Essential worker loses visa after drunk driving offense

Naveen Janagam’s first encounter with the law cost her her work visa. Photo/Michael Craig

A logistics specialist who worked during the Covid-19 pandemic transporting food and medical supplies across the border is now a pizza delivery boy with four months to pack up and leave New Zealand.

Naveen Janagam was driving home to a friend when his phone popped up with a video call from his wife. Before he knew it, the accusations were flying fast and furiously.

The newlyweds had been separated since returning to work in New Zealand three months ago. It was January 2019 and she was still in India.

“She was pushing me so hard,” Janagam recalled. “‘What happened to my visa, I still haven’t got it? Have you applied? Are you lying to me?'”

The air cargo warehouse manager was busy and unresponsive to calls and messages from his wife during long working hours. “She was so upset,” he told Open Justice.

He was using Bluetooth headphones with the phone mounted, but fell and bent down to pick it up when his Nissan hit the curb a few times, catching the attention of another motorist who called police.

Janagam said he was being honest when police showed up on his doorstep later that evening. He admitted that he drank a few beers with friends over lunch, drove home in the late afternoon, and drank a few more after he got home. “I didn’t lie, I told her the truth,” he said.

The officer breathalysed him at home before taking him to the police station for another test. He blew 903 micrograms of alcohol per liter of breath, more than three times the legal limit.

Janagam didn’t know it then, but it was the beginning of the end of his life in New Zealand. The motorist reporting it told police he was swerving erratically and crossing lanes without indicating that other drivers should brake to avoid the collision.

Janagam was convicted of drunk driving in 2020, a single offense that would thwart his work visa and ultimately his young family’s life in New Zealand.

He said he pleaded guilty only because his lawyer assured him that his immigration status would not be affected. No one had told him about the possibility of seeking a non-conviction discharge, he said, which could have spared him a criminal record and allowed him to stay.

He felt his punishment far outweighed his crime. “I made a mistake. I don’t feel like it was a big mistake,” he said. “Did I do…murder? Drug dealing? Beating cops?”

Janagam spent his last months in New Zealand as a pizza delivery boy.  Photo/Michael Craig
Janagam spent his last months in New Zealand as a pizza delivery boy. Photo/Michael Craig

Prior to his drunk driving conviction, Janagam had what the court calls a clean record.

Born in India, he arrived in New Zealand as an international student in 2014, completed a one-year business degree and started working at the same logistics company where he rose through the ranks from warehouse clerk to warehouse manager, leading a team of 20 people.

He worked hard, transporting high-value perishables like food, medicine and blood across the border during the Covid-19 pandemic. “We never closed the warehouse,” he said. His employer said he was exemplary; friends have described him as caring, responsible and honest.

Janagam said he just did as he was told, not knowing he had the right to say no to the policeman at his door.

He later said he took his community lawyer’s advice in court and pleaded guilty to a drunken driving charge. It was his first contact with justice. He had never heard of a discharge without conviction – what the court called Section 106 of the Sentencing Act – let alone thought of asking for one.

“From day one, I explained to my community advocate that I was not a resident and needed to apply for a visa,” Janagam said. His lawyer did not respond to questions from Open Justice.

In July 2020, Janagam was found guilty and fined $900 (based on his blood alcohol reading), banned from driving for 28 days, and ordered to use an alcohol ignition interlock device for one year. “You have to blow into the machine [and the car] only start if it’s zero,” he said. “If you had spicy food, it won’t start, I’m not kidding.”

He paid and served his sentence without a hitch, happy that the ordeal was finally over and he could go on living. His wife’s visa arrived and they were finally living a married life together, he was promoted at work and earned a good salary. “We were really happy, then all of a sudden this.”

It was June 2021 and it was time to renew her Essential Skills work visa. Immigration New Zealand highlighted his drunk driving conviction and told him he needed a character waiver. He applied and failed the assessment – twice.

His visa expired and overnight he lost his job, income and ultimately everything they had in New Zealand.

He appealed his deportation liability to the Immigration and Protection Court and waited, staying with friends and living off his savings. With their lives on hold, they made the painful decision for his wife to return to India in February this year, three months pregnant with twins.

In June, the Tribunal rejected his appeal on the grounds that he had no exceptional circumstances of a humanitarian nature justifying his stay. He was given four months to pack up and leave.

A few weeks later, Janagam’s wife gave birth to two healthy baby girls. “My parents are looking after her, the babies are fine,” he said softly, still in shock at losing his life in New Zealand. Seeing their faces – albeit on video and in pictures – was bittersweet. He couldn’t be there when they were born. What would their lives have been like if they had been allowed to stay? What could he have done?

Immigration lawyer Simon Laurent believes that a release without conviction would have made a difference in Janagam’s case.

“Absolutely, it would have made a difference because [INZ] wouldn’t have required him to apply for a character waiver,” he said, which was the only thing stopping Janagam from renewing his Essential Skills work visa.

Holders of temporary visas can seek release without conviction on immigration grounds, said Zoe Reid, a traffic lawyer who has a list of release cases she has litigated and won, most recently in July 2022. “It’s a huge ask to do right and takes a lot of time and effort from both the client and the attorney,” she said.

But Auckland lawyer Steven Mutch thinks Janagam should have faced an uphill battle. “When you blow over 900 that’s an extremely high reading and I would certainly give all customers a strong warning that the odds of success would be very, very unlikely in that scenario,” he said.

Reid agrees it’s difficult, but not impossible. “People have had to do rehabilitation, defensive driving, alcohol and drug classes, community work, charitable donations, whatever they can do to fix, show the court that the consequences will ruin their future, be it jobs or immigration or both.”

“It has been done, but it’s on a case-by-case basis, one judge can look at a case and another judge can find differently depending on how they assess the seriousness of the offence,” she said.

Immigration adviser Kelly Coetzee’s advice to Janagam is to leave New Zealand, keep a clean record and try again to get a visa in a few years.

It’s really hard on first traffic offenders who are at risk of deportation, she said: “But if you think of someone you know – a neighbour, a friend, a family member – who pulled off the road because of a drunk driver, so it doesn’t look that hard.”

The Tribunal granted Janagam a four-month work visa and a deadline of October 23, 2022 to pack up and leave New Zealand.

His employer was keen to get him back to work until then, but he wasn’t sure. It was a demanding job where he was expected to be a leader and role model. How was he able to face his team, live up to expectations? “I’m so depressed I can’t even concentrate,” he said, helping out at a friend’s pizzeria and other courier jobs in between.

He spent almost $30,000 altogether on legal and immigration fees. “I thought my future was in New Zealand. They punished me, I’m taking the punishment,” he said. “I don’t know how I can show how sorry I am.”

His friends and family said he could start over in India, but he couldn’t see it.

“What did New Zealand give me in the end? Not my good character for eight years, just this conviction of 903 mcg, drunk driving,” he said, watching his hands. “When I go back to India, I’ll be completely rubbish.”

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