Siamani v Chief Executive of Immigration HC Wellington CIV 2010-485-2357

[2010] NZHC 2187

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2010-485-2357

UNDER  The Judicature Amendment Act 1972

IN THE MATTER OF     An application for judicial review of a decision under s 54 of the Immigraiton Act

1987.

BETWEEN  AIGA SIAMANI Applicant

ANDTHE CHIEF EXECUTIVE OF IMMIGRATION

Respondent

Hearing:         26 November 2010

Counsel:         P T Lagolago for Applicant

I C Carter for Respondent

Judgment:      26 November 2010 at Oral

ORAL JUDGMENT OF MACKENZIE J

[1]      This is an ex parte application for interim orders pursuant to s 8 of the Judicature Amendment Act 1972 ordering that pending the determination of the application for judicial review no further steps be taken to implement a removal order which was issued on 24 November 2010.   The matter is urgent because the removal order is intended to be enforced tomorrow so that the applicant will be removed from New Zealand tomorrow under that order if no interim relief is given.

[2]      I directed that the papers be served on the respondent and Mr Carter has very helpfully  appeared  on  a  Pickwick  basis  to  assist  in  providing  some  further background and indicating the respondent’s position.   Briefly stated it is that the

respondent opposes the grant of any interim relief.

SIAMANI V THE CHIEF EXECUTIVE OF IMMIGRATION HC WN CIV-2010-485-2357  26 November 2010

[3]      This is an ex parte application and there is a limited opportunity to consider the full circumstances.  The situation as it appears from the affidavits in support of the application, and in the information helpfully provided by Mr Carter, is that the applicant has been in New Zealand for some years.  Her husband is a New Zealand citizen and she has six children – three of whom are New Zealand citizens.  Without going into the background of her earlier interaction with the respondent I begin the narrative within a letter issued on 25 March 2008 by the then Associate Minister of Immigration to the immigration consultant then acting for the applicant.  In that letter the Minister said:

After  carefully  considering  your  submissions  I  have  decided  to  grant Ms Siamani and her three children residence subject to them meeting health and character requirements.

[4]      It appears to be the case, although information on this is far from completely clear, that information designed to meet the health and character requirements was subsequently provided and that there was no decision on the application, (and the reasons for the delay are not clear) until 23 November 2010.   At that stage the decision was notified to the applicant that the remaining matter outstanding on her application which was whether there should be a character waiver had been decided. The letter said:

The  character  waiver  has  been  considered  and  this  has  been  declined. Because of this you are considered to not be of good character and therefore do not meet the requirements set out to you in the ministerial letter you received from Hon Shane Jones on 25 March 2008.  We have declined your application for residence because you do not meet the policy requirements under the ministerial category.

[5]      The letter went on to advise the applicant of appeal rights in respect of that. The  day  after  that  letter,  on  24 November,  a  removal  order  under  s 54  of  the Immigration Act 1987 was issued.  It is pursuant to that order that the applicant is to be removed.

[6]      I must consider whether interim relief is necessary to preserve the position of the applicant.  Mr Carter’s submission is in effect that the applicant has no position to be preserved since she is unlawfully in New Zealand and has been for many years. In considering the necessity of relief to preserve the applicant’s position, the strength

of the case is a relevant consideration and Mr Carter submits that the case for relief is not sufficiently strong to warrant protection of the applicant’s position.

[7]      If some relief is not granted today then the applicant will be removed.  That would not necessarily prevent her from pursuing appeal rights that have been advised to her in the letter of 23 November.  Nevertheless it would make the pursuit of those rights considerably more difficult because of her absence from New Zealand.

[8]      Also, I am unable to accept, without further investigation, the proposition that there is no prospect of success on the substantive application.  Ms Lagolago argues in support of the application that an order under s 54 may be issued only if the applicant has been unlawfully in New Zealand for a period exceeding 42 days.   I cannot dismiss out of hand the possibility that the Minister’s letter of 25 March may have given rise to some arguable rights which might not have been brought to an end until the application (which that letter had, on the face of it, conditionally granted) was finally disposed of on 23 November 2010.

[9]      In the circumstances I consider that the position needs to be preserved for a sufficient time at least to argue the application on a properly contested basis on an inter partes basis.  I propose to make orders which will achieve that.

[10]     I consider that the applicant does have a sufficient position to be preserved to justify that course.  The matter is to be listed for hearing on Monday, 6 December before the duty judge for a hearing of the application for interim relief.  That will allow time for the respondent to file an opposition and affidavits in opposition to the grant of relief.

[11]     I make an order that no further steps be taken to enforce the removal order dated 24 November 2010 prior to the date of that hearing.  What the consequences of that will be in terms of the applicant’s custodial position is not immediately apparent to me.   An application had been made to extend the term of detention to a date sufficient to allow the removal tomorrow.  How long that extends I am unaware.  I do not consider that it is appropriate to give any directions at this stage in relation to

that matter but I reserve leave to either party to apply to seek any consequential directions which may be necessary as a result of this order.

[12]     At Ms Lagolago’s suggestion I will make a timetable order directed to the hearing on 6 December.  The applicant is to file and serve any further evidence in support of the application for interim orders by 5pm on Tuesday, 30 November.  The respondent is to file and serve a notice of opposition and any affidavits in opposition to the application by 5pm on Friday, 3 December.  Any affidavits in reply will be a matter for the judge on 6 December.

“A D MacKenzie J”

Solicitors:         Papalii Toti Lagolago, Barrister & Solicitor, Porirua for Applicant

Crown Law, Wellington for Respondent.