‘Overstayers’ win appeal

Press, 29 November 1978, Page 23

‘Overstayers’ win appeal

PA Auckland Eleven Tongans convicted of overstaying temporary permits have won their appeal to a test case in the Supreme Court at Auckland. In a reserved decision, Mr Justice Moller ruled that a regulation concerning entry permits was invalid. He said the regulation purported to delegate power to the Minister of Immigration, but that power had already been delegated to the GovernorGeneral and to nobody else. Counsel for the appellants (Mr C. Edwards) had submitted that a conviction could be sustained only if it was proved that the temporary permits were valid under the Immigration Act. He submitted, and his Honour has now agreed, that the entry permits on their passports were invalid. His Honour has allowed all the appeals, and quashed the convictions and orders for deportation. He said Mr Edwards’ argument was that the power to prescribe form was given by the act to the Governor-General only. In effect, the stamp on the passport had really been prescribed by the Minister, and the permit was therefore invalid. Counsel had submitted that the Governor-General had completely delegated to the Minister the Gover-nor-General’s own already delegated powers.

His Honour said that since the convictions against the appellants a new Immigration Amendment Act had come into force in Octo-

ber, 1978. The amendment validated all entry permits of the kind issued to the appellants, except that it did not apply to any permit issued before the date of the new amendment. Counsel had suggested that the amendment was an acknowledgement by the legislature that the power of approving or prescribing entry permits had been wrongly delegated by regulation to the Minister, his Honour said. For the Department of Labour, Mr R. Haines had replied that, the amendment was “simply precautionary.” The appellants are Tevita Alani Ngata, Liliola Lavulavu, Penina Huakau, Falakiko Teu, Ane Fifita Fa, Vahea Ofamooni, Lolesio Sofele Katoa, Manumu’A Afeaki, Tupoutu’A Fa-Ngunangumana Katoa, Sosefo Katoa, and Telesia Katoa. Later, Mr Edwards, who was appearing on an immigration case in the Magistrates’ Court, said the decision would benefit only about 50 overstayers.