Has NZ’s Ombudsman been nobbled?

Boshier
Judge Peter Boshier, NZ’s Ombudsman (Fairfax)

  Blog No. 120.

In 1962, New Zealand was the fourth country after Sweden, Finland and Denmark to appoint an Ombudsman – though many other countries have since followed suit. Before reading this blog readers should spend thirty seconds to bring themselves up to speed with the history and role of the NZ Ombudsman. https://www.ombudsman.parliament.nz/about-us/history

The Scandinavian countries and New Zealand are regarded as being among the best governed democracies in the world. Furthermore, this year, New Zealand regained its title as the world’s least corrupt country. https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11788682 New Zealand is also second, after Switzerland, in the global ranking of democratic governance. https://www.worldatlas.com/articles/the-best-governments-in-the-world.html 

There is no denying that New Zealand is a great country in which to live. The problem is that when you are at the top of the governance and corruption rankings, the only movement possible is downward. Without constant vigilance the first step onto the slippery downward slope is easily taken.

Despite the risks posed by a rapid increase in immigration from countries with lower rankings on the corruption ladder, the NZ population, by and large, continues to abhor paying holders of official positions for ‘favours.’

The area where vigilance seems most needed, especially in a country such as New Zealand, which has no written constitution, is in the abuse of powers by government. Grass-roots, party membership has declined precipitously since the advent of television, and with it, the general population’s involvement with, interest in, and understanding of constitutional matters.

This trend has been exacerbated by the failure of the education system to provide more than the international average space in its syllabus for either history or civics. https://www.educationcounts.govt.nz/publications/series/iccs/what-do-new-zealand-students-understand-about-civic-knowledge-and-citizenship/summary

Furthermore, the NZ media is almost entirely overseas owned. The small, independent actors have been ruthlessly amalgamated. Their editors have been made subject to corporate disciplines, with their budgets affected by the shrinkage in advertising revenues as social media gain ever increasing traction. Consequently, serious investigative journalism is a fast dying profession.

A current demonstration of this growth in the NZ government’s impunity from serious investigative oversight, is the NZ media’s failure to notify the public of the government’s donation of $13.7 million of tax-payer money to the discredited Clinton Foundation. This donation was an event so significant that it might have been the cause of the recent Prime Minister’s resignation and could be a factor in any increase in discrimination against New Zealand by the Trump regime in the USA. https://khakispecs.com/?p=2849

Other than a few blogs, this payment of slush by the government has escaped almost all mention in the NZ media. A month ago, The Christchurch Press even ran an article syndicated from The Times, announcing the demise of the Clinton Global Initiative and mentioning the contributions of Australia and Norway to the Clinton payola project. What the Christchurch Press failed, and has still failed, to do, was to notify its readership of its own government’s generous participation in the racket.

Given the electorate’s lack of interest and the media’s inability to provide in-depth reporting, the Cabinet, formed around the Prime Minister, appears to be increasingly impervious to, or rather heedless of constitutional restraints. Previous blogs on this site relating to the persecution of the CIA whistle-blower, Harmon Wilfred, have illustrated how the current National government seems more concerned with its retention of power than about its abuse of it.

In an unwritten constitution, the role of the Ombudsman, as the watchdog tasked with protecting the population from abuse by government and its agencies, assumes particular importance. Government politicians, freed from written constraint, are often exposed to the temptation to place considerations of political expediency above those of the proper functioning of a constitution that should deliver justice and fairness to those living under its rule.

Unfortunately for New Zealand, the Official Information Act of 1982, specifically excluded the Ombudsman’s office, and all communications between it and the government, from its provisions. The consequence is that there is no way that an interested member of the public can determine the extent, or otherwise, of connivance between the watchdog and the watched. As it is the government that pays for the functioning of the Ombudsman and his office and as no one has access to the communications between the two parties, how are those wishing to utilise the Ombudsman’s services to know whether they are dealing with an office watching over and protecting their legitimate interests, or the lapdog of a government that is abusing them?

Harmon & Carolyn3
Harmon & Carolyn Wilfred – in happier times.

The Wilfreds’ cases are two in point. Both Harmon and Carolyn each have made separate complaints to the Ombudsman. Harmon lodged his complaint three years ago. The complaint was that, as a stateless person with an INZ (Immigration) deportation order against him, he was prevented from making any application to the government for the regularisation of his residential status. As the deportation order could not be enforced, because no other country would permit him entry as a stateless person without travel documents, he was suspended indefinitely, in a bureaucratic limbo, which denied him access to his rights as a human. Despite a couple of recent assurances from the Ombudsman that his office would be dealing with his complaint in the near future, after three years of waiting, Harmon’s case remains unaddressed, while he continues to be ensnared in the government’s Catch 22.

Extracted from the UN’s Universal Declaration of Human Rights.

Article 15.

(1) Everyone has the right to a nationality.

(2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

Carolyn’s case is much more recent and was addressed more promptly. In September 2015, Carolyn was persuaded by INZ to leave her husband in Lincoln for a couple of weeks, while she visited her daughter in Canada. INZ knew that she planned to make an application for permanent residence in NZ under the recently introduced ‘Investor Plus’ scheme. This was open to foreign nationals willing to invest more than $10 million in NZ SMEs (small and medium-sized enterprises.) Carolyn was told that applications could only be made from an overseas location.

Within twenty-four hours of her leaving the country and despite the visa waiver agreement between Canada and New Zealand, INZ imposed an all-ports ban on Carolyn’s re-entry. There was an initial pretence that it was a bureaucratic mistake, which would soon be remedied. However, after multiple prompts and protests, INZ dropped all pretence that it was an error and the ban on Carolyn’s re-entry remains in place.

When her application for entry under the Investor Plus scheme was finally processed by INZ, while she remained stranded in Canada, it was rejected and Carolyn and Harmon realised that they could well be separated for the rest of their lives. With Harmon effectively imprisoned in an admittedly, gilded cage, the couple were not even to be allowed conjugal visits.

Carolyn duly appealed to the Ombudsman about this infringement of her human rights and, given the length of time, for which the couple had already been forcibly separated, asked for the case to be treated with urgency. The Ombudsman’s office, after an initial expression of outraged sympathy at such an egregious breach of normal ministerial conduct, rapidly changed its tune. Here is the timeline:

· On the 22nd June 2016 the Ombudsman presented Carolyn’s case to INZ.

· After 5 weeks, on the 26th July, the Ombudsman informed Carolyn’s lawyer that INZ’s response had been received and would take 4-6 weeks to ‘evaluate.’

· On 27th July, Carolyn’s lawyer responded saying that his client had now been separated from her husband for almost a year and to expedite matters, could he please have a copy of INZ’s response.

· On 28th July the Ombudsman refused to provide Carolyn’s lawyer with even a redacted version of the INZ response on the following grounds:

This Office is not subject to the provisions of either the Privacy Act or the Official Information Act. Furthermore, section 21(2) of the Ombudsmen Act (the Act) requires Ombudsmen to “maintain secrecy in respect of all matters that come to their knowledge in the exercise of their functions”. This provision has the effect of allowing a free and frank exchange of views between an Ombudsman and an organisation, an exchange that is vital in determining all the factors relevant to a complaint. If the correspondence between this office and INZ was released to you in its entirety, not only would section 21(2) be contravened, but the ability of Ombudsmen to gather information effectively in the future may be undermined. In order for complaints to be investigated effectively and impartially, both a complainant and the organisation against which the complaint is directed must be able to have confidence that information they provide to an Ombudsman will be kept confidential except to the extent necessary for the purposes of an investigation.

· On 1st September, notice of a further 4-6 week delay for ‘evaluation’ was received from the Ombudsman’s’ office. The Wilfreds suspected that the reason for these extenuated delays was to await clarification of the outcome of the US Presidential election. (In the event, though the Ombudsman released his provisional findings almost immediately after the results of the US election were declared, Trump’s unexpected triumph does not seem to have had an impact on them. The findings appeared to continue support for the government’s policy of dealing to the Wilfreds as the Clinton camp would have wished.)

· On the 11th November, by ‘coincidence,’ just three days after the US election results were declared, the Ombudsman’s provisional findings were released. This was after twelve-weeks spent evaluating a report that INZ had taken less than four weeks to produce. It was a substantial piece of work and rejected Carolyn’s claim. It consisted of 2,360 words of finding plus another 2,220 words of appendix. The Wilfreds were given a deadline for comments on the provisional finding should they wish to make any.

· On the 23rd November, I, as an interested party, with Carolyn being a major investor in my family business, sent a 2,700 word submission that contested and refuted the majority of points made in the Ombudsman’s provisional finding.

· On the 8th December, Harmon, as Carolyn’s husband, made an additional submission of 1,330 words (at the same time asking the Ombudsman to also take into consideration the submission that I had made.)

· On the 19th December, just seven working days after the receipt of Harmon’s submission, the Ombudsman issued his final ruling. This upheld his provisional finding that INZ was justified in refusing Carolyn’s readmission to the country. It consisted of just 400 words and, with one exception, omitted to mention any of the multiple arguments raised in the original provisional findings, which had been effectively rebutted in the two submissions. The sole argument retained was simply that the Minister of Immigration has absolute discretion to decide whatever he wants to decide. The Ombudsman did not see reason to comment on his own view as to the justice or otherwise of the Minister’s decision.

· On the 31st January, quoting the Official Information Act, I asked the Ombudsman’s office “What was the shortest final ruling made over the previous year?” I was told it was impossible to retrieve that data. I also asked “What was the time to be expected, between the Ombudsman’s receipt of submissions on his provisional finding and his delivery of his final ruling?” This is the response received:

“Once an agency or complainant’s comments on an Ombudsman’s provisional opinion have been received, the length of time before an Ombudsman forms a final opinion will vary considerably. For example, if the agency or complainant do not comment or provide cursory within the time-frame provided (generally 2-4 weeks) then an Ombudsman will generally form a final opinion shortly thereafter e.g., 4-6 weeks after receipt of comments (or lack thereof). However, if the agency or complainant provides extensive or thought-provoking comments, then it may take the Ombudsman more time to form a final opinion. Furthermore, the comments may even persuade the Ombudsman to revise their original provisional opinion and issue a fresh provisional opinion for further comment before then going on to form a final opinion. In such circumstances it would clearly take a much longer time for the Ombudsman to form a final opinion.”

You might wonder, what is the point of all the above detail? It might be argued that the delays in the Ombudsman’s hearing of the case were indicative of an unconstitutional connivance between the reputably, independent Ombudsman’s office and the Cabinet. However, in itself, that timeline would not be convincing. It is the contents of the communications and the other factors involved that would seem to make the case for connivance virtually irrefutable. (That is, other than by further lies told by officials and politicians on behalf of their country and their careers, while hiding behind a smokescreen of immunity to exposure under the Official Information Act.)

By their denial of Harmon’s request for asylum and their subsequent refusal to allow any legitimisation of his status in NZ, previous governments had set the pattern of collaboration with Hillary’s sponsors within the CIA.

Harmon, as explained in several of my previous blogs, had blown the whistle on a multi-billion dollar CIA money-laundering scam and retains sufficient knowledge of the Clintons’ corruption that, were it to have entered the public domain, could have derailed Hillary’s bid for the presidency. Given the Key government’s heavy political and financial investment in the passage of the TPP, which would have almost certainly followed her investiture, it would appear that the Key government would have had particular reason to keep Harmon’s case out of the public domain.

The 19th December 2016, saw not only the release of the Ombudsman’s final report, rejecting Carolyn’s 1st July 2016 appeal regarding INZ refusal of her rights to visit NZ, while her application for residency under the Investor Plus scheme was pending. This ruling also, just happened to ‘coincide’ with the completely separate, Immigration & Protection Tribunal’s (IPF) announcement of its finding that the INZ’s was technically within its rights to reject Carolyn’s application under the Investor Plus scheme.

Given the Ombudsman, Judge Boshier’s, impressive and apparently unprecedented achievement of making ready his final report just seven working days after his receipt of the final submissions on his provisional findings, both his and the IPF’s reports ‘happened’ to be released on the same day. The IPF’s report had been six, or so, months in gestation. In the absence of all other indicators, this surprising synchronicity alone, would lead an observer to question the impermeability of the fire-wall supposedly existing between the Ombudsman’s office and those of other government agencies.

OPART30.jpgHowever, the argument for collusion between government and Ombudsman is not based purely on the delayed chronology and synchronicity of the sundry reports. Those who take the time to read the annexed documents will see that the concepts of ‘Ombudsman’s justice’ and the ‘special protection’ promised to whistle-blowers have been judiciously exorcised from the equation. It seems improbable that such rulings would have come from a person, who had spent his life working with the concepts of fairness and justice. Much more likely that they were on the insistence of ministers for whom raisons d’état, rather than concern for the rights of individuals, have to be prioritised. No wonder Judge Boshier minimalised his commitment to his final ruling!

The constitutional rights of New Zealand residents would be greatly enhanced were the Ombudsman’s office to become truly independent of government intervention. For this to happen, exemptions to the Official Information Act need to be set aside, thus allowing communications between the government and the Ombudsman’s office to be exposed to the transparency promised under the Act.

 

 

Annexures:

1. Judge Boshier’s provisional finding. (A lengthy and largely technical discourse.)

2. Hugh Steadman’s submission on the provisional finding. (A lengthy, but easier read.)

3. Harmon Wilfred’s submission (A shorter and easy read.)

4. Judge Boshier’s final ruling. (A thirty second read.)

5. Further information.

 

Annex. 1. Judge Boshier’s provisional finding:

Our ref 426057
Contact David Scott
11 November 2016
Mr Harmon Wilfred
By email: harmon@wilfredholdings.com

Dear Mr Wilfred

Ombudsmen Act investigation Immigration New Zealand

I refer to your recent email communications with Senior Investigator David Scott concerning your complaint of behalf of your wife Mrs Carolyn Wilfred against Immigration New Zealand (INZ), part of the Ministry of Business, Innovation and Employment. I have received a report from INZ on your complaint, and I have now had an opportunity to consider that report. Having considered all the issues raised, I have now formed a provisional opinion on your complaint.

Summary

The complaint arises from the decision of INZ, on 5 September 2015, to suspend Mrs Wilfred’s ability to participate in the visa waiver scheme between New Zealand and Canada, and the subsequent decline of her visitor visa. You submit that Mrs Wilfred was not previously ‘unlawfully’ in New Zealand. You consider it is unfair for INZ to penalise Mrs Wilfred for remaining in New Zealand (after the expiry of her work permit) when INZ Compliance had indicated that her plans to depart were appropriate. You consider that the suspension of Mrs Wilfred’s visa waiver status on her departure was a predetermined decision intended to encourage you to depart New Zealand.1

In essence, my provisional opinion is that the decisions of INZ to suspend Mrs Wilfred’s ability to participate in the visa waiver scheme between New Zealand and Canada and to subsequently decline her visitor visa application were not unreasonable.

My role

I have authority under the Ombudsmen Act 1975 to investigate the administrative conduct of INZ and to form an independent opinion on whether that conduct was fair and reasonable. My investigation is not an appeal process. I would not generally substitute my judgment for that of the decision-maker. Rather, I consider the substance of the act or decision and the procedure

1 You are subject to a deportation order which INZ has been unable to carry out due to your status as a stateless person. This matter is the subject of a separate complaint to this Office, our ref: 356501 (allocated to the backlog team).

followed by INZ, and then form an opinion as to whether the act or decision was properly arrived at and was one that INZ could reasonably make.

Background

The background to this matter is set out in the Appendix to this letter.

Discussion

Suspension of visa waiver status

Under regulations made pursuant to section 400 of the Immigration Act 2009 (the Act) the requirement to hold a visa to enter New Zealand is waived for Canadian citizens. However, section 69(2)(d) of the Act provides that the Minister may, by special direction, suspend visa waiver rights in any individual case. A person who has their visa rights suspended must apply for a visa before travelling to New Zealand. The decision to issue a special direction is a matter of absolute discretion (defined in section 11 of the Act). There are no particular criteria in terms of immigration instructions that apply to determine whether a special direction should be issued.

You are concerned that the decision of INZ to suspend Mrs Wilfred’s visa waiver status did not comply with the statutory requirements of the Act. In turn, INZ acknowledge that the suspending Mrs Wilfred’s visa free status did not comply with the administrative requirements of the Act. INZ accept that the special direction had no legal effect until on 10 September 2015 when an appropriately delegated immigration officer made the special direction in writing (as required by section 378(4) of the Act), recorded the reasons for suspending Mrs Wilfred’s visa free status, loaded another information warning on AMS, and advised Mrs Wilfred’s agent by letter dated 11 September 2015. Overall, I am satisfied that the procedural flaw with the issuing of the special direction was appropriately rectified by INZ and there appears to have been no undue prejudice to Mrs Wilfred as a result.

You complain that INZ did not provide Mrs Wilfred with any notice about the decision to suspend her visa waiver status. You state that Mrs Wilfred found out about the decision inadvertently on 8 September 2015 (when an INZ Business Migration Manager spoke to her legal representative Mr Ballantyne about Mrs Wilfred’s residence application) and was unable to consider her options prior to her departure. However, there was no statutory obligation on INZ to notify Mrs Wilfred of the suspension of her visa waiver status. Under the Act, the suspension of the waiver of the requirement to hold a visa may occur at any time without consulting those affected even though this may be inconvenient to the individual concerned. I do not consider that INZ was obliged to warn Mrs Wilfred before her visa waiver rights were suspended. INZ advised Mr Ballantyne on 8 September 2015 that Mrs Wilfred’s visa waiver status was suspended and that she would require a valid visa to return to New Zealand. Nothing more was required.

You also consider that it was unreasonable for INZ to regard the period that Mrs Wilfred was unlawfully in New Zealand (from 24 July 2015 until 5 September 2015) as a negative factor. You believe that Mrs Wilfred complied with all lawful directions from INZ between 2001 and her departure in 2015. You note that INZ Compliance decided to monitor Mrs Wilfred until the 42-day time-frame to make an appeal to the Immigration and Protection Tribunal (ITP) had expired and did not express concerns about her plan to depart New Zealand on 5 September 2015. You also consider the decision was unreasonably influenced by your immigration status.

In response, INZ disagrees that Mrs Wilfred complied with all lawful directions from INZ up to her departure. The last visa granted to Mrs Wilfred stated ‘You must leave before visa expiry or face deportation’. She was advised to leave when that visa expired on 17 July 2015 and repeatedly advised that she was unlawfully in New Zealand and liable for deportation. INZ also note that the record of the special direction shows that your unlawful status in New Zealand had no bearing on that decision. The decision to suspend Mrs Wilfred’s visa waiver status was taken because she was unlawfully in New Zealand after the expiry of her interim visa. INZ state that:

• It is standard practice for INZ to consider suspending the visa waiver status of clients who depart after remaining unlawfully in New Zealand. If a client has previously remained in New Zealand unlawfully, this may cast doubt as to whether they are a bona fide applicant for a future temporary entry class visa; and

• It is more appropriate to consider bona fide concerns as part of a properly considered visa application made offshore, rather than as part of an application made in the border environment, which may result in a turnaround if the application is unsuccessful.

I acknowledge that there appears to have been an understanding that Mrs Wilfred would not be deported given her undertaking to depart voluntarily. However, this does not mean that Mrs Wilfred was entitled to be in New Zealand after the expiry of her interim visa on 24 July 2015. I consider that it had been made clear to Mrs Wilfred by INZ that she was under an obligation to leave New Zealand. The availability of a 42-day period to appeal to the IPT, her request for a visa under section 61 of the Act and her undertaking to INZ compliance to depart were all matters which did not excuse her unlawful status.

As noted above, the decision to issue a special direction is a matter of absolute discretion. Given the wide breadth of that discretion, any decision would have to be demonstratively flawed before I would consider intervening. In this case, the decision to suspend Mrs Wilfred’s visa waiver status appears to have been reasonably made. It also did not create any impediment to Mrs Wilfred lodging a visa application from off-shore to allow her bona fides to be fully assessed (thus avoiding any possible turnaround at the airport).

Overall, I do not consider that the suspension of Mrs Wilfred’s visa waiver rights by INZ was unreasonable. The procedural error with the special direction was promptly rectified and INZ was not required to provide Mrs Wilfred with the opportunity to comment. There is nothing to suggest that INZ were not entitled to question Mrs Wilfred’s bona fides on the basis of her period of unlawfulness.

Decision to decline visitor visa

You consider that the decision of INZ not to grant Mrs Wilfred a visitor visa on the basis of her bona fides was unreasonable. You emphasise that there are no personal circumstances that would encourage Mrs Wilfred to overstay or breach her visitor visa conditions, particularly with her residence application on appeal. You state:

Also with my stateless status as unable to leave, it is clear that any breach of conditions would not only jeopardise her residency application but would also eliminate her opportunity to visit me either now or in the future. Why would she do that! In any case she needs to return to Canada by August, 2016 to finish up the court case to complete the sale of her assets. Also, with all NZIM applications, she has always worked diligently through her attorney to cooperate closely with NZIM to assure that conditions have never been circumvented.

In response, INZ state:

• Mrs Wilfred’s need to return to Canada for court proceedings was not considered relevant to whether she should be granted a temporary visa to visit New Zealand. Having a residence application lodged was part of Mrs Wilfred’s personal circumstances, but was not a reason in favour of granting a visa to visit New Zealand;

• The visitor visa assessment clearly shows that a range of information concerning her personal circumstances was used to assess her bona fides. It included the fact she stayed unlawfully in New Zealand, that she appeared to have limited family ties to Canada and that her husband remained unlawfully in New Zealand; and

• There is no evidence your status in New Zealand pre-determined the decision, but it was an important factor because you were unlawfully in New Zealand and had been since November 2004. Mrs Wilfred has no family normally resident in New Zealand and hence no reason to visit New Zealand for the purpose of visiting family.

Immigration instructions at E5.1 and E5.5 require all applicants for temporary entry class visas to be ‘bona fide’, in that they must show they ‘genuinely intend a temporary stay in New Zealand for a lawful purpose’ (E5.5(b)). When assessing Mrs Wilfred’s bona fides INZ was entitled to take into account any relevant information held about whether she had previously breached visa conditions, the strength of any family ties in the home country and New Zealand, the nature of any commitments in the home country, and any circumstances that may discourage her from returning to their home country when any visa expires.

INZ did not identify Mrs Wilfred’s need to return to Canada for court proceedings as a relevant factor, as part of her personal circumstances. (Mr Ballantyne’s letter dated 29 April 2016 which accompanied Mrs Wilfred’s visitor visa application noted that INZ already held the record of his strong objections to the visa waiver suspension of the basis of Mrs Wilfred’s bona fides. This included a letter dated 23 December 2015 stating that Mrs Wilfred was required to be back in Canada in March 2016 to complete oral discovery and thereafter for a trial to be fixed in early April 2016.) However, no clear evidence was submitted with the visitor visa application to show that Mrs Wilfred had outstanding commitments in Canada which she was obliged to return to. Nor did Mrs Wilfred seek to rely on her prior claim that she needed to return to Canada when making her visitor visa application. In these circumstances, I do not consider that INZ was obliged to treat it as a relevant factor when assessing the request. Similarly, I consider that the claim that Mrs Wilfred had every incentive to comply with immigration law due to her residence application was not a factor that INZ were obliged to identify and address due to its generalised nature.

I am satisfied that INZ were entitled to identify Mrs Wilfred’s period of unlawfulness in New Zealand and her relationship with you as negative factors concerning her bona fides, together with her unfavourable immigration history, her limited family ties in Canada and the risk she was intending to work in New Zealand. I consider that INZ did not take a predetermined approach to assessing the visitor visa application and identified the key relevant factors to be weighted. Given the deportation order against you, INZ’s view that Mrs Wilfred has no reason to come to New Zealand to visit family who are normally resident appears to be one which is reasonably open to INZ to hold. In the circumstances, and given the strength of the concerns INZ identified concerning Mrs Wilfred’s bona fides, I do not consider that INZ acted unreasonably in declining her visitor visa application.

International obligations

You consider that the decisions made by INZ in relation to Mrs Wilfred’s bona fides gave insufficient consideration to relevant international obligations, including the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness. In response, INZ note that New Zealand is not a signatory to the Convention relating to the Status of Stateless Persons. INZ also state that your United States citizenship was not taken from you due to circumstances beyond your control. New Zealand has not undertaken any action to deprive you of your nationality to render you stateless.

Overall, I do not consider that INZ ignored any relevant international obligations when making decisions about Mrs Wilfred’s bona fides.

My provisional opinion

My provisional opinion is that, for the reasons discussed above, INZ has not acted unreasonably in suspending Mrs Wilfred’s visa waiver rights and declining her visitor visa application. I invite you to comment before I consider the matter further. If you do wish to comment, please respond by 8 December 2016.

Yours sincerely

Judge Peter Boshier

Chief Ombudsman

cc: David Ballantyne: david@canterburylegal.co.nz

Appendix

Background

Mrs Wilfred was in New Zealand on various visas since 2001, including partnership/essential skills, long-term business and entrepreneur work visas (and visitor visas). Her residence applications (under the entrepreneur and investor categories) were unsuccessful.

Mrs Wilfred was granted a work visa valid from 8 December 2014 until 17 July 2015. The label stated:

Stay subject to grant of entry permission. You must leave before visa expiry or face deportation. Financial support evidence not required. Return/onward ticket not required. The holder may only work as self-employed owner/operator for Wilfred Holdings in Christchurch.

On 9 June 2015, Mrs Wilfred applied for a visitor visa for a 6-12 month period. The purpose of the visa was ‘visiting husband and checking on business investments in NZ to prepare for business application’. (Mrs Wilfred’s application for residence under the long term Business visa had been declined. She signalled her intention to apply again for residence under the Business Investor category).

On 3 July 2015, INZ sent a Potentially Prejudicial Information (PPI) letter to Mrs Wilfred stating that no evidence was provided that she needed to be in NZ for the purposes of business consultation (required for a business category visitor visa). In response, Mrs Wilfred provided information about a number of business investment proposals.

On 17 July 2015, on the expiry of her work permit, Mrs Wilfred was granted an interim visa by INZ which was valid until a decision was made on her visitor visa.

On 24 July 2015, INZ declined Mrs Wilfred’s visitor visa application and her interim visa expired. INZ did not consider Mrs Wilfred was required to be in NZ to await investment proposals from Bellamys Real estate and Prenzel Distilling Company. There was no need for her to remain in NZ for the operation of Wilfred Holdings. On 25 July 2015, INZ advised Mrs Wilfred that:

• The interim visa had expired and she was now unlawfully in New Zealand and liable for deportation;

• If deported from New Zealand she would be unable to return until the end of the deportation period. If she departed voluntarily she may still be deemed to be deported; and

• If she wished to appeal against her liability for deportation on humanitarian grounds, she may do so within 42 days.

The AMS records describe Mrs Wilfred as a high risk applicant for the following reasons:

• she has an interest in the business category but has a poor business history (four out of five companies had been put into liquidation including an investigation by the charities commission);

• her prolonged ties to you (as an ‘overstayer’) raised serious concerns about her bona fides;

• She has indicated that she could be a substantial investor but there were issues with the Canadian Revenue Agency and no guarantee that funds would be released to her; and

• She was granted time in NZ to allow her to make an application under the investor category and does not require further time in New Zealand for this purpose.

The Officer recorded:

I acknowledge that she has business affairs in New Zealand, however, I am not satisfied that she is required to be in the country to carry these out or that she has the means of engaging in the proposals. On face value it appears the applicant is requesting a visa to remain in NZ to be with her husband who is not on a valid visa and to await the outcome of her sale of shares in Canada which has been ongoing which is not the purpose of this category.

On 17 August 2015, INZ wrote to Mrs Wilfred about her immigration status, and reiterated that she was liable for deportation but may still depart voluntarily if she left before the expiration of the 42 day appeal period.

On 18 August 2015, Mrs Wilfred applied for residence under the investor 1 category –she sought approval in principle and a 12 month multiple entry work visa. Mrs Wilfred requested an interim visa while her application was processed. Alternatively, Mrs Wilfred requested a visa under section 61 of the Act. Mr Ballantyne also confirmed to INZ that Mrs Wilfred had booked a one-way ticket to Toronto on 5 September 2016. This was within the 42-day appeal period for the decline of her visitor visa.

On 19 August 2015, INZ Compliance confirmed by email that it would continue to monitor the case until the 42-day appeal period expired. If no visa was granted before the end of the appeal period the matter would be passed to a compliance officer who would make contact to discuss options.

On 28 August 2015, INZ declined Mrs Wilfred’s request for a visa made under section 61 of the Act (13769042). No reasons were provided. The letter stated:

As your visa has expired you are now unlawfully in New Zealand and must leave New Zealand immediately. If you do not leave New Zealand voluntarily you will be liable for deportation.

On 31 August 2015, INZ confirmed by email that it would hold the residence application until Mrs Wilfred departed (instead of returning it to her because of her unlawful status).

On 5 October 2015, INZ sent PPI letter concerning Mrs Wilfred’s residence application. This was followed by various communications over the next months, including tax matters and court proceedings in Canada concerning the sale of shares.

On 5 September 2015, Mrs Wilfred left NZ. Shortly before her departure, INZ suspended Mrs Wilfred’s rights to participate in the visa waiver scheme between New Zealand and Canada. The AMS record (made at 5pm on 4 September 2015) includes an information warning stating:

This client has remained in New Zealand unlawfully since the expiry of her interim visa when her substantive visa application was declined on 23 July 2015. Should this client depart New Zealand and attempt to return she is not permitted to travel to or through New Zealand visa waiver. Her visa waiver is now suspended pursuant to section 69(2) of the Immigration Act 2009. Should she attempt to return to New Zealand she … should be referred to the nearest INZ representation/VAC to apply for a visa to test her eligibility to travel to/through New Zealand.

On 8 September 2015, Mr Ballantyne was advised by an INZ Business Migration Manager that the residence application would be allocated to an officer shortly, and that Border alert had placed an alert on AMS suspending of Mrs Wilfred’s visa waiver rights.

Mr Ballantyne asked INZ Compliance to explain why this occurred and when it would be lifted. In response, on 11 September, INZ confirmed that the suspension of Mrs Wilfred’s Canadian visa waiver rights had been made by an appropriately delegated officer but the special direction required to give effect to the suspension was not made in writing, as required. The special direction had now been formally completed (by Officer Turner) and the visa waiver suspension was confirmed effective from 11 September 2015. INZ advised that the decision was made on the following grounds:

• Mrs Wilfred had previously been unlawfully in NZ;

• Her visa application 13769042 was declined as a section 61 request; and

• INZ stated that Mrs Wilfred may not be a bona fides visitor and her eligibility would be best tested by a visa application made offshore. INZ noted that lifting the suspension would be reconsidered at the point the residence application was considered.

On 14 September 2015, Mr Ballantyne complained to the Regional Manager of Compliance that there was no reasonable basis for concluding Mrs Wilfred was not a bona fides visitor as she had complied with all lawful directions from INZ. She had reserved her right to lodge a humanitarian appeal to the IPT against the decision to decline her visa and was within the 42-day appeal period when she departed voluntarily. Mr Ballantyne also queried whether Mr Wilfred’s status had an impact on decision.

On 30 October 2015, INZ advised that no conclusion had been reached on bona fides. Rather, the possibility has been raised that Mrs Wilfred may not be bona fides, as she had remained in NZ following the expiry of her interim visa (after the decline of her visitor visa application).

On 16 December 2015, INZ explained (by email) that the decision was not taken lightly and Mrs Wilfred would need to provide compelling reasons why visa suspension should be lifted. In response, on 23 December 2015, Mr Ballantyne complained that there were no grounds to suggest Mrs Wilfred might not be a bona fides visitor and that it would be inappropriate to take Mr Wilfred’s stateless circumstances into account (and it has previously been confirmed by INZ that his status would not affect the application). Mr Ballantyne stated that Mrs Wilfred was required to be back in Canada in March 2016 to complete oral discovery and thereafter for a trial to be fixed in early April 2016.

In January 2016, the Associate Minister of Immigration (AMOI) advised that he would not intervene as INZ was currently considering the request to lift visa waiver and Mrs Wilfred had the option of applying for a visa.

On 22 January 2016, INZ Compliance confirmed that INZ did not intend to uplift the visa waiver suspension. INZ stated that Mrs Wilfred can apply for a visa off-shore to allow her circumstances to be fully tested.

On 26 February 2016, INZ received a further complaint from Mr Ballantyne.

On 17 March 2016, INZ confirmed that the visa waiver was suspended because Mrs Wilfred may not be a bona fides visitor based on her previous immigration history. Mrs Wilfred was invited to apply for a visitor visa in order that her circumstances may be properly assessed. INZ also noted that visa waiver status is suspended under section 69(2) of the Act, which involves an exercise of absolute discretion.2

On 29 April 2016, Mrs Wilfred made a visitor visa application. The visitor visa application was not based on her partnership with Mr Wilfred. The purpose of the travel was ‘family and social visits’. This was accompanied by a letter from Mr Ballantyne which set out the details of the circumstances of Mrs Wilfred being declined a visitor visa on 24 July 2015. Mr Ballantyne noted that he had strongly objected to the visa waiver suspension and drew attention to the exchange of correspondence where he put forward various grounds for the immediate lifting of the suspension.

On 13 May 2016, INZ declined Mrs Wilfred’s resident visa application. INZ were not satisfied that she had assets worth more than $10 million due to the lack of valuation. There also a concern about a claim by the Canadian Revenue Authority.

On 17 May 2016, INZ declined Mrs Wilfred’s application for a visitor visa on the basis that she was not a bona fide applicant. INZ stated that Mrs Wilfred’s personal circumstances may ‘discourage you from returning to your home country if the opportunity of staying in New Zealand arises at the end of your stay and the risks that you may overstay or breach our visa conditions are not acceptable’. INZ stated that the relevant factors considered during the assessment included: the purpose of the visit; partnership status and strength of family commitments; financial ties and previous immigration history with INZ.

The AMS records identified the following relevant factors:

• the applicant had a long and sometimes unfavourable immigration history;

2 Section 378(8) of the Act says that the decision whether to grant a special direction is at the absolute discretion of the Minister.

• you were currently unlawful in New Zealand after renouncing your US citizenship. You are stateless and without a county to be deported to. This connection appears to create doubt about Mrs Wilfred’s bona fides and genuine intent. It shows strong ties to New Zealand and might indicate a motive for remaining in New Zealand;

• there is a lack of credible reason for Mrs Wilfred remaining in New Zealand unlawfully from 24 July 2015 until 5 September 2015 and it appears the risk is too high that this may occur again;

• it appears that Mrs Wilfred owes around $8 million dollars to the Canadian tax department and she appears to have limited family ties in Canada (being in the process of suing her brothers for a share of her family owned company); and

• the risk is too high that the applicant was intending to work while in New Zealand due to the proposal submitted with her previous visitor visa application and her current residence application.

INZ also noted that further assessment was needed of the character issues, including verification of police certificates and the non-declaration of her full immigration history. (Mrs Wilfred had only acknowledged the recently declined visitor visa whereas AMS records shows three declined visas, a declined section 61 request, and a declined ministerial.)

The INZ Officer recorded:

The evidence provided raises doubt regarding her genuine intent and lawful purpose as a visitor in New Zealand. The onus on providing information that would tell us otherwise lies with the applicant. Therefore, I am not satisfied that the application is a bona fide applicant to New Zealand and the risks that she will breach her visa conditions or become unlawful in New Zealand are not acceptable.

On 1 July 2016, Mrs Wilfred lodged an appeal of the decline of her residence application with the IPT.

 

 

Annex. 2. Hugh Steadman’s submission on the provisional finding.

Sent to David Scott in the Ombudsman’s office on 23/11/16.

“The term “Ombudsman” is Swedish and basically means “grievance person”. The primary role of the Ombudsman in New Zealand is to investigate complaints against government agencies. … The Ombudsman also has responsibility to protect whistle-blowers and investigate the administration of prisons and other places of detention.”

“What can a complaint to the Ombudsman achieve?

The Ombudsman ‘system of justice’ is significantly different from that of the Courts and Tribunals. Ombudsman findings are not confined to strict judicial precedent. Instead, the conclusions reached, are founded on what an Ombudsman considers just and reasonable in the particular circumstances of the case.”

(Taken from FAQs on the Ombudsman website.)

Dear David,

I have just finished reading Judge Peter Boshier’s provisional findings on the Harmon and Carolyn Wilfred complaint (your ref. 426057.) At least the findings are provisional, were written before the outcome of the US election was apparent and are not yet inscribed in stone. As an interested party in the affair, (in that the future of the company, I founded in 1992, could well be dependent on the outcome) I feel entitled to comment and, as a New Zealand citizen and tax-payer, to have by concerns addressed.

My first impression on reading the document was that it was a ruling by a Judge on the technical application of the law of the land, rather than the comments of an Ombudsman acting on behalf of individuals confronting the arbitrary rulings of the state. In particular, I noticed no sensitivity towards a responsibility ‘to protect whistle-blowers,’ nor that of seeking outcomes that the Ombudsman, under the Ombudsman ‘system of justice,’ … ‘considers just and reasonable.’

Judge Boshier’s unquestioning acceptance of the fact that the Minister of Immigration has the legal right to exercise ‘absolute discretion,’ reads as a standard legal judgment upholding the law of the land. I would, however, have expected an Ombudsman to comment on the ‘just and reasonable’ manner in which that discretion was exercised, rather than simply to re-affirm that the Minister has carte blanche to impose his arbitrary Diktat (and, it would appear, perfect impunity from the Ombudsman’s oversight in so doing.)

In making a ‘just and reasonable’ assessment of the justice of the Wilfreds’ treatment at the hands of successive NZ governments, the government’s version of events should not be accepted at face value. The government has a policy to implement that accords with its interpretation of the ‘national interest’ and will do what it can to manipulate the facts in order to support its policy. As I understand it, in contrast to the government’s pursuit of the national interest, the Ombudsman’s role is to prioritise the individual’s interest over that of the nation and, in so doing, act in the best interests of a nation that has the objective of creating a fair and just society.

In the provisional findings contained in the letter of the 11th November, there appears to have been no attempt to treat Harmon with the special consideration deemed appropriate for whistle-blowers. This leads me to suspect that neither the government nor the Ombudsman is prepared to grant him that status (See Footnote1 below.) It also would seem that no serious attempt has been made to look into the other facts of the case beyond those presented in the files provided to your office by the Government. To judge what is just and reasonable in this instance, the Ombudsman would need to know the reality behind Harmon’s statelessness (see Footnote 2 below) and to understand the reasons for the fear that had inspired Harmon and Carolyn to seek safety in NZ (see Footnote 3 below.)

Caught between a rock and a hard place, Harmon renounced his US citizenship, thus becoming stateless. He cast himself on the mercy of the NZ government in search of asylum. His application was rejected, apparently on the grounds that NZ was not going to get off-side with its major ally by formally acknowledging that a US citizen could be in need of his life’s protection from one of its government agencies.

Harmon is a genuine whistle-blower and as such is entitled to the Ombudsman’s special consideration. Instead, the Ombudsman apparently considers it ‘just and reasonable’ that, by decision of the NZ cabinet, Harmon and his much loved wife should be separated for what might prove to be the rest of their lives. (Given the extent of the NZ cabinet’s open commitment to the Hillary Clinton cause, including the ongoing commitment of millions of NZ taxpayer dollars to the Clinton Foundation, https://www.whaleoil.co.nz/2016/11/mfat-contribute-clintons-pay-play-scam/ I have little doubt the decision to sacrifice Harmon and Carolyn as bearers of witness against the Clintons, is being taken at cabinet, rather than at INZ civil servant level.)

Is it justifiable that such abuse of two blameless individuals’ human rights should be condoned by our Ombudsman? The fact that it is apparently (albeit, provisionally) being condoned, leads me to ask whether or not, in this instance, the Ombudsman’s office is acting as an independent agency, or simply as an extension of the Government’s determination of ‘the national interest.’ If so, it is now obvious that, on this occasion, the determination of the national interest, has led to the wrong horse being backed and that policies designed to appease a putative Clinton presidency (ease the passage of the TPP?) are now in urgent need of reappraisal.

Harmon, who has recently had significant contact with the Trump team, will be viewed as one of its allies. Should Trump live up to his promise to ‘drain the Washington swamp,’ (and the initial appointments to his cabinet would indicate that he has that intent in mind) it is not impossible that Harmon will be asked to testify in one of the investigations that might follow Trump’s entry into the White House. Circumstances have changed. By stubbornly insisting on continuing with Harmon’s and Carolyn’s current torment, New Zealand will not be earning any favours from the new Administration.

Yours sincerely,

Hugh Steadman,

Director, The Prenzel Distilling Company Ltd.

PS. The Prenzel Distilling Company, in which Carolyn is a 50% shareholder and has invested over $300,000, had much of its Christmas stock trashed by the recent earthquake. It seems ridiculous and not in the interest of the national economy, that our major shareholder and future source of expansion capital is not permitted to enter the country to discuss the company’s future with our planning team.

Footnote 1. Is Harmon a whistle-blower?

Perhaps the Ombudsman does not consider Harmon to be a bona fide whistle-blower and thus a worthy subject of his special concern? Should this be the case, he should not base his judgement on the say-so of government agencies with a vested interest in denying Harmon that status, together with the Ombudsman’s protection that should accompany it. He should instead obtain his briefing elsewhere. I could provide that, but I am clearly an interested party. I would instead recommend a conversation with David Williams, an investigative reporter on the Otago Daily Times, who has devoted hundreds of hours to investigating Harmon’s case and has had telephone conversations with many of the key players in the USA. Williams will vouch for Harmon’s bona fides. David has several major articles on this subject due for publication in the ODT before Christmas.

Footnote 2. How Harmon became stateless.

Harmon and Carolyn came to NZ in fear of their lives at the hands of the CIA’s internal ‘cleaning department.’ When, after three years in NZ on a business visa, Harmon’s passport expired, he applied to the USA’s Auckland consulate for its renewal. The consulate confiscated the passport and told him that, if he wanted it back, he should return to Washington to collect it.

He has extensive personal knowledge of the financial shenanigans of the CIA and President Bill Clinton. The extent of the danger his knowledge posed to both the President and the CIA, inspired direct threats to his life. In view of these threats and his knowledge of other situations in which such threats had been realised, Harmon’s rejection of the invitation to return to Washington was understandable. His acceptance of the invitation would not have been.

Footnote 3. Pouring scorn on what the government views as the ‘imaginary’ threat to Harmon’s life.

Extracted from his meticulous archive, Harmon has shown me a written notice (threat) from former US Navy Seal, Michael Austin. Austin was a CIA permanent employee, responsible for the running of Harmon’s team, which had been contracted to negotiate the first $6 billion Mitsubishi note on behalf of the CIA. In this notice, Austin clearly states that should anyone mess up, their lives could be forfeit. While involved in the operation and, no doubt, to ensure that he understood the situation, Harmon was introduced to members of the CIA’s ‘Cleaning Department,’ whose job it was to ‘tidy up’ after failed operations (and perform sundry other ‘wet’ jobs.) Subsequently, and since his arrival in New Zealand, Harmon has received occasional ‘friendly’ ‘phone calls from one of its members (none of them recent.)

Reinforcing Harmon’s fear, at the time of his decision to turn down the instruction to return to Washington, was his awareness of the CIA’s previous form. The CIA’s eleven Mitsubishi notes, amounting to more than $100 billion, to be realised at the rate of not more than one a year, were almost certainly intended to fill the gap in the CIA’s extra-Congressional oversight funding that had been left after the collapse of its Mena operation. It was apparent that President Bill Clinton had the intention that his private family finances should also become a beneficiary of the transactions. https://www.whatreallyhappened.com/RANCHO/POLITICS/MENA/crimes_of_mena.html

The above article is relatively understated. Over and above its contents, Harmon and other CIA contractors would be aware of the multiple conspiracy theories regarding mysterious deaths linked to the CIA’s and Governor of Arkansas, Bill Clinton’s activities around Mena Airport that are readily available on the Web https://www.arkancide.com/

When Harmon applied for Asylum in New Zealand, his application was rigorously investigated. The investigating officer discovered and informed Harmon, that several of his now dispersed team had died under mysterious circumstances around the time of the Wilfreds’ flight from Canada. This discovery by INZ was insufficient to alter the NZ government’s decision to reject his asylum application.

Footnote 4. Working to present the Wilfreds in the least favourable light.

a. Overstaying and destroying Carolyn’s bona fides. The Ombudsman goes to lengths to describe Carolyn’s loss of ‘bona fides’ as a visa applicant, as being due to her having overstayed her NZ business visa. I was privy to much of the debate as to the timing of her departure. All on the Wilfred side of the fence had been given the impression by the INZ that she was in no way committing an offence that could jeopardise her future status should she delay her departure until the date on which she actually left. On the surface, it would seem to me that INZ acted in bad faith and deliberately tricked her into over-staying so that it could be used as a weapon against her and Harmon. INZ’s statements on this matter should not be taken at face value.

I find the Ombudsman’s seemingly unquestioning acceptance of INZ’s ludicrous claim that “Mrs Wilfred has no family normally resident in New Zealand and hence no reason to visit New Zealand for the purpose of visiting family” as most extraordinary. I have no reason to believe that the INZ is attempting to argue that Carolyn’s legally married husband is not a core member of her family. The INZ bureaucrat responsible for this assertion must therefore, be attempting to split hairs over the definition of ‘normally.’ However, given that Carolyn’s husband, Harmon, has been residing in New Zealand, without a single night’s interruption, for the past fifteen or so years (however abnormal the NZ government had chosen to make his formal residential status) how could this weird redefinition of the English language be accepted by the Ombudsman as ‘reasonable?’

b. Carolyn’s need to return to Canada. Carolyn has a court case for oppression of a minority shareholder due to be heard in Toronto on the 27th February 2017. Her family inheritance, worth approx. C$50 million, is dependent on the outcome. She is the key witness. How could anyone in INZ claim that she had no convincing reason to return to Canada and how could an Ombudsman possibly support such a claim as being reasonable? Before such comments, together with arguments that her probable inheritance is worth no more that her tax liabilities, were accepted as credible, it would seem a basic step would have been to discuss the situation with the Canadian Revenue Authority and with the head of her legal team in Toronto. These are slack and unreasonable excuses for Carolyn’s unjustifiable persecution served up by the INZ. It seems that whatever the national interest behind her mistreatment, it is deemed as being more advantageous to the nation than the potential C$50 million to be invested in NZ SMEs and which INZ seems so determined to reject.

c. Carolyn’s investment intentions in NZ. The Ombudsman mentions two such investments, Bellamy’s Real Estate and the Prenzel Distilling Company Ltd. He fails to mention the major proposed investment into Carbonscape Ltd., which is the only one of the three investments, already determined by Carolyn’s holding company, of which the government has formal knowledge. www.carbonscape.com A high-tech start-up, Carbonscape has been funded by Callaghan Innovation in partnership with the promise from Carolyn of an investment of $5 million. Though Carbonscape has manged to survive without Carolyn’s delayed investment, it is still relying on it for the next phase of its commercialisation. An outside analyst would regard Carbonscape’s advanced technology as one of the most exciting developments for the NZ economy. The government, by excluding Carolyn’s money, must indeed be desperate to run so counter to its claims of doing its best to nurture NZ businesses.

d. The failure of Carolyn’s previous business ventures. No mention is made of the fact that when the Wilfreds settled in NZ, they brought with them C$5 million, which they invested in two main activities. The first was a VOIP company, ITTelenet. This never realised its full potential. While Harmon was still able to travel on a US passport, he successfully entered the Chinese market and was on the point of signing contracts to make this NZ registered company the first VOIP entrant into the Chinese market. Then, he was forced to abandon his US passport. Given the NZ government’s refusal to grant him any alternative form of travel documents, he could no longer return to China to maintain the intense personal contacts essential to doing high-level business in that country and the contracts fell through. Nevertheless ITTelenet continued to trade profitably for many years, paying NZ taxes, before finally selling out to an Australian company in 2015. Though this sale enabled Carolyn to raise funds to fight the Toronto law-case, it also being forced her to abandon her business visa and enable the INS to set about her expulsion.

The second major investment was in a Canterbury social charity, La Famia, which Carolyn founded. It was an exciting and innovative development in the field of charitable funding in NZ. The intention was that it would ultimately become self-funding through the profits generated by a series of satellite businesses, small restaurants, etc. (my company, Prenzel Distilling, among them) of which the charity would be a 50% partner. From the outset it had to combat a series of hostile articles in the Christchurch Press. There were seven articles in toto, all based around the concept of ‘rich American overstayers’ and written by a journalist who never met, spoke to the Wilfreds, or visited their premises. Despite this public defamation, the charity’s bona fides can be judged by the Christchurch City Council’s decision to ask La Famia to take over the administration of Floyds Creative Arts Centre. Unfortunately, this, like several of the minor La Famia associated businesses was destroyed in the Christchurch Earthquakes. Many such businesses failed at the time and to pour scorn on Carolyn’s civic endeavour as a consequence of this is exceptionally unfair.

Hugh Steadman

Director
The Prenzel Distilling Company Ltd
Ph: 64 3 520 8215
Mob: 0295208222
Web: www.prenzel.com

 

Annex 3. Harmon Wilfred’s submission on the provisional finding.

8 December, 2016
Judge Peter Boshier
Chief Ombudsman
Office of the Ombudsman
L7, 70 The Terrace
Wellington 6011
New Zealand

Re: Case 426057, Carolyn Dare Wilfred

Dear Judge Boshier,

Carolyn Dare Wilfred.

I am hereby responding to your provisional opinion on the referenced case regarding my wife.
After reviewing your response, I must admit that no viable technical argument can be made against
the Immigration statutes that have been quoted in your opinion. You are correct in stating that
strictly according to the rules at INZ’s “discretion”, Carolyn has no valid recourse. However, as
my friend and colleague Hugh Steadman has stated from his response included in this submission:
“The Ombudsman ‘system of justice’ is significantly different from that of the Courts and
Tribunals. Ombudsman findings are not confined to strict judicial precedent. Instead, the
conclusions reached, are founded on what an Ombudsman considers just and reasonable in the
particular circumstances of the case.”

Your opinion has certainly outlined the circumstances as related to the rules, but has not
considered what is just, reasonable and equitable under those specific circumstances. This is
especially true where we believe the motives of INZ and indeed the New Zealand Government
must be considered. Perhaps your time on the bench has hardened your resolve in the law where
legal technicalities must win the day in spite of issues of conscience? With the hope of your kind
consideration in that regard, I would offer an alternative account of the circumstances surrounding
the decisions of Immigration New Zealand.

Carolyn is not one to ever break the rules. Throughout the whole process, she was taking the
advice of counsel concerning her transition from being considered for residency under the business
entrepreneur category to her Investor-plus application, and in particular, in regard to the date
chosen for her departure. Our counsel, David Ballantyne also remained in contact with
Immigration and took instruction and advice accordingly.

It was always Carolyn’s intent to further invest in New Zealand and frankly, now that we both are
in our 60’s, to continue as hands-on entrepreneurs was simply impractical; hence the transition to
the Investor-plus category for her residence. The fact that this transition created a gap in the time
frames, and how she could remain in New Zealand as a visitor with me, her husband, in the
interim, while processing this application caused some confusion. As a result, she essentially fell
through the technical cracks. As it was anticipated that she might have become unlawful during
her Rule 61 appeal; our counsel checked with INZ to see if this would be a problem.

They responded with considerable flexibility, even to the extent of indicating that there would be no
consequences as long as, if the appeal were denied, she would depart on her scheduled ticket as
indicated. This, she did. There was absolutely no indication from INZ that she could not return on
her Canadian visitor’s visa wavier while her assets in Canada were being adjudicated for
liquidation, and her Residency-plus application was being processed.

On a practical level, I have already provided the argument of how ridiculous it is to consider that
Carolyn would violate the rules during any visit while her very expensive residency application
(now on appeal) was being considered. To depict her as posing any sort of threat to the NZ state,
considering her clean police certificates over the last fifteen years and her record of millions in
investment in New Zealand, is even more ridiculous. Then to add insult to injury to suspend her
opportunity to even visit her husband who is described by INZ as not a “normal” resident is
bizarre. As her husband, I have resided in New Zealand with Carolyn for over fifteen years. I am
also a GST and IRD registered tax resident, not to mention being a long-standing director of a
number of New Zealand registered companies.

As to my status as a stateless person, I have always made it clear that, as a former CIA
whistle-blower, I renounced my US citizenship for my personal safety and freedom and
immediately and ever since have sought legal refuge and residence in New Zealand. My attempts
at obtaining New Zealand residency through the Removal Review and Refugee processes failed.
The ostensible reason given for the denial of my asylum application was not because it was shown
that my evidence was not credible, but simply, that it was not entirely provable (in spite of the
preponderance of hard documented evidence presented). However, this should surprise no one
where interaction with a covert agency, like the CIA, is concerned. Their stock in trade is that
everything should be deniable and nothing should be provable. Once these processes were denied,
the only recourse left for me to remain safe and free was the renouncement of my US citizenship
and thereby to become stateless.

The Ombudsman has accepted a separate case on my behalf ref #356501 against IA and INZ (now
running over three years). This is primarily toward the removal of the five-year old deportation
order against me, which given my stateless status, cannot be acted on. Removing this
unenforceable (and therefore inadmissible) deportation order, would allow me a fair opportunity to
apply for citizenship under the 1977 NZ Citizenship Act, para 9(1)d. This states if you would
otherwise be stateless, you have the right to apply directly to Internal Affairs for citizenship.
In fact, when we filed Carolyn’s complaint, it was agreed by chief investigator David Scott that
our two cases were obviously related and would be investigated and decided upon in parallel. This,
recent provisional opinion clearly did not follow that commitment. Instead, it has allowed INZ to
use my circumstances separately as a scapegoat to justify the suspension of Carolyn’s opportunity
to return, even as a Canadian visitor.

We believe that INZ are motivated to use this cruel and forced separation of husband and wife, for
international, rather than for domestic considerations. Somehow, I am to be prodded to achieve the
impossible and leave the country without travel documents. We have good reason to suspect that
the New Zealand Government, anxious to win what it misjudged to be the future President of the
USA’s support for the TPP, sought to please Hillary Clinton by acting against me, as the bearer of
credible witness against her and her husband. It is no coincidence that I blew the whistle on the
Clintons’ money laundering scheme as far back as 1999, have openly supported Trump for
president, and am currently contributing my evidence to the US Congress and the FBI toward the
open, criminal investigation of the Clinton Foundation.

Giving strength to my argument is the recent revelation of PM John Key’s contribution of $13.7
million of New Zealand tax dollars to the allegedly corrupt Clinton Foundation’s play-for-pay
scheme. With Clinton, now having lost the election to Donald Trump (who has adamantly rejected
the TPP and is beyond reach of any ‘incentives’ NZ could afford), there no longer seems good
reason ‘in the national interest’ for our continued persecution.

Although your decision to support the action of INZ may not be challengeable on a legal technical
basis, we would ask you to continue your investigation and look more closely at the unlawful
actions and corrupt motives of not just INZ but also of the NZ Government. Their motives are
highly questionable even if their actions are legally permissible. This treatment of a senior, loving
couple, happily married for eighteen years, who have benefited New Zealand as investors and
residents, is morally and ethically reprehensible.

Many years ago, the New Zealand government ratified the UN Declaration of Human Rights. Could, or would the Ombudsman support us were we to seek this as our further defence? Albeit, we are told by the NZ Human Rights Commission that INZ violates human rights all the time on the basis of national sovereignty, and nothing can be done to prevent it doing so.
In conclusion, it is my request on behalf of Carolyn and myself that this investigation against INZ
remains open and continues to be pursued until both my own and Carolyn’s case can be reconciled
and together resolved.

 

Sincerely,

Harmon L Wilfred Carolyn Dare Wilfred

CC: David Ballantyne, Canterbury Legal
David Scott, Ombudsman Senior Investigator
Hugh Steadman

 

Annex 4. Judge Boshier’s final ruling.

From the Ombudsman.
Our ref 426057
Contact David Scott
19 December 2016

Dear Mr Wilfred

Ombudsmen Act investigation Immigration New Zealand

Thank you for your letter of 8 December 2016 in which you comment on my provisional opinion concerning your complaint on behalf of your wife Mrs Carolyn Wilfred against Immigration New Zealand (INZ). You also forwarded comment from Mr Hugh Steadman about the role of an Ombudsman and how you became stateless.

I have now had an opportunity to consider your letter and the comments made. However, having considered all the issues raised, I have now formed the final opinion that INZ has not acted unreasonably in this matter.

You acknowledge that ‘no viable technical argument’ can be made against INZ’s decisions and accept that INZ has complied with immigration law. However, you believe that INZ has acted in an unreasonable manner. You believe that I have given insufficient consideration to broader issues of fairness and justice.

Overall, I am satisfied that INZ were entitled to question Mrs Wilfred’s bona fides on the basis of her period of unlawfulness, irrespective of the advice she received from her counsel. Mrs Wilfred was repeatedly advised that she was unlawful and liable for deportation. There is nothing to suggest that INZ was not entitled to exercise the ‘absolute discretion’ conferred by section 69(2)(d) of the Immigration Act 2009 to suspend Mrs Wilfred’s visa waiver status.

INZ is obliged to act fairly, within the framework of immigration law and policy. While an Ombudsman may consider broader issues of fairness, in all the circumstances, I am satisfied that INZ were entitled to regard your immigration status as a negative factor when determining Mrs Wilfred’s visa visitor application. It is difficult to criticise INZ’s concern about your decision to voluntarily relinquish your United States citizenship when seen through the lens of New Zealand immigration policy. I am mindful that your attempts to gain residence and refugee status have been unsuccessful. There was also no clear evidence submitted to show commitments in Canada which Mrs Wilfred was obliged to return to. I assure you that I have not restricted my review of your case to matters of legality/legal technicality, and that I am fully conversant with the nature and breadth of my jurisdiction. While I acknowledge that the separation from your wife is an ongoing source of distress, I am not persuaded that there has been any maladministration on the part of INZ in relation to Mrs Wilfred’s visa application.

Our ref 426057
Contact David Scott
19 December 2016
Mr Harmon Wilfred
By email: harmon@wilfredholdings.com
Office of the Ombudsman | Tari o te Kaitiaki Mana Tangata

Page 2

I have now concluded my investigation.

As previously advised, your complaint about the refusal of INZ to cancel your deportation order (which INZ has been unable to execute due to your statelessness) is awaiting review by the specialist team dealing with our aged complaints. We will update you with progress in due course.

Yours sincerely

Judge Peter Boshier

Chief Ombudsman

 

Annex 5: Further information.

If anyone is interested in writing on this subject, I have available the full threads of correspondence between the Wilfred team and the Ombudsman’s office and between the Wilfred team and the Cabinet office.

For additional information, the Khakispecs blogs dealing with the Wilfreds’ case are:

Blog No 115. https://khakispecs.com/?p=2849 “NZ Foreign Policy: The Clinton connection and John Key’s resignation.”

Blog No 108. https://khakispecs.com/?p=2686 “NZ: Uncle Sam’s obedient satrapy.” (The second half of this blog deals with why the Wilfreds have been so mistreated by successive NZ governments.)

Blog No 105. https://khakispecs.com/?p=2593 “The CIA plays king-maker as the US constitution founders.”

Blog No 101. https://khakispecs.com/?p=2492 “Quo Vadis Khaki Specs? – Et tu Clinton Foundation.” The postscript on this blog is pertinent.

Blog No 96. https://khakispecs.com/?p=2299 “What the world must not know.” This contains a full timeline of Harmon’s whistle-blowing and persecution.

Blog No 90. https://khakispecs.com/?p=2118 “The Dishonourable Woodlouse.” This blog is a dedicated introduction to the Wilfred case and covers the relationship between the CIA and the NZ SIS.

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