Vukomanovic v Residence Review Board HC Wellington CIV 2010-485-497
[2010] NZHC 1693
•4 August 2010
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2010-485-497
BETWEEN GORDANA VUKOMANOVIC Applicant
ANDRESIDENCE REVIEW BOARD First Respondent
ANDCHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR Second Respondent
Hearing: 29 July 2010
Counsel:Gordana Vukomanovic (In Person) J Foster for First Respondent
Judgment: 4 August 2010
RESERVED JUDGMENT OF JOSEPH WILLIAMS J
In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 9.00am on the 4 August 2010.
Solicitors:
G Vukomanovic
Crown Law, Wellington
VUKOMANOVIC V RESIDENCE REVIEW BOARD HC WN CIV-2010-485-497 4 August 2010
Background facts
[1] Ms Vukomanovic is a 50 year old from Serbia. She has a large file at Immigration New Zealand. She arrived in New Zealand on 30 September 1999 on a three months visitor’s visa. Her parents Marija and Svetolik Vukomanovic had been in New Zealand since 1997. (As an aside they were given New Zealand citizenship in June 2001 but Svetolik passed away in September 2001).
[2] Ms Vukomanovic applied for a refugee status on 30 November 1999. Immigration New Zealand declined that application on 29 August 2001. Ms Vukomanovic appealed and the appeal was dismissed on 19 September 2002. A removal order was issued. Ms Vukomanovic appealed to the Removal Review Authority and that appeal was dismissed on 2 April 2004.
[3] In August 2004, the Associate Minister of Immigration intervened under s 35A of the Immigration Act giving Ms Vukomanovic a one year work permit. On
2 May 2005 she applied for residence under the Family (Siblings/Adult Child) category. She was sponsored by Marija, now as I have said, a New Zealand citizen. Immigration New Zealand declined the application on 18 August 2006 but agreed to reconsider its decision on 28 September 2006.
[4] The reason for the reconsideration was that Ms Vukomanovic had been employed (as required by the policy) since 2005 but became involved in an employment dispute with her employer in January 2006. In August 2006 the Employment Relations Authority found that Ms Vukomanovic had been unjustifiably dismissed. Immigration New Zealand agreed to reconsider the matter in light of this finding in her favour. The Employment Relations Authority did not however order that she be reinstated. She did not return to her former position.
[5] On 2 July 2009, Immigration New Zealand declined Ms Vukomanovic’s application for residence because she had by that stage no acceptable offer of employment. She appealed to the Residence Review Board, and on 21 December
2009 the Board declined the appeal.
[6] Ms Vukomanovic applied two months out of time for leave to appeal the Board’s decision to the High Court, and on 20 May 2010, Miller J held that the court had no jurisdiction to grant an extension of time to appeal. Leave to appeal this interlocutory decision to the Court of Appeal was declined on 24 June 2010.
[7] In accordance with the direction of Miller J, the applicant now applies for judicial review of the Residence Review Board’s decision. The Board abides and the Chief Executive of the Department of Labour for Immigration New Zealand opposes. Apart from the possibility that the Minister or a departmental official might intervene again under the exceptional powers contained in s 35A of the Immigration Act (explained to me as a kind of statutory royal prerogative of mercy), this application is the end of the line for Ms Vukomanovic.
Decision of the Board
[8] The Board wrote a comprehensive decision running to 120 paragraphs. It requested the entire Immigration New Zealand file relating to Ms Vukomanovic. The file, which was before me, runs to five bound volumes containing over 3600 pages. Because there was some doubt about the Board’s jurisdiction to hear the appeal, the Board spent some time dealing with the relevant statutory provisions before finding that it did indeed have jurisdiction.
[9] The Board then applied the Family (Siblings/Adult Child) category of the Residence Policy and found that Ms Vukomanovic did not have an acceptable offer of employment as required by that policy. The Board also found that Ms Vukomanovic’s youngest son was lawfully and permanently resident in Serbia and so did not satisfy the policy requirement that she have no other immediate family lawfully and permanently resident in her home country. The Board found therefore that Immigration New Zealand’s decision was correct.
[10] The Board had then to consider whether there were “special circumstances” that would support an exception to the usual requirements of the Residence Policy. In accordance with s 18D(1)(f), the Board applied the standard test for “special
circumstances” as referred to in He v Chief Executive of the Department of Labour.[1]
[1] (HC, Wellington, CIV-2008-485-1300, 13 November 2008, Ronald Young J) at [42].
The Board considered the following factors:
a) The period Ms Vukomanovic was in New Zealand and the whereabouts of her other family members.
b)The health of Marija Vukomanovic. The Board noted the view of her general practitioner that she could no longer cope independently and required support, but noted also that she had travelled to Serbia from July to September 2008, and that she would be entitled to institutional care in New Zealand, or to return to Serbia. Reference was made to the absence of her son Gordan who the Board thought was “apparently in Australia” although his whereabouts was not precisely known. According to Ms Vukomanovic, he is in Ireland.
c) International human rights obligations in which the Board considered that the government’s residence policy did not breach Article 16 of the International Covenant on Civil and Political Rights, or Article 10 of the International Covenant on Economic, Social and Cultural Rights.
d)The amount of time Ms Vukomanovic had been involved in immigration processes, and the number of opportunities she was afforded to find employment and settle.
e) Her settlement into and contribution to New Zealand including her attempts to find work. Reference was made to her difficulty in communicating with and relating to other people, and the fact that she was constantly embroiled in conflict.
f) Her references.
[11] In conclusion, the Board focused particularly on Ms Vukomanovic’s inability to obtain or sustain work during her decade in New Zealand. The Board acknowledged that her mother’s health and lack of independence counted somewhat in Ms Vukomanovic’s favour, but considered that this was not sufficiently uncommon or out of the ordinary to establish special circumstances. The Board said Marija could avail herself of public support in New Zealand, move to Australia to her son, or return to Serbia. Further it was found that Ms Vukomanovic had no particular skills or attributes creating special circumstances beyond supporting her mother and working as a church volunteer.
Arguments
[12] Ms Vukomanovic raised five grounds in her appeal and made three additional points. There were:
a) The Board failed to take into account the Universal Declaration of Human Rights, the New Zealand Bill of Rights Act 1990, the Crimes Act 1961, the Crimes of Torture Act 1989, and the Environment Act itself;
b)The Board failed to personally contact her and her mother – and I take from that submission failed to give them an opportunity to be heard;
c) The Board failed to take into account Marija Vukomanovic’s health and dependence;
d)The Board failed to acknowledge Ms Vukomanovic’s involvement with Yugo Sport and Art Association;
e) Delay by the Immigration Profiling Group in Immigration
New Zealand.
[13] The additional points, not connected to the above grounds were as follows:
a) Various unspecified allegations in respect of her lawyer;
b) The death of her daughter and deportation of her children from the
Netherlands;
c) A decision of the Disputes Tribunal regarding a claim made by
Ms Vukomanovic against Mr Rowland Woods, lawyer.
Analysis
[14] This is an application for judicial review. It is not a review of the merits of Ms Vukomanovic’s case. What I think about whether Ms Vukomanovic should be allowed to stay in New Zealand is irrelevant. Rather, I must be satisfied that the Board did not take account of irrelevant matters, ignore relevant matters, adopt unfair procedures or reach a conclusion that was irrational.
[15] In my view none of the three ancillary points Ms Vukomanovic raises is relevant to those questions and so should be set to one side immediately. In addition, I do not consider that any of the five grounds has merit and the application must fail. I will address each of the five grounds briefly to explain why this is so.
Failure to take account of various statutes and international obligations
[16] At paragraphs [84] to [87] the Board dealt with issues raised by Ms Vukomanovic’s legal counsel in relation to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The Board correctly concluded in my view that neither instrument provided the appellant with any support in her appeal. Neither in my view do the Universal Declaration of Human Rights or the New Zealand Bill of Rights Act (the latter having been enacted to give direct domestic effect to the rights contained in the ICCPR). The other statutes referred to in this ground are of either no relevance or (in respect of the Immigration Act) no support for Ms Vukomanovic’s claims.
[17] None of these matters introduces additional relevant considerations that the Board failed to take account of, or renders any of the considerations the Board did take into account irrelevant.
Personal contact and right to be heard
[18] Section 18F(1) provides that all appeals to the Board must be dealt with on the papers only. There is a residual power to direct an immigration official to conduct an interview of the appellant but the Board has no discretion to hear the appellant in person or any supporter of hers. Legal counsel have no right to appear on behalf of the appellant. There is no basis upon which it could be said that the Board’s admitted failure to contact Ms Vukomanovic or her mother directly could render the decision unlawful.
The predicament of Marija
[19] The Board addressed this issue at various points in the decision but primarily at paragraphs [78] to [83].
[20] Marija is 72 years old with a list of physical ailments together with chronic depression plus anxiety. The view of her general practitioner was that Marija could no longer live independently and needed support from the appellant. The Board acknowledged this but countered with three other points. First, as a New Zealand citizen, Marija will be entitled to continue receiving social support and institutional care if need be. Second, Marija has in fact travelled abroad between May 2002 and November 2003 and more recently on 15 July 2008 to 25 September 2008. The Board considered that it was “possible” that Marija could return to Serbia if she chose to do so. Finally, the Board noted that Marija and Svetolik first came under the sponsorship of their son Gordan who emigrated to Australia some time ago but after Svetolik’s death.
[21] Ms Vukomanovic said that her brother was now in Ireland. The Board did not seem to be aware of this, but the point still applies: there was no evidence as to
why Gordan and his family could not take responsibility for his mother if Ms Vukomanovic is unable to do so. In the end, (paragraphs [115] to [117]) the Board considered that the prospect of Marija being left alone as a result of Ms Vukomanovic’s departure was not sufficiently “out of the ordinary” to amount to special circumstances. Marija had other alternatives: local care, her son, or returning to Serbia to be with family.
[22] Clearly the Board took account of these matters, weighed them and rejected the arguments advanced. I cannot see how the Board’s analysis can be faulted in a judicial review context. All matters considered were relevant. The one changed circumstance (the whereabouts of Gordan Vukomanovic) does not seem to make a material difference. Weighing the merits of these factors was for the Board not me.
[23] Ms Vukomanovic also argued before me that in addition to Marija’s ill health she spoke very poor English. This according to Ms Vukomanovic meant Marija would be cruelly isolated if left alone in New Zealand. I can see the basis for Ms Vukomanovic’s concern but I cannot see how poor English can be said to be out of the ordinary in immigration. On the contrary, it would be the norm I would have thought.
Yugo Sport
[24] In argument before me, Ms Vukomanovic did not submit (as she had to Immigration New Zealand) that she had employment with Yugo Sport. But she rejected Immigration New Zealand’s categorisation of her work with Yugo Sport as self-employment. In fact she said her work was voluntary. She said she was working hard but not doing it for money.
[25] That may well be, but it serves only to confirm that she had no acceptable offer of employment. And on the other hand this voluntary work (I was not provided with details – nor was the Board) was clearly insufficient to establish special circumstances for Ms Vukomanovic. Again, weighting for this consideration was for the Board, not me.
Immigration Profiling Group delay
[26] The Immigration Profiling Group within Immigration New Zealand is a group focused on “risk countries”, according to counsel for the Chief Executive. It took the group four years to finally resolve Ms Vukomanovic’s case. This does seem inordinately long but the fact is the length of time taken was a benefit to Ms Vukomanovic rather than unfair. It maximised the amount of time available to her to find an acceptable offer of employment. I too cannot see how this could amount to special circumstances in Ms Vukomanovic’s favour.
Conclusion
[27] I would conclude therefore that the Board properly considered the submissions raised by Ms Vukomanovic and her legal counsel, and that the Board’s analysis of those submissions, and weighing of the various factors, cannot be faulted. The application for judicial review must be dismissed accordingly.
[28] There will be no order for costs.
Joseph Williams J
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