Prasad v Minister of Immigration HC Auckland CIV-2011-404-003958

[2011] NZHC 700

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-003958

UNDER  the Judicature Act 1908 and Judicature

Amendment Act 1972

BETWEEN  NAVEEN ANIL PRASAD Plaintiff/Applicant

ANDTHE MINISTER OF IMMIGRATION Defendant/Respondent

Hearing:         4 July 2011

Appearances: M Robson and R K Nand for Plaintiff/Applicant

A R Longdill for Defendant/Respondent

Judgment:      4 July 2011

ORAL JUDGMENT OF VENNING J

Solicitors:           Patel Nand Legal, PO Box 26-717 Epsom Auckland

Crown Solicitor, Auckland

PRASAD V THE MINISTER OF IMMIGRATION HC AK CIV-2011-404-003958 4 July 2011

[1]      The plaintiff/applicant seeks to review the decision of the Associate Minister made on 24 June 2011 not to intervene on behalf of the applicant to prevent his deportation from New Zealand.   There is also an accompanying application for interim relief which is before the Court today.  There is a degree of urgency given that arrangements have been made to have the applicant deported this afternoon.

Background

[2]      The applicant is a Fijian national.  He initially came to New Zealand in 1987 on a visitor permit.  He was subsequently granted a work permit which expired in August 1990.  He unsuccessfully applied for residency in New Zealand in 1991 and

1993.  He then unsuccessfully pursued an appeal to the Removal Review Authority which was dismissed in 1997.

[3]      The applicant has incurred a number of criminal convictions whilst in New Zealand, the most serious of which were convictions for sexual intercourse with a child under care and protection and sexual intercourse with a female aged between

12  and  16  years.    He  was  convicted  and  sentenced  to  one  year  six  months’

imprisonment on 24 November 1999 in relation to that offending.

[4]      However, during his time in New Zealand, the applicant has purchased a home, has formed a relationship with his now partner and he also has connections with New Zealand through his own sons and siblings.   He has been living and working in New Zealand for a number of years, albeit for some time now unlawfully.

[5]      The applicant was served with a deportation order on 14 June 2011.  On the same day the immigration officer, Mr Thomson, conducted a record of personal circumstances interview with him and made the decision that the deportation should proceed.

[6]      The  applicant  was  initially  held  in  custody  but  was  released  on  bail conditions.  More recently he has been returned to custody.

[7]      The applicant has taken legal advice.  Assiduous efforts have been made on his behalf to have the Minister intervene to prevent his deportation.   In an initial letter on 24 June from her office it was confirmed the Associate Minister was not prepared to intervene in the applicant’s case.  He was invited to depart voluntarily as soon as possible.   On the same day the applicant’s legal advisers obtained further information from the Immigration New Zealand’s file relating to the applicant and made further, urgent submissions to the Minister asking for her intervention.

[8]      A principal matter raised in that second set of submissions was the applicant’s advisers’ concern at the way the applicant had been treated when compared to what they considered to be, the unduly favourable approach Immigration New Zealand had taken to the actions of his employers.  A number of emails were attached to the submission to the Minister setting the basis for their concern.

[9]      In addition the solicitors made the point that the officer interviewing the applicant had failed to take into account New Zealand’s international obligations in relation to the applicant’s personal circumstances.

[10]     The  Associate   Minister   again   responded   after   receiving   that   request confirming through her office that she was not prepared to consider the further request.

[11]     It is the effect of the decisions of 24 June not to intervene that the applicant seeks to substantively challenge.

The legal test

[12]     As recently confirmed by the Court of Appeal in Parmanadan v Minister of Immigration[1]  a person in the position of the applicant cannot obtain relief from the Court unless they can establish they have at least a respectable chance of success in relation to the challenge to the proposed removal and that the making of an interim order is appropriately necessary to preserve the current status, an issue which must

be considered in the context of the scheme and purpose of the legislation.

[1] Parmanadan v Minister of Immigration [2010] NZCA 136, 22 April 2010.

[13]     While it is accepted the Minister has a discretion, Mr Robson submits the discretion is not an unfettered one and that, given time and the ability of the applicant’s advisers to make further and detailed submissions a different decision could be reached and that the applicant should remain in New Zealand whilst that process is undertaken so that the Minister can make a properly informed decision. Mr Nand suggested that there may be an opportunity for the applicant, perhaps through his son who is 21 and a New Zealand citizen, to be sponsored for residency in New Zealand.

[14]     Mr Robson drew the Court’s attention to the dealing between the immigration

officers and the applicant’s employers.  He criticised the officer’s approach.

[15]     He submitted that, to be fair, the applicant should be granted the same sort of latitude the employers were granted.  The submission arises out of an exchange of emails from the Immigration New Zealand file.  The emails disclose correspondence between an immigration officer and the applicant’s employer Mr Devine of Simaplas and Morrow.

[16]     In an email of 20 May 2011 Mr Devine wrote to the officer:

Thanks for your email.

As far as I know Naveen is not aware of your visits to Simaplas. I appreciate the heads up on the timing.

My problem is that I have not been able to have another technician down there without raising questions of why, which leads in to me having to mislead him, which I have a problem with.

I have taken advice regarding the contract with our UK customer and their contract with Dunedin City Council regarding delivery criteria and completion of contract.   Now that you know where Naveen is and that he will be back in Otahuhu at the end of August, is there any way you can delay his deportation until the contract in Dunedin is complete.  This would ensure we comply with our obligations to our customer.

I have accepted that Naveen will be deported, but I am concerned that the timing could have a detr[e]mental effect on our business at the time when we, like all businesses are finding things tough.

Would really appreciate if you could lobby on our behalf for this delay.

Regards, Eddie

[17]     That was written in response to an email from the officer of 19 May:

Good Morning Eddie,

I promised you that I would give you the heads up on Naveen Prasad.  I trust that he is still unaware that immigration know of his whereabouts as I am planning a trip to Dunedin on 1 June 2011 to organise Mr Prasad’s deportation.  Hopefully this will give you enough time to organise someone else to cover his position after that day.

Please contact me at your convenience and we can discuss the details. Regards

Jenny.

[18]     Then subsequently, on 8 June 2011 Mr Devine was advised that Immigration New Zealand had organised for a compliance officer to fly down to Dunedin on Tuesday, June 14 to take the applicant into custody.

[19]     Mr Robson submitted strongly that the employer, knowing full well of the applicant’s immigration status, was committing an offence which was effectively sanctioned by the immigration officer and that that should have been a matter of real concern to the Minister and that the applicant should be given the same sort of consideration, “the same sort of fairness of treatment” as he put it.

[20]     I have to say that for my part I do not read the email exchange in such a sinister way. As I read it, it is a communication between the immigration officer and the  employer  in  which  the  officer  advises  the  employer  of  Immigration  New Zealand’s intention to act and remove Mr Prasad.   The employer asked if further time through to August could be given, a request which obviously was not accepted or acceded to by Immigration New Zealand.  The remainder of the correspondence discloses  that  Immigration  New  Zealand  were  understandably  anxious  that  Mr Prasad not be alerted to their intention to act.

[21]     However, even if there was an issue for the employer arising out of their knowledge, that is a separate matter and not a matter that is of concern to the Court on this particular application today.

[22]     Further, and finally on this point, the information was clearly before the Associate Minister when she came to her decision because it was referred to in the second submission.  The email chain was attached to that submission, after the first response, and before her second response.

[23]     Mr Robson also referred to a related issue namely the obligations of the

Minister under the Cabinet Manual:

Conduct of Ministers

2.52A Minister of the Crown, while holding a ministerial warrant, acts in a number of different capacities:

a.in    a    ministerial    capacity,    making    decisions,    and determining and promoting policy within particular portfolios;

b.in   a   political   capacity   as   a   member   of   Parliament, representing  a  constituency  or  particular  community  of

interest;

c.        in a personal capacity.

2.53In all these roles and at all times, Ministers are expected to act lawfully and to behave in a way that upholds, and is seen to uphold, the highest ethical standards.  Ultimately, Ministers are accountable to the Prime Minister for their behaviour.

[24]     As I read the manual it is directed at the actions of the Ministers and the requirement and expectation they will act lawfully and behave in a way that upholds and  is  seen  to  uphold  highest  ethical  standards.    I do  not  see  anything  in  the Associate Minister’s response or on the information before the Court to suggest that there has been any issue raised in relation to the Minister’s obligations under the Cabinet Manual.

[25]     As Chambers J observed in the case Yure v Bentley[2] under the previous legislation:

It is clear from the scheme of the Act that the power conferred on the Minister is primarily intended for those situations where all else has failed from  a  prospective  immigrant’s  point  of  view.    The  Minister  retains  a residual power to do something for someone notwithstanding the fact that the recipient has not managed to persuade any immigration officer or immigration tribunal of his or her case.

[2] Yure v Bentley HC Auckland M1530-PL01, 8 November 2001 at [10].

[26]     In the same decision the Judge rejected a submission that decisions to the effect that:

issues relating to immigration are fundamentally for the executive arm of

Government;

that a person seeking a special declaration from a Minister has very limited

rights;

and that the Minister’s power was “virtually unreviewable” were wrong.

In Chambers’ J respectful view the decisions of the Court to that effect correctly stated the legal position in light of the overall statutory framework governing immigration matters.

[27]     Sections  378  and  11  of  the  Immigration  Act  2009  when  read  together, confirm that position.  The comments of Chambers J are equally applicable to the present situation.

[28]     During the course of submissions counsel also raised the issue of the briefing paper that may have been put before the Minister and noted that it had not been disclosed.   Due to the pressure of time it was not attached to the affidavit of Mr Thomson but a copy has been provided during the course of submissions.  It is a full

briefing paper.  To be fair I should note Mr Robson and Mr Nand both noted that

there may be other information that could have been provided in that report and it may not be entirely accurate on some aspects.  Nevertheless the briefing paper for the Minister was a full document running to some four pages.   It set out the applicant’s personal position and the considerations in his case in some detail.   It recommended three options for the Minister:

(a)       to  suspend  deportation  action  for  two  months  and  invite  further submissions;  or

(b)      to remove the five year prohibition on entry once deported;  or

(c)       to decline to intervene.

[29]     The applicant submits that the Associate Minister should have adopted the first option outlined.  That was certainly an option available to the Minister but on the information before the Court it cannot seriously be argued that the Minister’s decision to adopt option (c) was irrational or unreasonable.

[30]     While Mr Nand submitted there was a pathway for the applicant to seek residency I note that, in relation to his partner and the reliance on the fact that the applicant has two Fakatonga adopted children with her, she is herself apparently unlawfully in New Zealand.  The children are not his natural children.  In relation to the applicant’s son who is a New Zealand citizen, he is an adult at 21.   With the applicant’s convictions a waiver of character would be required for any consideration to be given to possible residency under sponsorship.

[31]     That  information  was  before  the Associate  Minister  when  she  made  her decision.

[32]     The applicant fails to make out grounds for the interim relief sought because he fails to satisfy the Court that there is a respectable chance of success on the substantive challenge to the Minister’s decision.  That is the only decision subject to challenge on the papers before the Court and it cannot be seriously argued that the Minister’s decision was irrational or unreasonable.

Venning J