought against him and that as a New Zealand citizen S’s rights would be considered.
The applicable law
[30] The officers reviewed the removal order in accordance with s 58. Section 58 now reads:
58 Cancellation of removal order
(1)An immigration officer who has been designated by the chief executive for the purpose of making removal orders under section 54 may, at any time while the person named in the removal order is still in New Zealand, cancel a removal order that has been served by endorsing a copy of the order accordingly, and personally serving that copy on the person named in the order.
(2)The cancellation endorsement serves as a direction to any person who may be detaining the person in custody in reliance on the order to release the person from custody immediately.
(3) An immigration officer who cancels a removal order must ensure that any person who is detaining the person named in the order in reliance on this Part releases the person immediately.
(4)In the case of a person who has already been removed from or has left New Zealand, an immigration officer of the type referred to in subsection (1) may cancel a removal order by sending the person named in it a notice to that effect in the prescribed form.
[(5) Nothing in this section gives a person a right to apply to an immigration officer for the cancellation of a removal order. However, an immigration officer must consider cancelling the removal order of a person who is in New Zealand if the person provides information to the officer concerning his or her personal circumstances, and the information is relevant to New Zealand's international obligations.]]
[[(6) If an immigration officer does consider cancelling a removal order, whether by way of a purported application or his or her own motion, the officer must have regard to any relevant international obligations, but otherwise,—
(a) may make a decision as he or she thinks fit; and
(b)in doing so, is not under any obligation, whether by implication or otherwise,—
(i)to apply any test or any particular test and, in particular, the officer is not obliged to apply the test set out in section 47(3); or
(ii) to inquire into the circumstances of, or to make any further inquiries in respect of the information provided by or in respect of, the person who is the subject of the removal order or any other person.]]
[[(7) Whether or not an immigration officer considers cancelling a removal order,—
(a)he or she is not obliged to give reasons for any decision, other than the reason that this subsection applies; and
(b)section 23 of the Official Information Act 1982 does not apply in respect of the decision.]]
[[(8) However, to the extent that an immigration officer does have regard to any international obligations, the officer is obliged to record—
(a) a description of the international obligations; and
(b) the facts about the person's personal circumstances.]] ]
[31] As noted by the Court of Appeal in Parmanadan v Minister of Immigration,
following the decision of the Supreme Court in Ye v Minister of Immigration[7]
[7] Ye v Minister of Immigration [2010] 1 NZLR 104.
Parliament made significant amendments to s 58.
[32] At the time of the introduction of the proposed amendments the explanatory note to the supplementary order paper clarified the purpose of the amendments as follows:
... to ensure that certain decisions (for example decisions about whether or not a person liable for deportation (or removal under the Immigration 1987) from New Zealand should be deported (or removed) are decisions made by immigration officers implementing the practical elements of the final stage of removal of the person and do not require any test or any particular test. In particular, immigration officers are not required to apply the test set out in section 47(3) of the Immigration Act 1987 or clause 186 of the Bill, as the case may be, when considering cancellation of a removal order or a deportation order. At this stage, the essential issue is whether the person is in New Zealand unlawfully. These amendments overturn the future effect of most of the key findings (including the findings that required immigration officers to apply the humanitarian appeal test and impose duties of inquiry on them) in the recent Supreme Court decisions Ye v Minister of Immigration; Qiu v Minister of Immigration [2009] NZSC 76 and Huang v Minister of Immigration [2009] NZSC 77, all judgments being delivered on
20 July 2009.
[33] The test in s 47(3) was whether there were exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the person to be removed from New Zealand and that it would not, in all the circumstances, be contrary to the public interest to allow the persons to remain in New Zealand. The effect of the amendment was to remove the requirement for officers to consider that test when applying s 58.
[34] While there is no right to apply for cancellation of the removal order: s 58(5)
an immigration officer must consider cancelling the removal order if the person
provides information concerning his or her personal circumstances and the information is relevant to New Zealand’s international obligations. Those international obligations include various treaties concerning the rights of children, in this case, the rights of S in particular.
[35] Section 58(6) provides that if an officer does consider cancelling a removal order the officer must have regard to any relevant international obligations but otherwise:
a) may make a decision as he or she thinks fit; and
b)in doing so is not under any obligation to apply any test and, in particular, is not obliged to apply the s 47(3) test or to inquire into the circumstances or to make any further inquiries in respect of information provided.
[36] Section 58(7) confirms the officer is not obliged to give reasons but s 58(8) provides that to the extent that an immigration officer does have regard to any international obligations the officer is obliged to record a description of the international obligations and the facts about the person’s personal circumstances.
[37] As the Court of Appeal noted in Parmanadan the amendments represent a sharp legislative rejection of the necessity to apply the s 47(3) test at the s 58 stage of the process and were intended to reduce the scope or challenge to s 58 decisions. The section is prescriptive of what is required of immigration officers.
[38] As the Court also observed, while there may be particular adverse consequences of a proposed removal which might warrant the making of an interim order:[8]
[8] At [11].
... the likelihood of such adverse consequences should be established by evidence and assessed in the context of both a legislative scheme under which the overstayer is necessarily illegally in New Zealand and is under a legal duty to leave [Immigration Act, s 45. See also ss 4 and 34] (subject to a right of “appeal” to the Removal Review Authority on humanitarian grounds), [Immigration Act, s 47] and also a legislative policy under which
those who break the rules are not to be advantaged over those who comply. [As expressed in the long titles to the Immigration Amendment Acts 1991 and 1999].
Decision
[39] In this case the applicants provided information concerning their and S’s personal circumstances which was relevant to New Zealand’s international obligations. Section 58(5) was engaged. The officers were required to consider cancellation of the removal orders.
[40] As a consequence the officers were obliged, by s 58(6), to have regard to relevant international obligations, but were otherwise able to make a decision as they thought fit, and were not obliged to apply any test (in particular the s 47(3) test) nor to inquire into the circumstances of or to make further inquiries in respect of the information provided. Where the officers had regard to international obligations they were obliged to record a description of those obligations, (and the facts about the person’s personal circumstances).
[41] Both officers have confirmed in their respective reports that they had regard to the following relevant international obligations:
•Article 3 UN Convention of the Rights of the Child – Right of child to have his or her best interests taken into account;
• Article 16(3) Universal Declaration of Human Rights – Rights of the
Family Unit;
•Article 23(1) International Covenant on Civil and Political Rights – Right to Family Unity;
•Article 2 – Universal Declaration of Human Rights – Right not to be subject to discrimination;
•Article 2 – International Covenant on Civil and Political Rights – Right not to be subject to discrimination;
•Article 9(1) International Covenant on Civil and Political Rights – Right not to be subject to arbitrary arrest/detention;
• Article 13 International Covenant on Economic, Social and Cultural
Rights – Right to education;
• Article 11 International Covenant on Economic, Social and Cultural
Rights – Right to adequate standard of living;
•Article 27 UN Convention on the Rights of the Child – Right to adequate standard of living.
[42] The officers also recorded the facts about the parties’ personal circumstances. The personal circumstances of both applicants were recorded in the interview notes both in relation to the standard questions and also in response to the supplementary questions. Further, the officer who interviewed the first applicant, Ms Krokova, also interviewed S, and obtained facts about his circumstances.
[43] On the evidence before the Court, the officers have complied with their obligations under s 58 and have followed the statutory process prescribed by that subsection.
[44] There is no evidentiary basis for the allegation that the officers failed to consider S’s rights as a New Zealand citizen and failed to consider that he would be subject to discrimination in the Czech Republic.
[45] It is apparent both from the record of interviews with the applicants and with S himself that the relevant officers were aware of S’s New Zealand citizenship. S’s circumstances were considered in detail. The officers recorded they had regard to a number of international obligations which could only have been relevant to the position of the children including S.
[46] In the interview with S himself, S confirmed that he was learning Czech as well as Roma at home and that he knew how to write and read Czech, just a little bit, and that he spoke Czech with his mother and father at home.
[47] Further, as noted by Tipping J in Ye, where an appeal has been rejected by the Removal Review Authority the officers do not have to re-examine the matters that were put before the Authority or revisit its findings.
[48] Also, in Huang v Minister of Immigration[9] the Supreme Court declined relief because in their view the officer must inevitably have come to the same decision to allow removal to proceed even if he had applied the correct legal principles and considered s 47(3). In that case the RAA had considered carefully, and in some detail, the impact on the child. The Supreme Court accepted that in those circumstances the officer dealing with the application to cancel the removal had to do no more than consider whether anything had arisen since the RAA’s determination bearing on the s 47(3) criteria. In this case there is no obligation to consider the s 47(3) criteria.
[9] Huang v Minister of Immigration [2009] NZSC 77.
[49] The issue of discrimination that may be visited upon S in the Czech Republic was clearly raised before the RRA and considered by it. In its decision the RRA noted that the appellants were Roma and in particular in relation to the position of S (and for that matter A) the Authority noted:
[78] The appellants have two New Zealand-born children. The elder is a New Zealand citizen and is under no legal obligation to leave New Zealand (though in reality is likely to depart if his parents are removed). The younger, whose immigration status in New Zealand is unlawful, is an appellant in these proceedings.
[79] The Authority is bound to have regard to the best interests of both children as a primary but not the paramount factor; Article 3 Convention on the Rights of the Child; Puli’uvea v Removal Review Authority (1996) 14
FRNZ 322, 329.
[80] Their best interests lie in remaining with their parents and the family staying together, whether that is in the Czech Republic or in New Zealand.
[81] The children can expect to be subjected to the same level of racial taunts and discrimination that their parents experienced, since they are ethnically Rom despite birth in New Zealand. However, the RSAA found
that the level of discrimination for the parents (even as children) was not sufficiently serious to amount to persecution. This Authority agrees. In respect of these children, it would also not reach the threshold of exceptional humanitarian circumstances required by the statutory test.
...
[83] The RSAA recorded that [it might be a matter of considerable hardship to return EE to the Czech Republic given that he had been assimilated into New Zealand and being able to enjoy living without the racial prejudice he would experience [in the Czech Republic]] would arise for the appellant’s New Zealand-born children. As the RSAA noted, such matters fell outside its jurisdiction. They are however relevant matters for this Authority.
[84] It is not accepted by this Authority that living in the Czech Republic could be regarded as considerable hardship for the children. As they get older, they will be at some risk of random, violent attacks by skinheads, but such a risk is too low to give rise to exceptional humanitarian circumstances, just as it is too low to give rise to a real chance of persecution. As noted above, they can also expect to be subjected to racial taunts and discrimination, but this would not sufficiently serious to amount to exceptional humanitarian circumstances, even considered cumulatively with the risk of assaults.
[85] Many Roma children have in the past had to endure inferior schooling at ‘special’ schools, but AA (apart from his earlier schooling), BB and EE all attended normal schools. Both of the parents then completed apprenticeships. The country information reviewed by the refugee status officer shows the education system for Roma children to be improving (see AA’s decision of 7 September 2001, at pp29-31).
[86] The children apparently do not speak Czech (the younger child being only a baby anyway), but the English and Roma languages. Presumably, they would be educated in Czech, but they are young enough to learn the language without difficulty.
[87] The children will have the advantage of contact with extended family in the Czech Republic. Both AA and BB have one sibling each there and will have other extended family.
[88] The Authority accepts that it will be less comfortable and secure for the children there, as contended by the appellants, but they have not presented to this Authority any evidence that would establish that the children’s physical, mental, spiritual, moral or social development would not be adequate or would be severely compromised by their return to the Czech Republic (Article 27 Convention on the Rights of the Child). Neither has the Authority’s research discovered any such evidence.
[50] The appeals were then dismissed. No further steps were taken in relation to that particular decision.
[51] The applicants cannot succeed on their first and principal cause of action.
[52] Next, it is submitted the officers failed to take into account relevant considerations by failing to consider the additional material forwarded by the applicants’ advisers on 12 August. But Mr Blakemore’s affidavit confirms that the submissions were received by email on 12 August and were considered, along with the other material, when the decision was made to proceed with removal.
[53] The submission that the decisions were wrong and must therefore have been unreasonable is not open to the applicants on the evidence. The officers are not required to give reasons. They have complied with their statutory obligations. It cannot be said they were wrong in the process they followed. The applicants may disagree with the decision to remove but that does not make the decision wrong or unreasonable at law.
[54] Next, it is submitted the officers took account of irrelevant considerations, namely the second applicant’s character. Again there is no evidential basis for the assertion that improper weight was given to Mr Feko’s character. The fact he had spent time in custody and had been convicted in absentia was relevant to his case. Mr Feko had the opportunity to advance whatever he wanted the officers to consider about that issue, but confirmed that nothing had changed, and there was nothing new since the consideration of those matters in 2008.
[55] The cause of action based on legitimate expectation is essentially a recasting of the earlier causes of action. It cannot be sustained. Whatever expectation the applicants could properly have as to process have been complied with.
[56] For the above reasons there is no realistic prospect of the applicants achieving substantive relief. There is no position to be preserved in the interim.
[57] Further, as the Court of Appeal noted in Parmanadan, s 58(4) contemplates a removal order may be cancelled despite an overstayer having left New Zealand. The corollary of such cancellation will be a grant of permission to reside in New Zealand so the need for interim orders falls away in large measure. That would certainly apply in the cases of Ms Krokova and A.
[58] I accept that the same reasoning would not apply in relation to the second applicant, Mr Feko, if he is to face imprisonment on his return to Czech Republic. But against that, as noted by the Court of Appeal in Singh, to restrain Mr F’s removal on the basis that he may face imprisonment on return to Czech Republic (for a crime rather than a political crime) would not be consistent with the purpose of the Act, namely that those who do not comply with immigration procedures and rules are not to be advantaged in comparison with those who do, particularly given the history to this matter and the consideration the applicants’ cases have already had.
Conclusion/Result
[59] For the above reasons I conclude that there is no respectable chance of the applicants succeeding in the substantive proceedings. Interim relief is not necessary to preserve the position. The application for interim relief is declined.
[60] The substantive application for judicial review is to be referred to an
Associate Judge for timetable directions to be made.
[61] I make no order for costs.
Venning J
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