High Court rules MIQ lottery 'not demonstrably justified'

Open Justice,
Publish Date
Wed, 27 Apr 2022, 2:59pm
(Photo / RNZ)
(Photo / RNZ)

High Court rules MIQ lottery 'not demonstrably justified'

Open Justice,
Publish Date
Wed, 27 Apr 2022, 2:59pm

The Grounded Kiwis have succeeded in their historic case against the MIQ system. 

Justice Jillian Mallon released her decision this afternoon and found that although MIQ was a critical component of the Government's elimination strategy, the combination of the virtual lobby and narrow emergency criteria meant New Zealanders' rights to enter their country was infringed. 

"In some instances in a manner that was not demonstrably justified in a free and democratic society," Justice Mallon said. 

The decision, which spanned hundreds of pages, outlined Justice Mallon's decision. 

She found that the MIQ system didn't allow for individual circumstances to be considered and prioritised, and examples of extreme delays were not prioritised. 

The MIQ booking system did not allow for individuals, and the prioritisation of returning citizens, due to the "virtual lobby" that operated as a lottery and the criteria for emergency allocation was narrow and too tightly set. 

The proceeding was focused on the restrictions placed on New Zealand citizens over the period from September 1 last year to December 17. 

Grounded Kiwis took their fight for judicial review of the Government's MIQ system to the High Court at Wellington in February this year. 

They claimed the Government acted unlawfully, unreasonably and in breach of the Bill of Rights that states every New Zealand citizen has the right to enter New Zealand. 

At the time of the hearing, Grounded Kiwis spokeswoman Alexandra Birt said the group wanted an acceptance that MIQ failed Kiwis abroad, leaving people attempting to return home traumatised and stripped of their rights. 

Despite the decommissioning of MIQ facilities and the booking system earlier this year, they say their case is still valid, particularly with news that health officials told the Government MIQ was no longer justified in November last year. 

The High Court decision was released today by Justice Mallon, who at the end of the two-day judicial review on February 15 predicted a delay due to the sheer volume of information involved in the complicated hearing. 

During the judicial review, lead defence lawyer Paul Radich QC spoke about the real impact the MIQ system had on New Zealanders and read aloud statements that detailed the anguish and distress many felt through the process. 

One woman was left stranded overseas, unable to return home to bury her only son when he died from a medical event. Another was unable to be there while her son underwent cancer treatment. 

Multiple families had been separated for months if not years and some suffered emotional distress so extensive from their attempts to return home that ongoing psychiatric support is needed. 

One man spent 10 hours a day refreshing the website to try and secure his spot in MIQ, sleeping with headphones just so he would know when to jump online. For this, he suffered serious sleep deprivation. 

Some had to give up altogether because of the negative toll the system was having on their mental health and wellbeing. 

Crown lawyer Aedeen Boadita-Cormican, acting on behalf of the Government, defended the system in court and said MIQ was created as something that was fair to all Kiwis at home and abroad under extreme circumstances. 

Political parties react 

The Grounded Kiwis court ruling is a victory for the many Kiwis who wanted to come home and couldn't because of the lottery of human misery that was the MIQ system, National Party Covid-19 Response spokesman Chris Bishop said. 

"Justice Mallon has found that the MIQ system did not sufficiently allow individual circumstances to be considered and prioritised where necessary and it operated as an unjustified limit on the right of New Zealand citizens to enter their country," he said. 

"The judge has said there were other ways the MIQ system could have worked, such as a points system, as recommended by the National Party. 

Bishop said it was a mystery why the Government instead insisted on a largely one-size-fits-all system that didn't prioritise people returning home, even those in desperate situations. 

"Month after month, New Zealanders were shocked at the extraordinary suffering inflicted on many people because of the MIQ lottery," he said. 

"People couldn't return to be with loved ones in the final stages of their lives. 

"We now have judicial confirmation of state-sponsored cruelty that was the MIQ lottery." 

- by Hazel Osborne, Open Justice