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Aziz v Chief Executive of the Ministry of Social Development

High Court Wellington CIV 2007-485-1271
4 February 2009; 17 March 2009
Miller J 

New Zealand Bill of Rights Act - torture or cruel, degrading, or disproportionately severe treatment or punishment - whether denial of an emergency social welfare benefit may contravene New Zealand Bill of Rights Act 1990 s 9 where the individual would otherwise be utterly destitute because the state also denies him or her the ability to work - New Zealand Bill of Rights Act s 9

Social security - emergency benefit - eligibility depending on whether person lawfully present in New Zealand - meaning of lawfully present - Social Security Act 1964 s 74A(1)(a) and (c) - Immigration Act 1987 ss 4, 47 and 53 - Refugee Convention Articles 23, 24 and 31

The appellant was an Iraqi citizen and an Assyrian Christian who arrived in New Zealand in January 2001 and lodged a refugee application in August 2001. In reliance on that application, he was issued a series of work permits. He was also granted a variety of social welfare benefits. The unemployment benefit was suspended on 1 July 2004 following the dismissal of his appeal to the Refugee Status Appeals Authority against a decision to deny him recognition as a refugee. Thereafter he was denied all benefits payable under the Social Security Act 1964.

The appellant then applied to the Removal Review Authority under s 47 of the Immigration Act 1987 for an order that he be granted a residence permit on humanitarian grounds. Pending disposition of his appeal he was deemed by s 4(2) of the Immigration Act to be in New Zealand unlawfully though he was not liable to be removed from New Zealand until his appeal to the Removal Review Authority had been disposed of.

Section 74A of the Social Security Act 1964 provides, with certain exceptions, that persons unlawfully in New Zealand are not entitled to any benefit payable under that Act. The Ministry considered that the appellant was not lawfully resident in New Zealand while his appeal was pending and so was ineligible under s 74A for any benefit payable under the Act. The Social Security Appeal Authority agreed. It rejected a submission that the appellant was lawfully resident in New Zealand after 28 June 2004 because he had appealed to the Removal Review Authority, observing that only a person who is unlawfully in New Zealand may invoke s 47 of the Immigration Act. The appellant did not become lawfully resident in New Zealand until he was granted a residence permit after the Removal Review Authority decision of 3 December 2004.

Held:

1   The argument that a person who is not liable to be removed under s 53 of the Immigration Act 1987 by reason of a pending appeal under s 47 of that Act is thereby "exempt" from the requirement to hold a permit, and so lawfully in New Zealand, was untenable. Both s 47 and s 53 proceed on the explicit premise that the person is unlawfully in New Zealand. The argument is further contrary to the scheme of the Immigration Act, under which those who are not New Zealand citizens may be in New Zealand only if they hold a permit under the Act or are exempt under the Act from the requirement to hold a permit, with the concept of exemption being further defined to mean exemptions under s 11 or s 12 (see paras [23] - [25]). 

Rajabian v Chief Executive of the Department of Work and Income New Zealand (High Court Auckland, CIV2004-485-671, 12 October 2004, Potter J) followed and applied; R v Secretary of State for Social Welfare; Ex parte Joint Council for the Welfare of Immigrants [1997] 1 WLR 275 (CA) and Szoma v Secretary of State for the Department of Work and Pensions [2005] UKHL 64 (HL) distinguished.

2.   Assuming, without deciding, that denial of an emergency benefit may contravene s 9 of the New Zealand Bill of Rights Act 1990 and further assuming that the ordinary and natural meaning of s 74A of the Social Security Act 1964 limits or impairs freedoms recognised in s 9 in that it admits the possibility that some appellants under s 47 of the Immigration Act 1987 will be utterly destitute yet ineligible for an emergency benefit, there was no alternative interpretation of s 74A that would exclude that possibility. Nor was the Court prepared to accept, without evidence, that the limits imposed on s 9 of the New Zealand Bill of Rights Act 1990 by the ordinary meaning are without justification for the purposes of s 5 New Zealand Bill of Rights Act 1990. Section 47 of the Immigration Act 1987 is not concerned with the treatment of refugees or applicants for refugee status; they invoke it only after their claims have failed. Rather, it covers a wide range of appellants, who may invoke it for health, family or economic reasons. Many will have been in New Zealand for some time and, like the appellant, may have established themselves in a community (see paras [30] and [31]).

R v Hansen [2007] 3 NZLR 1 (NZSC) followed and applied.


Appeal dismissed

Other cases referred to

R on the application of Q and Others v Secretary of State for the Home Department [2003] EWCA 364
The Queen on the application of S v The Secretary of State for the Home Department [2003] EWHC 1941

Counsel
CS Henry for the appellant
LM Fong for the respondent

MILLER J [1] The issue in this appeal is whether, by reason of his then pending appeal to the Removal Review Authority, Mr Aziz was lawfully in New Zealand, for the
purposes of the Social Security Act 1964, between June and December 2004, and so eligible for an emergency benefit.

[2] The Chairperson of the Social Security Appeal Authority has stated the following question of law for the opinion of this Court:

Did the Authority err in law by finding that an applicant to the Removal Review Authority under s 47 of the Immigration Act 1987 is not lawfully present in New Zealand and is thus prevented from receiving any benefit assistance by s 74A of the Social Security Act 1964?

The narrative

[3] Mr Aziz is an Iraqi citizen and an Assyrian Christian. He arrived in New Zealand on 20 January 2001 on a visitor’s visa, and on 8 August of that year lodged an application for refugee status. In reliance on that application, he was issued a series of work permits the last of which expired on 30 May 2004.

[4] The respondent granted Mr Aziz a variety of social welfare benefits. In particular, on 7 January 2004 he was granted the unemployment benefit. It is now common ground that he was not entitled to it but rather should have been granted an emergency benefit, for which he was eligible because he held a work permit. His unemployment benefit was suspended on 1 July 2004 following the dismissal of his appeal to the Refugee Status Appeals Authority against a decision to deny him refugee status. Thereafter Mr Aziz was denied the unemployment benefit or an emergency benefit or any other benefit payable under the Social Security Act.

[5] He applied to the Removal Review Authority under s 47 of the Immigration Act 1987, which provides that a person “who is unlawfully in New Zealand” may appeal against the requirement for that person to leave New Zealand. The 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 person to be removed from New Zealand, and that it would not in all circumstances be contrary to the public interest to allow him to remain here. Pending the disposition of such appeal, the appellant is not liable to be removed from New Zealand pursuant to a removal order issued under s 53 of the Immigration Act.

[6] The Removal Review Authority allowed Mr Aziz’s appeal on 3 December 2004, reasoning that because the security situation in Iraq was unstable and Assyrian Christians have been the target of violence, Mr Aziz’s safety was gravely at risk should he be returned to that country. As a member in good standing of the Holy Cross Parish in Miramar, he also posed no concern to the authorities should he remain in New Zealand. The Authority directed that he be granted a residence permit. That was done, and he was granted the unemployment benefit.

[7] There is no suggestion that Mr Aziz was destitute while he was without a benefit.

[8] Section 74A of the Social Security Act provides, with certain exceptions, that persons unlawfully in New Zealand are not entitled to any benefit payable under that Act, but the Chief Executive may grant an emergency benefit to those lawfully in New Zealand while their applications for refugee status are determined. An emergency benefit is payable in the discretion of the Chief Executive to a person who is unable to earn a sufficient living for himself and his dependants but does not qualify for any other benefit: s 61. The Ministry considered that Mr Aziz was not lawfully resident in New Zealand while his appeal was pending and so was ineligible under s 74A for any benefit payable under that Act.

[9] The Social Security Appeal Authority agreed. It rejected a submission that Mr Aziz was lawfully resident in New Zealand after 28 June 2004 because he had appealed to the Removal Review Authority, observing that only a person who is unlawfully in New Zealand may invoke s 47. Mr Aziz did not become lawfully resident in New Zealand until he was granted a residence permit after the Removal Review Authority’s decision of 3 December 2004.

The legislation

[10] Residency is, in general, a requirement of benefits payable under the Social Security Act, and residency means lawful residency. Under s 3, “resident”, in relation to any person, does not include being unlawfully resident in New Zealand. Those lawfully in New Zealand under a visitor’s or temporary work or study permit are not eligible, but may be granted an emergency benefit in certain limited circumstances; that is, where they have refugee status, or are lawfully present in New Zealand while their applications for refugee status are processed, or are applying for a residence permit and are compelled to remain in this country through some unforeseen circumstance. Section 74A provides:

(1) A person who is—

(a) Unlawfully resident or present in New Zealand; or

(b) Lawfully resident or present in New Zealand but only by virtue of—

(i) A visitor's permit; or

(ia) A limited purpose permit; or

(ii) A temporary work permit; or

(iii) A permit to be in New Zealand for the purposes of study at a New Zealand school or university or other tertiary educational establishment—shall not be entitled to receive a benefit, but the chief executive may grant an emergency benefit under section 61 of this Act or temporary additional support under section 61G, or may continue, under section 23 of the Social Security (Working for Families) Amendment Act 2004, a special benefit already granted to any such person if the chief executive is satisfied that the person is either—

(c) A person lawfully present in New Zealand who is awaiting the outcome of his or her application for refugee status in New Zealand; or

(d) A person who has refugee status in New Zealand; or

(e) A person applying for a residence permit under the Immigration Act 1987 who is compelled to remain in New Zealand through some unforeseen circumstances.

[11] Section 74A was added, from 1 March 1991, under the Social Security Amendment Act 1991 (No 1). The stated purpose was that of ensuring that only those with permanent resident status would be eligible for income-tested benefits: The Hon Jenny Shipley (19 December 1990) 511 New Zealand Parliamentary Debates 455. Until that time an applicant merely had to be resident or ordinarily resident to qualify for particular benefits.

[12] However, the Social Security Act does not specify when residence or presence in New Zealand is lawful. Section 74A refers to various permits and refugee status, which are provided for in the Immigration Act 1987. Section 4 of that Act provides:

(1) A person who is not a New Zealand citizen may be in New Zealand only if that person is—

(a) The holder of a permit granted under this Act; or

(b) Exempt under this Act from the requirement to hold a permit.

(2) Any person who is in New Zealand in contravention of subsection (1) of this section is deemed for the purposes of this Act to be in New Zealand unlawfully.

(3) The fact that an application for a permit has been made by or for any person does not—

(a) Render the person's presence in New Zealand lawful; or

(b) Give the person a right to remain in New Zealand while the application is considered; or

(c) Give the person a right to apply for or be granted any other permit pending determination of the application; or

(d) Inhibit removal procedures under this Act.

[13] ‘Exemption’ is defined in s 2 to mean an exemption under s 11 or s 12 of the Act from the requirement to hold a permit, and ‘exempt’ has a corresponding meaning. As with all the definitions in s 2, it applies except where the context otherwise requires. It is common ground that Mr Aziz was not entitled to an exemption under ss 11 or 12.

[14] Once Mr Aziz’s appeal to the Refugee Status Appeals Authority was declined, his refugee status claim was at an end. Under s 45 he was obliged to leave unless subsequently granted a permit. It is common ground that his claim to have been in New Zealand lawfully depends on ss 47 and 53, which provide:

47 Appeal against requirement to leave New Zealand

(1) 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.

(2) The appeal must be brought within 42 days after the later of—

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

(b) The day on which the person received notification under section 31 of the confirmation of the decision to decline to issue a permit, in the case of a person who, while still lawfully in New Zealand, had lodged an application under section 31 for reconsideration of a decision to decline another temporary permit.

(3) 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 person 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.

(4) For the purposes of subsection (3), the mere fact that a person's circumstances are such that the person would meet any applicable Government residence policy requirements for the grant of a residence permit does not in itself constitute exceptional circumstances of a humanitarian nature.

(5) The following persons may not appeal under this section:

(a) A person who is unlawfully in New Zealand by reason of having returned to New Zealand while a removal order is in force in respect of the person:

(b) A person who is unlawfully in New Zealand by reason of the expiry of a limited purpose permit:

(c) A person who is unlawfully in New Zealand following the revocation of their residence permit being confirmed by the Deportation Review Tribunal:

(d) A person unlawfully in New Zealand to whom section 63 applies (which section relates to persons granted temporary permits for the purposes of the Mutual Assistance in Criminal Matters Act 1992); or

(e) A person unlawfully in New Zealand to whom section 114K(4)(b) applies (which provision relates to a person in respect of whom a security risk certificate has been confirmed).

53 Liability for removal

(1) A person unlawfully in New Zealand may be the subject of a removal order, and is liable to be removed from New Zealand under this Part, if—

(a) The person (not being a person who has an appeal pending under section 47 or section 115A) has been unlawfully in New Zealand—

(i) For a period of 42 consecutive days; or

(ii) In the case of a person who, while still lawfully in New Zealand, had lodged an application under section 31 for reconsideration of a decision to decline another temporary permit, for a period of 42 consecutive days following the day on which the person received notification under section 31 of the confirmation of the decision to decline to grant another temporary permit, if that day was later than the day on which the person became unlawfully in New Zealand; or

(b) An appeal under section 47 (including a further appeal, if any, to the High Court under section 115A or the Court of Appeal under section 116) has been determined against the person, and the person is still unlawfully in New Zealand 7 days after the decision has been notified to the person (or, if appropriate, 7 days after becoming unlawfully in New Zealand following the expiry or cancellation of any temporary permit directed to be granted under section 22(7)); or

(c) The person is unlawfully in New Zealand by reason of the expiry of a limited purpose permit; or

(d) The person is in New Zealand while a previously executed removal order is still in force in respect of the person; or

(e) The person is a person to whom section 63 applies (which section relates to persons granted temporary permits for the purposes of the Mutual Assistance in Criminal Matters Act 1992); or

(f) The person is a person to whom section 114K(4)(b) applies (which provision relates to a person in respect of whom a security risk certificate has been confirmed).

(2) This section is subject to—

(a) Section 70 (which relates to persons unlawfully in New Zealand immediately before 1 October 1999); and

(b) Section 129X (which relates to refugee status claimants).

(3) Nothing in this Part is to be construed as preventing voluntary departure from New Zealand at any time before a removal order is made and served.

The appeal

[15] Mr Henry argued that although he was not lawfully resident in New Zealand at the relevant time, Mr Aziz was lawfully present for the purposes of s 74A. He was lawfully present because he was permitted by law to be in New Zealand, but without a permit. That is the effect of s 53. It must follow that he was exempt from the requirement to hold a permit for the purposes of the Immigration Act. For that he cited Szoma v Secretary of State for the Department of Work and Pensions [2005] UKHL 64.

[16] Further, Mr Henry argued, s 4(2) of the Immigration Act deems persons without either a permit or exemption to be in New Zealand unlawfully, but only for the purposes of that Act. It is not necessarily appropriate to adopt that deeming provision for the purposes of s 74A of the Social Security Act. A person is unlawfully present in New Zealand if his presence is contrary to law or unauthorised by law. In this case, Mr Aziz was permitted by s 53(1) of the Immigration Act to be in New Zealand, and he could not lawfully be removed until his appeal had been determined.

[17] Mr Henry further argued that denial of any benefit breaches, or may breach, s 9 of the New Zealand Bill of Rights Act, which provides that everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment. Denial of a benefit for a person who is legally unable to work may lead to destitution, forcing the person to beg, commit criminal offences, or resort to prostitution to survive. For that he cited R v Secretary of State for Social Welfare, ex parte Joint Council for the Welfare of Immigrants [1997] 1 WLR 275 and The Queen on the application of S v The Secretary of State for the Home Department [2003] EWHC 1941. He conceded there is no evidence that Mr Aziz was destitute, but argued it was not open to the Authority to adopt an over-broad interpretation of the legislation that denies benefits to all appellants under s 47 of the Immigration Act regardless of their circumstances. It follows that s 6 of the New Zealand Bill of Rights Act applies to the interpretation of both the Immigration Act and s 74A.

[18] I note at this point that Mr Henry was instructed by the Combined Beneficiaries Union, which thinks the issue has wider significance. The respondent does not accept that, and maintains that this appeal must be determined by reference to its own facts.

[19] The respondent’s position is that the ordinary and natural meaning of s 74A is that those unlawfully in New Zealand under the Immigration Act are not eligible, nor are those who are lawfully in New Zealand by reason of one of the permits referred to in s 74A or their refugee status. In s 74A and Part 6A of the Immigration Act, the State has met its Convention obligations regarding the treatment of refugees. Those obligations were discharged in Mr Aziz’s case on the failure of his appeal to the Refugee Status Appeals Authority. Section 74A does not admit a benefit for appellants under s 47 of the Immigration Act; on the contrary, appellants under s 47 are unlawfully in New Zealand and under an obligation to leave; they remain so until their appeal succeeds and they are granted a permit. Mr Aziz was not exempt for the purposes of the Immigration Act from the requirement to hold a permit; the legislation is quite clear about what exemption means, and cannot be taken to create another class of exempt persons. The English cases relied upon by Mr Henry are distinguishable. It is not necessary to decide whether denial of benefits to a person in Mr Aziz’s position breaches s 9 of the New Zealand Bill of Rights Act; the issue does not arise on the facts. In any event, the language of the statute is plain and does not admit the construction advanced by Mr Henry: R v Hansen [2007] 3 NZLR 1. Any breaches are ephemeral and justifiable.

Unlawfully resident or present: the ordinary and natural meaning

[20] I begin with a précis of s 74A. The section prohibits the payment of any benefit under the Social Security Act to a person who is unlawfully resident or unlawfully present in New Zealand, unless that person has refugee status, or is lawfully present in New Zealand while awaiting the outcome of his or her application for refugee status, or is applying for a residence permit under the Immigration Act but is compelled to remain in New Zealand through some unforeseen circumstances. Such persons may be granted an emergency benefit under s 61 or a special benefit under s 61G. The section further specifically excludes benefits for those who are lawfully resident or lawfully present in New Zealand but only by virtue of a visitor’s permit, a limited purpose permit, a temporary work permit, or a study permit.

[21] I accept that the concept of unlawful residence or unlawful presence must be determined by reference to the Immigration Act. The Social Security Act affords some guidance, however. It privileges refugees, or those lawfully present in New Zealand while applications for refugee status are determined. It thereby contemplates that there may be a class of persons who are awaiting the outcome of applications for refugee status and are not lawfully present in New Zealand, or whose application for refugee status has failed. Such persons are not eligible for the emergency benefit.

[22] Section 4(1) of the Immigration Act deals with presence, providing that a person who is not a New Zealand citizen may be in New Zealand only if that person holds a permit granted under the Immigration Act or is exempt under the Act from a requirement to hold a permit, and s 4(2) says that any person who is in New Zealand in contravention of subsection (1) is deemed for the purposes of the Immigration Act to be in New Zealand unlawfully. Further, the fact that an application for a permit has been made does not render the person’s presence in New Zealand lawful. The concept of being in New Zealand unlawfully is also employed in s 47, which may be invoked only by those who are unlawfully in New Zealand. A person who is unlawfully in New Zealand is not liable to be removed under s 53 if an appeal under s 47 is pending.

[23] As a matter of construction, I find untenable Mr Henry’s argument that a person who is not liable to be removed under s 53 by reason of a pending appeal under s 47 is thereby “exempt” from the requirement to hold a permit, and so lawfully in New Zealand. Both s 47 and s 53 proceed on the explicit premise that the person is unlawfully in New Zealand. The argument is further contrary to the scheme of the Act, under which those who are not New Zealand citizens may be in New Zealand only if they hold a permit under the Act or are exempt under the Act from the requirement to hold a permit, with the concept of exemption being further defined to mean exemptions under s 11 or s 12.

[24] I accept that s 4 deems a person who is in New Zealand in contravention s 4(1) to be in New Zealand unlawfully “for the purposes of this Act”, and not for the purpose of any other Act. But that point does not take Mr Henry very far, for his argument that Mr Aziz was in New Zealand lawfully for the purposes of the Social Security Act turns on another provision of the Immigration Act, s 53. That provision, as I have already pointed out, starts from the premise that the person affected by the section is unlawfully in New Zealand.

[25] This analysis is consistent with the reasoning of Potter J in Rajabian v The Chief Executive of the Department of Work and Income New Zealand HC AK CIV 2004-485-671 12 October 2004 at [30], with which I respectfully agree.

[26] I do not think the English cases cited by Mr Henry affect this construction. R v Secretary of State for Social Welfare, ex parte Joint Council for the Welfare of Immigrants (above) concerned the Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996, under which “urgent cases payments” otherwise payable to persons seeking asylum were denied to applicants seeking asylum otherwise than on arrival in the United Kingdom, or whose claims for asylum had been adversely determined by the Secretary of State for the Home Departments and were under appeal. The regulations were held to conflict with rights enacted under other primary legislation, the Asylum and Immigration Appeals Act 1993. Simon Brown LJ, in the majority, held it unlawful to “alter the benefit regime so drastically as must inevitably not merely prejudice, but on occasion defeat, the statutory right of asylum seekers to claim refugee status”. He concluded:

Parliament cannot have intended a significant number of genuine asylum seekers to be impaled on the horns of so intolerable a dilemma; the need either to abandon their claims to refugee status or alternatively to maintain them as best they can but in a state of utter destitution. Primary legislation alone could in my judgment achieve that sorry state of affairs.

[27] In this case, the primary legislation does preclude an emergency benefit for those unlawfully resident or unlawfully present in New Zealand, and so far as refugee claimants are concerned it does so not before their claims to refugee status have been determined, but afterwards.

[28] Szoma v Secretary of State for the Department of Work and Pensions (above) considered whether a person temporarily admitted to the United Kingdom under the
authority of an Immigration Officer was lawfully present there for the purposes of an income support benefit. Under the Immigration Act 1971, a person who had not otherwise entered the United Kingdom was deemed not to do so, for the purposes of that Act, as long as he was temporarily admitted. The appellant was a Polish national who entered the United Kingdom in 1998 and at once claimed asylum. The respondent had refused his application for the benefit, reasoning that he was not lawfully present. Lord Brown held that it would be quite wrong to carry the fiction beyond its legislative purpose, that of denying such person rights given to those who had been granted leave to enter. The notion of lawful presence did not require some “positive legal underpinning”; temporary admission was provided for by statute, and sufficed to authorise the appellant’s presence.

[29] But as Ms Fong submitted, the Immigration Act does not use a fictional concept of non-entry; rather, it uses the single concept of unlawfully in New Zealand. It was a condition of the appeal under s 47 that Mr Aziz was unlawfully in New Zealand, and s 74A of the Social Security Act also rests on the concept of unlawful residence or presence.

Section 9 of the New Zealand Bill of Rights Act

[30] I will assume, without deciding, that denial of an emergency benefit may contravene s 9 where the applicant would otherwise be utterly destitute because the state also denies him or her the ability to work. Support for that assumption is found in R on the application of Q and Others v Secretary of State for the Home Department [2003] EWCA 364. In that case the Court of Appeal concluded that the regime imposed on asylum seekers who were denied both support and the ability to work was “treatment” within the meaning of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and that such treatment may become inhuman or degrading where an applicant is brought so low that he or she is driven to crime or prostitution. The mere existence of a risk that an individual asylum seeker would be reduced to such a state did not of itself engage Article 3, but it might do so in particular cases once charitable support was not forthcoming and the individual could not fend for himself.

[31] I am further prepared to assume that the ordinary and natural meaning of s 74A limits or impairs freedoms recognised in s 9, in that it admits the possibility that some appellants under s 47 will be utterly destitute yet ineligible for an emergency benefit. But, following R v Hansen [2007] 3 NZLR 1 at [60], I do not accept there is an alternative interpretation of s 74A that would exclude that possibility, for reasons already outlined. Nor am I prepared to accept - without evidence - that the limits imposed on s 9 by the ordinary meaning are without justification for purposes of s 5. Section 47 is not concerned with the treatment of refugees or applicants for refugee status; they invoke it only after their claims have failed. Rather, it covers a wide range of appellants, who may invoke it for health, family or economic reasons. Many will have been here for some time and, like Mr Aziz, may have established themselves in a community.

[32] For these reasons, I do not accept that the New Zealand Bill of Rights Act requires the construction of s 74A and relevant provisions of the Immigration Act that Mr Henry urged upon me.

Decision

[33] The appeal is dismissed. Counsel may file memoranda if any issue arises as to costs.

Solicitors for the appellant: Witten-Hannah Howard (North Shore City)
Solicitors for the respondent: Crown Law Office (Wellington)