Rossi v Chief Executive of the Ministry of Business Innovation and Employment
[2014] NZHC 2168
•9 September 2014
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
CIV 2014-442-000044 [2014] NZHC 2168
BETWEEN JUSTIN MICHAEL ROSSI
Applicant
AND
CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS INNOVATION AND EMPLOYMENT Respondent
Hearing: 2 September 2014
(Heard at Christchurch)
Appearances:
Applicant in person
V E Casey for Respondent
R W Ord - AmicusJudgment:
9 September 2014
JUDGMENT OF WHATA J
[1] Mr Rossi is a citizen of the United States of America. He is challenging a deportation order. His temporary working visa expired on 10 August 2013. He had
42 days to appeal his liability for deportation. He did not do so. During this time he was facing various charges including an alleged assault of his girlfriend. He says he found himself in desperate circumstances, breached his bail by living with his girlfriend and was remanded in custody pending the trial. Mr Rossi claims he had no ability to preserve his immigration status while in prison. He also says he was advised by Immigration New Zealand (INZ) that he could only request visa waiver from the Minister under s 61 of the Immigration Act 2009. The Minister declined to consider that request.
[2] Mr Rossi was found guilty on one charge of assault and was sentenced to a term of imprisonment for a period of eight months with a release date of 11 August
2014. He has appealed against his conviction and sentence. The appeal was due to
ROSSI v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS INNOVATION AND EMPLOYMENT [2014] NZHC 2168 [9 September 2014]
be heard on 28 July 2014 but the hearing date was vacated to allow Mr Rossi to instruct new counsel.
[3] In the meantime, Mr Rossi was served with a notice of deportation order on
9 May 2014 and was later interviewed as to his personal circumstances in accordance with s 177 Immigration Act 2009 on 30 July 2014. On about 4 August
2014 following completion of the interview as to Mr Rossi’s personal circumstances,
INZ confirmed that the deportation order would not be cancelled. On 26 August
2014 INZ advised Mr Rossi at the time that deportation would not be enforced pending clarification of the status of his appeal to the Court of Appeal. INZ then agreed not to deport Mr Rossi pending determination of his proceedings in the High Court in this matter then scheduled for September 2014.
[4] On 22 August this Court was advised that Mr Rossi has recently gone on a hunger strike, so the hearing of this application was set down for argument under urgency. When the matter was in fact called Mr Rossi said he was not on a hunger strike and needed more time to prepare. The hearing was adjourned for a further week. Mr Ord was also retained as amicus, having only recently stepped down as counsel for Mr Rossi.1
The key issue
[5] With the benefit of argument and the evidence, the central issue is:
Whether Mr Rossi’s (allegedly) destitute circumstances, incarceration and the refusal to consider the grant of a temporary visa, constitute special reasons for relief from immediate deportation.
Mr Rossi’s pleaded claims
[6] Mr Rossi seeks to judicially review the decision under s 177 not to cancel the deportation order on the basis that:
(a) In advising Mr Rossi his only options were under s 61 of the Act, INZ
failed to take into account Mr Rossi’s circumstances in respect of his
1 Mr Ord said he could no longer act for Mr Rossi as Mr Rossi’s criminal appeal alleged counsel
error.
ability to obtain food and shelter over the year he spent awaiting trial;
(b)In deciding to issue a deportation notice on 9 May 2014 INZ failed to take into account the relevant consideration that Mr Rossi had been awaiting trial following the expiry of his work visa and had to remain in New Zealand to do so;
(c) In deciding to deport Mr Rossi from 9 July 2014 INZ failed to take into account the relevant consideration that Mr Rossi had been awaiting trial following the expiry of his work visa and had to remain in New Zealand to do so;
(d)In failing to consider under s 177 of the Act that it might have erred earlier and in fairness grant a limited visa or at least allow Mr Rossi to leave the country voluntarily, INZ failed to take into account Mr Rossi’s circumstances in respect of his ability to obtain food and shelter over the year he spent awaiting trial.
[7] Mr Rossi also claims that the decision not to cancel the deportation order under s 177 was unfair in these circumstances. He also claims that the failure to consider his inability to support himself was disproportionately severe treatment in breach of s 9 of the New Zealand Bill of Rights Act 1990 (NZBORA) and disenabled him from properly preparing his defence in contravention of the International Covenant on Civil and Political Rights (ICCPR). He also claims that he should have been allowed further time before deportation by reason of the abovementioned special circumstances.
[8] Mr Rossi seeks orders cancelling the deportation order, the warrant of commitment, and resetting of the 40 day post visa appeal period. He also seeks a declaration INZ must consider granting a visa to a defendant allow him to support himself until disposal of trial.
MBIE’s position
[9] MBIE denies that there is any proper basis for relief observing that:
(a) A decision under s 61(1)(a) is in the Minister’s absolute discretion;
(b)In accordance with s 11(1)(b) the request for a visa was not considered;
(c) By way of affirmative defence, that in accordance with s 247 an application for judicial review of a s 61 request was required to be filed by no later than mid December 2013 and accordingly this part of the applicant’s claim is time barred;
(d)The deportation order was issued on 9 May 2014 and any judicial review had to be filed by no later than 6 June 2014 and accordingly this part of Mr Rossi’s claim is also time barred;
(e) MBIE accepts however that the claim in relation to s 177 is not time barred, but that regard was had to Mr Rossi’s personal circumstances and relevant provisions of international conventions, so there is no reviewable error.
Statutory framework
[10] In light of the pleadings, the powers and discretions under ss 57, 61, 80, 154,
177, and 247 are in focus.
[11] Section 57 enables the grant of visas. Section 80 also allows the grant of interim visas to a person who holds a temporary visa for the purpose of maintaining the lawful status of that person.
[12] As Mr Rossi’s visa expired on 10 August 2013, and he had not applied for a interim visa, liability to deportation was automatically triggered by s 154 as follows:
154 Deportation liability if person unlawfully in New Zealand
(1) A person unlawfully in New Zealand is liable for deportation.
(2) A person unlawfully in New Zealand may, not later than 42 days after first becoming unlawfully in New Zealand, appeal on humanitarian grounds against his or her liability for deportation.
(3) Subsection (2) applies except if subsection (4) applies.
(4) If the person is unlawfully in New Zealand following an unsuccessful reconsideration under section 185 of a decision to decline his or her visa application, the person may appeal on humanitarian grounds against his or her liability for deportation not later than 42 days after the later of-
(a) the day on which the person became unlawfully in New
Zealand; or
(b) the day on which the person received confirmation of the decision to decline his or her visa application
[13] Section 185 is not directly applicable, and as noted, Mr Rossi missed the appeal deadline. However, under s 61 the Minister may grant a further visa in special circumstances. It states:
61 Grant of visa in special case
(1) The Minister may at any time, of the Minister’s own volition, grant a
visa of any type to a person who-
(a) is unlawfully in New Zealand; and
(b) is not a person in respect of whom a deportation order is in force.
(2) A decision to grant a visa under subsection (1) is in the Minister’s
absolute discretion.
[14] The breadth of this absolute discretion is reinforced by s 11 as follows:
11 Meaning of absolute discretion of the decision maker
If a provision of this Act provides that a matter or decision is in the absolute discretion of the decision maker concerned, it means that—
(a) the matter or decision may not be applied for; and
(b) if a person purports to apply for the matter or decision, there is no obligation on the decision maker to-
(i) consider the purported application; or
(ii) inquire into the circumstances of the person or any other person; or
(iii) make any further inquiries in respect of any information provided by, or in respect of, the person or any other person; and
(c) whether the purported application is considered or not,-
(i) the decision maker is not obliged to give reasons for any decision relating to the purported application, other than the reason that this section applies; and
(ii) section 27 of this Act and section 23 of the Official Information Act 1982 do not apply in respect of the purported application.
[15] A deportation order may then be cancelled by an immigration officer in accordance with s 177. This discretion is also framed in absolute terms subject to consideration of personal circumstances and any relevant international obligations. It states:
177 Deportation order may be cancelled
(1) An immigration officer may, in his or her absolute discretion, cancel a deportation order served on a person to whom section 154 applies.
(2) Nothing in subsection (1) gives a person a right to apply for the cancellation of a deportation order. However, an immigration officer must consider cancelling the deportation 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.
(3) If an immigration officer does consider cancelling a deportation 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 207; or
(ii) to inquire into the circumstances of, or to make any further inquiry in respect of the information provided by or in respect of, the person who is the subject of the deportation order or any other person.
(4) Whether or not an immigration officer considers cancelling a deportation 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.
(5) 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.
[16] For completeness, s 247 then limits the opportunity for judicial review of the decisions under ss 61, 154 and 177 in the following manner:
247 Special provisions relating to judicial review
(1) Any review proceedings in respect of a statutory power of decision arising out of or under this Act must be commenced not later than 28 days after the date on which the person concerned is notified of the decision, unless the High Court decides that, by reason of special circumstances, further time should be allowed.
(2) Where a person intends to both appeal against a decision of the Tribunal under this Act and bring review proceedings in respect of that same decision,—
(a) the person must lodge both the application for appeal and the application for judicial review together; and
(b) the High Court must endeavour to hear both matters together, unless it considers it impracticable in the particular circumstances of the case to do so.
…
Evidence
Mr Rossi
[17] Mr Rossi provided affidavit evidence in support of his application. He describes his time in New Zealand, including a working holiday from 4 December
2008 to 13 January 2010, a working holiday from November 2011 to 21 May 2012 and then another working holiday from 28 June 2012 to 10 August 2013. Mr Rossi notes how he met his fiancée, Ms Nicole Meiring, a permanent resident of New Zealand, while travelling here and that they have been together since January 2012.
[18] Mr Rossi also confirms that he was arrested and charged with five assaults but was acquitted on all of them but one. He further confirms that on 9 May 2014 just before his trial he was served with a deportation order. He says that when he is deported he will be separated indefinitely from his fiancée.
[19] He says he seeks review of the decision to deport him on the following grounds that:
(a) He held a working visa at the time he was charged with the criminal offending;
(b)INZ was aware he faced criminal charges in New Zealand and that considerable time would be required to defend them;
(c) INZ failed to take into account at the time his working visa expired; (d) He was in New Zealand legally to defend himself;
(e) INZ was aware that he faced criminal charges and that considerable time and resources would be required to defend himself;
(f) His passport was and remains held by police and he could not travel overseas in any case;
(g)INZ did not even consider informing him of the availability of a temporary visa so that he could support himself;
(h) He understood he could only qualify for a “section 61 waiver” after
he took advice from a lawyer from the firm Pitt and Moore in Nelson;
(i)Before his visa expired he went to WINZ on 7 August 2013 to try and organise a s 61 waiver.
[20] Mr Rossi also places some significance on an email from Mr Wilson dated
9 September 2013 which records:
Thanks for your email. I have noted your comments. As you do not have a visa your options for a visa are limited to a request under Section 61 of the Immigration Act 2009 which is subject to “absolute discretion”. Can I suggest that you refer to our website at or our contact centre on 0508 558 855 if you require further information.
[21] Mr Rossi then narrates how he was declined a s 61 waiver but opines that he could have received a special visa under s 83 of the Immigration Act 2009.2 He says he was unable to support himself and was ultimately imprisoned as a direct result of breaching his bail by living with his fiancée since by then he was destitute and had nowhere else to go. He complains that INZ failed to take into account that as a non resident he needed to support himself while awaiting trial. He said that his fiancée was the only person who could help him and this was the reason he breached his bail by staying with her. He believes that the circumstances arose due to the unfair and
unreasonable decision making by INZ and because they did not take into account the above considerations.
[22] Immediately prior to the deferred hearing Mr Rossi has filed additional material, including a second affidavit and handwritten notes. The thrust of that material is that Mr Rossi claims that a number of his fundamental rights (including privacy rights) have been breached. The focal point of much of this material appears to be directed to his criminal proceedings but also bear on his immigration difficulties. His written notes reiterate the problems he faced on arrest, his inability to provide for himself as he was unable to work, and the effects of incarceration, including lengthy periods in isolation. He also claims that he was told that character issues would affect his ability to obtain a further visa.
Richard John Wilson
[23] Mr Richard John Wilson has filed a detailed affidavit for MBIE. He confirms that Mr Rossi contacted INZ on 8 August 2013 just before his work visa expired. He
2 Section 83(2) provides:
83 Grant of limited visa in relation to criminal matters
…
(2) A limited visa may also be granted to a person for the sole purpose of enabling the person to return to New Zealand to face any charge in New Zealand or to serve any sentence imposed on the person in New Zealand.
says that he spoke to him on the morning of 9 August and then emailed him that afternoon to confirm that his visa would expire on 10 August and that he would have
42 days to lodge an appeal with the Immigration and Protection Tribunal (IPT).
[24] He also says he did not provide legal advice to Mr Rossi. He refers to an email sent by Mr Rossi on 9 September 2013 and his response referring him to INZ’s website and contact centre for further information on how to make a request under s 61. He observes that Mr Rossi made contact with INZ but INZ refused to consider his request and Mr Rossi was advised of this by letter dated 30 October 2013 which was posted to him and then emailed to him on 13 November 2013.
[25] He says that Mr Rossi sought to file an appeal with the IPT ten months after his visa expired. He also refers to receiving a request from Mr Rossi’s lawyer that his case be put to the Minister of Immigration and Mr Wilson responded that if he wished to contact the Minister his request should be directed to the Minister’s office. He also noted to Mr Rossi that it was INZ’s intention to deport him on the first available flight once his Court matters were dealt with.
[26] He says further that Mr Rossi was convicted on one charge of assault and sentenced on 9 July 2014 and that he was sentenced to eight months imprisonment. He says he was released on 11 August and is currently in custody pending deportation in accordance with warrant of commitment issued under s 317. He confirms that INZ agreed to defer Mr Rossi’s deportation pending this judicial review proceeding being resolved.
[27] He says that Mr Rossi was also interviewed under s 177 of the Act and the decision was that the deportation order would not be cancelled. That decision records that Mr Wilson has taken into account all the information that INZ holds in respect of Mr Rossi including information from Mr Ord to confirm that he was still acting for Mr Rossi on immigration matters. Having done so, it remained Mr Wilson’s decision to proceed with Mr Rossi’s deportation from New Zealand.
[28] An affidavit of Cristina Clelia Fruscalzo responds to matters raised in
Mr Rossi’s second tranche of information. It contains a detailed record of
communications with Mr Rossi. It reveals that information regarding the options available to Mr Rossi was sent to him in mid July 2013 and with further information sent to him in early August 2013.
Argument
Mr Rossi
[29] Mr Rossi maintains (in broad summary) that he has been subject to degrading treatment in breach of the NZBORA (in particular his right to justice under ss 25 and
27) and international obligations, with the result that he has been deprived of the proper opportunity to obtain lawful residency. The degrading treatment is said to have included improper prosecution, unlawful and or unfair detainment, deprivation (not being eligible for benefits), inadequate legal representation and inadequate
access to facilities3 and to information to be able to defend criminal charges and to
avoid deportation. He spoke of mental and emotional exhaustion over the preceding
13 months. He says that but for this treatment he could have obtained a visa lawfully and more effectively defended the criminal proceedings. He confirmed that he took various steps to try to obtain permission to stay in New Zealand.
[30] Mr Rossi also seeks to challenge his warrant of commitment on the basis that the criteria at s 317(2) were not meet. He contends that as he was detained for trial, the deportation order was premature on the basis that he was required to be in New Zealand to defend the criminal charges. He also says that he intended to leave New Zealand before his visa expired, as supported by evidence of having made arrangements to travel to Australia.
[31] Mr Rossi further claims (not pleaded) that under s 29 of the Victims Rights Act, the Minister must consider cancellation of deportation. He claims he was assaulted on 2 June 2013 and refers to a medical report referring to the alleged assault. He also says he was punched in the face by a prisoner. He also essayed items
in a medical report about his mental state.
3 Including items as simple as pens and paper. Emphasis was also placed on an inability to gain access to his emails.
[32] Mr Rossi then emphasises the implications of both the criminal charges and deportation on him, and that in light of this, that he has not been given sufficient time to prepare for this hearing.
[33] He seeks, among other things:
(a) An enlargement of the time to seek a visa;
(b)Release so that he may properly protect and vindicate his rights, including for the purpose of obtaining evidence and undertaking research;
(c) Review of the various alleged wrongs associated with his criminal proceedings;
(d)An opportunity to properly appeal the conviction and prove his innocence.
[34] Mr Rossi also challenges the legality of the Immigration Act, insofar as it derogates from his fundamental rights.
Amicus
[35] Mr Ord emphasised the following:
(a) Mr Rossi has shown he has been destitute for over a year, but this was not obviously considered by Mr Wilson;
(b)Mr Rossi took all steps that he was able to take to legalise his residency status – including engaging with INZ on several occasions and detailing his destitute circumstances prior to the expiry of his visa;
(c) INZ’s advice to him about his options omitted to refer to s 80;
(d)Section 83 allows the grant of a temporary visa to enable a foreign resident to give evidence in New Zealand and the absence of an equivalent power to grant a visa for a person already temporarily resident in New Zealand is anomalous;
(e) The Minister never in fact considered Mr Rossi’s application for a
visa, exercising his power not to do so under s 11;
(f) The significance of Mr Rossi’s destitute circumstances could not rationally have been taken into account, in light of arts 14, 17 and 23 of the ICCPR, given the decision not to cancel the deportation order;4
(g)The ability of a defendant facing trial and deportation is an aspect of the right to natural justice affirmed by the NZBORA;5
(h)I should adopt the dissenting reasoning of the Chief Justice in R v Hansen6 so that I should prefer an interpretation of the Immigration Act that vindicates Mr Rossi’s rights;
(i)Mr Rossi has fallen through the legislative frame because of his destitution, rather than having contravened its scheme. Accordingly, there is no reason in this case to preclude the full application of NZBORA, and therefore the powers under s 61 and s 177 should have been exercised in a manner consistent with the vindication of
Mr Rossi’s rights;
4 International Covenant on Civil and Political Rights GA Res 2200A (XXI) (signed 16 December
1966, entered into force 23 March 1976) at arts 14, 17 and 23. Most relevantly: Article 14
1. All persons shall be equal before the courts and tribunals….
2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.
Article 17
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
Article 23
1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. ...
5 New Zealand Bill of Rights Act 1990, s 27.
6 R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1. Mr Ord submitted that the majority reasoning can be distinguished as it is dealing with criminal proceedings.
(j)Illustrating the gravity of implications of the deportation, as Mr Rossi has been in NZ ‘unlawfully’ for more than one year, he will be unable to re-enter New Zealand for five years;
(k)Mr Rossi was in a worse position than an unlawful resident not facing charges, as he could not leave the Country to avoid deportation and/or to obtain work overseas to finance his defence in the criminal proceedings. In short, Mr Rossi faced a perfect storm of criminal charges, incarceration, liability to deportation and was destitute. There is no indication that Mr Wilson took into account this perfect storm;
(l)Overall, the failure to consider at all the grant of an s 61 visa and/or the consequences of not doing so was unfair and gave the appearance of pre determination for the purpose of the subsequent s 177 decision.
[36] Ms Casey for MBIE provided a comprehensive submission in response. I do not propose to essay it in detail here. The key contentions will be canvassed and in some respects included in my reasons below. The basic thrust however of her submissions is that Mr Rossi’s claim is inconsistent with the scheme of the Immigration Act, and the careful but strictly limited regime for the grant of a visa and dispensation from deportation. Ms Casey submits that it is extraordinary for Mr Rossi to claim destitution as a ground for avoiding compliance with the Act, when he was well aware of the requirements to obtain a further visa to stay in New Zealand. Further, she contends that rather than there being a lacuna in the legislation, Mr Rossi placed himself in a position to be in conflict with it, especially when he chose not to exercise his right of appeal on humanitarian grounds.
Assessment
[37] The limited scope for review of immigration decisions, especially in terms of the decision making power conferred at s 177, is well settled.7 The Immigration Act
7 Babulal v Chief Executive of the Department of Labour HC Auckland CIV 2011-404-1773,
29 September 2011; Leung v Chief Executive of the Ministry of Business, Innovation and
Employment [2013] NZHC 1158.
2009 lays down a detailed framework to enable lawful residency and to prohibit unlawful residency. As Ms Casey submitted, a fundamental aspect of this framework is the protection of the integrity of the immigration system8 via clear procedures for application and appeal together with strictly circumscribed rights of review.9 This is illustrated most aptly, again as submitted by Ms Casey, by s 3:
3 Purpose
(1) The purpose of this Act is to manage immigration in a way that balances the national interest, as determined by the Crown, and the rights of individuals.
(2) To achieve this purpose, the Act establishes an immigration system that—
(a) requires persons who are not New Zealand citizens to—
(i) hold a visa to travel to New Zealand; and
(ii) hold a visa and be granted entry permission to stay in New
Zealand; and
(b) provides for the development of immigration instructions (which set rules and criteria for the grant of visas and entry permission) to meet objectives determined by the Minister, which may include objectives such as—
(i) contributing to the New Zealand workforce through facilitating access to skills and labour; and
(ii) supporting families; and
(c) allows for the management of the immigration aspects of border control, by setting requirements that apply to persons arriving in New Zealand or who are intending to arrive in New Zealand; and
(d) provides a process for implementing specified immigration- related international obligations; and
(e) includes mechanisms to ensure that those who engage with the immigration system comply with its requirements, including mechanisms that—
(i) enable immigration officers to gather information in relation to visa holders, employers, and education providers to determine compliance with obligations in respect of the system; and
8 Citing, among other authorities, Singh v Minister of Immigration [2009] NZCA 50.
9 For example the limited periods for review contemplated at s 247.
(ii) prescribe the system for the deportation of people who are not New Zealand citizens and who fail to comply with immigration requirements, commit criminal offences, or are considered to pose a threat or risk to security; and
(f) establishes a specialist tribunal to consider appeals against decisions made under this Act and to consider humanitarian appeals; and
(g) supports the settlement of migrants, refugees, and protected persons.
[38] Conceptually there may be circumstances where the State has so failed to protect fundamental rights of an unlawful resident that the decision not to cancel it under s 177 is unreasonable and unlawful in an administrative law sense. This is not one of those cases and Mr Rossi’s application cannot succeed.
[39] First, Mr Rossi failed to comply with the requirements of the Immigration Act for lawful residency and then failed to initiate the procedures under the Act to properly legalise his position within time. More specifically, as highlighted by Ms Casey:
(a) Mr Rossi did not comply with the basic requirements of lawful residency as at August 2013, including by way of application for further visa in advance of the expiry of his then existing visa in accordance with s 80 or 185(2)10; and
(b)Mr Rossi did not lodge an appeal in relation to the liability for deportation under s 154, and then failed to instigate reviews of the s 61 visa decision and of the deportation order within time.
[40] Mr Rossi’s explanation for failing to comply with the substantive and procedural requirements of the Immigration Act cannot be attributed to INZ. Ms Fruscalzo’s affidavit records that Mr Rossi’s was provided with requisite information for the purpose of an application under s 80. I also accept Mr Wilson’s evidence that Mr Rossi was told about his right of appeal under s 185 and that he could make a
request for a work visa under s 61. Conversely the evidence reveals that the genesis
10 Section 185(2) enables reconsideration of an application for a further visa made within the currency of an existing visa.
of Mr Rossi’s misfortune was his failure to take proper steps to avoid impending illegality within the frame provided by law.
[41] Second, there is no lacuna in the law as suggested by Mr Ord. Rather the legislature turned its mind to enabling an overseas person to “return to New Zealand” for the purposes of defending criminal charges or sentencing. By contrast, no limited visa is in fact necessary where the person is already in New Zealand to face the relevant charge or to serve the relevant sentence. In any event Mr Rossi could have applied under ss 57, 61 and 80 and or s 185 to obtain right to stay in this country lawfully.
[42] Third, Mr Wilson had regard to Mr Rossi’s personal circumstances, as described by Mr Rossi in his s 177 interview notes together with INZ’s file. Unhelpfully the specific circumstances relating to his alleged impoverished state were not recorded in detail by Mr Rossi in his interview notes, though there is reference to arts 14, 17 and 23 of the ICCPR and arts 6 and 10 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). In any event, Mr Wilson was plainly aware of Mr Rossi’s difficult personal circumstances and related international obligations so there was no failure to have regard to a potentially relevant consideration in any orthodox sense. Furthermore, subject to any issue of unreasonableness, it was for Mr Wilson to assess whether Mr Rossi was destitute, and if so the significance of it.
[43] Fourth, I am not satisfied that Mr Rossi’s allegedly destitute state is a special consideration in any determinative sense for the purpose of ss 61 or 177. Mr Rossi was liable to be deported whether or not he was subject to criminal trial. He was unlawfully resident in New Zealand. He was therefore entirely reliant on the “absolute discretion” of the Minister to grant a visa and then the “absolute discretion” of an immigration officer to cancel the deportation order. It is difficult to see how the Minister or INZ can then be compelled to attach special status to the impoverished status of a criminal defendant when exercising such discretion. It is simply a relevant matter to be considered along with the various other considerations that must be considered.
[44] Fifth, there can be no suggestion that the s 61 or s 177 decisions were Wednesbury11 unreasonable or irrational. This is not a case where Mr Rossi’s fundamental human rights are breached by the impugned decisions or other actions of the State. In fact, Mr Rossi’s impecuniosity was entirely of his own making and pre-dated any decision of INZ or the Minister. Rather, Mr Rossi sought an indulgence in the form of an opportunity to gain temporary residency status so that
he might better defend criminal charges (for which he was legally aided). And I accept Ms Casey’s submission that to impose on the Minister or INZ a requirement to give special consideration to unlawfully resident, criminal defendants, would unfairly confer a benefit or privilege not otherwise afforded to lawful (and law abiding) migrant residents.
[45] Sixth, Mr Rossi’s central complaint is that his immigration status has resulted in circumstances where his NZBORA rights have been breached. But if that is so, any breach arising from his immigration status is expressly mandated by law. In short, lawful residents may obtain state funded benefits and seek employment. Unlawful residents may not. This outcome is expressly required by the Social Security Act12 and the Immigration Act. A corollary of this is that the consequences of Mr Rossi’s immigration status cannot provide a proper basis for alleging breach of the NZBORA.
[46] Mr Ord’s plea to the dissenting judgment of the Chief Justice in Hansen does not assist Mr Rossi. The Chief Justice in fact agreed with the balance of the Court that s 4 of the NZBORA required adherence to the requirements of s 6(6) (deemed possession of controlled drugs unless the contrary is proved), despite any
inconsistency with s 25(c) (right to be presumed innocent until proved guilty).13 In
case it needs repeating, s 4 states:
4 Other enactments not affected
No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights),-
11 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (CA).
12 Social Security Act 1964, s 74A.
13 R v Hansen, above n 6 at [5].
(a) hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or
(b) decline to apply any provision of the enactment-
by reason only that the provision is inconsistent with any provision of this
Bill of Rights.
[47] Finally, I am not unsympathetic about the difficulties confronted by Mr Rossi at the time of his trial. In some ways it was a perfect storm. It would have been a particularly distressing time for him to be confronted by criminal proceedings and the prospect of deportation. But he was not destitute. His treatment was not degrading and he was given ample opportunity to defend the criminal charges and to legalise his ongoing presence in New Zealand. Ironically, while in prison he had clothing, food and shelter. He had State funded legal representation on his criminal charges and INZ provided him with the information necessary to make an application for a visa or an appeal. Mr Rossi complains that he did not have pens, computer or access to email. I doubt the first point in light of the detailed handwritten notes he provided to me. The absence of a computer and email hardly points to depravation or unfair or degrading treatment. He has also been afforded the opportunity to seek review to this Court, and amicus was appointed to assist in the fair presentation of the relevant matters that might support Mr Rossi’s application.
[48] Turning then to each pleaded claim:
(a) INZ did not advise Mr Rossi that his only option was under s 61 of the Act. He was specifically advised of his right to appeal on humanitarian grounds.
(b)As the email correspondence and record of the s 177 determination shows, INZ did not fail to take into account Mr Rossi’s personal circumstances in respect of his ability to obtain food and shelter over the year he spent awaiting trial or that Mr Rossi had been awaiting trial following the expiry of his work visa and had to remain in New Zealand to do so.
(c) The Minister is unlikely to have considered Mr Rossi’s particular circumstances other than perhaps in a cursory way, but that was not an error of law or unreasonable given that the Minister has an “absolute discretion” whether to grant a visa, and Mr Rossi’s status as an illegal resident facing criminal charges with limited financial resources does
not obviously demand Ministerial (or judicial) intervention.14
(d)There was no procedural unfairness to Mr Rossi. Mr Rossi did not take the opportunity to apply for a visa while lawfully resident, or appeal against his liability to be deported and/or seek to review the Minister’s decision within the statutory time for doing so and his personal circumstances were considered for the purposes of s 177.
(e) Mr Rossi’s rights under the NZBORA were not unlawfully breached (if at all) by his immigration status or the various immigration decisions. Mr Rossi was disentitled to work in New Zealand given his illegal residency status. He sought dispensation from this status; that is, he sought an opportunity to work not generally afforded to unlawfully resident persons. Rarely will the failure to provide an opportunity of this kind invoke NZBORA considerations. Mr Rossi’s unlawful resident status was also unarguably a justified limitation (to the extent that it was) on the rights otherwise affirmed by the NZBORA. Moreover, none of his rights as a person charged (s 24), to minimum standards of criminal procedure (s 25) or to natural justice (s 27) were negatively impaired by the Minister’s decision. Furthermore, there was no degrading treatment (s 9). Mr Rossi enjoyed the normal privileges of an impecunious criminal defendant, including state funded lodging, legal aid, a trial by jury and a right of appeal before an independent judiciary.
(f) For the same reason, arts 14, 17 of the ICCPR and 6 and 10 of
ICESCR were not unlawfully breached (if at all). In short, any
14 This issue was not pleaded in terms of Wednesbury unreasonableness but it logically arises from the pleading as a whole.
limitation on his rights to equality before the law, to family life and to work was mandated by express statutory requirements and as a consequence of his unlawful residency.
(g) There was no substantive unfairness or breach of fundamental rights.
Mr Rossi’s primary complaint is that he was disenabled from providing for himself by the refusal to grant a temporary visa. But, as I have said, Mr Rossi was responsible for his unlawful residency not INZ or the Minister. Furthermore, the level of his disenablement falls well short of the type of depravation that might trigger the intervention of this Court on matters squarely within the “absolute” discretion of the Minister and INZ.
[49] The belated claim in relation to the Victims’ Rights Act 2002 is also misconceived. A Minister or the IPT is required to have regard to the submission of a victim in accordance with ss 173 and 208 of the Immigration Act. These sections relates to victims of an offence committed by the person about to be deported. They do not confer a right on the person being deported to make a submission.
Outcome
[50] Mr Rossi’s (allegedly) destitute circumstances, incarceration and the refusal to consider the grant of a temporary visa, do not constitute special reasons for relief from immediate deportation.
[51] Accordingly, Mr Rossi’s application for review is dismissed.
Solicitors:
Rob Ord, Nelson
Crown Law, Wellington
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