Udompun v Minister of Immigration

[2006] NZSC 1

1 NZLR

Udompun v Minister of Immigration (Note)

343

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1. NOTE

   Udompun v Minister of Immigration

2. Supreme Court of New Zealand   [2006] NZSC 1

   3, 9 February 2006

   Elias CJ, Blanchard and Tipping JJ

Immigration   –   Natural    justice   –   Non-English-speaking    person   denied

1. entry  –  Questioning    by   immigration    offıcials   through    English-speaking member  of group  –  Whether  offıcial  interpreter   necessary  in  every  case  – Whether individual interviews necessary – Whether breach of natural  justice – New Zealand Bill of Rights Act 1990, s 27(1).

Immigration  – Detention – Rights of detainees  – Right to consult a lawyer –

1. Right  to  be  treated  with  humanity  –  Non-English  speaking  person  denied entry – Detention pending departure  from New Zealand – Detainee signed form in native language  setting out rights under Bill of Rights Act – Whether reason for detention adequately brought home – Whether detainee informed of right to consult a lawyer – Whether need for special care in advising right arising from

2. foreign  language,   headache,  and  tiredness  following  flight and  processing delays – Failure  to provide sanitary products to detainee – Delays in providing opportunity  to change  clothes, shower, and in providing food – New Zealand Bill of Rights Act 1990, ss 23(1)(a) and (b) and (5).

Constitutional   law  –  New Zealand  Bill  of Rights  Act 1990  –  Remedies  –

1. Approach to assessment of compensation for breach of s 23(5) – Pre-judgment interest – Costs – Judicature  Act 1908, s 87 – New Zealand Bill of Rights Act

   1990, s 23(5).

Application for  leave  to  appeal  This was an application  by Pimthong

Udompun  for  leave  to  appeal  from  the  judgment  of  the  Court  of Appeal

1. (reported at [2005] 3 NZLR 204).

[5] The issue primarily sought to be addressed for the applicant is whether in the circumstances  the immigration  officers  complied  with  the New  Zealand Bill of Rights Act 1990 requirements in the way in which they communicated

1. with Mrs Udompun,  a Thai national  and nonspeaker  of English,  through an interpreter. In Christchurch, on a holiday weekend, no professional interpreter had  been  available  and  a member  of Mrs  Udompun’s  travelling  party  who spoke English was the vehicle for communication  with the other members of that party. Mrs Woodroffe, for the applicant, said that it would be submitted on

2. appeal that communication should have been on an individual rather than group basis, that a professional interpreter should have been used and that a record of what was said should have been made, by way of a tape recording, so that the accuracy of the translation could be checked.

344

Supreme Court of New Zealand

[2006]

1. So far as the interview at Auckland is concerned, the argument would be that Mrs Udompun’s rights were not adequately brought home to her by use of a notice written in the Thai language. So far as quantum is concerned, it would be submitted that the sum awarded was inadequate to vindicate the breach of

the s 23(5) right.   5 [7]      Each of the proposed grounds of appeal on liability entails application of uncontentious principle to the particular facts of the case. It was accepted that

an interpreter  should be available  to applicants  for temporary  entry permits. The   issue   would   rather   be   whether   what   was   done   in   the   particular circumstances was sufficient to give effect to Mrs Udompun’s rights. No point    10 of general or public importance arises out of the Court of Appeal’s assessment

that the assistance provided was not in breach of those rights. On quantum, we are not persuaded that it could arguably be said that the award was outside the range properly open to the Court or the authorities. Accordingly, no question of general principle arises, nor did it arise as between the majority of the Court of    15

Appeal and Hammond J in his dissenting judgment.

1. We are satisfied that leave should not be granted in respect of any of these  grounds  or in  respect  of others  not  pursued  in  Mrs Woodroffe’s  oral submissions,  because  in none  of them  would  the appeal  raise  any  point  of

general  or public importance,  nor is there any basis for the proposition  that    20 there has been a miscarriage of justice.

Application for leave dismissed.