Islander loses immigration appeal Supreme court

Press, 19 April 1979, Page 4

Islander loses immigration appeal Supreme court

An appeal by a Samoan | against a conviction in the; Magistrate’s Court on acharge of overstaying a temporary permit under the Im-'

migration Act and an order j for deportation on the un-'' [usual ground that the officers! (who had instituted the prose- > cution had improperly exer[cised their powers, has been [dismissed by Mr Justice I Casey in a reserved decision [in the Supreme Court. ; Mr M. J. Knowles appeared I for Solomona Moevao, aged 29, unemployed, who appealed against the convicjtion, and Mr B. M. Stanaway [for the Crown.

In his decision his Honour said that the appeal proceeded on the unusual ground that those who instituted the prosecution had improperly [exercised their discretion to [do so. and that the Magistrate wrongly refused to dismiss it.

The offence was now one of absolute liability. At the hearing an officer of the Labour Department produced a certificate that Moevao was not a New Zealand citizen, that he entered the country on October 28, 1972, and was the holder of a temporary permit which had expired. It was accepted that on that evidence, leaving aside the question of the validity of the prosecution, that Moevao had to be convicted with the consequence of mandatory deportation. Evidence was given that Moevao applied in 1977 for permanent residence in New Zealand. The Magistrate accepted that renewal of his temporary permit expired on October 28, 1977, and that the application was made before then.

A letter was sent to Moevao informing him of conditions to be met before his application could be granted, but, according to the records of the Labour Department there was no reply or approach from him. In May,. 1978, another let-

ter was sent to Moevao ad-[: vising him that his permit I; had expired and that he[‘ should call at the department - with a valid passport, but hej failed to do so. On August| 31, 1978. a further letter was[ [sent to his last known ad-1 [dress, where he no longer re-[ [sided, stating that if he no longer wished to remain in New Zealand he should produce outward bookings. None was produced and a prosecution was instituted. Moevao gave evidence that he knew that his permit expired at the end of October, 1977, and on October 10 he interviewed somebody at the] Labour Department, Christ-j church, with his passport! and he was given a form to fill in and bring back next day. He did that and waited for further advice. In January, 1978, Moevao said he again called and discussed the renewal of his permit. At that stage he did not have a job and he said that he was told that as soon as he got employment he should return to the department. In May or June Moevao said that in response to a letter he again called at the department where he was given his passport and was told that his permit was [granted, but that he should send his passport to the Sa[moan office in Auckland to[ 'stamp. He claimed that he was told not to worry about the permit and that everything was all right. He also said that he told the department about his change of address and he was assured that as he was receiving the unemployment benefit his new address was ; on file at the department. ■ He. claimed that at that stage he was not told the department wanted his pass-

[port back after it had been [processed, but he admitted [receiving a letter to that effect. i The situation became comI plicated by Moevao’s arrest | on September 12 on a [charge of assault and on [September 19 he was jailed. There was no doubt, said his Honour, that Moevao had applied before his temporary permit expired at the end of October to regularise his position and he fulfilled the conditions laid down by the department for the issue of a new permit to the best ■of his ability. j It appeared that the [officer who initially interviewed Moevao, did not record the discussion on his file, and he was no longer available as he had resigned. “I imagine the other people he saw were simply informing him about matters I of routine and saw no occasion to minute the file. Ir the light of these additional facts the Magistrate gave the department an opportun[ity to reconsider the prose cution, but was informec that it made no difference tc its decision,” his Honoui ; said. 1 The Magistrate then refused to uphold 8 submis ; sion that the prosecutior I was invalid, stating: “It is ■ unfortunate that the records '[were incomplete but it is t - matter of discretion for ths - Minister through his depart ' ment and it is certainly no for me to say it has beer 1 exercised improperly. I an ; quite sure that is not thi i situation. At no stage has ai 3 extended permit beet t granted.” ; The Magistrate found tha . the charge had been provet t and convicted Moevao. » It was accepted by M - Knowles that the decisiot

niby the department to proseci [cute was not made in bad .'-[faith and that there was no evidence of improper motive i-inor any evidence that irreleTvant matters were consida[ered. n[ Mr Knowles had submitted that the evidence d.clearly established that the o I prosecution was instituted i-lon a mistaken basis of fact eland that the department e[ thought that Moevao was d[ simply an overstayer who y had ignored its corresponde ence. ;t[ It was also submitted by Mr Knowles that the valideiity of an administrative ac-'-[tion, and in particular, the itl exercise of discretionary s[ powers, could be contested tin a criminal prosecution . [and that the decision to ■r i prosecute could be reviewed yjby the Courts on a number 'S|of grounds. i-[ The grounds relied upon by n[Mr Knowles were a failure to til take into acount relevant e[ considerations and gross unt-[ reasonableness amounting to s-[“an arbitary and capricious d!exercise of power.” o| The latter criticism was ir based on an argument that I in some way Moevao was lea -- into committing an offence by s- over-staying, his permit ex!n piring at the end of October, is 1977, as the result of induceis ments held out by the dea[partment’s officers and that le if he complied with the con-’-■[ditions his permit would be F renewed. T He therefore remained in 1 [New Zealand beyond the exin piry date, foregoing the op,n portunity or removing himself from the country which at - was otherwise open to him. 1( j in order to avoid breaching the provisions of the Immi- /[ r gration Act. >n Mr Knowles said that the

department was being oppres- j sive in persisting with the - prosecution in those circumstances. “I think,” his Honour said, j “that most people would ; agree that Mr Moevao finds ' himself in an unfortunate sit- 1 nation, contributed to in some ' measure by the failure of of- ' ficers to record the steps.) which he had taken. “But the department is|' fully entitled to make its de-|i cision and act upon it, and|i the 1976 amendment empha-! sises that even though a per-i son has applied for an exten-L sion of his permit, unless thatj application is actually granted, he commits an offence as' soon as the existing period' expires. “The law is the same forb every applicant and each onep runs the same riskk of his, application not having been[ processed and granted before [ the expiry of his existing permit. Mr Moevao freely elect-) ed to undertake this course,” said his Honour. The assurances given by[ those officers, who dealt with [ Moevao in Christchurch about the likelihood of his permit being extended, could not be) binding on the Minister or his[ delegates because the Act! laid down specifically how! and by whom such permits: and extensions were to be granted. Nothing more had happen-[ ed than the normal exercise! of powers under the Immigration Act after Moevao had ’ over-stayed the period he was!

allowed to remain in New Zealand. “Like the learned Magis- [ trate. 1 see no basis for holdI ing that the prosecution is an abuse of the Court’s pro cess or is oppressive. Even if he has been unfairly dealt with, and I express no view on this, there is still no justification for the Court to tn tervene. Abuse of power’ and [’oppression’ describe situations far more serious than [merely unfair or unreasonable treatment. . “There is nothing in the [evidence to indicate that [those responsible had been prompted by motives other 'than the exercise of their duties under the Immigration ! Act and the appeal must be [dismissed,” said his Honour