Immigration New Zealand v Nanai [2019] NZDC 26238 (20 December 2019)

Last Updated: 22 July 2020

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS]

IN THE DISTRICT COURT AT MANUKAU I TE KŌTI-Ā-ROHE KI MANUKAU

CIV-2018-090-000113 [2019] NZDC 26238

BETWEEN	IMMIGRATION NEW ZEALAND Applicant
AND	NOKISE NANAI Defendant

Hearing:	20 December 2019
Appearances:	S Carr for the Applicant S Faamoe for the Defendant
Judgment:	20 December 2019

ORAL JUDGMENT OF JUDGE J H LOVELL-SMITH

IMMIGRATION NEW ZEALAND v NOKISE NANAI [2019] NZDC 26238 [20 December 2019]

[1] This is an application which is opposed for a warrant of commitment in respect of Mr Nanai under s 316 Immigration Act 2009. The application is opposed principally on humanitarian grounds, and I have been asked to exercise my discretion not to make the order.

[2] In support of the application by Immigration there is an affidavit of Thomas David Nuttall dated 18 December 2019. There is no issue that he is an immigration officer, and he is authorised to make this affidavit. He is familiar with your file. Your date of birth is [date deleted] 1982. There is no issue with the following, that you are a Samoan nation who arrived in New Zealand on 17 December 1999, issued with a visitor visa valid for one month. You remained unlawfully in New Zealand from 19 January 2000 until 12 February 2005.

[3] You were granted a one year work permit under s 35A Immigration Act 1987. You then remained unlawfully in New Zealand from 20 February 2006 until

13 August 2008. Again you were granted a one year work permit under s 35A Immigration Act. You then remained unlawfully in New Zealand from 15 August 2009 until 11 May 2015. You were again granted a one year work visa under s 61 Immigration Act 2009. Your last visa expired on 11 May 2016.

[4] On 22 March 2017 you were sentenced to six months’ home detention for driving while disqualified third or subsequent and driving with excess breath alcohol third or subsequent. You were subject to post-detention conditions until 22 March 2018. You were again convicted on 1 February 2019 for driving while disqualified third or subsequent. On 13 February you were convicted and sentenced to 11 months’ imprisonment on two charges of assault with intent to injure, family violence, and one charge of threatening to kill, again a charge of family violence. The 11 months was cumulative on the two months, so you were in fact sentenced to 13 months’ imprisonment. You were further disqualified from driving.

[5] Immigration New Zealand has been unable to arrange your deportation. An emergency travel document sought from the Consul General of Samoa was not issued, because you have not provided any contact details for a person who will receive you

in Samoa. On 25 November 2019 a warrant of commitment was granted in the Manukau District Court until 20 December 2019. I assume that was unopposed on that occasion. On the same day the respondent, that is yourself, asked the New Zealand Minister of Immigration to intervene in your liability for deportation. On 4 December 2019 the Associate Minister of Immigration’s decision regarding your liability for deportation was specifically that the Minister was not prepared to intervene. Immigration New Zealand therefore arranged for the Consul General of Samoa to meet with you, which was done on 11 December at Mt Eden Corrections facility. You did not provide the Consul General with any details of a person willing to receive you in Samoa, and for those reasons the Consul General of Samoa has indicated it will not issue the emergency travel document.

[6] Immigration New Zealand is now seeking the information required for the issue of an emergency document through your partner and your mother who resides in American Samoa. The Mt Eden Correctional facility has also been contacted to advise your case officer that the contact information is required before you can be deported. There is no issue that the liability for deportation is on the grounds that you have been in New Zealand without a valid permit or visa since 11 May 2016, and you are therefore unlawfully in this country.

[7] By way of history of your detention under s 313 a deportation order was sent to you by courier on 6 October 2017 at your address of [deleted]. It was deemed to be served on 7 October 2017. On 10 October 2017 you were interviewed at Level 7, 280 Queen Street, Auckland Central. A statement to establish identity and immigration status was completed. You read and signed this statement as being correct.

[8] A flight was purchased for you to depart on 6 December 2017. You were stopped at the border at Auckland Airport and prevented from voluntarily departing New Zealand due to being subject to post-detention conditions. Between 15 and 19 December 2017 when attempts were made by Immigration to organise for you to depart New Zealand voluntarily, notwithstanding the active post-detention conditions, you informed Immigration New Zealand you no longer intended to depart the country. You were located on 22 January 2018 by Immigration officers and New Zealand Police

and arrested pursuant to s 313 of the Act pending deportation on the first available craft leaving New Zealand.

[9] On 25 January 2018, and as a result of Ministerial intervention, you were given three months to apply for a work visa. You failed to do that, and therefore you have remained unlawfully in New Zealand since 11 May 2016. You were interviewed again on 21 November 2019 at the Auckland South Correctional facility where you were serving your sentence of imprisonment. A statement to establish identity and immigration status was completed, and a copy of the deportation order was handed to you. You completed an application for a travel document but again would not provide an address where you would live on returning to Samoa.

[10] On 27 November 2019 you were released from prison having completed your sentence, and you were arrested pursuant to s 313 of the Act. A flight was booked for you to leave New Zealand on 29 November 2019. However, you were unable to be deported on this flight because no emergency travel document was available, and a warrant of commitment was sought and granted on 29 November 2019 until today’s date. A second flight was booked for you to leave on 16 December 2019, but again the Samoan Consul General remained unwilling to issue emergency travel documents because again you had not supplied an address or contact person in Samoa. You were therefore unable to be deported.

[11] So, for these reasons you cannot currently be deported because you do not hold a valid Samoan travel document. Other inquiries have been made by Immigration New Zealand to facilitate the issue of a travel document. The reasons that Immigration rely on in seeking to have you detained are because it is believed by Mr Nuttall that if you were released you would abscond, otherwise than by leaving New Zealand, first because you are unlawfully in New Zealand, you failed to leave as you were required to do so when your visa expired on 11 May 2016. You were given the option to depart New Zealand voluntarily or be placed in custody for the execution of the deportation order. While you were initially willing to depart New Zealand on 6 December 2017 you did not do so, and since then you have failed to co-operate with all attempts to raise a voluntary departure.

[12] You then informed Immigration New Zealand in December 2017 that you no longer intended to depart New Zealand. Despite Ministerial intervention in January 2018 you failed to seek a work visa. You remained in New Zealand unlawfully. You came to the attention of Immigration New Zealand again as a result of your family violence offending and subsequent imprisonment. You have a partner and six children living in New Zealand, and in addition five children believed to be living in Samoa. Despite that the Associate Minister of Immigration declined to intervene in the matter of your deportation liability on 4 December 2019.

[13] You have an extensive criminal history in this country, including two convictions for giving false details, a number of convictions for breaching Court imposed sentences such as home detention and community work. You have convictions for dishonesty offending including forgery and using a document for pecuniary advantage, and you failed to answer District Court bail. You have seven convictions for driving while disqualified which demonstrates a propensity for disregard of Court orders.

[14] The Immigration Officer believes that your detention pending deportation is therefore in the public interest. Further, you have a strong incentive to abscond otherwise than by departure from New Zealand if released. The warrant of commitment sought is for 28 days until 17 January 2020.

[15] The submissions filed on behalf of your counsel include an affidavit from your [wife], who is a New Zealand citizen, and she confirms that all of your six children are New Zealand citizens. All of the children are under the age of 18, the youngest is six. She deposes in her affidavit of her struggles to look after her children. One child has left the family to go to Australia because he cannot cope with what the family is going through and missing you at home. Your second son has been diagnosed with epilepsy when he was 13, and therefore requires urgent medical assistance and monitoring for seizures.

[16] [Your wife] is also on a medical benefit. She is asthmatic and has required hospital care. She describes herself as completely stressed and has been diagnosed with reactive depression because of the very difficult time of her life because of your

impending deportation, supported by doctor’s letters. She requires medication. She finds herself really very depressed, unable to cope and trying desperately to get you to return home. She has help from referral organisations and church family but says she cannot rely on them for ever. She needs you to legalise your status here. She describes the heartbreak she suffers from her children and the fact that they miss you. The children’s schools have noticed the struggle that the family has been under while you have been away.

[17] Physically she finds it very difficult to cope with your son when he has his seizures. She says with Christmas coming up she says she really does not know what to do. She describes you as very remorseful. You have apologised for your convictions and she says that she knows that you have changed, and you have committed to being a totally different person.

[18] In support of your opposition the issue was raised as to whether any deportation liability notice was issued, but there is really no challenge to that. So far as the Samoan Consul General is unable to issue an emergency travel document your counsel submitted that you simply do not have any family in Samoa, and no one there to accommodate you. You have been living in New Zealand for 20 years, which is where you feel you belong with your wife and children. You voluntarily departed in December 2017 when your mother was still in Samoa, but when your mother migrated to American Samoa for good you changed your mind and stayed behind with your family in New Zealand.

[19] The humanitarian grounds are the welfare and best interests of the children, and I accept what your wife says in her affidavit, the struggles that she has, the desperate concern she has for your son with epilepsy, and of course it is a crucial time in these children’s lives. She herself, of course, is not well with asthma. She requires hospitalisation by ambulance when she has a serious asthma attack. There is no one to step into your shoes if she is not there, and she has recently been diagnosed with reactive depression. I am asked to consider the protection and preservation of the family unit given the welfare and interests of the children are in the public interest, and I must take into account the best interests of the children.

[20] I have been referred by your counsel to Tavita v Minister of Immigration, the Convention on the Rights of the Child, the fact that New Zealand is signatory to international influence regarding rights of the child in the family unit.1 She submits that you are apologetic and remorseful. You are no risk to the security of this country, and you have undertaken education in prison to reduce your offending and you yourself have apologised in a letter annexed to the affidavit.

[21] I have to consider s 317 and I have to be satisfied on the balance of probabilities. Subsection (2) applies, that you are not able to leave New Zealand for reasons that the Consul General in Samoa will not issue the documents, because you have declined to supply any contact people in Samoa. Even if this section does apply I may nevertheless make a warrant of commitment if it is in all the circumstances in the public interest to do so.

[22] In my view, having accepted the affidavit filed on behalf of the Immigration Department, you have made it very clear that you have no intention of complying with Immigration New Zealand. You have made it quite plain that you wish to remain in this country and you have done nothing to assist the New Zealand authorities in refusing to provide first of all an address in Samoa. In my view, you have quite an extensive criminal history showing that you are a versatile and prolific offender. You have demonstrated through your criminal history that you are capable of not complying with Court orders. You have re-offended on a regular basis, and your offending latest was family violence, although I am told it is not in relation to your wife or your immediate family.

[23] Whilst I accept that your wife has been placed under tremendous pressure in managing the children, and the distress suffered by the family generally, these in my view are not exceptional circumstances. For those reasons I am not releasing you on conditions and I am granting the order.

1 Tavita v Minister of Immigration [1994] 2 NZLR 257 (CA).

[24] There will be a warrant of commitment for 28 days as sought until 17 January at 2.15 pm.

J H Lovell-Smith District Court Judge