Aroh v Department of Labour HC Wellington CIV-2010-485-2266 [2011] NZHC 55 (15 February 2011)

Last Updated: 11 March 2011

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

_{CIV-2010-485-2266}

UNDER Immigration Act 1987

IN THE MATTER OF a removal order made pursuant to section

54 of the Immigration Act 1987

BETWEEN FRANK ONYEBU AROH Intended Appellant

AND DEPARTMENT OF LABOUR Intended Respondent

Hearing: 8 February 2011

Counsel: Mr Aroh in person

Ms Griffin for Department of Labour

Judgment: 15 February 2011

_{JUDGMENT OF MALLON J}

Contents

Introduction ............................................................................................... [1] Background ............................................................................................... [3] No jurisdiction ........................................................................................... [9] Result ......................................................................................................... [15]

AROH v DEPARTMENT OF LABOUR HC WN CIV-2010-485-2266 15 February 2011

Introduction

[1] Mr Aroh, who is representing himself, has filed a document “Appeal against Department of Labour for issuing a temporized removal order”, an interlocutory application on notice for leave to appeal out of time, written submissions with attached documents, and other papers.

[2] The matter came before me on 8 February 2011. Attendances by Mr Aroh and counsel for the Department of Labour were via telephone. Having heard from Mr Aroh and counsel for the Department of Labour I advised Mr Aroh that his “appeal” could not proceed and that I would set out in writing the reasons for this. This judgment sets out those reasons.

Background

[3] Mr Aroh was born in Zimbabwe and raised in Nigeria. He came to New Zealand in 2002. In 2004 Mr Aroh applied for a residence permit. He was advised at that time that the application could not be accepted because he had failed to provide a Zimbabwe police check. He was advised that if he wished to re-submit his application with the required information he would need to do so before his temporary permit expired.

[4] In 2006 he was convicted of Class A drug trafficking offences following jury trial in the High Court at Auckland. On 16 March 2007 he was sentenced to 17 years’ imprisonment on this offending, with a minimum non-parole period of 8 years and 6 months (that minimum period expires in March 2013). He is currently serving that sentence at Auckland prison.

[5] In 2007 Mr Aroh applied for a residence permit under the Special Zimbabwe Residence Policy. Immigration received this on 26 March 2007. Mr Aroh was advised that his application had not been accepted for processing as the Special Zimbabwe Residence Category closed on 28 February 2007. Other possible categories that might be relevant, depending on further information, were suggested.

Mr Aroh was also advised that he was currently unlawfully residing in New Zealand with his last permit having expired on 19 February 2003.

[6] On 2 November 2007 Mr Aroh was served in Auckland prison with a removal order under s 54 of the Immigration Act 1987. The removal order has not been executed.

[7] A further request for a residence permit from Mr Aroh was received in May

2010. Immigration advised Mr Aroh that he was in New Zealand unlawfully and that he must arrange to leave New Zealand immediately. He was told that Immigration may take action to effect his removal.

[8] In the documents he has filed in this Court, and as confirmed to me during the hearing (by telephone) on 8 February 2011, Mr Aroh is seeking two conflicting things. On the one hand he says that the removal order is unlawful because he was lawfully in New Zealand. On this basis he considers that he should not be removed. On the other hand he says that the removal order should have been executed. On this basis he considers he should have been deported by now rather than left in prison in New Zealand to serve his sentence.

No jurisdiction

[9] In so far as Mr Aroh seeks to challenge the removal order, there is no right of appeal direct to the High Court. By s 47(1) of the Immigration Act 1987 “a person who is unlawfully in New Zealand may appeal to the Removal Review Authority against the requirement for that person to leave New Zealand”. By s 47(2) of the

1987 Act the appeal must be brought within 42 days after the later of two things. One of those is the day on which the person became unlawfully within New Zealand. The other is where a person while still lawfully in New Zealand had lodged an application under s 31 of the 1987 Act. In that latter case, the 42 days runs from the date the person received notification under s 31 of the confirmation of the decision to decline to issue a permit. Any appeal to the High Court arises only from the Removal Review Authority’s decision on an appeal made to it, and is confined to any error of law in the decision of the Authority. Mr Aroh did not exercise his right of

appeal to the Authority and there is no decision of the Authority on which an appeal to this Court could proceed.

[10] In so far as Mr Aroh seeks to have his removal order executed, then by s

432(1) and (5) of the Immigration Act 2009 “the removal or deportation must be effected as if it were a deportation being executed under this Act”. That in turn makes s 178(3) of the 2009 Act relevant. That section provides that a deportation order “may be executed in respect of a person who is serving a sentence of imprisonment in a prison only if the Minister has ordered the release of the person in accordance with section 55 of the Parole Act 2002”. Section 55 of the Parole Act provides the Minister of Immigration with an “absolute discretion” to order that release where the offender has served at least two years of his or her sentence.

[11] Mr Aroh is of the view that his removal order was to have been executed on

27 July 2009. He relies on a handwritten notation on the “Prison Removal Check List” document with this date. While it is unclear what that notation refers to, it cannot be interpreted as a formal decision from the Minister that he was to have been released on that day.

[12] Mr Aroh submits that other prisoners have been deported after serving one third of their sentence and that he is being treated unfairly as compared with them. Mr Aroh seems to be under the impression that he has served one third of his sentence. That is not correct. He may have served one third of his minimum non- parole period, but that is not the same as serving one third of his sentence (which has a term of 17 years). It is unclear from the limited information Mr Aroh has supplied whether the other prisoners he has referred to were subject to any minimum period of non-parole as is the case with Mr Aroh.

[13] In any case, if Mr Aroh has served enough of his sentence so as to be eligible to seek the exercise of the Minister’s discretion, he needs to apply to the Minister. Although Mr Aroh has communicated with the Minister, no correspondence is before me which could be taken as a request for the Minister to exercise the discretion under s 55 or that the Minister has considered any such request. If Mr Aroh wishes

to pursue this, that is for him to do so. However his wish to be released from prison

and deported is not something that can be considered by this Court as an “appeal”.

[14] Mr Aroh says that he would like the Court to modify the documents he has filed so as to formalise his proceeding. He says that he is not a legal practitioner and so needs assistance with this. He says that he is seeking to raise a significant issue under the New Zealand Bill of Rights Act. However, it is not apparent how this might be done to achieve Mr Aroh’s purposes. The High Court potentially has jurisdiction in respect of applications for judicial review. An application for judicial review must relate to a statutory power of decision and it is unclear what decision Mr Aroh would seek to review here (especially given his conflicting wishes) and on what grounds. Furthermore, by s 146A of the 1987 Act, any such application would need to have been made within three months of that decision “unless the High Court decides that, by reason of special circumstances, further time should be allowed”. There is nothing to suggest such special circumstances might exist here.

Result

[15] Accordingly Mr Aroh’s appeal cannot proceed in this Court at this time.

There is no jurisdiction in respect of it. It is dismissed.

Mallon J