Yu v Ministry of Business, Innovation and Employment

[2015] NZHC 1953

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-1858 [2015] NZHC 1953

BETWEEN

YAQI YU

Plaintiff

AND

MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Defendant

Hearing:	17 August 2015
Appearances:	F C Deliu and P Finau for the plaintiff M Hodge and O M Klaassen for defendant
Judgment:	17 August 2015
Reasons:	18 August 2015

(REASONS FOR) JUDGMENT OF ANDREWS J

This judgment was delivered by me on 18 August 2015 at 2 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:

R Zhao, Auckland

Meredith Connell, Auckland
Counsel:

F Deliu, Auckland

YU v MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2015] NZHC 1953 [17 August 2015]

Introduction

[1]      On 14 August 2014, Heath J delivered an oral judgment in which he made an interim order under s 8 of the Judicature Act 1972 to prevent the plaintiff, Ms Yu, from being removed from New Zealand.1    His Honour directed that the proceeding be listed in the Duty Judge List yesterday for mention.

[2]      Having heard from counsel, I ordered that the interim order made by Heath J should continue until further order of the Court.  I also directed that the substantive proceeding be given an urgent hearing, and I made timetable directions leading up to the hearing.

[3]      I now set out my reasons for continuing the interim order.

Background

[4]      Ms Yu came to New Zealand from China in May 2015 under a student visa, to study English.  Her visa dated 6 May 2015 set out the following condition:

Conditions:   Stay subject to grant of entry permission.   You must leave before visa expiry or face deportation.   Financial support evidence not required.    Return  /  onward  ticket  not  required.    The  holder  shall  not undertake employment in NZ.   To study Certificate in English Language Competence at Etc Learning Centre in Palmerston North.  Insurance required while in NZ.

[5]      The stated expiry date of the visa is 14 September 2015.

[6]      It appears that Ms Yu returned to China in June 2015, and that on her return to New Zealand she brought several cartons of cigarettes (in excess of the allowance of 50 cigarettes).  She paid duty on the excess.

[7]      On 1 August 2015, Ms Yu again travelled to China, returning to New Zealand on 13 August 2015.   On her passenger arrival card Ms Yu answered “no” to the

question:

1      Yu v Ministry of Business Innovation and Employment [2015] NZHC 1939.

Are you bringing into New Zealand:

…

Tobacco: more than 50 cigarettes or 50 grams of tobacco products.

[8]      After   proceeding   through   immigration,   Ms   Yu   was   referred   to   the immigration  authorities  after  Customs  found  848  cigarettes  in  her  luggage. According to a note made by an immigration officer, the cigarettes were concealed in Chinese tea tins.

[9]      Ms Yu was then interviewed by an immigration officer.  At the conclusion of the interview, Ms Yu was informed that her entry permission had been revoked, she was liable for turnaround, and she would be placed on the first available flight departing New Zealand.   Ms Yu was also informed that her student visa was cancelled.

[10]     It appears from the interview records that the grounds for revoking the entry permission and cancelling the student visa were:

(a)      Ms  Yu  had  made  a  false  declaration  on  her  arrival  card,  having brought in cigarettes in a quantity well in excess of the allowance; and

(b)Her  student  visa  was  for  study  at  the  ETC  Learning  Centre  in Palmerston North, but she had in fact been studying at the ETC Learning Centre in Wellington, in breach of the conditions of her visa.

Submissions

[11]     Mr Deliu submitted for Ms Yu that she has (at least) a respectable chance of success in her claim that the decision to revoke her entry permission and to cancel her student visa was wrong:

(a)      Mr Deliu submitted that Ms Yu had been denied her right to seek legal advice.  He submitted that she was entitled to seek legal advice from the moment she was detained by the immigration authorities after being referred to them by Customs, and had been denied that right.

He further submitted that Ms Yu had not been advised that she could seek legal advice, let alone given access to a lawyer.

Mr Deliu referred me to the judgment of Heath J  in Udompun v

Minister of Immigration, as to the rights of a detained person under s

23 of the New Zealand Bill of Rights Act 1990.2   Mr Deliu submitted that the immigration authorities were in breach from the time Ms Yu was first detained up until the present time.  He referred to evidence that a solicitor who attempted to speak with Ms Yu was told that M Yu had no rights.

(b)Mr  Deliu  submitted  that  the  decision  to  revoke  Ms  Yu’s  entry permission and cancel her student visa was irrational and inconsistent. He submitted that neither the false declaration nor the fact that Ms Yu had been studying in Wellington rather than Palmerston North could justify the decision.  Regarding the false declaration, he submitted that that had been dealt with by Ms Yu’s having paid the appropriate fine. Regarding her study location, he submitted that Ms Yu was studying at the same institution, but a different campus.   If that constituted a breach of a valid condition, he submitted, it was a minor breach and easily capable of remedy by way of an application for variation.

(c)      Mr Deliu submitted that the immigration officer had failed to consider whether Ms Yu’s  entry permission  should  not be revoked  and,  in particular,  had  not  taken  into  account  that  Ms Yu  was  a  genuine student, had paid the required fine in respect of the cigarettes, and any breach of the student visa was minor.

(d)      Finally, Mr Deliu submitted that the consequences of Ms Yu’s entry

permission being revoked were severe, as she would no longer be eligible to be granted entry to New Zealand.

2      Udompun v Minister of Immigration (2003) 7 HRNZ238 at [8](b). The Court of Appeal in part allowed an appeal against the High Court judgment, deciding that there had been no breach of Mrs Udompun’s rights under s 23(1) of the BORA, but did not overturn Heath J’s statements of principle: Attorney-General v Udompun (2005) 7 HRNZ 811 at [104]-[132].

[12]     In all, Mr Deliu submitted that there is a real contest between the parties and, in accordance with the principles set out in Esekielu v Attorney-General, the interim order should be continued to enable a hearing on the substantive claim.3

[13]     Mr Hodge submitted for the defendant that in determining whether there is a real contest between the parties, I should take into account the following:

(a)      In accordance with Immigration Policy Y4.15, it is mandatory that an entry permission must be refused in circumstances where a false declaration has been made on any part of the passenger arrival card, whether that declaration relates to an immigration matter or not.  He submitted that Ms Yu would be required to establish that she had not knowingly concealed the cigarettes in her luggage.  In the absence of such evidence, he submitted that there was no real contest that her entry permission should be revoked.

(b)Recognising that Immigration Policy Y4.45 allows an immigration officer to grant entry as an exception to Y4.15, Mr Hodge further submitted that Ms Yu could not establish that there were compelling personal circumstances such that her entry should not have been revoked under the Y4.45 exception.   He submitted that this is particularly in the light of the fact that her student visa was due to expire on 14 September 2015.

(c)      Mr Hodge also referred to the entry on the interview record, to the effect that this was not the first occasion on which Ms Yu had attempted to bring an excess number of cigarettes into New Zealand.

(d)Mr Hodge then submitted that Ms Yu would suffer no prejudice if she is returned to China (which she would be required to do upon expiry of the student visa, unless she obtained a new visa).  He submitted that she can make an application for a further visa, and can seek legal

advice to assist her in that process.   Mr Hodge referred me to the

3      Esekielu v Attorney-General (1993) 6 PRNZ 309 at 313-314.

judgment of Woolford J in Chen v Department of Labour, in which an application for an interim order was dismissed on the basis that an application to enter New Zealand could be progressed from overseas.4

His Honour referred to Parmanadan v Minister of Immigration in support.5

(e)       In Esekielu, Hammond J said in relation to applications for orders to prevent removal from New Zealand:6

It seems to me therefore, that whilst the individual applicant should not be required to demonstrate a very strong probability of success on the merits, the kind of matters that that individual must establish in support of a claim to interlocutory relief must be more than a showing that the question is not merely trivial.  I would have thought both that there must be a real contest between the parties, and that the applicant has a respectable chance of succeeding in that contest. …

Apart from the issue of the likelihood of the plaintiff succeeding on the merits,  there  will  be  questions  about  whether  usual  procedures  were followed; whether there has been undue delay, whether there have been holdings out or expectations of some kind created in the plaintiff which might give rise in equity and good conscience to some kind of estoppel; the conduct of the plaintiffs themselves and their forthrightness in dealing with the authorities on immigration questions; their punctiliousness and due observance of the procedures involved in these matters; and doubtless other factors. …

[14]     I am satisfied that Ms Yu has established that there is a real contest between herself and the immigration authorities as to whether (and, if so, from what point) she was entitled to be advised that she had a right to obtain legal advice, and as to whether she was denied access to legal advice.  I am also satisfied that there is a real contest as to whether the decision to revoke Ms Yu’s entry permission and cancel her student visa should be quashed on the grounds that it is irrational and inconsistent, and that the immigration officer failed to take relevant matters into account.

[15]     Accordingly, I have ordered that the interim order remain in place, pending further order of the Court.

4      Chen v Department of Labour HC Auckland CIV-2011-404-7827, 7 December 2011.

5      Parmanadan v Minister of Immigration (2010) NZAR 424 (CA).

6      Esekielu v Attorney-General, above n 3 at 313-314.

Hearing of substantive proceeding

[16]     I understand that time is available for a substantive hearing on 9 September

2015.  Counsel agreed that a half-day hearing would suffice, provided there are no contested factual issues.

[17]     On the assumption that that is the case, the substantive proceeding is set down for hearing on 9 September 2015, at 10 am.  I make the following timetable directions:

(a)       Any  amended  statement  of  claim  and  evidence  on  behalf  of  the plaintiff is to be filed and served by 24 August 2015.

(b)The defendant’s statement of defence and any evidence is to be filed and served by 31 August 2015.

(c)       The plaintiff’s submissions are to be  filed and  served three days before the hearing.

(d)The  defendant’s  submissions  are  to  be  filed  and  served  one  day before the hearing.

[18]     Leave is reserved to the parties to apply to vary the timetable, if necessary.

[19]     Costs are reserved.

Andrews J