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ZULKIFLI V MINISTER OF IMMIGRATION HC AK CIV 2007-404-7908 [2007] NZHC 1520 (19 December 2007)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                        CIV 2007-404-7908



               BETWEEN                      NUROMA ZULKIFLI
                                            Plaintiff

          
    AND                          MINISTER OF IMMIGRATION
                                            Defendant


Hearing:       19
December 2007

Counsel:       JS Foliaki for Plaintiff
               AR Longdill for Defendant

Judgment:      19 December 2007


                 ORAL JUDGMENT OF RODNEY HANSEN J




Solicitors:    Inder Lynch, P O Box 76-745, Manukau for Plaintiff
      
        Meredith Connell, P O Box 2213, Auckland for Defendant




ZULKIFLI V MINISTER OF IMMIGRATION HC AK CIV 2007-404-7908 19
December 2007

[1]    The plaintiff, Ms Zulkifli, faces imminent removal from New Zealand. She
seeks an interim order that no steps
be taken to remove her pending the hearing of
her application for judicial review, in which she challenges the decision of an
immigration
officer, Ms McGilvary, that there are no compelling reasons why her
removal should not be implemented.


[2]    The application first
came before the Court on 14 December. Williams J
dealt with the application on an urgent basis, as Ms Zulkifli was due to be removed
from New Zealand the following day. He had reservations whether Ms Zulkifli had
made out a case for an interim order. He described
his decision as "a close run thing
that may turn out not to be justified". He, accordingly, made an order for interim
relief on the
basis that the matter would be reviewed by the Duty Judge on
20 December. In the meantime he directed certain steps to be taken which
I will
describe in more detail later in this judgment. The hearing was brought forward to
today because of pressures on the Duty
Judge List tomorrow. There is no suggestion
that either party has been prejudiced by that.


Background


[3]    Ms Zulkifli is a
66-year-old Indonesian national. She has lived in New
Zealand since 15 March 2000 when she was granted a visitor's permit on arrival.
She was subsequently granted two further visitor's permits. The last expired on
28 February 2001. She has been unlawfully in New
Zealand since 1 March 2001.
Further applications for a visitor's permit were declined on 5 March 2001 and
4 April 2001.


[4]   
Since November 2006, when Ms Zulkifli was advised by Immigration New
Zealand to depart the country by 12 December 2006, there have
been a number of
inconclusive dealings between her agent and Immigration New Zealand. Earlier this
year, at the time she made a submission
to the Associate Minister of Immigration,
she said she would depart New Zealand voluntarily if her application was
unsuccessful.
She was subsequently advised that if she did not depart by 20 July

2007, she would risk being served with a removal order.    
       That has serious
consequences because it precludes the subject of the order from re-entering New
Zealand for a period of five
years.


[5]    On 3 December 2007, Ms Zulkifli was located at an address in Mt Albert.
She initially declined to confirm her identity.
She was taken into custody and her
identity was established. She was then served with a removal order and, pursuant to
a non-statutory
procedure implemented by Immigration New Zealand consequent on
the decision of Tavita v Minister of Immigration  [1994] 2 NZLR 257 (CA),
Ms McGilvary undertook a humanitarian interview to determine whether there were
any grounds which might justify deferring implemention
of the removal order.
Ms Longdill helpfully referred me to the judgment of Asher J, Qiong and ors v
Minister of Immigration  [2007] NZAR 163 which, at [22] ­ [32], provides a helpful
review of the history and purpose of humanitarian interviews. It is Ms McGilvary's
decision,
consequent on the humanitarian interview, which is the subject of
challenge in this proceeding.


[6]    Following Ms McGilvary's
decision on 11 December, representations were
made to the Associate Minister of Immigration asking for his intervention to prevent
removal. In his decision, made on 14 December 2007, he said that having carefully
considered representations made on behalf of Ms
Zulkifli, he had decided that
intervention was not justified and that removal proceedings should continue.


Hearing before Williams
J


[7]    The substantive grounds on which review is sought focus on the claimed
failure of the immigration officer to properly
consider and assess the medical
condition of Ms Zulkifli for the purpose of her decision. There is particular reliance
on the claim
that Immigration New Zealand procedures require that when conducting
a humanitarian review all medical and related issues should
be referred to
Immigration New Zealand medical referees and specialists. This was based on Mr
Foliaki's understanding that such a
provision was part of the manual of procedures
of Immigration New Zealand.

[8]    When the application for interim relief came
before Williams J, there was
exhibited to the supporting affidavit a medical report from a general practitioner,
Dr Alia Al-Rubyee,
dated 3 December 2007, which read as follows:

       This letter is to confirm that the above mentioned patient suffers from the
       following problems:

       1       Advanced osteoarthritis of both knees

       2       Dyslipedemia

       3       Depression

       4       Chronic recurrent gastritis.

       Mrs Zulkifli started to feels severe pain in both knees for the last few weeks
       worsen.

       She is not fit for long travelling for long distance with this advanced stage of
       osteoarthritis.


      She is currently under investigation and treatment and needs to be referred to
       psychiatrist as well.

       Please
don't hesitate to contact me for any other information.

[9]    At the hearing before Williams J, Ms Longdill produced two earlier
versions
of the medical certificate which were in broadly similar terms but which were dated
8 March 2007 and 30 November 2007 and
a brief report dated 10 December 2007 by
a general practitioner who had seen Ms Zulkifli at the Auckland Regional Women's
Correctional
Facility where she was held. The report read:

       Nuroma is currently well and has no medical condition that is of concern.

      Accordingly, there is no reason why she should not be sent on a flight back
       to Indonesia.

A letter from the Health
Unit of the Department of Corrections dated 14 December
2007 was to similar effect. It said of Ms Zulkifli:

       Currently not
receiving medication from us. Fit to travel.

[10]   Williams J said that the medical evidence before him was unsatisfactory and
it was also unfortunate that the relevant provisions of the operations manual were not
before the Court. Accordingly, in making provision
for his interim order to be
reviewed, he directed the following steps to be taken (at [19]):

       a)       There needs to be
put in evidence any passages from Immigration
                New Zealand's Operation Manual which declare its obligations as
  
             far as medical inquiries and obtaining medical reports are concerned
                relating to persons about to be
deported ­ that is to say, persons in
                the plaintiff's position.

       b)       Dr Al-Rubyee is to provide a full
report concerning the plaintiff's
                medical status including her capacity to travel. That report should
          
     detail his relationship with the plaintiff and the treatment he has
                given her over the period he has been her
general practitioner. If
                that treatment includes reference to a psychiatrist, and he has a
                report from that source, that report should also be included. Those
      
         reports are to be furnished to Ms Longdill by no later than Tuesday,
                18 December 2007 at 5:00pm. Immigration
New Zealand is then to
                have an opportunity to respond with further reports should it be
                considered
appropriate.

[11]   He went on to say at [20]:

       It needs to be emphasised that the orders just made are on a narrow basis.
It
       may turn out to be the position that, once the additional information is
       provided, it demonstrates the plaintiff
cannot show any possibility of
       reviewable error. It may be that Immigration New Zealand will have
       complied with its
requirements. Accordingly there may, at that stage, be no
       basis on which Ms Zulkifli is entitled to remain in New Zealand.
On the
       other hand, of course, that may not turn out to be the case.


Response to directions


[12]   In an attempt to comply
with Williams J's directions, a further certificate by
Dr Al-Rubyee has been produced. It is dated 18 December. It reads as follows:

       I have not examined this patient since the last time. She was suffering from:

       1    Advances osteoarthritis of both
knees

       2    Dyslipedemia

       3    Depression

       4    Chronic recurrent gastritis.

       Unless I examined her again
I cannot give her considered opinion but from
       my experience as a medical practitioner the osteoarthritis only worsen with
       passage of time as the aging process start to set in.

       Giving the above letter I still maintain my premises opinion
that I believe
       that she is unfit to traveling for long distance.

The report does not respond to Williams J's request that
Dr Al-Rubyee detail his
relationship with Ms Zulkifli and the treatment he has given her.


[13]    In response to the direction
to put in evidence relevant passages from
Immigration New Zealand's operations manual, there has been produced an extract
with reference
A4.45, Second opinion assessments by Immigration New Zealand
medical assessors (residence applications).        It provides that
in the case of
applications for residence, in circumstances where the assessment of an Immigration
New Zealand medical assessor is
disputed by a medical opinion from a medical
practitioner or relevant professional, both the assessment and the further opinion are
to be referred to a different Immigration New Zealand medical assessor for a second
opinion.


[14]    Mr Foliaki acknowledges that
this provision has no direct application to
Ms Zulkifli's circumstances but relies on it by analogy as providing the basis for an
obligation on an immigration officer carrying out an humanitarian interview, who is
faced with conflicting medical opinions, to obtain
the opinion of a specialist.


Decision under review


[15]    It is necessary now to give a more detailed account of the way in
which the
medical issues were dealt with by Ms McGilvary in coming to her decision. She
intended to carry out the humanitarian interview
on 3 December when Ms Zulkifli
was first taken into custody but rescheduled it for the following day at the request of
Ms Zulkifli's
son and her then lawyer.        Before doing so she enquired of Ms
Zulkifli's health and special needs. In an affidavit, which was
not before Williams J
but has been filed for the purpose of today's hearing, she says that she was conscious
of Ms Zulkifli's age
and wanted that information so she could make a decision
whether Ms Zulkifli should stay in custody or whether a non-custodial removal
was
a viable option.


[16]    Ms Zulkifli advised her that she had osteoporosis in her knees, cholesterol
issues (but no other heart
problems), a bad cough and perhaps diabetes because she
went to the toilet all the time.

[17]   The humanitarian interview itself
was carried out on 4 December 2007 in the
absence of Ms Zulkifli's son and lawyer who had not arrived at the appointed time.
In the standard questionnaire completed at the time,
she recorded in response to the
question, "Do you have any health problems or special needs?", "Taking medication
for three months
for high cholesterol, problems with my knee ­ osteoporosis ­ can't
walk in the morning ­ arthritis or rheumatism".


[18]   Following
the interview and after the arrival of Ms Zulkifli's son and lawyer,
who was not at this time Mr Foliaki, Ms McGilvary was provided
with the two
further medical reports of Dr Al-Rubyee. The first was a typewritten document in
similar terms to the report of 3 December
quoted in [8] above. It is a typewritten
document with handwritten alterations.           The date of 8 March 2007 had been
amended
to 30 November 2007 and there are several other relatively minor
alterations which are of no consequence for the purpose of this
proceeding.


[19]   The second report was written by a doctor to whom Dr Al-Rubyee had
referred Ms Zulkifli for an opinion. It read:

       Thank you for seeing the above mentioned patient who is 65 year old lady
       with depression problem in form of poor sleep,
tearful, poor appetite, she has
       problem with her residency status, she is on prozac caps her depression
       problem is
mainly due to settlement issues.

       She has other medical problems

       1       chronic recurrent gastritis

       2   
   severe bilateral osteoarthritis

       3       Dyslipidemia

       Your kind opinion would be much appreciated.

[20]   Ms McGilvary
gave Ms Zulkifli's lawyer access to her original humanitarian
interview notes and agreed to provide him with a summary of those notes.
She
asked him and Ms Zulkifli's son to provide her with submissions or further
information by 7 December 2007. She subsequently typed
up the bullet points from
the humanitarian interview and faxed them to the lawyer. She agreed to extend the
time for him to provide
submissions to 10 December.

[21]   She reviewed the two medical reports and then asked the medical staff of the
Auckland Regional
Women's Correctional Facility to assess Ms Zulkifli's medical
condition and provide an updated assessment of her ability to travel.
In response,
she received the report dated 10 December quoted in [9] above.


[22]   Ms McGilvary was also provided with a report
from the New Zealand Police
who are required to provide a clearance before a custodial removal from New
Zealand. That was sent on
10 December 2007. It read as follows:

       I completed the risk assessment and faxed it through on Friday 1315 hrs.

       ARWCF
medical reported she is not on any medication for anything. They
       have evidence of high blood pressure and osteoporosis. The
doctor has
       noted in his report that she is to be removed in 7 days of so. No psychiatric
       issues have been reported
to staff and none have come to light. She has no
       thoughts of self harm.

       There is no indication from ARWCF medical
staff that she is not ok to
       travel. With the doctor having noted she is going within 7 days, I take this to
       mean he
has no problems with her going.

[23]   Ms McGilvary deposes that the following day, 11 December 2007, she
reviewed the file and
reached her own decision that removal should proceed. After
setting out Ms Zulkifli's immigration history, she considered relevant
humanitarian
issues. Her decision includes the following passage dealing with medical issues"

       ... She claims she is on medication
for high cholesterol, osteoarthritis in both
       knees, dyslipidemia which from the client's comments appears to be an early

      form of diabetes (Wikipedia advises that Dyslipemia is a disruption in the
       amount of lips in the blood) Chronic recurrent
gastritis (stomach ulcers) and
       depression mainly caused by worry about her immigration status. INZ had
       the client assessed
while she was in ARWCF and have been subsequently
       advised that the client is not on any medication for anything, the doctors
       have advised INZ that
they have evidence that the client suffers from high
       blood pressure and osteoporosis but not evidence of diabetes.

[24] 
 Later in the report she detailed the medical advice she had obtained from the
prison and the police. Her decision concluded as follows:

       Having considered the above I must also have regard to the interests of the
       state in determining who should reside
within its borders and the right to
       regulate and control entry, residence and expulsion of persons not lawfully
       in
NZ. It's noted that Nuroma Zulkifli by choice remained in NZ unlawfully
       for 6 years and 9 months and made no attempt to regularise
her status or to

       leave New Zealand since the Minister of Immigration advised her to depart
       on 29 January 2007.


      Client does not qualify for a permit under current Government policy.

       I have carefully weighed up all of the factors
set out above and New
       Zealand's obligations under International Law including the International
       Covenant on Civil and
Political rights 1966, the optional Protocol to that
       Convention, the convention on the Rights of the child 1989 and New
 
     Zealand's reservations to that Convention and do not consider that there are
       any significantly compelling reasons to
allow her to remain in NZ therefore
       removal should continue.


Submissions


[25]   In arguing for an extension of the interim
order, Mr Foliaki conceded that
there are no direct requirements in the Immigration New Zealand operations manual
requiring an immigration
officer to obtain a further specialist opinion in the
circumstances which confronted Ms McGilvary. However, he contends that her
conduct was, nevertheless, improper in that she had taken it upon herself to consider
medical matters and to resolve the conflict
in the medical evidence. He submits that
when there are two opposing opinions in relation to a deportee's general health or
fitness
to travel, the immigration officer is under a duty to obtain the opinion of an
appropriately qualified specialist. He submits that,
in light of the evidence that the
plaintiff had a psychiatric condition and had received medication for it in the past,
she should
have been referred for psychiatric examination and that the steps taken to
verify her general medical condition were inadequate in
all the circumstances.


[26]   Ms Longdill submits that the plaintiff has failed to show any real contest.
She says the evidence
shows the medical issues were considered fully. The decision
was not unreasonable and no reviewable error has been shown. She submits
there is
no requirement, as a matter of law or procedure, for an immigration officer in the
position of Ms McGilvary to obtain specialist
advice in the face of unequivocal
evidence that Ms Zulkifli was fit to travel. She criticises the failure of Ms Zulkifli to
provide
an up-to-date report which would meet the concerns expressed by
Williams J. She points out that even at this stage there is nothing
to show when
Ms Zulkifli was last examined by Dr Al-Rubyee and notes that, on the basis of his

latest report and a prognosis of
a continuing deterioration in her osteoporosis, she
would never be fit to travel.


Discussion


[27]   The established test for
the grant of interim relief where judicial review is
sought is set out in the judgment of Hammond J in Esekielue v Attorney-General
 (1993) 6 PRNZ 309. He said at 313:

       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 tha 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.

[28]   The statement of claim pleads four causes of action. The fourth based on
legitimate expectation relates
to the decision of the Associate Minister and is no
longer relied on. The first cause of action is that Immigration New Zealand did
not
provide the plaintiff with a fair opportunity to be heard by its failure to fully and
properly consider her medical condition
and her humanitarian circumstances in
totality. In order for her to be "properly heard", it is claimed that the immigration
officer
should have referred Ms Zulkifli to a specialist for an opinion. The second
cause of action is that there was a failure to take into
account all material and
relevant considerations by failing to fully consider the medical reports provided.
There is also a claim
that Ms McGilvary took into account information as to
Ms Zulkifli's medical condition obtained from the internet search of the Wikipedia
site. The third cause of action is based on pre-determination and complains that in
failing to obtain further medical advice Ms McGilvary
pre-determined her decision
in that she failed to properly consider the psychiatric and medical reports and other
information available.


[29]   In a further affidavit filed by the Minister of Immigration for the purpose of
today's hearing, an officer of the Department
of Labour deposes that he has checked
the operation manual for any reference to medical issues in the removal context. He
confirms
there are no such procedures and that provisions such as those produced on

behalf of Ms Zulkifli today relate to an entirely different
area of immigration. The
officer then goes on to set out the standard procedure adopted when medical issues
are raised during the
removal process.       He states that Ms McGilvary acted in
accordance with standard procedures and that the steps she took to obtain
updated
medical assessments were taken after consultation with him as her supervisor.


[30]   I am satisfied that Ms Zulkifli has
failed to show an arguable case or a real
contest between the parties in relation to any of the causes of action relied on. In my
view, the steps Ms McGilvary took after being put on notice by Ms Zulkifli and her
advisors that there were relevant medical issues
were appropriate and adequate to the
situation. There was no indication that the reports by Dr Al-Rubyee were based on
recent examinations.
   All of the indications were that they were based on an
examination some seven or eight months earlier. (That impression has not
been
dispelled by the further report produced in response to Williams J's direction.) In
my opinion, it was sufficient for Ms McGilvary
to alert the authorities to the medical
conditions disclosed by Ms Zilkifli and, having received responses in unequivocal
term to
specific enquiries about Ms Zulkifli's fitness to travel, she was entitled to
come to her decision on the basis of those assessments.


[31]   There is nothing to the complaint that she wrongly took into account findings
from an internet site. As appears from the
passage in her report quoted in [24]
above, the internet enquiry was made simply for the purpose of determining the
meaning of one
of the medical terms used in Dr Al-Rubyee's report. There is no
suggestion that there was any improper reliance on that information.


[32]   The assessments relied on by Ms McGilvary have been further vindicated by
further assessments carried out over the last
few days in anticipation of today's
hearing and an updated medical report expected pursuant to Williams J's direction.
A full assessment was carried
out by the Regional Forensic Psychiatry Service at the
Mason Clinic which found that Ms Zulkifli had no psychiatric history and was
not
currently in need of any psychiatric treatment. A further report from Dr Cleland
based on an examination on 19 December states:

       [Ms Zulkifli] has been seen and examined by me with an interpreter present.
       She is well and suffers from no medical
problems. There is no reason why

         she should not fly back to her country. She does not require a medical escort
      
  or any medications.

Although it is unnecessary for my decision, on the basis of this information, I am
reassured that Ms Zulkifli
suffers from no relevant physical or psychiatric condition
which could warrant the grant of interim relief.


Result


[33]     For
these reasons, the application for relief fails. I decline to extend the order
by Williams J. There is no impediment to Immigration
New Zealand implementing
the order for removal.