A Hamilton couple convicted of exploiting Pacific migrants have had their convictions quashed after the New Zealand’s Court of Appeal ruled there had been a miscarriage of justice.

Anthony Swarbrick and Christina Kewa-Swarbrick were found guilty on nine representative charges of aiding and abetting, completion of a visa application known to be false or misleading and provision of false or misleading information, at a trial in the Hamilton District Court in February 2023.

A month later, Kewa-Swarbrick, who originally came from Papua New Guinea, was sentenced to 10 months home detention. She completed nine months of that sentence.

Swarbrick served his full eight months of home detention.

In February this year the Court of Appeal found that in Swarbrick’s case, the trial judge’s summing up of the case was “not fair and balanced” leading to a “miscarriage of justice”.

It found the trial judge “undermined the defence” and “the summing up took a key issue away from the jury.”

“Viewed overall, the Judge forcefully suggested what the jury would, and impliedly should, find by way of the elements of the offence. The Judge made the ultimate assessment that was for the jury to make. The trial was unfair to Mr Swarbrick for that reason. We conclude that this resulted in a miscarriage of justice,” the decision states.

It ordered Swarbrick’s convictions be quashed and a retrial.

Charges withdrawn
It came to the same conclusions for Kewa-Swarbrick in April, but the retrial was abandoned after the Crown withdrew the charges in May, leading to the Hamilton District Court ordering the charges against the couple be dismissed.

Immigration NZ said it withdrew the charges after deciding it was no longer in the public interest to hold a re-trial.

The couple, who have since separated, are now investigating redress options from the government for the miscarriage of justice.

“We lost everything. Our marriage, our house. I lost a huge paying job offshore that I couldn’t go back to because we were on bail,” Swarbrick told RNZ.

“It’s had a huge effect, emotionally, financially. We had to take our children out of private school.”

Swarbrick had since been unable to return to his job and now had health issues as a result of the legal battles.

Kewa-Swarbrick said the court case had “destroyed” her life.

“It’s affected my home, my marriage, my children.”

Not able to return to PNG
She had not been able to return to Papua New Guinea since the case because she had received death threats.

“My health has deteriorated.”

The couple estimated they had spent at least $90,000 on legal fees, but their reputation had been severely affected by the case and media reports, preventing them from getting new jobs.

The couple’s ventures came to the attention of Immigration NZ in 2016 and charges were laid in 2018. The trial was delayed until 2023 because of the covid-19 pandemic.

Immigration NZ alleged the couple had arranged for groups of seasonal workers from Papua New Guinea to work illegally in New Zealand for very low wages between 2013 and 2016.

The trial heard the workers were led to believe they would be travelling to New Zealand to work under the RSE scheme in full time employment, receiving an hourly rate of $15 per hour, but ended up being paid well below the minimum wage.

However, Kewa-Swarbrick and Swarbrick argued they always intended to bring the PNG nationals to New Zealand for a cultural exchange and work experience.

“They fundraised $1000 each for living costs. We funded everything else. And when they got here they just completely shut us down,” said Kewa-Swarbrick.

She said it was “a relief” to finally be exonerated.

“The compensation part is going to be the last part because it will help us rebuild our lives.”

This article is republished under a community partnership agreement with RNZ.

Article by AsiaPacificReport.nz

The use of “dawn raid” tactics have trampled on Immigration NZ’s “very special relationship” with the Pacific communities, says Māngere MP Aupito William Sio.

The Minister of Immigration, six Pacific MPs and the head of Immigration NZ will meet in South Auckland tomorrow, following the revelation “dawn raid” tactics are still being used in Aotearoa.

“I was appalled, really appalling, I would describe it as Ua soli le mā, (a Samoan saying that roughly translates to ‘you’re trampling on the shame’).

“Meaning the way Immigration are conducting the use of their powers of deportation have trampled on a very special relationship with our Pacific communities of Aotearoa,” said Aupito, the former Minister for Pacific Peoples.

Senior Pacific lawyer Soane Foliaki broke the news, sharing a story of his client who was taken into custody after police knocked on his door in the early hours of the morning, frightening his children.

Aupito believes it is his responsibility to hold Immigration to account with recent events demonstrating there is a complete “lack of cultural intelligence” within the ministry.

“And I think Immigration needs to address that immediately,” he said.

In a statement, an Immigration New Zealand spokesperson said it had launched a review into “out of hours compliance visits” and pressed pause on all such operations until the review had been completed.

Tongan community leader Pakilau Manase Lua is not letting this moment slip by either.

In February this year Prime Minister Chris Hipkins told RNZ Pacific he would look at an overstayer petition that was launched by Pacific community leaders almost three years ago.

To be clear, this was a petition, not just for Pasifika, but for all overstayers in Aotearoa, Pakilau said.

When Hipkins was questioned on whether he would make changes to the government’s policy, he said: “I haven’t had an opportunity to look at that issue yet but I absolutely intend to look at it.”

Three months have passed and no changes have been made.

Pakilau has been fighting for change for years. The people he has been fighting for have legitimate reasons to stay and deserve compassion, he says.

“They might have been here during the lockdowns and they couldn’t go back. Or they were here on a temporary visa and it was difficult to go back due to the eruption,” Pakilau told RNZ Pacific in February.

For him the issue is personal — his uncle Teni is a Dawn Raids survivor.

“Teni was here with us in Auckland during the Dawn Raids of the 1970s as part of a migrant work scheme that brought him and countless thousands here to NZ to do work nobody here wanted to do,” he said.

He remembers his uncle calling from Mount Eden prison to say goodbye as he was deported back to Tonga.

Apology ‘still stands’
Jacinda Ardern humbled herself and apologised for the actions of the government in the 1970s.

For many, finding out similar tactics are still being used is painful and even retraumatising.

Aupito said the stakes were very high, the legacy of a very important apology which in his view “still stands” has been “trampled on” by Immigration New Zealand.

He wants Immigration to take a good hard look at its operations.

“I’m gutted, I’m just gutted that the the Ministry of Immigration does not seem to have understood at all the principles that the Ministry of MFAT are using as guiding principles for engagement; manaakitanga, kaitiakitanga, arohatanga,” Aupito said.

He has spoken with the Minister of Immigration, the new Pacific Peoples Minister and the Deputy Prime Minister who he says all feel the same way.

While Aupito has not spoken with Ardern this week, he has confidence in Michael Wood.

“I have faith that Minister Wood is someone from South Auckland and he understands what is at stake here and he will pursue that,” he said.

Time to front up
Wood and immigration officials will front up tomorrow at a community meeting.

Overstayers are called to turn up and be heard, not to hide in the shadows afraid.

“This is our time, people. Come and have your voices heard in our own backyard of Auckland,” Tongan community leader Pakilau Manase Lua said.

“Don’t worry if you are worried about being an overstayer they need to hear you. Don’t leave it too late. We are here. We stand with you.”

Aupito has a message for the family that lawyer Foliaki acts on behalf of.

“I just apologise to the family for the behaviour of Immigration,” he said.

• The meeting is at 10am, May 6, at 25 Princes Street, Otahuhu.

This article is republished under a community partnership agreement with RNZ.

Article by AsiaPacificReport.nz