Long after the contentious MIQ system was dismantled, police unexpectedly charged several New Zealanders for using the so-called 'transit loophole' to enter without vouchers. The enforcement actions have been thrown out, and they're now seeking an apology.
When Troy Moon walked through Auckland International Airport’s customs hall, he was pulled into a small room by police.
The Kerikeri electrician had tickets to transit through to LAX; instead he’d decided to enter New Zealand without an MIQ voucher so he could see his sick dad.
The officials were angry, he says; a nurse in the room called the 39-year-old a “queue jumper”; a lawyer called him a “cheat”.
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But he’s a New Zealand citizen – once he’d landed on New Zealand soil, they couldn’t legally turn him away.
Instead, Newsroom has learned, Moon and several other New Zealanders were unexpectedly hit with police enforcement actions – six months after they entered the country. Eight of them (including a couple, and two brothers) chose to plead guilty and pay the $1000 fines – but Moon is one of two New Zealanders who went to court to fight it.
The court ruled unequivocally in their favour: there was a “total absence of fault”.
"They did not need a reason for not taking the next flight," the court's judgment found. "We have heard from the prosecution that both defendants cheated the system. This has been rejected by the court."
And this week, the Chief Ombudsman found MBIE had acted “unreasonably” in using waiting room and lottery regimes to deny MIQ vouchers to returning New Zealand citizens.
Moon, fellow traveller Sophia Grace Basile, and others were the subject of an urgent voucher crackdown ordered by Chris Hipkins, who was the Minister for the Covid-19 response.
"I expect a much more proactive and prompt approach to be taken to people who seek to exploit this possible loophole," Hipkins told officials, according to papers released under the Official Information Act.
Now, Ombudsman Peter Boshier is criticising officials' failure to make MIQ decisions "with reason, sympathy and honour".
"Nobody checked for the MIQ voucher, once you got into New Zealand ... I was shocked that nobody checked. I literally just got straight on the bus." – Sophia Basile
He says New Zealanders denied the chance to return home, especially to sick and dying loved ones, are owed personal apologies – and recommends the Government factor in his recommendations to the design of "any future national quarantine system".
That's welcomed by Moon and Basile – they would appreciate an apology but don't expect to receive one. At the very least, though, they think New Zealanders should be allowed to return home without being forced to gamble on an over-capacity isolation regime.
That's pertinent, because Newsroom last month revealed plans to rapidly set up a new isolation and quarantine system, if a new and severe Covid variant should emerge. The Government would establish a "minimum viable product" of 1500 rooms across Auckland and Christchurch within four weeks of a border closure, and quickly scale up to 6000 rooms if necessary – though the speed would depend on an enabling law.
Frustrated student
Sophia Basile is 24. Half Italian, she'd been planning to study in Milan, when Covid-19 struck.
She was undeterred. After the first Covid peak eased in Italy, she travelled there regardless. She studied at the university, paying her way by teaching English part-time.
Covid was commonplace, she says. They coped. But as the Omicron wave hit, she decided it was time to return home to her family in Wellington.
Like thousands of others, though, she couldn't get an MIQ voucher. But she saw posts on the Grounded Kiwis Facebook page from Auckland lawyer Tudor Clee.
He had been active in highlighting a "transit loophole" that meant that once a New Zealand citizen landed in Auckland, voucher or no voucher, they could insist on being allowed to stay – so she contacted him.
He advised her that if she booked onwards flights transiting through New Zealand, there was little they could do if she 'changed her mind' while on the ground at Auckland International Airport.
"It was a long shot but I was feeling quite homesick," she says. "And I didn't know what was going to happen with Omicron. I just wanted to get home, and I thought, I'm just gonna give it a shot."
"Everything was easy until I got to reception at the hotel ... I said, oh, that's because I don't have voucher. And they were like, are you getting confused?" – Sophia Basile
So she paid for an Emirates flight via Dubai and Kuala Lumpur, transiting through Auckland on the way to Los Angeles.
In early January this year, just weeks before she was due to fly out, she got Covid. But she was testing negative by the date of her departure from Milan, she says, and was double-masked every leg of the trip.
She arrived in Auckland at 11.20am on January 24. Clee had explained to her the transit loophole, she says, and how others had walked through.
"And I just did it," she says. "Nobody checked for the MIQ voucher, once you got into New Zealand. Everybody was just walking the same way, and I did too. I was shocked that nobody checked. I literally just got straight on the bus."
Once she got through customs and immigration, she got on a bus with other passengers, to the Mercure Hotel MIQ facility in downtown Auckland.
"Everything was easy until I got to reception at the hotel. And then they asked, what's your name? And I gave it to them. We can't find anything, they said. And I said, oh, that's because I don't have voucher. And they were like, are you getting confused?
"They said, that's new. We haven't had that one before. Can you just come and sit down over here, and we'll see what we can do...."
"I cried and I talked to different people, I just felt like we were kind of there to make up numbers. They just needed the numbers to show there were all these positive cases coming through into the country, trying to scare people in the public." – Sophia Basile
Several times, she tested clear of Covid – until just two days before she was due for release, when she returned a positive test. Officials in PPE suits shifted her to Novotel Ellerslie, which by that point had been redesignated a quarantine facility for Covid-infected travellers, like the notorious Jet Park.
She was not symptomatic; she thinks the test had probably just picked up viral fragments from her infection a month earlier. But she ended up spending three weeks in isolation and quarantine, spent all in her room because she didn't want to risk going out in the exercise yard with others who might or might not have the virus.
"When I tested negative and they still didn't let me out, and I cried and I talked to different people, I just felt like we were kind of there to make up numbers," she says. "They just needed the numbers to show there were all these positive cases coming through into the country, trying to scare people in the public."
What she didn't know was that the day after she walked through the airport and onto the bus, Chris Hipkins asked for "urgent advice" on upgrading the MIQ voucher offence to a high-level risk, for Cabinet to consider the following week.
Months after getting out of quarantine, she received a bill in the mail: $1,600 fee for her three-week stay in MIQ, and a $1,000 fine for entering the country without a voucher. She dug her heels in: "I didn't pay it."
Waning Moon
Troy Moon had been working as an electrician in a gold mine in Egypt, when Covid first struck in early 2020.
“Covid wasn’t such a big thing in Egypt, as it was in New Zealand or Australia," he says. "I think they didn’t have the media to make such a big deal of it. They just got on with things. Sometimes I’d go into Cairo and the streets would be as busy as ever.”
His job was a good one, with good leave provision. Previously, he and other expats were rostered to work four full-on weeks, then allowed three weeks' holiday. With border controls tightening in the pandemic, his company changed the rules so they worked eight weeks, then could take six weeks off.
A couple of times in 2020 and 2021, he was able to use those breaks to fly home and see his family in Northland – though each time he had to spend two of the six weeks in MIQ.
"It got pretty tense, they were pretty angry. The nurse called me a queue jumper. I didn’t appreciate that, that wasn’t called for. It was an emergency." – Troy Moon
But heading into Christmas 2021, it was becoming increasingly difficult to get MIQ vouchers. He had already booked flights to Auckland, he says, but as he finished work at the start of February, he still hadn't got a voucher.
So he added an extra leg to his Emirates itinerary, to fly on through to Los Angeles to take his holiday there instead. Entry controls to the USA had, by then, completely loosened.
When he landed at Auckland International Airport on February 14, he turned on his phone to find a message waiting from his mum. Call urgently. “My dad, he’d had a health thing. It wasn’t looking great.”
“So I found the first official looking person I could see and said, change of plans, there’s been a family emergency, I’m not taking my flight to LA.
Instead, he would stay in New Zealand to visit his parents.
By that point, cases like Sophia Basile had raised Government concern. Official Information Act responses show that on legal advice, ministers had not upgraded the transit loophole to a high-risk offence – but they had put officials on alert for people exploiting it. “I got pulled into a room with police and a nurse," Moon says.
He describes the interview as bullying. "It got pretty tense, they were pretty angry. The nurse called me a queue jumper. I didn’t appreciate that, that wasn’t called for. It was an emergency."
"The responsibility is on the government to ensure anyone who arrives has a solution for isolation – not the other way around. If a future MIQ ignored this case it would lack credibility and people would simply turn up without there being a plan to manage them." – Tudor Clee, defence lawyer
Eventually, though, they put him on a flight to Christchurch to do his isolation in the Distinction Hotel, overlooking Cathedral Square. The MIQ rules were softened slightly while he was there, so he only had to do seven days, before flying back to Auckland to be with his father.
Six months later, he was back working in Egypt, when he received a letter from the NZ Police. They were fining him $1,000. If he chose to fight it in court, that liability would be increased to $4,000.
He chose to fight.
Moon had previously exchanged messages with Tudor Clee. “He said, if you ever need me, call me," Moon recalls. "And so when the time came and I got the letter from police, I did call him.”
Impact on future of managed isolation
Clee says there is an overwhelming message from the High Court ruling in the Grounded Kiwis challenge against the voucher system, the Ombudsman's critical report, and now the court judgment for Moon and Basile.
They provide some important lessons. The Bill of Rights allows New Zealand citizens the right to re-enter the country.
"The responsibility is on the Government to ensure anyone who arrives has a solution for isolation – not the other way around," he says. "If a future MIQ ignored this case it would lack credibility and people would simply turn up without there being a plan to manage them."
"I'd told them there was no way I'd be paying a $4,000 dollar fine. I'd be more than happy to donate it to a hospital children's ward or something. But I sure as hell ain't paying the Government that four grand." – Chris Knuth
He argues MIQ only survived as long as it did because New Zealanders were ignorant of their rights, and of their Government's responsibilities.
"I don’t see the same charade by the Government working again," he adds. "So either they will need to implement the imprisonment plan or be nimble on creating an option on arrival. Which one they opt for is up to them. If it’s the former I guess I’ll be busy again."
Sophia Basile agrees – however severe the next Covid variant may be, there is no need for new border closures and a new MIQ regime. "Surely, the money could be spent on other things – it's just a waste of time," she says. "The way Covid is spread throughout the whole entire world, it just seems pointless to even bother with such a stupid system. At this point, just let people isolate at home."
Inconsistent enforcement
Newsroom has asked police to disclose, under the Official Information Act, how many New Zealand citizens were fined – and how many just paid up, rather than going to court to fight the fines.
Certainly, the rules were unclear, and their application was inconsistent.
On February 3, BusinessDesk and Newsroom reported the case of Move Logistics executive Chris Knuth, who had exploited the same loophole the previous night. "He just ran the red light," the company's executive director Chris Dunphy laughed at the time, talking to Newsroom. "On a personal level, I'm sitting there going, clap clap."
But although Knuth came in through Auckland Airport after Hipkins had ordered the crackdown, and although travellers before him and after him were fined, he never faced enforcement action.
"I was called selfish. But as I told you back at the start, if it's selfish to want to go and see my mum and my daughters and my grandkids then fine, that mean I'm selfish." – Chris Knuth
Knuth says he persuaded another young traveller, also in transit, to do the same thing. "I wish I could have told more people. A lot of people just didn't know: it's our right to come home," he says.
"There were some bullies when I was at MIQ. And as you've worked out, I don't respond well to bullies. There was a police threat. But when I left MIQ on the day, there was basically nobody there. I'd had a ute dropped off, so I just walked out the door, jumped in the ute and drove away."
MBIE referred his case to the police, who confirmed they made initial inquiries – but Knuth says no action was ever taken. "I've heard nothing since."
"I'd told them there was no way I'd be paying a $4,000 dollar fine. I'd be more than happy to donate it to a hospital children's ward or something. But I sure as hell ain't paying the Government that four grand.
"I was called selfish. But as I told you back at the start, if it's selfish to want to go and see my mum and my daughters and my grandkids then fine, that means I'm selfish."
Dunphy agrees. The new court ruling, in favour of Basile and Moon, is a vindication of all those who took action to challenge being denied the right to return home, he says.
Speaking in a personal capacity, he hopes there is "a history lesson somewhere in this sad episode".
Move Logistics did not endorse Knuth's actions, Dunphy says.
But Dunphy and his industry colleagues did everything they could to support Knuth's mental health during the months while he remained in-limbo, prior to his dash and while he was in MIQ.
"Chris Knuth was frustrated and took matters in to his own hands," Dunphy adds. "Let's not forget that the quarantine hotel that Chris was ensconced was less than 40 percent occupied; this too makes a mockery of the idea that the MIQ system was at capacity, or that the lottery system was equitable.
"Chris was never charged by the police [and] in the court of public opinion, the comments on his plight were overwhelmingly supportive of his actions. Yes, he copped criticism for 'jumping the queue' and 'running the red light' but in reality he saw an opportunity to come home and took it, while others didn't."
'The main thing'
Both Moon and Basile say they'd appreciate an apology from the Government and officials, but they're not holding their breath. Knuth says he doesn't need an apology, but thinks those who were separated from sick and dying loved ones deserve to hear the word "sorry".
Newsroom has approached MBIE and the police, asking whether they will cancel the fines imposed on others who exploited the transit loophole, and whether they will apologise as the Ombudsman has suggested.
Police Inspector Rob Sum says legislation passed during the Covid-19 pandemic is a matter for the Government. Police, like other Government agencies, were operating in "unprecedented times".
"As part of our Covid-19 response we applied a graduated response model with education, engagement, and encouragement the first options. Enforcement action was an option once education, engagement and encouragement had been considered.
"Enforcement action was taken in line with the legislation in place at the time."
At MBIE, MIQ general manager Shayne Gray says travellers who arrived in New Zealand without a voucher were referred by border officials to police, or identified by police at the airport. "Police then decided what action to take and whether to prosecute." By way of context, he says, at this time in 2022 New Zealand was seeing a large increase of Omicron cases at the border from people returning home.
"That was putting MIQ under pressure like never before. At this time MIQ was also accommodating community members and their whānau who had tested positive and were unable to safely isolate at home.
"As a result there were severe capacity constraints in January and February for managed isolation and quarantine rooms. Unplanned entries had the potential to overwhelm the MIQ system and risk the health and safety of New Zealanders, which we had all done so much to protect during the Covid-19 pandemic."
He reiterates MBIE's statement following the release of the Ombudsman report: acknowledging the Managed Isolation Allocation System was not perfect and that some people were unable to secure a place in MIQ while in extremely challenging circumstances.
"MBIE welcomes the Ombudsman's investigation as well as the recently announced Royal Commission of Inquiry into the COVID-19 response and will ensure that any further lessons learned are incorporated into this ongoing work."
Meanwhile, Moon is back in New Zealand this Christmas, for another break from work.
And he says his 61-year-old dad's health is not too bad now.
"He’s still with us," Moon says, "and that’s the main thing."
To date, 24,798 are reported to have died from Covid in Egypt, though testing has not been widespread. 182,419 people are reported to have died from Covid in Italy. 2,257 have died in New Zealand.
