Oct 21, 2023

The controversial dawn raid that came with claims of cover

A controversial ‘dawn raid’ left a Chinese overstayer with a badly-broken wrist and an angry former Immigration Minister alleging a cover-up. National Correspondent Steve Kilgallon reports.

It's just before 6am on a dark, moonless, winter's morning in west Auckland. A team of eight Immigration officers quietly encircle a brick-and-weatherboard suburban home.

They’ve had the house under surveillance and know the residents often leave this early for work on building sites.

Two officers knock on the front and back doors, and begin shouting instructions, causing a flurry of activity inside, but nobody answers the door. The officials give up waiting and force their way in. They find one person hiding in the roof cavity; another falls out of a cupboard.

READ MORE: * South Auckland dawn raid criticised by Pacific community leader * Christmas behind bars with no charge, and no release date * Indian migrant to go after 10 years over 'dodgy' driving licence

As his six flatmates - including his wife - are rounded up, Feng* panics, fearing a robbery, and sprints from his bedroom onto the rear deck.

The house sits on a steep incline, and the deck rises three metres above a concrete pad, so he climbs the balustrade, hangs from the lowest rail and carefully drops to the ground.

In the pre-dawn black, he doesn't see the three darkly-clad Immigration officers awaiting. They thrust him to the ground, and two kneel on his back. He's handcuffed and taken back inside, already complaining about a badly-broken wrist.

Dawn raids have become controversial for Immigration New Zealand (INZ), but this one has netted five overstayers, four of whom will be sent home to China and Malaysia in the coming days.

But the fifth, Feng, will go on to lodge complaints with police, Immigration New Zealand and the Independent Police Complaints Authority about his treatment on the morning of June 22, 2022.

There are two versions of what happened when Feng ran on to the balcony that morning, although both end with him suffering what's called a Colles fracture of his left wrist, a particularly painful break that takes six months to heal.

The above is the one former Immigration Minister Tuariki Delamere, Feng's immigration agent, believes.

By Feng's account, confused by the shouting - he speaks no English, and none of the eight officers spoke Mandarin - and believing he was being robbed, he grabs his cash and tries to escape.

Knowing the height of the deck, and unaware there's anyone waiting down below, he's careful to lower himself to the ground - only for the waiting officers to roughly throw him back down as he rises, dislodging and damaging his glasses and breaking his wrist, before kneeling on his back to cuff him.

In Immigration's version, one repeated almost identically in each officer's written report, as one of the officers stationed close to his bedroom shouts ‘Stop! Immigration!", Feng runs "at a fast pace" and leaps off the deck, pivoting in mid-air to try and break his fall with his left arm.

He lands at the officer's feet, before rising, and "flailing his arms and legs around and was very aggressive in an attempt to evade INZ staff".

He's subdued gently, with officers even placing their little finger inside the cuffs to ensure they aren't locked too tightly.

Delamere says it's not credible that Feng sprinted across the deck, leapt the balustrade, fell 4.2m (including the height of the rail), landed on his arm on concrete and would suffer only a broken wrist, with no other injuries, grazes or damage to his clothing, then somehow leap up and began fighting the three INZ officers.

When interviewed by Stuff, Feng wears what he says are the same clothes he wore that night. The only mark on his polyester black trousers is a small hole in the left kneecap.

"They said I was acting like Superman flying over the fence - if that happened, I think I would be in a wheelchair by now," argues Feng, speaking through a translator.

"I have nightmares about that day. I feel so disappointed about New Zealand. It has destroyed my dreams of this country ... I didn't commit murder, I am just an overstayer and I don't deserve to have my arm broken like this."

Delamere says INZ had every right to deport Feng as an overstayer, but believes they over-stepped. He says Feng's story is the only logical one, and while INZ had no intent to break his client's wrist, their officers used unnecessary force and then tried to cover up their mistake.

"These statements were written some six weeks after the raid, and in my opinion are completely false in the way they describe what happened," he says. "They were written with the sole purpose of those three officers trying to exonerate themselves from causing Feng's broken wrist by claiming he did it to himself."

Delamere has written to the chief executives of INZ, MBIE and the State Services Commissioner challenging them that he would withdraw the complaint "if they can provide some plausible explanation that validates those statements as being true".

Delamere also laid a complaint of assault with police, but after reading the INZ statements, he says an officer told him there was "much evidence to oppose" Feng's case and refused to take the case further.

Delamere has now complained to the IPCA about that decision; IPCA resolutions manager Gerry Dobbyn confirmed they had received a complaint, and it was being assessed but said he couldn't comment further.

Once they’d captured Feng, the INZ team took him back inside where the other overstayers had been corralled.

Despite knowing their two main targets were both Chinese nationals, none of the eight officers on the scene spoke Mandarin.

Feng says not until about six hours later when a doctor at Middlemore hospital used a telephone translator to explain his injuries to him that he was told what was happening.

While there, Feng says he signed a notice of deportation which was entirely in English. He says now that he thought the document was an acknowledgement of his medical treatment.

INZ contests those claims. In a statement, general manager Richard Owen said they have a small number of Mandarin-speaking staff, and when they are unavailable, use a telephone interpreting service.

He said Feng was given access to that service, staff also used an automated iPhone translation app, and Feng was given a Mandarin document explaining why he had been detained.

One of the other five detainees was Feng's wife Ling*. INZ say the couple were taken to the police station in the same car (and that Feng tried to get out of the car on the way).

Feng says it was the last time he saw his wife, who was deported home, and he says remains scared and shaken by the experience. INZ say he wasn't prevented from seeing her or from obtaining legal counsel.

Once Feng appointed Delamere to represent him, Delamere emailed INZ to complain about his injuries.

Two weeks later INZ said Feng was "highly likely to be linked to an organised fraud group who may have assisted with organising travel plans/visa applications".

Delamere says he has asked INZ to produce the source of that claim, and they have refused.

It now forms the basis of an application Feng has made to the Immigration Protection Tribunal (IPT) to be given refugee status. He says he's worried that INZ has discussed those allegations with the Chinese authorities, putting him at risk if he returned home.

"If I go back to China … I would disappear," he says. "The government will think I am doing money-laundering and smuggling people.

"I’ve no idea why they have added that to my record … bad things might happen to me if I go back and that makes me so nervous."

He says he believes INZ has added that to his file in response to his complaints over the assault, and cannot believe they would "make an allegation that would destroy my whole life".

Stuff also asked about the veracity of that claim and whether INZ had shared information with their Chinese counterparts.

But in his statement, INZ's Owen said they couldn't comment on the specifics of the case while it was before the IPT because of a confidentiality clause in the Immigration Act (the act, however, explicitly allows for cases to be publicly discussed with a claimant's permission, which Stuff has obtained).

Feng arrived in New Zealand in 2019, and by his account is more a victim of organised fraud rather than a perpetrator: like many Chinese migrants, he paid over the odds to an offshore agent to secure a work visa.

He says he was charged 170,000 RMB - about $38,500. "After all the payments were done, what the agent gave me eventually was a visitor visa, and he told me ‘it doesn't matter, nobody cares, no one will catch you, so you can go and work and make good money’. I had no choice but to go - I had paid, and I could not get a refund."

He then worked illegally as a roofer (but says he can't now as he's unable to carry anything heavy with his injured wrist, so can only do casual work) and then overstayed until that fateful raid.

Immigration New Zealand isn't backing down.

Owen said INZ has reviewed Delamere's complaints, including Feng's version of events, and their own staff's reports and "based on this review, INZ's position regarding the events that led to Mr Feng sustaining his injury remained unchanged.

‘’We have advised Mr Delamere to direct any further concerns regarding how Mr Feng sustained his injury to the New Zealand Police."

In a "No Surprises Fact Sheet" prepared for senior INZ managers, one of the officers involved says he's compiled it "given the increased media scrutiny of INZ decisions at this time, the allegations put forward by Feng through his immigration advisor relating to his detention and the sensitivity of after-hours site visit matters generally, it may be of interest to the media".

The issue of dawn raids is indeed sensitive for Immigration New Zealand. A review by Mike Heron, KC, studying all raids since June 2021 - including the one where Feng broke his wrist - is due to report back in June, and they’ve committed to halting them until then.

Immigration Minister Michael Wood has previously written to MBIE chief executive Carolyn Tremain saying INZ had a "responsibility to uphold the principles of the Dawn Raids apology [for the original 1970s raid on Pacific Islanders], ensure any actions reflect our ongoing commitment to right the wrongs of the past, and avoid re-inflicting the trauma that many still live with today".

Wood's comments came as many in the immigration community expect the Government to announce an overstayer amnesty before Parliament rises for the election.

In a statement, Wood said INZ had told him of the Feng case last month, and been advised that a full review "confirmed that the injuries were not sustained through any interaction with compliance officers". He said the case would be captured by the Heron review.

But Feng's treatment has concerned Green immigration spokesman Ricardo Menendez-March, who said it "further cemented" his party's position that dawn raids should stop and an overstayer amnesty be implemented. He said it was "really concerning" such raids were carried out without interpreters, they appeared to target the Asian community, and were only acceptable if there was "a genuine national security ground".

A controversial ‘dawn raid’ left a Chinese overstayer with a badly-broken wrist and an angry former Immigration Minister alleging a cover-up. National Correspondent Steve Kilgallon reports. READ MORE: * South Auckland dawn raid criticised by Pacific community leader * Christmas behind bars with no charge, and no release date * Indian migrant to go after 10 years over 'dodgy' driving licence