Naidu v Ministry of Business, Innovation and Employment
[2021] NZHC 3502
•16 December 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-404-471
[2021] NZHC 3502
BETWEEN MONIKA NAIDU
Appellant
AND
MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT
Respondent
Hearing: 13 December 2021 (via VMR) Counsel:
J L Holden for Appellant
P R McNabb for Respondent
Judgment:
16 December 2021
JUDGMENT OF BREWER J
This judgment was delivered by me on 16 December 2021 at 3 pm
Registrar/Deputy Registrar
Solicitors/Counsel:
Jennifer Holden (Auckland) for Appellant Meredith Connell (Auckland) for Respondent
NAIDU v MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2021] NZHC 3502 [16
December 2021]
Introduction
[1]Ms Naidu pleaded guilty to the following charge:
Did supply information to an immigration officer in respect of a visitor’s visa application for Bin Bin QUILA knowing it [was] misleading in a material respect.
Particulars: In that Monika NAIDU provided information to show that Bin Bin QUILA was a bona fide visitor’s visa applicant, when the true purpose of the application was for Bin Bin QUILA to remain in New Zealand to work.
[2] The maximum penalty for the offence is seven years’ imprisonment and/or a fine of $100,000.1
[3] On 4 March 2021, Judge PJ Sinclair refused Ms Naidu’s application to be discharged without conviction.2 The Judge fined Ms Naidu $1,000.
[4] Ms Naidu now appeals the refusal to discharge without conviction. Technically, she appeals her conviction and her sentence, but essentially my task is to assess the merits of Ms Naidu’s case and if I conclude that Judge Sinclair should have discharged Ms Naidu without conviction then I will allow the appeal.
[5] Ms Naidu applied to adduce further evidence on the appeal, namely two affidavits from her (sworn on 26 November 2021 and 9 December 2021) and an affidavit from Ms Higgins (affirmed on 26 November 2021). To an extent these affidavits could be regarded as updating Ms Naidu’s situation, although there is force in the respondent’s submission that they can also be characterised as a “second bite of the cherry”. I decided to admit the affidavits as evidence in the appeal because they do have some relevance to the issues before me, this is a criminal appeal and the interests of justice are against excluding relevant material from consideration.
Background
[6] Ms Naidu originally faced three charges. Two were withdrawn as part of a charge bargain. However, the summary of facts was not changed and so the facts on
1 Immigration Act 2009, s 342(1)(b).
2 Ministry of Business Innovation & Employment v Naidu [2021] NZDC 5498.
which the withdrawn charges were based became aggravating features of the admitted charge.
[7]It is necessary to reproduce the summary of facts in full:
Introduction
1.The defendant in this matter is a New Zealand citizen, Monika NAIDU.
2.In August 2017, whilst residing and working in Singapore, the Defendant employed Bin Bin Tasi QUILA, a Filipino National, through a Singapore Employment Agency as a “live in” Foreign Domestic Worker to complete household domestic chores. Her remuneration was $650 SGD per month.
3.QUILA has limited English language ability and no understanding of New Zealand visa processes or requirements.
Background
4.The defendant planned to return to New Zealand from Singapore in early 2018 to temporarily reside with her husband, Devendra NAIDU, at the couple’s premises at 308A Hillsborough Road, Hillsborough, Auckland, whilst her husband intended to have a planned surgery.
5.The defendant planned to bring QUILA to New Zealand with her so that she could continue to work for the defendant and her husband as their live in domestic worker.
6.Accordingly, whilst in Singapore, QUILA assisted by the defendant applied for a visitor visa to travel to New Zealand and work for the defendant. She was subsequently issued a specific purpose work visa, by the Bangkok Office of Immigration New Zealand (INZ). The defendant was QUILA’s sponsor and contact person for the visa application and communicated with INZ about the visa.
7.The work specific visa allowed QUILA to work as a Domestic Helper in New Zealand for the defendant. The visa was issued for a period of two months from QUILA’s first arrival in New Zealand. A condition of the visa was that she was required to travel to New Zealand before 21 May 2018.
8.On 27 February 2018 QUILA arrived in New Zealand. Upon presentation of her visa to a border official she was granted entry permission and a visa, valid until 27 April 2018.
Visitor’s Visa Application 17007639 and Sponsorship
9.Following her arrival in New Zealand, QUILA worked continuously for the defendant as a Domestic Helper at the defendant’s Hillsborough Road address.
10.Sometime prior to 26 March 2018 the defendant provided QUILA with an INZ visitor visa application form and instructed her to sign the declaration on page 13. QUILA signed the visa application with her usual signature.
11.On 26 March 2018 the defendant submitted a visitor visa application to INZ in the name of QUILA. The application form contained the handwriting of the defendant throughout.
12.The application was given the INZ application number 17007639.
13.The name and address details for communication in respect of the application at section B3 of the form contained the defendant’s personal phone and email address.
14.The application was accompanied by an INZ1025 Sponsorship Form for Temporary Entry, two letters and various supporting documents.
15.The completed visa application contained a number of misleading details. In particular;
· Amitesh SINGH was listed as a friend of QUILA at section B7 of the form. SINGH is the nephew of Devendra NAIDU (the defendant’s husband). She had met him briefly on one or two previous occasions and had never been formally introduced to him.
· The purpose of the visa at section G2 of the form stated that QUILA was visiting family/friends and on holiday/vacation. QUILA did not intend to visit family or friends or to holiday or vacation in New Zealand.
· The declaration by person assisting the applicant at section K of the form was not completed or signed by the defendant.
16.The defendant also submitted to INZ with the visa application a letter dated 26 March 2018. That letter was signed by the defendant. It stated that she was the employer of QUILA and that she was giving QUILA leave for 6 months while she (the defendant) was travelling between countries. The letter further stated that QUILA was in New Zealand and would like to take the opportunity to see more of this country.
17.That letter was misleading as QUILA had not been given leave by the defendant, she intended to keep working for the defendant.
18.The INZ 1025 Sponsorship Form for Temporary Entry was completed by both the defendant, who provided her details as the name and address for communication at section C16 of the form, and by Amitesh SINGH. Included with the Sponsorship Form was a letter from Amitesh SINGH stating that QUILA was staying at his place, 7 Commodore Drive, Lynfield, Auckland.
19.That letter was misleading as QUILA had at all times resided at the defendant’s address in Hillsborough and had never stayed at SINGH’s address.
20.On 21 May 2018 INZ sent a letter addressed to QUILA advising that INZ did not believe QUILA was a bona fide visitor visa applicant. The letter was posted to the defendant’s home address and emailed to the defendant’s personal email address, as provided by the defendant in the visa application.
21.The defendant responded to INZ by email on 28 May 2018 stating she had spoken to QUILA and attaching travel plans for QUILA to sightsee in New Zealand.
22.The email and attachments contained misleading details. In particular;
· The defendant had not granted leave to QUILA to look around New Zealand;
· QUILA had no plans to travel around New Zealand to Rotorua or Queenstown as suggested by the defendant.
· The purported travel booking in Queenstown was not actually a booking, but rather a screenshot of a shopping basket which was neither confirmed nor paid for.
23.The application was declined by INZ on 31 May 2018. The letter from INZ declining the visa was emailed to the defendant on that day. QUILA was not aware that an application for a visitor’s visa had been made, or declined.
24.QUILA had no intention to holiday or vacation in New Zealand. She did not plan to travel around New Zealand at any stage. QUILA was in New Zealand to work as a Domestic Helper for the defendant and at all material times intended to, and did, work in that capacity for the defendant.
25.QUILA had no friends or relatives in New Zealand and did not plan to visit or stay with anyone. At all material times she lived with the defendant at her Hillsborough address.
26.A visitor visa does not allow the holder of the visa to undertake employment or work while in New Zealand.
27.QUILA’s specific purpose work visa expired on 27 April 2018. She became unlawfully in New Zealand from 29 April 2018.
28.For the duration of her stay in New Zealand QUILA lived at the defendant’s address in Hillsborough. She was a live in Domestic Helper who worked from Monday to Saturday from approximately
6.30 am to 9.30 pm. QUILA received free accommodation and board due to the nature of her employment with the defendant.
29.QUILA continued to live at the defendant’s residential address following the expiry of her work visa and continued to work for the defendant as her Domestic Helper, until 4 July 2018.
30.The defendant paid QUILA $650 a month for her work as a domestic helper from February to March 2018. In April 2018 and May 2018 QUILA continued to be paid for her work.
31.On 4 July 2018 QUILA asked the defendant for payment of her outstanding salary. An argument ensued and QUILA was expelled from the address. She had been unlawfully in New Zealand for 66 days at that time.
32.QUILA departed New Zealand on 9 July 2018.
Interview with defendant
33.On 30 April 2019 the defendant was spoken to by an Immigration Officer. The Defendant stated;
· QUILA was her employee who lived at her residential address;
· Her handwriting appeared throughout the visitor visa application form because QUILA had made three attempts to complete the application and required assistance;
· Amitesh SINGH had met QUILA a number of times and they knew each other;
· After QUILA’s work visa expired she remained living at the family address as a guest of the family and did not work as a domestic helper.
· QUILA was paid 100% everything she was owed.
· The defendant was responsible for 15 countries in the Asia Pacific Region for work and could travel at any time.
34.The Defendant has further stated that payments she made in April and May 2018 were paid to third parties, as QUILA owed money to those parties.
35.The Defendant has not previously appeared before the New Zealand Courts.
36.The defendant has agreed to pay $5,000 in reparation to QUILA.
Judge Sinclair’s decision
[8] Judge Sinclair addressed Ms Naidu’s application for a discharge without conviction in the required three-step process. The Judge first assessed the gravity of the offending, secondly identified the direct and indirect consequences to Ms Naidu
of a conviction, and thirdly assessed whether the identified consequences were out of all proportion to the gravity of the offending.3
Gravity of offending
As to the gravity of the offending, the Judge found:
· The immigration system relies upon the honesty of applicants. Breaches of the immigration process and dishonesty strike at the heart and the integrity of the immigration system. Those who offend against it should be treated sternly and robustly. These comments apply to Ms Naidu’s offending.
· Ms Naidu’s actions were premeditated. They took place over a reasonably lengthy period of time and Ms Naidu’s self-serving motive was to retain Ms Quila’s domestic services.
A starting point of imprisonment is appropriate.
· Remorse is not a mitigating factor.
· The pre-sentence report recommendation is one of community work.
· Ms Naidu is a person of good character with no previous convictions.
· Credit is due for Ms Naidu’s guilty plea.
· Ms Naidu has paid Ms Quila the $5,000 overdue wages to which she was entitled.
[10] The Judge assessed the overall gravity of Ms Naidu’s offending “as between low to moderate but closer to moderate”.
3 Sentencing Act 2002, s 107.
Direct and indirect consequences
[11] Ms Naidu raised three consequences for her if a conviction was entered. The first was that a conviction would impact on Ms Naidu’s employment and business. The second was an adverse impact on her employment prospects in the future. The third was that a conviction would adversely impact on Ms Naidu’s ability to travel to care for relatives.
[12] The Judge noted that Ms Naidu was then working as a managing director and part-owner of a company which operated a licensed restaurant and bar. The Judge did not consider there to be a nexus between a conviction being entered and any adverse impact on the operation of the restaurant and bar.
[13] As to employment prospects, the Judge noted Ms Naidu’s advice that she has an Honours Degree in Physics, a Post-Graduate Diploma in Computing, and technical certificates in marketing, sales and the IT industry. Ms Naidu’s work experience included multinational companies. It was submitted for Ms Naidu that a clean criminal record is an essential consideration for multinational companies when hiring staff to work in IT.
[14]The Judge said:
[32] Again, I am not satisfied you have established a real or appreciable risk that your employment prospects would be thwarted with a conviction of this type. Your submissions that your ability to obtain employment would be hampered, are vague and speculative. You state “you hope that one day you will secure employment in Singapore”. I agree with the informant that a reference to a prior employment agreement does not reach or meet the real and appreciable test.
[15]As to the claimed obstacle to travel, the Judge said:
[35] You have not provided any evidence that a conviction would prevent or restrict your ability to travel and enter Singapore, or that there are alternative entry processes available to you in the event a conviction is entered. There is no evidence before me your entry would be prevented. In any event, it is possible you may need to disclose that you have been charged, even if a conviction is not entered.
Proportionality
[16] The Judge considered that the direct and indirect consequences to Ms Naidu of a conviction did not outweigh the gravity of her offending. The Judge did not, accordingly, have to decide whether the direct and indirect consequences were out of all proportion to the gravity of the offending.
The appeal
[17] The grounds of Ms Naidu’s appeal are summarised by Ms Holden in her written submissions:
a)that her personal circumstances have changed since the application was made in the District Court and there is fresh evidence by way of an updated affidavit from Ms Naidu to support how a conviction is impacting her ability to find work; and
b)there is fresh evidence in the form of an affidavit from an IT recruiter, Ms Zoanne Higgins, setting out the position for a candidate like Ms Naidu trying to secure an IT role with a conviction; and
c)that the assessment of the gravity of the offending is too high; and
d)that the consequences of a conviction were not fully advanced in the District Court, and therefore the sentencing Judge did not have all the relevant material before her to assess the direct and indirect consequences of a conviction.
[18] Ms Holden first addressed the Judge’s assessment of the gravity of the offending. Ms Holden accepted that the offending itself was moderately serious. However, in her submission, the Judge should have classified the overall gravity of the offending as low because of Ms Naidu’s personal mitigating factors. Ms Holden emphasised, in particular, that the $5,000 paid to Ms Quila was “not an insignificant amount of money to pay in reparation”.
[19] Ms Holden contended further that the Judge was too harsh in her assessment of the credit that should be afforded for Ms Naidu’s plea of guilty. The charges were laid in October 2019 and Ms Naidu pleaded guilty promptly in December 2020 when two of the charges were withdrawn and the charge to which she pleaded was amended by deleting the words “false or” from the phrase in the offence description “knowing
it was false or misleading in a material respect”. In Ms Holden’s submission, a credit of at least 20 per cent could be afforded to Ms Naidu for her guilty plea.
[20] As to the direct and indirect consequences of a conviction, Ms Holden emphasised the updated evidence picture provided by the new affidavits. These make the primary focus of the appeal Ms Naidu’s ability to get work in the IT sector following her conviction.
[21] Ms Naidu deposes that she no longer works in the restaurant and bar business. That is because her marriage ended in April 2020 following which Ms Naidu has applied for roles in the IT sector in both Singapore and New Zealand. Ms Naidu has been unable to find employment. She deposes she applied for a role in Singapore with a company called Red Hat, which is a worldwide enterprise IT company. Ms Naidu was invited to apply for a role as a Sales MDF Programme Manager. Ms Naidu provided her CV, and went through a selection process which included three interviews with the company’s senior management team. Ms Naidu deposes that she then received a call discussing an offer of employment and the need for background checks. It was at that stage Ms Naidu advised the company of her conviction. In a subsequent telephone call, Ms Naidu was told the company was looking for a candidate who will not have a barrier to travelling to Singapore when the borders open and who has a clean record.
[22] Ms Naidu deposes that she has further applied to New Zealand businesses but has not progressed beyond the application filing stage. One company required her to complete a pre-application form which included a question as to whether she had any criminal convictions. Ms Naidu then received a reply stating she had not been selected for the next stage of the recruitment process. Ms Naidu believes this was because of her conviction.
[23] Ms Higgins, who provided an affidavit, is an experienced IT recruiter. Ms Higgins has her own recruitment consultancy business.
[24] Ms Higgins deposes that Ms Naidu would be considered a high risk employee in the IT industry because of the type of conviction she has. Ms Higgins considers
that Ms Naidu would be unlikely to secure a position in the IT industry at a senior level if her conviction is disclosed. Ms Higgins is also of the view that Ms Naidu’s experience is sought after in the market but her conviction will be a barrier to employment because it will shape assessment of her character.
[25]Ms Holden submits:
3.28Based on the evidence now before the Court, it is submitted that there is a real and appreciable risk that Ms Naidu will struggle to gain employment with a conviction of this kind. There is a stigma for fraud that will be associated with the conviction. It is unlikely that Ms Naidu, if put side by side with another candidate who does not have a conviction, will be selected for the role.
3.29Ms Naidu is 45 years of age. She has worked in the IT industry since 2002. She is well qualified and experienced as a Product Manager and Account Manager. If her conviction stands, her ability to find work will be very difficult. This offence cannot be considered under the Clean Slate Act for 7 years, that means Ms Naidu will be 52 years of age. As she gets older, and is out of the workforce, it will be harder for her to find employment.
[26] Turning to the proportionality test, Ms Holden submits that the effect of Ms Naidu’s conviction on her ability to find a job at a senior level in the IT industry is a consequence out of all proportion to the gravity of her offending, even if her offending were to be seen as being towards the moderate end of the scale.
Discussion
[27] Ms Naidu set out to manipulate the immigration system so that she could retain Ms Quila’s services as a live-in domestic employee. Her offending was premeditated and multifaceted. She enlisted the help of another person, Amitesh Singh, who gave a letter giving false information.
[28] When INZ sent a letter to Ms Quila saying it did not consider her to be a bona fide visa applicant, Ms Naidu aggravated her offending by providing more misleading (false) documentation.
[29] Ms Naidu continued to enjoy Ms Quila’s services after INZ declined to grant the visa sought and Ms Quila became an illegal overstayer.
[30] Throughout this period of offending, Ms Naidu misled Ms Quila and took advantage of her ignorance of the New Zealand immigration system.
[31] The charge to which Ms Naidu pleaded guilty has a maximum penalty of seven years’ imprisonment and/or a fine of $100,000. That is a measure of Parliament’s resolve to maintain the integrity of the immigration system. As Judge Sinclair said, the immigration system relies upon the honesty of applicants and those who offend against it should be treated sternly and robustly.
[32] In my assessment, the gravity of Ms Naidu’s offending itself, before considering personal mitigating circumstances, was at the upper end of moderate. A starting point of imprisonment was required.
[33] The only personal mitigating factors are Ms Naidu’s previous good character and her entry of a plea of guilty.
[34] As to the former, Ms Naidu is entitled to significant credit. She has had an unblemished record into her early 40s. She has contributed to her community. However, this was not a single incident of impulsive offending. I would reduce a notional starting point of imprisonment by 10 per cent for this factor.
[35] I would not allow a 20 per cent reduction for the entry of a plea of guilty as Mr Holden submits is appropriate. The charges were laid in October 2019 and Ms Naidu’s plea was entered in December 2020. Although two charges were withdrawn and the remaining charge altered in one respect, this was largely cosmetic. The summary of facts was unchanged and by her plea Ms Naidu accepted the conduct described in it. The charge bargain has benefited Ms Naidu by reducing the number of convictions on her record. But it does not reduce her culpability. I would allow a discount of 15 per cent to allow for the fact that a trial was not necessary.
[36] Ms Naidu is not entitled to a discount for the $5,000 she belatedly paid to Ms Quila That was not reparation. That was payment of a debt; Ms Quila’s outstanding wages.
[37] Accordingly, I agree with Judge Sinclair’s assessment of the overall gravity of Ms Naidu’s offending as low to moderate, and more to the moderate end of the range.
[38] I do not know how Judge Sinclair went from a starting point of imprisonment to a fine of $1,000. Her reasons are not included in the record of her decision on the application for discharge without conviction. On first principles, Ms Naidu should have been sentenced to at least community work, as recommended in the pre-sentence report. Ms Naidu is fortunate in that regard.
[39] As to consequences, I accept that the conviction is hampering Ms Naidu’s employment prospects at the senior level of the IT industry. Indeed, there is a real and appreciable risk that it would continue to do so.
[40] The issue is whether the impact of the conviction on Ms Naidu’s employment prospects is a consequence out of all proportion to the gravity of her close to moderate offending against the immigration system.
[41]I have concluded that it is not. I find myself in agreement with Judge Sinclair.
[42] A natural consequence of a conviction for dishonest and deceptive conduct is that prospective employers will be cautious in employing the convicted person in a position of trust. Ms Naidu is seeking employment at a senior level in positions which confer trust. It is not to be presumed that a responsible employer seeking the skills which Ms Naidu possesses will reject her summarily upon learning of the conviction. But, it will be a factor against her.
[43] In my view, one factor to take into account in weighing this consequence of the conviction is that the Court should be reluctant to conceal from an employer deciding whether they can confidently repose trust in a prospective employee, matters relevant to that decision.
[44] I conclude that the consequence relating to Ms Naidu’s employment prospects at the senior level of the IT industry is not disproportionate to the gravity of her offending, let alone out of all proportion to the gravity of her offending.
Decision
[45]The appeal is dismissed.
Brewer J
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