Pillay v Minister of Immigration HC Auckland CIV 2007-404-4668

[2007] NZHC 1962

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2007-404-4668

BETWEEN  PARMOD PILLAY Plaintiff

ANDTHE MINISTER OF IMMIGRATION Defendant

Hearing:         2 August 2007

Appearances: E Orlov for the Plaintiff

M A Woolford for the Respondent

Judgment:      2 August 2007

Reasons:        8 August 2007

REASONS FOR DECISION OF PRIESTLEY J

This judgment was delivered by me on Wednesday 8 August 2007 at 2.45 pm, pursuant to Rule 540(4) of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Counsel/Solicitors:
E Orlov, Equity Law, P O Box 8333, Symonds Street, Grafton, Auckland

M A Woolford, Meredith Connell & Co, P O Box 2213, Auckland

PILLAY V MINISTER OF IMMIGRATION HC AK CIV 2007-404-4668  2 August 2007

[1]      At the conclusion of the hearing on 2 August 2007 I dismissed the plaintiff’s application (made ex parte but served on the first defendant) to restrain the first defendant from removing the plaintiff from New Zealand.

[2]      With counsel’s consent my reasons were to follow.

[3]      The scheduled removal of the plaintiff from New Zealand to Fiji was to occur within hours of the hearing.  Counsel are thanked for their co-operation and for their submissions, inevitably prepared at short notice.

The contest

[4]      The plaintiff, aged 34, is a Fijian national of Indian ethnicity.  He arrived in New Zealand on 18 May 2006.   In early September 2006 he applied for what was effectively a three month extension of his visitor’s permit for the stated reasons of visiting   the   South Island   and   attending   a   church   conference   in   October. That application was declined by the first defendant on 15 January 2007.

[5]      The plaintiff continued to reside in New Zealand illegally.  On 31 July 2007 he  was  fortuitously  stopped  by  the  police  carrying  out  a  routine  traffic  check. His immigration status became apparent.   He was held in custody, served with a removal order and interviewed by an immigration officer to ascertain whether there were humanitarian reasons why the removal should not proceed.

[6]      At  short  notice  his  solicitor  prepared  and  swore  a  supporting  affidavit. His counsel sought judicial review, it being his primary submission that the decision to remove the plaintiff breached the rules of natural justice and his rights protected by s 27 of the New Zealand Bill of Rights Act 1990.

[7]      The plaintiff’s wife and  children  reside  in  Fiji.    He  has  an  employment history in that country.  He entered New Zealand on a visitor’s visa on 18 May 2006 which was extended for one month to 10 September.   Thus the application for an extension he sought ([4]) was made two days before his permit expired.

[8]      In section E of his September 2006 application, which is headed “character details”, the plaintiff ticked the “no” box for the inquiries as to whether he had been convicted, charged, or was under investigation for any offence against the law in any country.

[9]      On  28 September  2006  an  immigration  officer  wrote  to  the  plaintiff informing him that the Immigration Service (“the Service”) was in receipt of potentially prejudicial information.   Comment was sought within ten days.   The potentially prejudicial information was:

Our records show that you are currently wanted for arrest in Fiji in relation to larceny charges as reported by Interpol and Fijian authorities.

[10]     The  plaintiff’s  response  was  a  statutory  declaration  made  on  13 October

2006.  The plaintiff stated:

I admit being involved in a larceny scam between 1999 and 2002 but was not aware of any charges made against me till to date.  The Fiji police called me in over the years for questioning and my Investigating Officer told me on the last interview that if they don’t call me again I’m free.  I stayed in Fiji for four years after that until than [sic] nothing was done…. I have also advised my lawyers in Fiji and they will be going to the Fiji courts to get the records waived as soon as they gather all information.  You will be advised as soon as its [sic] been done.  It has been over five odd years of my part in the scam and lots of things have changed in me over the years.  I have also been holding some executive positions in my church over the years.  I will return to Fiji after my next three months extension and after visiting some Christian friends in Wellington and Christchurch.

[11]     As  stated  (supra),  far  from  returning  to  Fiji  at  the  conclusion  of  the three month extension he was seeking to 18 December, the plaintiff continued to reside in New Zealand.   He remained in New Zealand illegally once  his  permit expired.

[12]     The plaintiff’s September application was not determined until 15 January

2007.   It was declined.   The grounds for the decision were the Service was not satisfied about the plaintiff’s eligibility for a temporary entry permit because it was not satisfied he was of good character.

[13]     The decision refers to all the supporting material, including the plaintiff’s declaration.   A character waiver was declined “…due to the serious nature of the charges made against you and the fact that you had failed to disclose these chares [sic] and/or that you were involved in an investigation”.

[14]     Undeterred the plaintiff made a further application for a permit on 19 March

2007.  His application was made under the provisions of s 35A of the Immigration Act which confers on the first defendant a discretion to grant a permit to a person who is in New Zealand, but does not hold a permit and in respect of whom a removal order has not been made.  That application failed.

[15]     In the same timeframe the plaintiff’s solicitor sought disclosure under the Official Information Act.  This was provided in late June 2007.  Some information, relating to Interpol exchanges between the Fijian police and the New Zealand police, was  withheld  pursuant  to  s 29(1)(a)  of  the  Privacy  Act  1993.    Mr Woolford, however, made that information available to the Court.

[16]     Disclosed to the plaintiff’s solicitor was an internal email being part of the assessment of the plaintiff’s September 2006 application.   That email, referring to information stored in the Service’s computer records, stated:

I can clearly see that a character information alert was raised on 15 August

2006, after information received via NZ Police from Interpol/Fiji Police indicating that a warrant for the applicant’s arrest is in force in Fiji and that

there is an intension [sic] that the applicant would be extradited to Fiji to face these charges.  I note the seriousness of the larceny of some $193,000

Fijian dollars.

[17]     The  email  then  goes  on  to  summarise  the  plaintiff’s  28 September  2006 declaration and supporting materials he had submitted.

Discussion

[18]     This email lay at the heart of Mr Orlov’s submissions.  He observed that the Service’s 15 January letter omitted reference to the existence of a warrant or an intention on the part of the Fijian authorities to extradite the plaintiff.   On these aspects the plaintiff had been given no opportunity to comment.  The principles of natural justice required the defendants to disclose the “character information alert” referred to.  They had failed to do so.  Thus, subsequent handling of the plaintiff’s immigration applications, and indeed his removal order, were tainted by this denial of natural justice being, in effect, the fruits of a poisoned tree.

[19]     At  one  point  Mr Orlov  submitted  that  there  might  be  some  impropriety attaching to the removal order since it could be seen as a back door method to extradite the plaintiff to Fiji, thus denying him any of the protections which the extradition process would afford.

[20]     But in general terms, counsel submitted that the plaintiff’s removal to Fiji would be inappropriate until such time as he had been given the opportunity to check out the existence or otherwise of a Fijian arrest warrant and a possible intention on the part of the Fijian authorities to extradite him.   The inability of his advisers to investigate those matters constituted a breach of natural justice.

[21]     Although not suggesting that the plaintiff had any entitlement to refugee status, Mr Orlov referred to the Supreme Court decision Zaoui v Attorney-General (No. 2) [2006] 1 NZLR 289 and particularly the observation contained in [91] and [93] thereof to the effect that a deportation power conferred by s 72 of the Immigration Act had to be read consistently with New Zealand’s international obligations and the provisions of the Bill of Rights.

[22]     Mr Woolford  submitted  (and  with  this  Mr Orlov  agreed)  that  the  only decision  to  which  judicial  review  could  properly  attach  was  the  31 July  2007 decision to issue a removal order to remove the plaintiff from New Zealand.

[23]     Mr Woolford forcefully informed the Court that the first defendant was not using the removal process for the ulterior reason of assisting the Fijian authorities with the plaintiff’s extradition.

[24]     He pointed out that the plaintiff had failed to exercise his right of appeal to the Removal Review Authority within the prescribed 40 day period which ran from the Service’s 15 January decision.

[25]     The only reviewable decision was the 31 July decision of the immigration officer who had interviewed the plaintiff on that date and completed with him the humanitarian questionnaire.  The decision was this:

Client has been unlawful for nine months and has let an agent handle his affairs for new permit.  All his family reside in Fiji and he has a home there. He is wanted by the Fijian police and will be questioned when he returns with regards to larceny.  Client does not fit any criteria for any form of a new  permit  and  there  are  no  compelling  circumstances  to  remain  in New Zealand.  Removal should proceed.

[26]     Turning to the, with respect, somewhat fanciful submission of Mr Orlov that the plaintiff, in the knowledge that he might be wanted in Fiji by the police, should be given the opportunity of leaving New Zealand under his own volition to another country, Mr Woolford observed that the scheme of the removal order sections of the Act normally led to people being removed to their country of origin which had an obligation to receive them.  That might not be the case if removal was effected to another country, because of the Service’s obligation to advise why people were being removed from New Zealand.

[27]     Finally Mr Woolford referred to the Court’s discretion to make interim orders to preserve positions under s 8 of the Judicature Amendment Act 1972.  In particular he referred to the observation of Hammond J in Esekielu v Attorney-General (1993)

6 PRNZ 309 that there must be a real contest between the parties and a reasonable chance of an applicant succeeding in that contest.  This approach was endorsed by the Court of Appeal in Attorney-General v Mahuta (CA71/99, 1 April 1999).

[28]     There  is  in  my  judgment  no  serious  contest  raised  by  the  evidence. The plaintiff chose to remain in New Zealand for no explained reason beyond the expiration of his permit.  He failed to act on the assurance which he gave last year that he intended to leave New Zealand before Christmas 2006 having attended a conference and visited the South Island.  He failed to exercise review rights which he had  in  the  wake  of  the  Service’s  adverse  decision  on  15 January.    Although admitting that there was an investigation involving him and larceny, he had failed to disclose this in his September 2006 application.

[29]     There  is  no  basis  for  any  attack  on  the  Service’s  15 January  decline  or subsequent refusal to grant a special permit under s 35A.  The stance that, for natural justice reasons, the plaintiff should be afforded the opportunity to make  further inquiries  in  Fiji  (which  if  relevant  he  could  have  carried  out  any  time  after September 2006) to ascertain whether there are outstanding charges or arrest warrants, adds nothing to the strength of the case.

[30]     The undisclosed information on which Mr Orlov placed such heavy reliance was  in  any  event  accurately  summarised  in  the  Service’s  28 September  2006 disclosure letter.   The Interpol exchange between Suva and Wellington, withheld under the provisions of the Privacy Act, sought confirmation of the plaintiff’s presence in New Zealand.   It advised that he was “wanted for arrest in a case of larceny by servant involving F$193,813.00”.

[31]     It is thus fanciful to suggest that further inquiries by the plaintiff’s advisers in Fiji will unearth anything of further relevance.   It is in my judgment untenable to submit  that  failure  to  disclose  this  email  (the  core  of  which  was  in  any  event disclosed on 28 September) constitutes even a basis for judicial review or denial of the plaintiff’s rights. The plaintiff’s s 27 rights are not engaged on the evidence before me.  There has been no denial of those rights.

[32]     It was for these reasons that I dismissed the plaintiff’s interim application on

2 August.

[33]     Almost  certainly  my  decision  will  have  disposed  of  the  substantive application.     Mr Orlov’s  statement  of  claim,  as  he  candidly  accepted,  was rudimentary because of time constraints.

[34]     Accordingly I direct that the plaintiff’s statement of claim is to be treated as struck out, with effect from 31 August 2007, unless prior to that date counsel file a memorandum seeking a timetabling conference.

[35]     I am also assuming that costs will lie where they fall.  Should the defendants seek costs, they are to file a memorandum to that effect within seven days.

………………………

Priestley J