Rosevelt v Attorney-General HC Auckland CIV 2005-404-2561

[2005] NZHC 1214

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV.2005-404-2561

BETWEEN  JOSEPH ROSEVELT

Plaintiff

ANDATTORNEY-GENERAL SUED ON BEHALF OF NEW ZEALAND POLICE

Defendant

Hearing:         18 May 2005 Appearances: J E Dorbu for plaintiff

Gareth Neil for defendant Judgment:   19 May 2005

JUDGMENT OF WILLIAMS J

In accordance with r 540(4) of the High Court Rules I direct that the Registrar endorse this judgment with the delivery time of …10:00am …on the …19th... day of ……May     2005.

Solicitors:

T J Darby, P O Box 90959 Auckland, for plaintiff Meredith Connell, P O Box 2213 Auckland, for defendant

Copy for:

John E Dorbu, P O Box 105 345 Auckland City

ROSEVELT V ATTORNEY-GENERAL SUED ON BEHALF OF NEW ZEALAND POLICE HC AK CIV.2005-404-2561 [19 May 2005]

Issue

[1]    The plaintiff, Mr Rosevelt, has been in detention since 28 April 2005 following the service on him of an order that he be removed from New Zealand. He is currently scheduled to be deported on board a Malaysian Airlines flight leaving Auckland on 19 May 2005 at 12:50pm. In the circumstances later outlined, he seeks orders that he be released from detention and not be deported from New Zealand until such time as this claim is concluded.

Facts

[2]    Mr Rosevelt claims to be of Liberian origin. He says that following the civil war in that country and his detention, he escaped in December 1993 to Côte  d’Ivoire,. He left Côte d’Ivoire in about February 1998 as a stowaway on a ship to South Africa. He remained in the Republic for 18 months but then bought a false passport and travelled to Hong Kong. He resided in Hong Kong for four months, at the conclusion of which he obtained another false passport through a Liberian businessman in Hong Kong and flew to New Zealand via South Korea arriving in  this country on 15 November 1999. He applied for refugee status on arrival but that application was declined on 23 March 2000. He appealed to the Refuge Status Appeals Authority. That application was heard in June 2001. His appeal was dismissed in a decision delivered on 11 October 2001.

[3]    The Authority posed (para [21] p6) the principal issues for its determination as being whether, objectively on the facts as found, there was a real chance of Mr Rosevelt being persecuted if returned to Liberia and, if the first question were answered affirmatively, whether there was a reason under the Refugee Convention for that persecution.

[4]    It is unnecessary for present purposes to traverse the Authority’s findings in detail but in large measure Mr Rosevelt’s appeal was dismissed on credibility grounds, the Authority finding :

Credibility

[22]      Before the Authority can determine the framed issues, an assessment must first be made of the appellant’s credibility.

[23]      The Authority does not accept that the appellant was a credible witness. His evidence was at times mobile,  contradictory and implausible. He was unable, when asked, to provide details of aspects of his account. When questioned by the Authority about inconsistencies between different parts of his evidence or between his evidence before us and statements he had made during his interview with the RSB officer, he was unable to provide a satisfactory explanation. His evidence was also inconsistent with various statements he had made in the application for refugee status which he filled out at the airport. Again, when asked, he was unable to provide any satisfactory explanation for these inconsistencies.

…

Credibility Conclusions

[56]      When viewed as a whole, the implausibilities, inconsistencies and contradictions in the appellant’s account leave the Authority in no doubt whatsoever that he is an untruthful witness whose account of being a Liberian Krahn who escaped from an NPFL camp is completely fabricated. His account is rejected in its entirety, and as that is the case, both issues framed for determination by the Authority as to whether the appellant is a refugee are answered in the negative.

Conclusion

[57]      For the above reasons we find that the appellant is not a refugee within the meaning of Article 1A(2)of the Refugee convention. Refugee status is declined. This appeal is dismissed.

[5]    Mr Rosevelt was granted work permits from time to time to enable him to support himself whilst his refugee claim was processed. The last permit expired on 2 November 2001. Mr Rosevelt has been in New Zealand unlawfully since.

[6]    Failed refugee claimants are prohibited from applying for further permits by the Immigration Act 1987 s 129U which reads :

129U   Special provision relating to refugee status claimants granted temporary permits

(1)This section applies to any person who—

(a)Is a refugee status claimant to whom a temporary permit has been granted on or after 1 October 1999 (whether before or after the person became a claimant); or

(b)Having been a person to whom paragraph (a) applies, ceases to be a refugee status claimant by virtue of having his or her claim under this Part to be recognised as a refugee declined.

(2)A person to whom this section applies may not, whether before or after the expiry of the temporary permit,—

(a)Apply for a further temporary permit or for a permit of a different type while in New Zealand; or

(b)While in New Zealand, request a special direction, or a permit under section 35A; or

(c)Bring any appeal under this Act to the [Residence Review Board.

(3)Despite subsection (2)(a), a claimant may apply for a further temporary permit for such period as may be required to maintain the claimant's lawful status in New Zealand while the claim is determined.

(4)Nothing in this section prevents a person from bringing an appeal to the Removal Review Authority under Part 2.

(5)This section ceases to apply to a person if and when his or her claim under this Part to be recognised as a refugee is successful.

[7]    At about the time appeal was dismissed and his last  work  permit  expired,  Mr Rosevelt began a relationship with a New Zealand-born woman. They married  on 21 June 2002 and have a daughter born on 3 January 2004.

[8]    About a year after the dismissal of his appeal, namely on 25 November 2002, Mr Rosevelt applied for a work permit but was refused pursuant to s 129U.

[9]    Next, his Member of Parliament made representations on his behalf to the Associate Minister of Immigration on 8 April 2003 but the Minister declined to exempt Mr Rosevelt from the provisions of s 129U on 15 July 2003. His MP was advised that Mr Rosevelt was now “required to depart New Zealand” but following departure he could apply for a “resident’s visa under the family marriage category  for consideration under normal policy”.

[10]   Next, Mr Rosevelt’s then solicitor applied to the Associate Minister of Immigration on 1 October 2003 for a special direction to enable Mr Rosevelt to apply for residence on marriage and family grounds notwithstanding the provisions

of s 129U but the Minister, on 23 October 2003, again declined the application. He commented :

I strongly suggest that Mr Rosevelt make plans to depart New Zealand without any further delay. By doing so, he retains the right to apply for further visas from offshore. This option will not be available to Mr Rosevelt if the New Zealand Immigration Service is forced to take removal action against him, in which case he will be banned from re-entering the country  for five years from the date of departure, unless granted a special direction.

[11]   Mr and Mrs Rosevelt and their child tried to travel to Samoa on 13 May 2004 to apply for a permit to re-enter from that country but the airline refused passage as they did not hold the required outward tickets from Samoa.

[12]   According to Mr Rosevelt’s claim, whilst the family was shopping on the North Shore on 28 April .2004 at about 3:30pm, an acquaintance was arrested by Police, officers then asked Mr Rosevelt to accompany them and they took him to the Takapuna Police Station where he was detained until about 5:45pm. At that point he was served with a removal order by Immigration officials. He has remained in detention since that time with his warrant of commitment being renewed weekly by the District Court under s 60. He has not appealed to the Removal Review Authority under s 47.

[13]   Mr Rosevelt was interviewed by an Immigration officer, Ms Slow, on 5 May 2005. She put the humanitarian questionnaire she completed in evidence noting its specific references to this country’s obligations under international law including the International Covenant on Civil and Political Rights 1966 and the Convention on the Rights of the Child 1989. It also refers to the importance of the family as the fundamental group unit of society and children’s rights as vouchsafed by those documents.

[14]   In submissions on Mr Rosevelt’s behalf, Mr Dorbu suggested Ms Slow’s evidence failed to deal with the weight she gave to New Zealand’s obligations but perusal of the questionnaire, particularly the decision, is firmly to the contrary.

[15]   On 9 May 2005 Ms Slow interviewed Mrs Rosevelt and put her interview notes in evidence.

[16]   For present purposes, it should be noted that those documents show that, though Mrs Rosevelt and their daughter would wish to accompany Mr Rosevelt if he is deported, it is unlikely they will be able to do so for financial reasons.

[17]   Mr Dorbu has again applied to the Minister on Mr Rosevelt’s behalf since his arrest, but the Minister has again declined to intervene.

Claim

[18]   Mr Rosevelt’s claim rests on an assertion that he was unlawfully arrested and falsely imprisoned by the Police for the 2¼ hours between 3:30pm and 5:45pm on  28 April 2005. He asserts breach of his rights under the New Zealand Bill of Rights Act 1990 and includes a second cause of action in trespass to the person. He seeks damages and a declaration that Police action towards him was unlawful and in breach of his rights.

[19]   Despite Mr Rosevelt’s arrest on 28 April 2005, it was not until the afternoon of 17 May 2005 that this claim was commenced. It was heard during the morning of 18 May. In the interval, Mr Neil for the Crown had been able to obtain the affidavit from Ms Slow but in the brief time available, had no opportunity to contact the Police officers involved in Mr Rosevelt’s apprehension.

[20]   Given the imminence of Mr Rosevelt’s deportation, this matter must  therefore proceed on the basis that Mr Rosevelt’s allegations may be provable but with the important caveat that there has been no opportunity for response from the Police to date.

Submissions

[21] Mr Dorbu submitted that Police action was in breach of the New Zealand Bill of Rights Act 1990 ss 22 and 23 and that the Crown Proceedings Act 1950 s6(5), the Police Act 1958 s 39 and the Crimes Act 1961 ss 26 and 27 were inapplicable to the 2¼ hour period mentioned. He also submitted that the Immigration Act 1987 s 59

did not apply as it gives Police power to arrest only where there is an existing removal order properly served.

[22]   He submitted Mr Rosevelt’s rights to sue and bring his case to a conclusion should not be frustrated by his deportation, an action which, he submitted, would effectively bar Mr Rosevelt’s exercise of his rights.

[23]   Mr Neil submitted the claim is not one capable of supporting a claim for a perpetual injunction nor equitable relief (McGechan on Procedure para HR238.04 p1-1306). In any event, given the efficiency of modern communications, Mr Neil submitted Mr Rosevelt could still maintain his claim against the Police were he to be deported. He noted the lack of any appeal to the Removal Review Authority or any application for judicial review of the Minister’s refusal to intervene.

[24]   In relation to the application for release from detention, Mr Neil made the point that Mr Rosevelt has been liable to removal since 14 December 2001, 42 days after his final work permit expired (Immigration Act 1987 s 53). The removal order against him was validly made under s 54 and, as a consequence, any member of the Police was entitled to arrest Mr Rosevelt without warrant once the removal order  was served on him under s 59. Mr Rosevelt was served with a removal order by Immigration officials about 5:45pm on 28 April 2005 and the Police consequentially arrested him and he has been held under s 59 since, with his continued detention being regularly authorised by the District Court.

Discussion

[25]   It is incontestable that, following his exhausting every avenue then available to enable him to remain in New Zealand lawfully, Mr Rosevelt has now been unlawfully in this country for nearly 2½ years. His unlawful presence in New Zealand has continued throughout that time despite a number of unsuccessful attempts to alter the unlawful status of his presence in this country through intervention by the Minister. That must tell strongly against the making of the orders which Mr Rosevelt seeks.

[26]   It is also to be noted, though of lesser significance, that Mr Rosevelt has throughout known that he could leave New Zealand voluntarily and immediately apply for re-entry but that, were he to be deported, his right to apply for re-entry was debarred for five years.

[27]   It is, of course, most unfortunate that his deportation is likely to deprive him of the society of his wife and child and deprive them of his society but that unfortunate result must be tempered by the fact that they met, married and had  a child all the while knowing Mr Rosevelt was unlawfully in this country and was liable to deportation at any time. At least  since  their  Samoa  effort  to  regularize Mr Rosevelt’s position, they must have known, too, that Mr Rosevelt could leave New Zealand voluntarily and immediately apply for re-entry but, if they let matters drift and he was deported, if Mrs Rosevelt and the child were unable to accompany the plaintiff, their separation would be for five years.

[28]   Another factor to be taken into account, though, as Mr Dorbu submitted, principally relevant only to the credibility of Mr Rosevelt’s claim, are the remarks made about him by the Refugee Status Appeals Authority.

[29]   Of particular significance is the fact that Mr Rosevelt only wishes to remain in New Zealand so he can continue to sue the Police. That means that, had it not  been for the fortuitous circumstance that he is able to claim that he was unlawfully detained and falsely imprisoned for 2¼ hours in breach of his rights, he would have no basis for trying to avoid deportation. Courts should, of course, be zealous to ensure the rights of citizens are vindicated not vitiated but nonetheless the observation must be made that declarations for breach of rights are the usual result of unlawful official action such as that of which Mr Rosevelt complains and, even if damages or compensation were to be considered, awards are modest, particularly for a comparatively brief detention.

[30]   Of critical importance, however, is that although it would doubtless be easier for Mr Rosevelt to continue to sue the Police whilst in New Zealand, his right to continue his litigation is by no means prevented should he be deported. With international telephone services, email, the Internet, video links, international post

and other forms of communication being as ubiquitous and efficient as they are, even if Mr Rosevelt is in Liberia, a war-ravaged country but almost certainly not one without international communication links, Mr Rosevelt can continue to instruct his solicitors and counsel. With the Court’s contemporary flexibility over such matters as the taking of evidence, he may not even need to apply to return to New Zealand for the limited time necessary to give evidence.

Result

[31]   In light of all those circumstances, the appropriate conclusion must be  that Mr Rosevelt has made out no case for the interim orders he seeks.  He has been  liable to service of a removal order for nearly 2½ years. A removal order has now been lawfully served on him. He has been arrested and held in detention pursuant to statutory authority since that time. Even though he may wish to continue his claim against the Police arising out of the circumstances of his detention, he can do that with only modest added difficulty following deportation. No ground has been made out for the Court to intervene.

[32]Mr Rosevelt’s application for interim relief is accordingly dismissed.

[33]   It is assumed no question of costs arises but, if that assumption is misplaced, counsel may file memoranda.

………………………………..

WILLIAMS J