Taito v Minister of Immigration

[2014] NZHC 1897

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2014-485-010217 [2014] NZHC 1897

UNDER

the Judicature Amendment Act 1972 and

the Immigration Act 2009

IN THE MATTER

of an ex parte application for an interim injunction

BETWEEN

FILIPO TAITO Applicant

AND

MINISTER OF IMMIGRATION Respondent

Hearing:	11 August 2014
Counsel:	N R Woods for Applicant C A Griffin for Respondent
Judgment:	11 August 2014
Reasons:	12 August 2014

REASONS FOR JUDGMENT OF COLLINS J

Introduction

[1]      This judgment explains why I dismissed Mr Taito’s application for an interim

injunction.  The interim injunction was sought to prevent Mr Taito being deported at

4.25 pm on 11 August 2014.

[2]      I dismissed Mr Taito’s application for an interim injunction because I was not satisfied Mr Taito had demonstrated a reasonable chance of success in relation to his challenge to an order requiring him to leave New Zealand.  I was also not satisfied that  I  should  exercise  my  discretion  to  grant  the  interim  injunction  sought  by

Mr Taito.

TAITO v MINISTER OF IMMIGRATION [2014] NZHC 1897 [11 August 2014]

Proceedings

[3]      Mr Taito’s application for an injunction was filed in the Wellington High

Court on 11 August 2014.

[4]      On receiving the application I directed that the Crown be served.  Ms Griffin kindly compiled a notice of opposition and chronology explaining why the Crown opposed the application.

[5]      I heard Mr Taito’s application from 3.00 pm until 3.55 pm on 11 August

2014. At the end of the hearing I advised I was dismissing Mr Taito’s application.

Grounds for interim injunction

[6]      Three grounds were advanced in the application for an interim injunction, namely:

(1)That the factual basis on which the decision was made to deport Mr Taito was so flawed that it did not constitute a ‘sufficient reason’ to deport Mr Taito as required under s 157 of the Immigration Act

2009 (the Act).

(2)That the factual basis was so flawed that no reasonable decision- maker could have made the decision to deport Mr Taito.

(3)That neither the immigration officer nor the Minister of Immigration when making their decisions considered the relevant international obligations as they were required to do so under s 177(2) of the Act.

Background

[7]      Mr Taito came to New Zealand on 8 May 2012.  He was granted a work visa under the Religious Worker category to enable him to work as a Youth Pastor with the Voice of Christ Full Gospel Church in Auckland.

[8]      On 17 September 2013 an officer of Immigration New Zealand (INZ) went to an Auckland  scrap  metal  business.    There  is  a  dispute  about  the  name  of  that business.    INZ  believes  it  is  called  Nissin  Commercial  Supplies.    What  is  not disputed is that Mr Taito’s brother-in-law, Mr Ezurike, runs the business.  He says the business is called Talent Fortunate New Zealand Ltd.

[9]      The INZ officer spoke to Mr Taito and as a result formed the view that Mr Taito was working at the scrap metal yard contrary to the terms of his work visa. Mr Taito was served with a deportation liability notice on 17 September 2013.

[10]     Mr Taito exercised his right under s 157(2) of the Act to provide reasons why deportation should not proceed.  That was done on 21 October 2013 when Mr Taito, accompanied by his sister-in-law was interviewed by an officer of INZ.  During the course of that interview Mr Taito appears to have admitted to receiving food and clothing in return for assisting Mr Ezurike.   This acknowledgement confirmed for INZ  that  Mr Taito  was  engaged  in  employment  at  the  scrap  metal  yard.    The definition of “employment” in the relevant Immigration Instructions certified by the Minister under s 22 of the Act says:

Employment means any activity undertaken for gain or reward … “Gain or reward” includes any payment or benefit that can be valued in terms of money, such as board and lodging, goods (e.g., food and clothing) and services (e.g., transport).

[11]     On 14 November 2013 INZ determined that Mr Taito had failed to provide adequate reasons to halt his deportation.

[12]     At this point, Mr Taito had the opportunity to appeal to the Immigration

Protection Tribunal on humanitarian grounds against his liability for deportation.1

[13]     Between January and May 2014 attempts were made by INZ to encourage

Mr Taito to depart voluntarily.  Ultimately, a letter dated 14 May 2014 was sent to

Mr Taito from INZ giving him until 22 May 2014 to depart voluntarily.

1      Immigration Act 2009, s 157(4).

[14]     On 21 May 2014 INZ was advised that Mr Taito was now married and was

“living down the line somewhere”.

[15]     Mr Taito’s work visa expired on 25 May 2014.   He therefore became an

unlawful immigrant on 26 May 2014.2

[16]     Under s 154 of the Act Mr Taito had 42 days from 26 May 2014 to exercise his second right of appeal to the Immigration Protection Tribunal on humanitarian grounds.    He  did  not  exercise  this  second  right  of  appeal  to  the  Immigration Protection Tribunal.

[17]     On 26 July 2014 Mr Taito was stopped by police driving without a licence. He was detained and served with a deportation order.

[18]     On 28 July 2014 INZ conducted a personal circumstances interview with Mr Taito.  His lawyer was present.  Mr Taito’s family circumstances, his obligations to his wife and her daughter were fully explored during the course of that interview.

[19]     Consideration was given to cancelling the deportation order pursuant to s 177 of the Act.  However, the INZ officer declined to cancel the deportation order and on

29 July 2014 concluded that deportation should proceed.

[20]     On  29  July  2014  Mr  Taito  was  released  from  custody  on  conditions, including that he would voluntarily depart New Zealand by 11 August 2014. Thereafter,   Mr  Taito   sought   the   intervention   of   the  Associate   Minister   of Immigration.  In a letter dated 8 August 2014 the Associate Minister of Immigration advised Mr Taito that she would not intervene in his deportation although, she did decide to remove the five year period of prohibition that would apply to Mr Taito if he was deported, so long as he voluntarily departed on a flight arranged for 4.25 pm

on 11 August 2014.3

[21]     On 11 August 2014 further approaches were made to the Associate Minister

of Immigration’s office to see if the Crown would consent to a one day deferral to

Mr Taito’s departure to enable the hearing before me to take place.  It transpired that I  was  able  to  hear  the  application  on  11 August  shortly  before  Mr  Taito  was scheduled to leave.

Key findings

[22]     From the information before me I concluded:

(1)Mr Taito was unlawfully in New Zealand and was under a statutory obligation to leave.4

(2)       Mr  Taito  failed  to  exercise  two  statutory  appeal  rights  to  the

Immigration and Protection Tribunal on humanitarian grounds.5

(3)      Mr Taito  did  not  seek  to  judicially review  the  decision  made  on

14 November 2013.

(4)An officer of INZ declined to cancel the deportation order under s 177 of the Act.

(5)      The  Associate  Minister  of  Immigration  declined  to  intervene  in

Mr Taito’s case.

[23]     Mr Taito is able to pursue his substantive application for judicial review offshore.  That is the appropriate mechanism for him to challenge the decision that must now be enforced.

Analysis

[24]     I was satisfied that there was a sufficiently strong factual basis for INZ to decide Mr Taito should be deported.  The decision to require Mr Taito to leave New Zealand  was  one  that  was  readily  available  on  the  facts  that  have  been  made available to me.  In particular, on two occasions Mr Taito provided INZ officers with

information that suggested he was providing services to his brother-in-law’s business

and that he was receiving valuable consideration for those services.

[25]     It is also clear that INZ and the Associate Minister of Immigration carefully considered the interests of Mr Taito’s wife and his stepdaughter when making their decisions.    The  decision-makers  clearly  complied  with  their  obligations  under s 177(2) of the Act.

Conclusion

[26]     Mr Taito had not demonstrated a reasonable chance of establishing: (1)        that there was not “sufficient reason” to deport him;

(2)       that INZ and the Associate Minister’s decisions were so unreasonable

that an interim injunction was required;

(3)that  INZ  and  the  Associate  Minister  failed  to  take  into  account relevant international obligations.

[27]     I  also  concluded  in  these  circumstances  that  I  should  not  exercise  my discretion to grant an interim injunction in favour of Mr Taito.

D B Collins J

Solicitors:

Rowland Woods Legal, Wellington for Applicant
Crown Law Office, Wellington for Respondent