SHICAN WEN V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR HC WN CIV-2010-485-2556

SHICAN WEN V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR HC WN CIV-2010-485- 2556 22 December 2010IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2010-485-2556UNDER THE JUDICATURE AMENDMENT ACT1972IN THE MATTER OF AN APPLICATION FOR JUDICIALREVIEW OF A DEPORTATION ORDERSERVED UNDER S 176 OF THEIMMIGRATION ACT 2009BETWEEN SHICAN WENApplicantAND THE CHIEF EXECUTIVE OF THEDEPARTMENT OF LABOURRespondentHearing: 22 December 2010(Heard at Wellington)Counsel: R Woods for ApplicantV Casey for RespondentJudgment: 22 December 2010JUDGMENT OF JOSEPH WILLIAMS JIn accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 4.00pm on the 22nd December 2010.Solicitors: Crown Solicitor, Wellington R Woods, Barrister, Wellington, email: rowland.woods@immigrationlaw.co.nz[1] Mr Wen is in prison. A removal order is to be executed on Christmas day deporting him to China. The applicant seeks interim orders preventing the removal, releasing Mr Wen from jail and freezing that position until the substantive judicial review proceeding is resolved.[2] The applicant has been in New Zealand illegally for 11 years. He was crewing on a Korean fishing boat but he jumped ship in Christchurch. He says his employer obtained his travel papers from the authorities in China and held them throughout his employment, and that he had never seen them.[3] The applicant was born and raised in China but his parents are North Korean and they may have been illegal immigrants into China. Despite having been raised in China, Mr Wen speaks Mandarin only poorly. He and his family are all native speakers of Korean. He has no travel documents currently in his possession.[4] The essential argument advanced by Mr Woods on his behalf was that Mr Wen's citizenship was ambiguous. Since he had never seen his own passport and did not have any papers with him when he jumped ship, Mr Wen did not know whether he was a Chinese citizen or not. This raised the possibility that even if he was accepted into China he would in due course be deported back to North Korea. Once there the risk was that he would be treated as a defector and possibly killed or tortured.[5] The law is clear (see Attorney-General v Zaoui1) that New Zealand'sobligations to prevent refugees from being subjected to torture or arbitrary deprivation of life are absolute.[6] The Chief Executive of the Department of Labour opposed the application arguing that the fear expressed by Mr Wen was pure speculation.[7] On 15 December 2010, the Chinese Embassy issued Mr Wen a permit for entry into China and today at court counsel handed up a letter dated today's date1 [2005] NZSC 38 at [16].confirming that the applicant is in fact a Chinese national. There can now be no risk that Mr Wen will be on-deported to North Korea.[8] In Parmanadan v Minister of Immigration2 the Court of Appeal made it clear that interim relief will not be granted without the applicant having a reasonable chance of success in challenging his proposed removal. Given the clarification of Mr Wen's nationality there is no prospect that the removal order in his case will beoverturned.[9] The application is dismissed accordingly.[10] The Chief Executive of the Department of Labour seeks costs. Ms Casey for the Chief Executive argued that the application was made late and that Mr Woods had been advised earlier that Mr Wen was a Chinese national. I do not think an order for costs is appropriate in this case. It is true that proceedings started late. On the other hand it was only at the last minute that final and irrefutable clarification became available to me. Costs will lie where they fall.___________________________Joseph Williams J2 [2010] NZCA 136.