Home | Databases | WorldLII | Search | Feedback High Court of New Zealand Decisions

Yure v Attorney General Of New Zealand HC Auckland CP47-SW02 [2002] NZHC 97 (18 February 2002)

High Court of New Zealand

Yure v Attorney General Of New Zealand HC Auckland CP47-SW02 [2002] NZHC 97 (18 February 2002)

Last Updated: 14 November 2013

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY CP47-SW02

BETWEEN TARAITI TIMIITI YURE
Plaintiff

AND THE ATTORNEY GENERAL OF NEW ZEALAND
First Defendant

AND THE DEPARTMENT OF LABOUR
Second Defendant

Hearing: 18 February 2002

Counsel: Mr X for Plaintiff
S Mount for Defendants

Judgment: 18 February 2002

ORAL JUDGMENT OF PATERSON J

Solicitors:
Mr Y, P.O. Box 90959, Auckland for Plaintiff
Meredith Connell, Auckland for Defendants

[1] This is an application for an interim injunction to prevent the Department of Labour from removing Mr Yure from this jurisdiction pending the determination of the substantive proceeding. As this Court cannot grant an injunction against the Crown, the proceeding will be considered on the basis that it is an application for a declaration.

Substantive Proceeding

[2] Mr Yure is not a party to the substantive proceeding. The plaintiff is his wife Mrs Yure. Relevant portions of the pleading note that Mr Yure is a citizen of Ghana who married his wife on 4 February 2001. On 12 February this year her husband was arrested and detained pending removal and it is proposed to remove him this evening.

[3] The pleading alleges that no proper arrangements have been made to ensure Mr Yure’s safety and financial wellbeing after he has reached his final destination at this point do not appear to be pursued in submissions. The substance of the complaint is that the detention and deportation of Mr Yure will affect Mrs Yure’s marriage and her civil rights recognised under the New Zealand Bill of Rights Act 1990 and an International Human Rights instrument to which New Zealand has acceded. The particulars given in support of this allegation are:

[a] The plaintiff and her husband are both unable due to financial and other reasons to leave New Zealand immediately to settle together in another country immediately. Removal of her husband will cause them to separate and effectively destroy their marriage.

[b] The removal of her husband will affect her economically, socially and emotionally.

[c] Removal of her husband is in violation of her rights as a New Zealand citizen.

Issue

[4] The issue as it was presented during the hearing was whether Mrs Yure has the right to have a normal family life with her husband in New Zealand and whether the Government of this country has an obligation to protect that right. It was submitted on behalf of Mrs Yure that her right arose under the provisions of s 2 of the New Zealand Bill of Rights Act 1990 and Article 23 of the International Covenant on Civil and Political Rights (ICCPR). Counsel for Mrs Yure suggested there were three issues, namely:

[a] Whether there is any right for a New Zealand citizen to have his/her spouse live with him/her in New Zealand;

[b] Whether Government has a duty to ensure that those rights are protected;

[c] Whether Mrs Yure has demonstrated a prima facie case.

Background

[5] The affidavit in support of the application is somewhat sparse. It does not refer to Mr Yure’s history, particularly his immigration history in this country, nor does it refer to an earlier proceeding determined in this Court in November last where both Mr and Mrs Yure were the plaintiff (Yure v Bentley & Ors, Auckland High Court, M1530-PL01, 8 November 2001, Chambers J).

[6] In my view the background in that proceeding and Mr Yure’s history in this country were very relevant to this proceeding and should have been provided to the Court by Mrs Yure.

[7] In the proceedings last year Justice Chambers summarised the position as follows:

“[1] Kalix Yure, a Ghanaian national now aged 31, arrived in New Zealand on a visitor’s visa in February 1993. He has been desperate to remain here ever since then. He applied first for refugee status. That was declined. He applied then for residence. That was declined. After his temporary work permits finally expired, the immigration authorities took steps to have him removed. In August 1999, Mr Yure lodged an appeal with the Removal Review Authority. It dismissed his appeal in March 2000. Mr Yure promptly appealed to the High Court. He discontinued that appeal in February 2001.

[2] In March 2001, Mr Yure took the only course remaining to him under our immigration law. That was an appeal direct to the Minister of Immigration under s 130 of the Immigration Act 1987. The Minister declined that appeal on 25 July. It is that decision of the Minister’s which Mr Yure now seeks to review in what must surely be the last throw of the dice. This judgment is concerned with whether that decision of the Minister’s can be successfully challenged.”

[8] I have been provided by counsel with a copy of an affidavit filed in that earlier proceeding. There is a detailed chronology attached to it and Chambers J referred to some of the relevant matters in the paragraphs set out above. There are however other matters. Mr Yure married somewhere about 1997. When a removal order was served on him on 14 July 1999 that marriage still subsisted. An appeal lodged with the Removal Review Authority was dismissed in March 2000 by which time Mr Yure’s first marriage had been dissolved. He married the plaintiff on 4 February 2001 when the removal order served in July 1999 was still in force. The chronology also shows that each time a decision went against Mr Yure he appealed it and has extensively used the statutory provisions in an attempt to remain in this country.

[9] That affidavit also discloses that Mrs Yure has dual Australian/New Zealand citizenship.

[10] Mr Mount tendered from the bar without opposition a Humanitarian Questionnaire completed by Mr Yure after his arrest on 12 February last. In that questionnaire he notes he was:

“planning to go home next week. I had contacted a travel agent but we have made no booking yet. I want to go home with my wife.”

There are similar statements to that effect.

Interim Relief

[11] The principles upon which this Court will grant interim relief are well settled. In a matter such as this it is very unlikely that the discretion would be exercised against a plaintiff if that plaintiff established an arguable case. I adopt and respectfully approve a statement by Hammond J in Esekielu v Attorney-General (1993) 6 PRNZ 309 when he said:

“. . . there must be a real contest between the parties, and the application has a reasonable chance of succeeding in that contest.”

This in my view is the only matter to be decided here. Does Mrs Yure have a reasonable chance of succeeding in the substantive proceeding?

Jurisdiction

[12] I do not intend to consider whether this Court has jurisdiction to consider a proceeding brought by Mrs Yure. She was a party to the November proceeding and some of the matters raised in this proceeding seem on a first reading of Chambers J judgment to have been determined in that proceeding. There may be an issue of res judicata. It is also unclear from the pleadings whether this is a judicial review pleading or a pleading seeking a declaration of fundamental rights which Mrs Yure says that she has. I intend to consider the matter on the basis that this Court does have jurisdiction.

The Bill of Rights

[13] The sections of the Bill of Rights relied upon are s 2 which states, “the rights and freedoms contained in this Bill of Rights are affirmed”, s 19 which refers to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993 and s 28 which provides:

“Any existing right or freedom shall not be held to be abrogated or restricted by reason only that the right or freedom is not included in this Bill of Rights or is included only in part.”

[14] Section 2 in my view has no application because the right upon which Mrs Yure purports to rely is not contained in the Bill of Rights. The best that she can rely upon is s 28 referring to existing rights or freedoms. If this section has application it is necessary for Mrs Yure to establish a right or freedom existing independently from the Bill of Rights. Reliance is placed on Article 23 of the ICCPR. Mr Mount referred to s 4 of the Bill of Rights which is relevant in this case. This Court shall not in relation to any enactment hold any provision of the enactment to be impliedly repealed or revoked or to be in any way invalid or ineffective. The relief which Mrs Yure sought in some respects is inconsistent with the provisions of the Immigration Act 1987. If the Department is acting within its rights under that Act Mrs Yure will need to establish a right which clearly overrides the provisions of the Act.

The ICCPR

[15] Mrs Yure relies upon Article 23 of the ICCPR, the relevant portions of which read:

“1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

2. The right of men and woman of marriageable age to marry and to found a family shall be recognised.

3. . . .

4. States Parties to the present Covenant shall take appropriate steps to enquire equality of rights and responsibilities of spouses as to marriage and at its dissolution . . .”

[16] The ICCPR is not part of New Zealand law. It is still an open question in this country, as I understand it, whether the Minister has a mandatory obligation to take into account international treaties when exercising a discretion. In a case cited by Mr X Tavita v Minister of Immigration [1994] 2 NZLR 257 they are obiter comments which suggest this may be so. It is however clear law that this Court should where possible interpret New Zealand statutes in accordance with such treaties.

[17] The ICCPR was raised by Mrs Yure in her joint action with her husband in November last. Chambers J there found that there was no evidence that the Minister was in breach of New Zealand’s obligations under the ICCPR. This may be one of the cases where a plea of res judicata could be raised against Mrs Yure.

[18] Mrs Yure’s right to marry has not been infringed. She was able to marry a man who was subject to a removal order under the Immigration Act. If she was aware of the order she married knowing the possible consequences. Her complaint is against her husband if she was not told of the order before marriage.

[19] It is necessary to consider the provisions of Article 23 against the particulars raised in the statement of claim (see para 3 above). The first particular reference to the financial and other reasons which will prevent Mrs Yure and her husband from immediately settling together in another country. It is submitted that this will cause them to separate and effectively destroy their marriage. I note that there is no factual basis set out in the affidavit in support for this allegation. Further this matter has already been tested before Chambers J. I agree with his conclusions. A person’s right to marry cannot in my view, give that person the right to override specific laws of the land. Immigration laws can not be defeated by marriage, although marriage to a New Zealand citizen is a matter which the Minister of Immigration does take into account when considering certain applications.

[20] The other two particulars are that the removal of her husband will affect her economically, socially and emotionally and more importantly is in violation of her rights as a New Zealand citizen. Putting aside that these rights may be somewhat complicated by her dual citizenship I accept the submission made on behalf of the Department, namely that the provisions pleaded are somewhat vague. Counsel also submitted in opposition that the appropriate approach in an immigration context is that the starting point must be at the position of the person who is unlawfully in the country of who is being deprived of residency rights. It is noted that the application has not been brought by him, I suspect because he has in effect exhausted all his legal remedies. The particulars do not establish a freedom or right vested in Mrs Yure, which overrides the provisions of the Immigration Act.

[21] There is also a difficulty raised by s 7(1)(c) of the Immigration Act. It was pleaded by Mrs Yure that her husband qualified under current Government immigration policy to be granted a permit to remain in New Zealand. Section 7(1)(c) provides that a person against whom a removal order is in force is not eligible for exemption or permit. This would appear to be an insuperable hurdle for Mrs Yure. As already noted a removal order was served on Mr Yure on 14 July 1999 at the time when he was married to another woman. Mrs Yure married him while the removal order was in force.

[22] Finally while I do not need to take any note of it I note that the humanitarian questionnaire referred to earlier would suggest that Mr Yure himself is not wishing to remain in this country. There is no affidavit from him in these proceedings.

Result

[23] Chambers J entitled the first section of his Judgment as “The Last Throw of the Dice”. It would appear that Mrs Yure has endeavoured to throw the dice against for her husband and to find another means of preventing his removal from this country. For the reasons given I am of the view of the matters raised on Mrs Yure’s behalf do not give her a reasonable change of succeeding in the substantive proceeding. There cannot in my view be any real contest between the parties. For this reason the interim application is declined.

Costs

[24] Costs are reserved.