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Quinto v Republic of Vanuatu [2020] VUSC 53; Constitutional Case 622 of 2020 (22 April 2020)

REASONS FOR STRIKING OUT CONSTITUTIONAL APPLICATION AT FIRST CONFERENCE HEARING

1. INTRODUCTION: NATURE AND EXTENT OF APPLICATION
   

1. This is a Constitutional Application filed against the Republic of Vanuatu on 17 March 2020.
   
2. Stephen Quinto and Nicola Juliet Quinto both of Luganville, Santo are the applicants in this application.
   
3. The applicants apply pursuant to Article 6 of the Constitution of the Republic of Vanuatu in respect of breaches of their fundamental rights and seek compensation for the physical injuries, loss and damages caused to them by the criminal offences of assault committed on their bodies by one Nigel John Giltrap of Luganville, Santo, as a result of a negligent decision of the Director of Immigration granting Mr. Nigel John Giltrap a residency permit to reside in Vanuatu in 2013.
   
4. The applicants say their fundamental rights that are infringed, continue to be infringed and likely to be infringed are:
   
   • (1) Right to security of the person pursuant to Article 5(1)(c); and
     
   • (2) Right to protection of the law guaranteed by Article 5(1)(d) of the Constitution.
     
5. The applicants say that the person or body who infringes those rights is the Director of Immigration.
   

2. GROUNDS FOR APPLICATION
   

6. The applicants applied upon the following grounds:
   
   • (1) On or about 2013, Mr Giltrap, a New Zealand national arrived in Vanuatu and applied for a visa to reside in Vanuatu (“Residence Visa”);
     
   • (2) The Director of Immigration (“Director”) negligently provided Mr Giltrap with a residence permit when he should not have done so.
     

(2)– 1. They provide the particulars of the Director’s negligence as follows:

(a) Part of the mandatory procedure for processing Mr. Giltrap’s application is to inter alia check to see whether:

• (i). the documents submitted in support of his application contained false or misleading information;
  
• (ii). he had passed the character test provided in section 38 of the Immigration Act 2010 (‘Act’), including in respect of Mr. Giltrap the presence of two or more terms of imprisonment of more than 2 years, in which case he would have failed such a character test; and
  
• (iii). rejecting his application if it was ascertained that he:
  
  • ➢ had misleading or false information in his application; and
  • ➢ that he failed the character test by reason of two or more terms of imprisonment of more than 2 years.
    

(b) In the material that Mr. Giltrap was required to supply in support of his application was a Criminal Convictions Report (‘CCR’) from the New Zealand Ministry of Justice, including record of prior criminal convictions.

(c) The CCR is recorded under the name of Nigel John Giltrap, out of which one page was missing.

(d) It was obvious that one page was missing, because the two pages of prior convictions in the CCR that Mr. Giltrap provided were numbered “1” & “3” and also there was a gap in the continuous dates of prior convictions listed.

(e) Page “1” of Mr. Giltrap’s CCR recorded:

• (i) 5 convictions on 23 June 2006 for breaching protection orders recorded with a sentence of community work;
• (ii) One conviction for assault with a weapon on 10 November 2009; and
• (iii) Four separate convictions for breaches of protection orders issued against him by his former partner; and
• (iv) Concurrent imprisonment sentences on 10 November 2009 (with no specific information available in relation to the duration of the concurrent sentences).
  

(f) The Director failed to require Mr. Giltrap to supply or otherwise obtain page “2” of his CCR, for the obvious reasons that with incomplete information, there is likelihood that Mr. Giltrap had further convictions to his name.

(g) Had the Director enquired further on the convictions and prison sentences in the CCR, such inquiry would have led to further information pertaining to the CCR recorded convictions. Such an inquiry would have, for instance, shown results that includes (but not limited to):

• (i) The Court of Appeal case of Nigel John Giltrap v The Queen [2010] NZCA 157 (‘appeal case’) http://www.nzlii.org/nz/cases/NZCA/2010/157.pdf
  
• (ii) The appeal case clarifies the information on the CCR which records convictions entered on 10 November 2009. It clarifies the CCR information that Mr. Giltrap was tried by a jury in the Christchurch District Court on or about October 2009, under the New Zealand Crimes Act 1961 and the New Zealand Domestic Violence Act 1965. He was convicted and was sentenced to a total of 2 years and 2 months imprisonment on 10 November 2009 (as per CCR information).
  
• (iii) Mr Giltrap appealed against his conviction and sentence, and his appeal was dismissed and both conviction and sentence were upheld on 30 April 2010. He served his prison sentence immediately prior to his residence visa application.
  
• (iv) Apart from such a search, the Director ought to have utilised official channels to confirm the full extent of Mr. Giltrap’s criminal history.
  
• (v) The Director failed to do this.
  

(h) As a result of the Director’s negligence to correctly apply the character test under the Act and:

• (i) request Mr. Giltrap to provide complete information;
• (ii) inquire further as to his criminal convictions; and
• (iii) correctly ascertain Mr. Giltrap’s criminal history
  

Mr. Giltrap who was a person with a criminal convictions for violence and who had served prison sentence of over 2 years was permitted to reside in Vanuatu, putting at risk other residents of Vanuatu in relation to the security of the person and in denial of all those persons including the applicants’ right to the protection of the law, namely the Act.

7. On the 20.03.18 Mr. Giltrap assaulted the elderly applicants at the Si Chuan Restaurant in Luganville, causing them harm and injury and particularly in relation to the second applicant, considerable injury (as particularised in section D. below.
   
8. Mr. Giltrap was convicted in Criminal Case 2506 of 2018 on two charges of intentional assault (occasioned on the applicants) contrary to section 107(a) and (b) of the Penal Code and sentenced (on appeal) to 2 months imprisonment on each of the charges (served concurrently).
   

100. THE APPLICANTS RESULTING LOSS AND DAMAGE
     

9. The applicants say that as a result of the negligence of the Director of Immigration and the ensuing breach of the applicants fundamental rights above the applicants have suffered loss and damage:
   
   • (1) The Applicants immediate apprehension as to their safety particularly given their age and physical ability to properly defend themselves, while in the Si Chuan Restaurant, where the assault took place;
     
   • (2) Immediate anxiety compounding the fear, at the confrontational manner in which Mr. Giltrap advanced towards the Applicants at Si Chuan Restaurant, immediately before the assault of the Applicants;
     
   • (3) Humiliation following loud verbal insults and the assault by Mr. Giltrap, resulting in injury to Mrs Quinto.
     
   • (4) Physical injuries sustained by the Applicants, due to the assault by Mr Giltrap, the consequences of which continue to affect the Applicants and for which the Applicants have had to incur huge medical expenses on.
     
10. The applicants particularised their injuries and damages are as follows:
    
    • (a) Psychological impact, shock, anxiety and trauma occasioned on the elderly couple during and after the assault which happened in a public place;
      
    • (b) Blows impacting Mr. Quinto’s chest resulting in a deep external bruising lasting a month and internal contusion to his heart;
      
    • (c) While in pain himself, Mr. Quinto helped care for his wife who was also significantly injured for the month following the assault;
      
    • (d) Mr Quinto experienced increased and more constant dizziness which developed into sudden onset of near fainting which developed to chest pains, nausea and shortness of breath.
      
    • (e) The symptoms which began the month after the assault continued to deteriorate rapidly and essentially Mr Quinto had suffered incremental heart failure which required multiple levels of clinical intervention including having to undergo a procedure for inserting an ICD implant in lieu of open-heart surgery;
      
    • (f) Mrs Quinto had to be moved from the site of the assault by ambulance personnel – she was bedridden for the better part of the month following the assault. The injury to her right leg did in time ameliorate and she did finally regain use of her right leg but it was to remain painful ever since the assault;
      
    • (g) Mrs Quinto was unable to walk for several weeks and then only with crutches;
      
    • (h) Mrs Quinto remained on crutches for 2months for the better part of 2 months;
      
    • (i) Medical description of the injury of Mrs Quinto is such that she sustained a new trauma to her right upper femur – directly to the site where she had had implanted a prosthesis following a fracture one year earlier. The healing process, still continuing from that earlier trauma, in a 76-year-old woman was interfered with and was visible in X-Rays taken at Northern District Hospital four days after the assault. She was taken there by ambulance to verify her condition as the pain was such that she thought her leg had broken again. The pain, though much abated, continues and she requires ongoing and continuous therapy to help with her condition.
      
    • (j) The Applicants have a much reduced life expectancy following the injuries they sustained, given their old age, and for which they are not expected to enjoy to the fullest extents as they would have had it not been for the assault and the resulting injuries they sustained.
      
11. They say the following are the medical expenses for the injuries sustained by them in terms of medical treatment and cost of medical care associated with the injury as a result of the assault by Mr Giltrap:-
    
    • (a) Procedure for inserting an ICD implant in lieu of open-heart surgery for Mr. Quinto.
      
      • (i). AUD$64,642.80 in hospital fees and charges by St. Andrews Hospital in respect of in-patient Cardiac investigations; including for planned surgical theatre items and disposables;
        
      • (ii). AUD$3,696.55 for in-patient treatment St. Andrews Hospital; and
        
      • (iii). AUD$400.00 in respect of implanted defibrillator remote monitoring annual fee.
        
    • (b) Medical costs of Mrs Quinto to be assessed by the Court.
      
      • (c) Other expenses incurred:
        
        • (i). Cost of airfares from Santo to Vila in the sum of VT67,200 x (3 round trips) = VT201,600 (Return included).
          
        • (ii). Cost of airfares from Vila to Brisbane Australia for medical treatments in the amount of VT109,120 (one way) X 5 round trips =VT1,091,200 as Mr. Quinto had to travel in Business class due to her condition and the discomfort and pain she was suffering due to the injury and had to be accompanied by his wife as he could not travel alone.
          
        • (iii). Clinical/hospital bills in Australia for the sum of approximately VT3,000,000 (to be finally assessed) for implantation of the ICD
          
        • (iv). Cost of Hotel in Australia in the amount of VT200,000.
          
        • (v). Cost of transport in Australia, from hotel to Hospital in the amount of VT100,000.
          
12. They say there is constant apprehension following release of Mr. Giltrap from prison in November 2019, and given the threats Mr. Giltrap made against Mr Quinto at the Si Chuan Restaurant that Mr Giltrap would have him taken of and that Mr Giltrap was a dangerous man.
    
13. Loss of confidence in the Vanuatu government and in particular, the Department in that while the Applicants have made huge investments in Santo, the environment in which they conduct business has been gravely affected given the presence of people like Mr. Giltrap who as an expatriate with previous criminal record in New Zealand, and a criminal conviction in Vanuatu, is allowed to remain in Vanuatu.
    
14. Loss of ability to conduct business with confidence given the presence of Mr. Giltrap and given the threats he has already previously made against the Applicants.
    
15. Emotional and psychological turmoil and distress during the incident, immediately following the incident with the physical injuries of Mrs Quinto, as well as the recovery from the assault and the injuries.
    
16. Emotional and psychological distress from the constant feeling of apprehension and fear given the dangers presented in the presence at large of Mr. Giltrap.
    
17. Loss of private and public reputation given Mr Giltrap wild accusations of outstanding monies owed to him by the Applicants, when those accusations were made in a public place at the Si Chuan Restaurant.
    

4. REMEDIES SOUGHT
   

18. The applicants seek the following remedies:-
    
    • (1) A declaration that the granting of a residence visa to Mr. Giltrap was in excess of the powers given to the Director of Immigration under the Act and that this failure represents a direct deviation from and neglect of the objects of the Act premised on protection and security of persons in Vanuatu.
      
    • (2) A declaration that in neglecting the statutory functions stipulated under the Act, and allowing Mr. Giltrap to reside in the country, that this directly breached the fundamental rights of the applicants guaranteed under the Constitution, resulting in the applicants’ injuries and damages suffered.
      
    • (3) A mandatory order quashing the decision of the Director of Immigration granting residence visa to Mr. Nigel Giltrap.
      
    • (4) An order for compensation for the physical injuries the applicants sustained, including medical bills in respect of those injuries;
      
    • (5) An order for compensation for the emotional and psychological distress, humiliation, embarrassment, intimidation, confusion and bewilderment and injury and loss to public and private reputation in a sum to be assessed.
      
    • (6) Other orders as deemed fit by the Court.
      
19. Mr Stephen Quinto files a sworn statement in support of the Constitutional Application on 17 March 2020.
    
20. The matter was listed for a fist conference hearing on 14 April 2020 at 2:00pm o’clock in the afternoon pursuant to Rule 2.8 of the Constitutional Rules.
    

5. FIRST CONFERENCE HEARING ON 14 APRIL 2020
   

21. I read the Constitutional Application of the applicants filed in this current proceeding and the sworn statement of Stephen Quinto filed in support.
    
22. I have asked Mrs Patterson Counsel for the applicants whether the applicants have filed a separate but related civil claim for damages for injuries and the like resulting from the assaults occasioned on their bodies by Mr Giltrap after his prosecution, convictions and sentence in criminal case No. 2506 of 2018 on two charges of Intentional assault. Mrs Patterson informed me that there was none apart from this Constitutional Application.
    
23. I did not ask the question: why, or why not in the light of the provision of Article 6 of the Constitution which provides: “(1) Anyone who considers that any of the rights guaranteed to him by the Constitution has been, is being or is likely to be infringed may, independently of any other possible legal remedy, apply to the Supreme Court to enforce that right.”
    
24. I heard Mrs Patterson at the First conference hearing. I also enquired into the matters raised by the applicants to assess whether their application has a constitutional foundation.
    
25. The intended constitutional challenge, here, is against a decision made by the Director of Immigration on 2013 giving Mr Nigel John Giltrap residence permit in Vanuatu (the relevant year for the alleged failure in the exercise of statutory function). There were no details provided in respect to that decision as to its date and duration or whether it was made with a condition or not and whether other members of Mr Giltrap’s family were also concerned as they might be covered by it as a result of its granting under the Act at least 5 years since 2018 (the relevant period until the offending and also the resultant consequence which was led to breaches of rights as alleged).
    
26. It was accepted that on or about 2013, the Director of Immigration provided Mr Giltrap with a residence permit. For the purpose of my preliminary enquiry into the matters raised by the applicants and at this stage of the First Conference Hearing, I proceeded on the assumption that under the Immigration (Amendments) Act of 2010, the Director has the statutory powers and had exercised those powers within the Act on the material provided to him by Mr Giltrap at the time of his application for residence visa in 2013.
    
27. It was alleged that by relying on these material without further enquiry the Director failed his statutory duties which amount to the breaches of the rights of the applicants. This was what I understood from the application and the material statement filed in support.
    
28. However, my reading of the Act and the preliminary facts of the records of the convictions of Mr Giltrap in the District Court of Christchurch (New Zealand) were that the last offences he was convicted of and sentenced for more than 2 years imprisonment after an unsuccessful appeal in 2010 before the Court of Appeal of New Zealand occurred in 2008. In 2013, it was a period of about 5 years after the commission of those offences when Mr Giltrap applied and was granted a residence visa in 2013 by the Director of Immigration.
    
29. I note the provision of section 38 of the Immigration Act 2010 (the “Act”) which was referred to and relied on by the applicants. I note further other related and relevant provisions of the Act. The relevant parts of the Immigration Act are set out below to ensure that there is an understanding of what is sought and intended to be achieved through the judicial powers of the court and whether it was right to do so by this Constitutional Application.
    

“PART 4 VISAS FOR NON-ENS

Division 1 Gl provisions

27 Classes of visas

There are the followingowing classes of visas:

(a) a visitor visa;

(b) an extended visitor visa;

(c) a residence visa;

(d) a student visa;

(e) a special category visa;

(f) a transit visa;

(g) an interim visa.

...

30 Residence visa

(1) A residence visa is to be granted for a period of at least 1 year, but must not be granted for a period that exceeds 10 years.

(2) If a person is the holder of a residence visa (“the holder”), then, subject to sections 37 and 38, a member of the family of the holder may be granted a residence visa for a period that is the same as the period for which the holder’s residence visa has been granted.

...

Division 2 Application for a vi>>