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B HARDING V THE MINISTER OF IMMIGRATION HC HAM CIV 2007-419-671 [2007] NZHC 503 (17 May 2007)

IN THE HIGH COURT OF NEW ZEALAND
HAMILTON REGISTRY
                                                                  CIV 2007-419-671

               UNDER                        The Declaratory Judgments Act 1908,
                                            Judicature
Amendment Act 1972 and
                                            Immigrat ion Act 1987

               IN THE MATTER OF       
     removal from New Zealand

               BETWEEN                      BERNIE HARDING
                                      
     Applicant

               AND                          THE MINISTER OF IMMIGRATION
                                        
   Respondent


Hearing:       17 May 2007

Appearances: S Bhardwaj for Applicant
             I C Carter and H Dempster for Crown

Judgment:      17 May 2007


                      (ORAL) JUDGMENT OF ANDREWS J




Solicitors:
Frankton Law, PO Box 5232, Hamilton
(For Applicant)
Crown Law, PO Box 2858, Wellington (for Crown)




B HARDING V THE MINISTER OF IMMIGRATION HC HAM CIV 2007-419-671
17 May 2007

Introduction

[1]    The applicant has filed proceedings for judicial review of the decision of a
Compliance Officer
of Immigration New Zealand, to the effect that there are no
exceptional circumstances of a humanitarian nature which would render
the
applicant's removal from New Zealand unjust or unduly harsh.


[2]    He has also applied for an interim order that the respondent
take no steps to
remove him from New Zealand pending the hearing of the judicial review
proceeding. Given the urgency of the matter,
counsel for the applicant appeared in
person. Counsel for the respondent appeared by telephone.


Background


[3]    The applicant
arrived in New Zealand on 23 March 2003 and was issued a
visitor permit valid to 22 June 2003. He then applied for and was granted
a student
permit, valid to 23 June 2004.   No other permit has been granted. Since 24 June
2004 the applicant has, therefore, been
in New Zealand unlawfully.


[4]    The applicant was convicted on an excess blood alcohol charge on 14
December 2005 in the Tauranga
District Court. He was charged with driving while
disqualified on 26 December 2005 but failed to appear at his hearing in the Tauranga
District Court on 21 June 2006. A warrant was issued for his arrest.


[5]    The applicant applied for a work permit on 11 July
2006 but this was
declined by a decision issued on 27 September 2006.


[6]    The applicant was arrested on the outstanding warrant
on 3 October 2006 in
Hamilton. A removal order was served on him that day, but he was given the
opportunit y to come forward and
apply for a permit. He failed to do so.


[7]    The applicant was convicted on the driving charges in the Hamilton District
Court
on 16 October 2006. He was fined and ordered to perform community service.

[8]    The applicant was again arrested in Tauranga
on 11 March 2007 on a charge
of theft. He failed to appear at his hearing in the Tauranga District Court on 18 April
2007. Again,
a warrant was issued. He was arrested on that warrant in Hamilton on
4 May 2007.


[9]    The applicant was interviewed by a Compliance
Officer of Immigration New
Zealand on 5 May 2007.         He was served with a further removal order.          The
Compliance Officer
conducted a "pre-removal" interview, and decided that there
were no exceptional circumstances of a humanitarian nature which would
allow the
applicant to remain in New Zealand. He therefore concluded that removal should
continue.


[10]   The applicant is in custody
and is due to be removed from New Zealand
today. I was advised that he was at the airport at the time of the hearing


[11]   Under
s 8 of the Judicature Amendment Act 1972, the Court may make an
interim order, if in the opinion of the Court it is necessary to
do so for the purpose of
preserving a position of the applicant. The purposes for which an order may be
made are set out in s 8(1)(a)-(c).


[12]   Paragraph (a) appears to be applicable in this case:

               (a) Prohibiting any respondent to the application for review from
                   taking
any further action that is or would be consequential on
                   the exercise of the statutory power.

[13]   The "statutory
power" is the execution of the removal warrant.


[14]   Part 2 of the Immigration Act (headed "Persons in New Zealand
Unlawfully")
sets out the relevant statutory provisions relating to removal. These
include:


       a)      Section 45, which provides that from
the moment that a person is in
               New Zealand unlawfully, that person has an obligation to leave New
               Zealand
unless subsequently granted a permit.

        b)        Sections 53-54, which provide that a person unlawfully in New
        
         Zealand may be the subject of a removal order, and is liable to be
                  removed from New Zealand.


      
 c)        Sections 55-58, which provide for the content, effect and cancellation
                  of removal orders; and


   
    d)        Sections 47-52A, which provide for appeals to be made to the
                  Removal Review Authority.


[15]   
I note that s 47 provides that a person who is unlawfully in New Zealand may
appeal to the Removal Review Authority against removal.
The appeal must be
brought within 42 days after the later of ­


        a)        The day on which the person became unlawfully
in New Zealand; or


        b)        The day on which the person received notification of confirmation of
                  a decision
to decline to issue a permit.


[16]    Section 47(3) provides that an appeal may be brought only on the grounds
that there are:

        Exceptional circumstances of a humanitarian nature that would make it
        unjust or unduly harsh for the purpose to
be removed from New Zealand,
        and that it would not in all the circumstances be contrary to the public
        interest to
allow the person to remain in New Zealand.

Submissions


[17]    The applicant has not appealed to the Removal Review Authority.
            Mr
Bhardwaj submitted that the reason for this was that he is out of time to do so, so has
no right of appeal. Further,
he says that the Removal Review Authority would have
no jurisdiction to deal with an appeal.


[18]    In essence, Mr Bhardwaj's
case for judicial review (and hence the basis of his
applicat ion for an interim order) was that in the pre-removal interview the
Compliance Officer was required to take into account international instruments to

which New Zealand is a party. He then submitted
that the Compliance Officer had
failed to take into account the provisions of the International Covenant on Civil and
Polit ical
Rights which, he said, protected the applicant's relationship with his
partner, Ms Redman. As authority he cited Tavita v Minister
of Immigration  [1994]
2 NZLR 257 (CA) and Gurlal Singh v Minister of Immigration (HC AK M1478/99,
9 September 1999, Randerson J.


[19]      He submitted that the
Compliance Officer had failed to interview Ms
Redman. He had interviewed the applicant's father, who is in New Zealand on a
work
permit. Accordingly, Mr Bhardwaj submitted that the Compliance Officer had
no grounds to find the absence of exceptional circumstances
of a humanitarian
nature.


[20]      On behalf of the respondent, Mr Carter submitted, first, that a person without
a permit is
under a statutory obligation to leave New Zealand. He noted that the
applicant had failed to exercise his right of appeal to the
Removal Review Authority
and had failed to seek judicial review at any stage earlier than this, very last minute,
stage. Further,
he submitted that the applicant could not satisfy the test for interim
orders in the immigration context as set out by Hammond J
in Esekilu v Attorney-
General  (1993) 6 PRNZ 309. In summary, that test is that there must be a real
contest between the parties and the applicant must have a real chance of success.


[21]      In the present case, he submitted that the applicant's "present position" is that
he has no right to be in New Zealand,
if removed there is nothing to prevent him
fro m pursuing his application for judicial review, and does not need to stay in New
Zealand
to achieve that.


[22]      He further submitted that if an interim order were made preventing execution
of the removal relief in
the present circumstances, that would create public
repercussio ns and possible flow-on effects of people "trying it on".

Decision


[23]   As I advised counsel at the hearing, I am not satisfied that the applicant has
satisfied the test set out in Esekilu. In
my view, he is some way from establishing
that the International Covenant on Civil and Political Rights would protect the
relat ionship
he has with Ms Redman, and render that relationship "exceptional
circumstances of a humanitarian nature" that would prevent his being
removed from
New Zealand.


[24]   I note that in the two cases Mr Bhardwaj referred to (Tavita and Gurlal
Singh) the relationships
discussed involved young children. There are no children of
this relationship. Further, I am concerned at the applicant's answer
to one of the
Compliance Officer's questions, as recorded in the Compliance Officer's
questionnaire to the effect that:

       I
have been living on the streets, I went back to Tauranga to live with my
       girlfriend and she got me stealing stuff and I lost
contact with my dad and
       father, I only found them last week.

[25]   Affidavits have been filed in support of the application
for interim orders, by
Ms Redman and the applicant's brother. I note that Ms Redman (who annexes the
Compliance Officer's questionnaire)
makes no comment as to the applicant's
answer, set out above. I am not satisfied that there is disclosed in the affidavits
grounds
on which the Court could find that there were exceptional circumstances of
a humanitarian nature, to which the Compliance Officer
should have regard.


[26]   I appreciate that a careful approach needs to be taken when a person is about
to be deported. However,
the urgency of the present situation is one brought about
by the applicant, himself.      He did not appeal to the Removal Review
Authority
when his permits expired. He remained in New Zealand unlawfully, notwithstanding
his obligation to leave. Further, he did
not avail himself of the opportunity given to
him to apply for a permit when he was first served with a removal order.          
  He
continued to live in New Zealand unlawfully. In the circumstances, I do not consider
that he has any more than a very weak case
for judicial review. It is certainly far
fro m being a "real chance of success".

[27]   Accordingly, as I advised the parties at
the hearing, the application for
interim relief is declined.


[28]   I record my thanks to Mr Bhardwaj and Mr Carter for attending
to this matter
as a matter of extreme urgency. I have found the submissions of both of them to be
helpful.




                 
                  _____________________________
                                          Andrews J