Elika v Minister of Immigration

JurisdictionNew Zealand
Judgment Date07 December 1995
Date07 December 1995
CourtHigh Court
New Zealand, High Court.

(Williams J)

Minister of Immigration1

Human rights Family rights Rights of the child Deportation of mother Duty to consider rights of children Whether conclusive International Covenant on Civil and Political Rights, 1966 Convention on the Rights of the Child, 1989

Relationship of international law and municipal law Treaties Duty of immigration officials to take account of treaty obligation The law of New Zealand

Summary: The facts:In 1985, the plaintiff arrived on a visitor's permit in New Zealand. In June 1986, she became an overstayer and remained in New Zealand unlawfully for the next nine and a half years, during which time she gave birth to three children. The plaintiff was served with a removal order in April 1993 and was arrested in November 1995. She was interviewed by two immigration officers who decided that the removal of the plaintiff should proceed.

The plaintiff started proceedings for judicial review of the decision made by the servants of the Minister of Immigration. The plaintiff sought an injunction preventing her removal on the ground that it would also result in the removal of her children.

Held:The application for review was dismissed.

The interests of Ms Elika's New Zealand-born children had to be taken into account, pursuant to the International Covenant on Civil and Political Rights, 1966, and the United Nations Convention on the Rights of the Child, 1989. These considerations were not, however, decisive. There was nothing in either convention or in the authorities to make the welfare of the plaintiff's children the paramount consideration in deciding whether or not the removal order should be enforced. The immigration officers had thus taken all relevant considerations into account (p. 633).

The following is the text of the judgment of the Court:

In this proceeding the plaintiff, Ms Elika, seeks what is in effect an injunction to prevent her being removed from New Zealand pursuant to a removal warrant.

The facts of the matter are undisputed. Ms Elika is a Tongan national. Her father now lives in the USA. She is unaware of his whereabouts. Her mother has remarried but apparently follows an itinerant lifestyle in Tonga, attending to religious duties with her husband. Ms Elika was married in Tonga and had two children but the marriage failed and she arrived in New Zealand on 24 June 1985 on a visitor's permit. The children have been cared for since that time by their paternal grandmother. Ms Elika's husband is apparently also in the USA but she is similarly unaware of his whereabouts.

On 24 June 1986 Ms Elika's visitor's permit expired. There is no contest that she had been unlawfully in New Zealand for the past nine and a half years.

Ms Elika later formed a relationship with a Mr Tafea. He, too, is Tongan. He apparently has a wife and children still in that country. Ms Elika and Mr Tafea's first child, Sione, was born on 6 June 1990, their second, Stephanie, on 31 October 1993 and their third, Douglas, on 13 January 1995. Douglas is still being breast-fed.

Between the birth of her first and second children, namely on 26 April 1993, Ms Elika was located by the Immigration Service and served with a removal order. It is common ground that she has not taken any of the legal steps available to her to challenge the removal order in the over two and a half years since she was served.

On 27 November 1995, Ms Elika was again located by the Immigration Service. She was arrested. She filed these proceedings. The defendants agreed not to remove her from New Zealand before noon on 5 December 1995.

A number of grounds were advanced in support of the application. Several of those related to the matters taken into account or said to have been omitted by the Immigration Service when they interviewed Ms Elika following her arrest. However, it does no disservice to the wide-ranging submissions presented on the plaintiffs' behalf by Mr Fonua to say that the balance of the argument, when reduced to its essence, is that Ms Elika ought not to be removed from this country because in her family's circumstances as they are, for her to be removed from New Zealand effectively means that her children will also be removed from this country and that that is unlawful, they having been born here.

In passing, it may be noted that, arguably, Ms Elika's children may not be entitled to be joined as plaintiffs pursuant to R 73 of the High Court Rules and that Mrs Fakahau, whose name appears in the intituling, may not yet have been formally appointed as their guardian ad litem pursuant to R 83. But since that was no more than mentioned during the hearing, the Court merely notes the point and addresses the merits of the matter.

Before embarking on a somewhat more detailed consideration of the facts, two further points warrant noting.

The first of those is that this is an application for review brought pursuant to the Judicature Amendment Act 1972. It is therefore correct, as Temm J noted in a recent decision in a cognate area, Puliuvea v Removal Review Authority and Attorney-General (High Court, Auckland, M 264/95, 17 October 1995) at pp 45:

In the case of the exercise of a discretion such as [in that case] the authority was under s 63B, it is not enough to assert that the discretion was exercised wrongly. The High Court can only interfere if it is proved that there was an error of law of such a kind that the discretion was not properly exercised, or if irrelevant considerations were taken into account, or if relevant considerations were not taken into account, or if the decision was so unreasonable that no responsible decision maker could fairly have reached such a conclusion.

Secondly, both counsel were agreed that the practice of the Immigration Service both generally and in this case was required to accord with the observations of the Court of Appeal in Tavita v Minister of ImmigrationINTL[2] [1994] 2 NZLR 257. In

that case a Western Samoan who arrived in this country on a visitor's permit had been an overstayer for about a year when a removal warrant was issued against him. He appealed to the Minister of Immigration pursuant to the Immigration Act 1987, s 63. That was declined about a year after the issue of the removal warrant. His daughter was born some two months later and he married the mother of that child a month later again. Two and a quarter years later the Immigration Service took steps to execute the removal warrant. Mr Tavita applied to set aside the order. In terms of the headnote (at p 258):

The major question in the appeal was whether, against the background of the powers available under the Immigration Act 1987, the Minister and the Immigration Service should have regard to the international obligations concerning the child and the family in...

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