Dongen v Minister of Immigration [2003] CKHC 1; HC OA 4.2003 (1 May 2003)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CIVIL DIVISION)

NO: OA 4/2003

IN THE MATTER OF Section 17 Crown Proceedings Act 1950
and Section 2, 3, and 9 of the Declaratory Judgments Act 1994

AND

IN THE MATTER OF an Application for an Order
declaring the Rights and/or a Declaratory Order

BETWEEN

Petrus Johannes Maria van Dongen of Mitiaro Shopkeeper
Applicant

AND

The Minister of Immigration
First Respondent

AND

The Attorney General
Second Respondent

Mr C Little for Applicant
Mr T Elikana for Respondents

Hearing by telephone conference 14 April 2003
Dated the 1 day of May 2003

JUDGMENT OF GREIG C.J.

1. By application dated 20 March 2003 the Applicant sought an order declaring the Applicant's right to remain on the island of Mitiaro and the Cook Islands currently and in the future should the Applicant's residence permit be renewed. The grounds of the application were stated as follows:

1. The First Respondent granted the Applicant a Residence Permit to reside in the Cook Islands on 28 February 2003 for the period 27 February 2003 to 29 March 2003.

2. The First Respondent has instructed the Applicant to remain on the island of Rarotonga only.

3. The First Respondent does not have the power to instruct the applicant to remain on the island of Rarotonga only for the duration of the permit mentioned in paragraph 1 above.

4. The First Respondent's direction to the Applicant to reside on the island of Rarotonga only is a breach of the Applicant's fundamental human rights and freedoms guaranteed by the Constitution of the Cook Islands.

5. The Applicant has four persons who are mainly dependant on him for their subsistence living on the island of Mitiaro.

6. The Applicant has been residing on the island of Mitiaro for two years.

7. The applicant operates a business being a shop on Mitiaro.

8. The Applicant is owed the sum of $15,000.00 for credit he has provided to the local community of Mitiaro.

9. The Applicant currently has divorce proceedings on foot.

10. The Applicant has committed no criminal act in the Cook Islands.

11. The majority of the adult population of the island of Mitiaro want the Applicant to continue residing on the island of Mitiaro.

12. Should the First respondent refuse to extend the applicant's entry permit to reside in the Cook Islands the Applicant will commence legal proceedings to review the Minister of Immigration's decision.

2. Mr Little did not pursue the constitutional point in the hearing. In support of the allegations and grounds of the application the Applicant swore and filed an affidavit dated 3 April 2003. The minister Robert Woonton swore and filed an affidavit dated 14 April 2003. A number of assertions were made by Counsel as to facts which were not evidenced by the affidavits. As is usual there are difficulties in communicating with the islands and obtaining at short notice affidavit or other evidence. I accepted the assertions as such and give them some weight. In any event there is no real dispute about the substantial facts.

3. The applicant originates from the Netherlands. He has been a New Zealand citizen since about 1990 or 1991. He was a frequent visitor to the Cook Islands as a tourist from 1991 to 1996. In 1997 he came here to live and to start a business. He was granted a work permit for one year. He incorporated a company under the name Kikau Hut Limited and established and operated a restaurant at Arorangi under that name. He continued to operate that business until May 2001 when the restaurant business was sold. His residence permit was renewed each year.

4. The Applicant whose previous marriage was dissolved in New Zealand on 29 October 1998 married on 6 November 1998 Ngatokotoru Ta Ngatoko. She is a native of Mitiaro. She is a qualified nurse but until the sale of the business in 2001 she assisted her husband in the operation of the restaurant. In August 2001 the Applicant and his wife moved to Mitiaro to live. Her family provided a section of land to build a house for their accommodation. The Applicant paid for the building of the house and a shop connected to the house with money from the sale of the restaurant. He spent some $105,000.00 on this. The shop is known as Patai Store. The Applicant operates that shop while his wife worked as the nurse on the island.

5. The relations between the Applicant and his wife have not been amicable. The applicant deposes to violence and assaults by his wife from 1999 onwards. Some of these were subject to complaint to the Police but no prosecution resulted from these. The Applicant says that on the occasions of these assaults his wife was drunk. There is a suggestion that the Applicant had also been drinking on these occasions. At all events in June 2002 the wife told the Applicant to leave the family home and look for another woman. He did leave the family home on 21 November 2002 when his belongings were thrown onto the road outside the house. He then found another place to live and opened another shop. This did not stop the violence or assaults which were continued on about three occasions, some of them in public places.

6. The wife commenced divorce proceedings in November 2002 on the grounds of adultery. The wife discontinued these proceedings on 25 February 2003. The Applicant has now issued divorce proceedings. Violence on the part of the wife has continued in this year. In February there were threats by the wife that she would take over the Applicant's shop and his vehicle. A trespass notice was issued to the wife on 27 February 2003. On that day the Police were called to the shop where an argument was taking place between the Applicant and his wife. According to the Police report of the incident the wife was abusive and belligerent toward the Constable. On 14 March 2003 the wife as the sole nurse at the Public Health Clinic on Mitiaro refused to treat the Applicant for an infection to his leg.

7. The population of Mitiaro is said to be about 300 persons of these some 112 are adults. Pursuant to the Outer Islands Local government Act 1987 there is an Island Council comprising as voting members the Mayor and four elected councillors, (ss. 5(1) and (2) and First Schedule). The functions of the Council include that of assisting the Government of the Cook Islands in the good rule and government of the island and advising on any matter question or dispute referred to it by any person, (s. 7(c) and (d)). It appears that the differences between the Applicant and his wife became a matter of complaint to the Council. The Council held a meeting on 10 December 2002 at which the Applicant was present though he states that he was not allowed to address the meeting. In addition to the Mayor and four councillors there were present Travel Tou Ariki, Temaeu Teikamata Ariki, Tatamokoa Mataipo (Aronga Mana representative) Nooroa Ingaua (Island Secretary) and Tokai Ngaiore (representing the wife's family). After the Applicant left the meeting the Council voted to write to the Minister seeking the deportation of the Applicant from Mitiaro. The letter from the Council dated 10 December 2002 signed by the Mayor and addressed to the Minister sought the deportation of the Applicant from the island on 20 December 2002. The grounds set out in the letter were:

"1. That he is no longer in relationship with his wife of Mitiaro origin namely Toru van Dongen (nee Ngatoko).

2. That his performance and attitude is very serious concern to the people of Mitiaro.

3. That Toru together with her family lodged a complaint to the Council for his Removal.

4. That he has committed adultery.

5. That he is now in a de-facto relationship."

8. On or about 17 January 2003 the Applicant applied to the Minister for a renewal of his residence permit which was to expire on 6 February 2003. On 13 February the Minister refused to grant a further permit. On 17 February Mr Little on behalf of the Applicant wrote to the Minister seeking a review of the decision and setting out in 9 numbered paragraphs the basis of that request. It is noted that Mr Little appeared to be under the impression that the Minister had issued a deportation order against the Applicant. The fact is, as deposed to by the Minister, there has not been any such order issued in respect of the Applicant. The letter canvassed the Applicants' personal circumstances setting out a number of the grounds of this application set out above and referred to his contribution in cash and kind in support of and for the benefit of the island community. Reference was made to a petition, which the Applicant was circulating in the community. The Minister responded on the same day staying any further action pending advice that the New Zealand police advised that the Applicant had no criminal convictions. The Minister indicated that he was prepared to grant a residence permit limited to Rarotonga as "the Aronga Mana and the Council do not want him on that island" meaning I presume Mitiaro.

9. The petition was addressed to the Minister and stated:

"We the undersigned people of Mitiaro hereby respectfully request the Minister of Immigration extend Mr Peter van Dongen's entry permit and allow him to reside in Mitiaro as we want him to live on the island of Mitiaro."

It contained on completion 81 names and signatures; one being scratched out after signing. It is accepted by the Applicant that 5 names were of children. It is suggested that others have signed not knowing fully what they were signing and that some names may have been inserted without the knowledge of the actual named person. There are clearly a number of signatures which appear to be identical and thus not that of the actual petitioner. There is no evidence as to the way in which the petition was circulated, explained or signatures gathered. It seems however that the petition was supported by a majority of the adults on the island at the time. It was noted by Mr Little in presenting the petition to the Minister that three members of the Council had signed it as well as two members of the Aronga Mana. Further it could not be expected that the wife's family would support the petition. It is said that they comprise some 20 adult members of the community.

10. In further submission to the Minister on 24 February 2003 Mr Little was able to furnish the Minister with clearances as to criminal convictions from New Zealand Police Interpol, and the Dutch Consulate. It is the fact as the Applicant had disclosed to the Cook Islands Immigration authorities in about 1998 that he had two minor convictions in the Netherlands in 1959 and 1961 when he was 18 and 20 respectively. It is possible that the Netherlands have a law, which suppresses old convictions. In any event they are not of substance in this case. With this letter Mr Little furnished the Minister with three testimonials residents of the island including the Island secretary.

11. On instructions from the Minister the Ministry extended the current permit of the Applicant for 31 days from 26 February 2003 on condition that he return to Rarotonga and stay there. With the assistance of the Ministry the Island Council agreed to a meeting with the Applicant and Mr Little. That meeting was held on the island on 13 March 2003. Both the applicant and Counsel were present and Mr Little made oral submissions. As reported by the Mayor in his letter to the Minister dated 14 March 2003 the resolution that the Applicant leaves the island was carried by a majority. The voting was recorded in writing; each vote being signed by the voter. The majority was 4 to 1. Mr Little made a further written submission to the Minister on 17 March 2003 setting out grounds which have since become part of his argument and submissions in this hearing. One of the councillors who voted for the motion has since purported to cancel his vote. Another resident has challenged the Mayor's handling of the meeting and its aftermath. There was newspaper publicity about the matter in the Cook Islands herald of 22 March 2003.

12. Two other matters raised against the Applicant relating to his former marriage and to his business activities were answered in his favour and the answers furnished to the Ministry. The Minister has extended the permit until these proceedings are concluded. The Applicant's status is that his earlier permit has expired but he is entitled to remain in Rarotonga only pending the resolution of these proceedings. He is a lawful resident subject to that extended permit and its conditions.

13. The Minister is acting under and in pursuance of the authority given him by the Entry Residence and Departure Act 1971-72. There are several exceptions and exemptions to the provisions of the Act. None of these apply to the Applicant. He has not applied for or been granted permanent residence. He is not in the category of a visitor. The remaining categories which can apply to him are entry permit or residence permit. The latter is not the same as permanent residence. In either case the permit is granted for a term to be specified in the permit. In either case no person shall of right be entitled to the grant of the permit, (Ss. 14(1) 24(4)). It may be granted by the Minister and subject to such conditions as the Minister may deem fit to impose, (Ss. 14(2) 24(5)). The Minister has thereby a discretion whether or no to grant the permit and to impose any or no conditions as he may think fit. It is I think properly to be described as an unfettered discretion. It is one which is to be exercised partly by administrative considerations and partly by quasi-judicial considerations and rules.

14. This legislation and the ambit of the ministerial discretion have been considered in this Court on a previous occasion. In Cragg v Minister of Immigration (Judgment of Quilliam CJ 29 August 1997 OA4/96) an application to review the Minister's decision on an application for a permanent residence permit the learned Chief Justice stated the law applicable to a review of a exercise of the Ministerial discretion which is in the same terms as is in issue here. In doing so he quoted and followed a dictum of Cook P. in the Court of Appeal in New Zealand in Minister of Energy v Petrocorp Exploration Limited [1989] NZCA 95; (1989) 1 NZLR 348 at p. 352 as follows:

"In administrative law cases about Ministerial powers a balance, sometimes quite a delicate one, has to be maintained. It is the exclusive role of the Minister to decide or apply policy and to act on his or her own view of the merits: that is a field into which the Courts must not trespass. On the other hand it is the duty of the Court to check that the Minister acts in accordance with the law and any relevant requirements of fairness and reaches decisions which a reasonable Minister could reach in exercising the powers conferred by Parliament."

Counsel accepted that those principles applied in this case. I agree.

15. The requirements of fairness refer to the rules which apply to the procedure which the Minister is required to follow in considering the application before him and making his decision. It does not refer to the fairness of the decision itself. That is a matter for the minister on the merits of the application. That fairness is the preserve of the Minister. Otherwise it would leave the Minister's decision open to review as on an appeal to the second consideration of the Court. It is not for the Court to decide on the merits of the case or whether the Court in its view might come to a different conclusion. This is for the reason that the Minister must take into account matters of policy, which are outside the jurisdiction of the Court. On the other hand there remains a final jurisdiction if the Court can say that the decision is one which no reasonable Minister could reach. In Cragg v Minister of Immigration the Court was able to say that, because the Minister had given relevance to some facts which were incorrect.

16. In this case I am satisfied that the Minister has acted in accordance with the requirements of fairness. He has given the applicant due process to present his case and the applicant has taken that opportunity. The facts have been fully presented to the Minister. There is no suggestion that he has predetermined the matter or has acted on any information that has not been known to the applicant. There is no claim that the Minister has acted on irrelevant information or has failed to take into account any relevant information. The force of the submissions on behalf of the Applicant was that the decision made was not fair and reasonable because it did not give proper weight to the result of the petition. In other words that the Minister faced with the wishes of the majority of the population of Mitiaro acted unfairly and unreasonably in coming to his decision. In his affidavit sworn on 13 April 2003 the Minister states that as a result of information about the Island Council decision on 10 December 2002 he made his decision that the Applicant remain in Rarotonga pending the further decision as to his status. The Minister avers that the reason for his decision is necessary for maintaining peace and order on the island of Mitiaro. It is of importance to observe that the final status of the Applicant remains undecided. He has not been refused a residence permit nor has a residence permit been granted on any special terms.

17. It cannot be argued that the Minister is bound to adopt and follow the wishes of the majority of the population of Mitiaro or any particular section of the community. Indeed he is not bound to follow the views of the Island Council though they must have some weight as the body with the functions I have set out above. The question is, if that is the case, is it unreasonable of the Minister to reach a different conclusion to that conveyed to him as representing the views of the islanders. Is the decision he reached one that could not reasonably be made? I am satisfied that he has weighed the conflicting views of the Council on the one hand and the population or part of it on the other. It is for him to weigh these taking into account his knowledge and experience and adding in the matters of policy and administrative requirements that may be appropriate to the particular circumstances. In face of the violence and the further potential for division and violence in this small community and in face of the Council's repeated views it cannot be said too be unreasonable of the Minister to decide in the meantime at least that the peace and good rule of the Island should be the deciding factor.

18. The Applicant seeks orders for the present and for the future. The Court cannot decide for the Minister in the future. His decision in each case is for him but subject to review on the principles I have stated. The Court cannot bind the Minister's future conduct of his portfolio and his Department in the way sought.

19. In the result for the reasons I have set out the application is refused. That of course is without prejudice to the Minister's further consideration of the Applicants status and to the Court's jurisdiction thereover should that be sought. The question of costs is reserved.