KESONSUNG V MINISTER OF IMMIGRATION HC AK CIV-2006-404-1597

KESONSUNG V MINISTER OF IMMIGRATION HC AK CIV-2006-404-1597 4 April 2006IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2006-404-1597BETWEEN TIPAKORN KESONSUNG AND PRAPAPORN KESONSUNG Applicants AND MINISTER OF IMMIGRATION Respondent Hearing: 28 March 2006 Appearances: G M Illingworth QC for Applicants A R Longdill for Respondent Judgment: 4 April 2006 at 12:39 pmRESERVED JUDGMENT OF COURTNEY JSolicitors: Meredith Connell, P O Box 2213, Auckland Fax: (09) 336-7629 – A LongdillCounsel: G M Illingworth QC, P O Box 7205, Wellesley Street, Auckland Fax: (09) 309-3181[1] The plaintiffs, Mr and Mrs Kesonsung, are subject to removal orders made under s 54 Immigration Act 1987 (IA). They have applied for judicial review of certain decisions made by the Minister of Immigration through the New Zealand Immigration Service (NZIS). [2] At the same time as they filed their judicial review proceedings, the plaintiffs also applied for interim relief under s 8(2) Judicature Amendment Act 1972 to prevent their removal pending determination of those proceedings. On 28 March 2006 I granted the interim relief sought, with my reasons to be given later. [3] I approach the application for interim relief in accordance with the test articulated by Hammond J in Esekielu v Attorney-General (1993) 6 PRNZ 309:In general terms, from the point of view of the State, it has a significant interest in protecting its borders and services of various kinds against utilisation by persons who are not entitled to the protection and support of that State. From the point of view of the Affected individual, the question of whether that individual is entitled to that protection and those services is a very significant one. If the threshold test is set too low – as merely raising a question which is not trivial (which is what the House of Lords meant by "serious") – interlocutory relief would be gained on just about every application. And it must be borne in mind that the processes under the immigration legislation in New Zealand themselves involve a serious vetting exercise, culminating in certain appeal procedures which can (and routinely do) reach as high as the Minister of Immigration. It seems to me therefore, that whilst the individual applicant should not be required to demonstrate a very strong probability of success on the merits, the kind of matters that that individual must establish in support of a claim to interlocutory relief must be more than a showing that the question is not really trivial. I would have thought both that there must be a real contest between the parties and that the applicant has a respectable chance of succeeding in that contest. Somehow, the notion seems to have crept into the jurisprudence that it is the plaintiff who is being deprived of something, rather than a requirement that the plaintiff demonstrate entitlement, after due review by the agencies of the State. If New Zealand had a somewhat antiquarian immigration statute, and inadequate appeal procedures of humanitarian grounds, then one's view might be otherwise as to the way in which the law should operate in this area. But it does not. The immigration legislation has been reviewed and appropriate procedures are in place. (emphasis added)Facts[4] The plaintiffs have an unsatisfactory immigration history in New Zealand. They came here in 1999 and obtained three-month visitors permits but stayed after the expiry of those permits. They sought refugee status and were granted temporary permits pending resolution of those claims. Their claims for refugee status were declined and subsequent appeals were unsuccessful. Following revocation of the temporary permits they remained unlawfully in New Zealand for over two years. [5] In January 2004 the plaintiffs obtained work permits for six months. These expired 14 July 2004 and on that date the plaintiffs' solicitor, Mr Pa'u, wrote to the NZIS enclosing documents in support of fresh applications for work permits. In the same letter, under the heading "RESIDENCE APPLICATION", he continued:Our clients also lodge a special direction application for permanent residence. We understand they may not readily qualify for an identifiable category, so we make an application for a special direction that they be granted permanent residence. They request permanent residence because we believe: 1) They are supported strongly by their local community and through their local Member of Parliament; 2) They provide a very important service to an important agricultural industry in Northland and while not skilled in a technical sense, are very skilled in the work that they do, and as you will see from the references, are highly regarded and competent at what they do; 3) They have a New Zealand citizen child; 4) They are a hard-working couple who would make a worthy contribution to our society.[6] At the foot of the letter, Mr Pa'u added the following hand-written note:We understand a form for residence (and fee) is not required unless the special direction is granted.[7] The NZIS responded 20 July 2004 as follows:I am writing in relation to your application for a work permit which was lodged on 14 July, 2004. I have received information that may be prejudicial to the approval of your application. This information is as follows:• We note that the Minister's letter dated 18 November 2004 clearly states"the grant of this permit (work) will then allow for the couple to gather the documentation for an application for residence, which should be lodged before the expiry of the work permit"• Our records show that you have made no attempt to lodge a residence application before the expiry of the work permit. Therefore you have not followed the instructions outlined by the Minister in his letter. Please comment in writing. Because this information may affect the outcome of your application this letter provides you with an opportunity to comment on it. Any comments you wish to make must be received no later than 27 July 2004 (emphasis in original)[8] That letter is not referred to in Mr Pa'u's affidavit and there does not appear to have been any response to it. NZIS wrote again on 19 August 2004 in virtually identical terms, this time inviting comments by 27 August 2004. Mr Pa'u's reply 26 August 2004 was:With the greatest of respect we believe that your information is incorrect. The permanent residence application was lodged at the same time as the Work Permit Application, that is, before it expired. We enclose again for your information a copy of correspondence dated 13 July 2004 which accompanied the documents referred to in the letter when it was lodged with the New Zealand Immigration Service on 14 July 2004. The letter of 20 July 2004 from the New Zealand Immigration Service confirms that it was lodged on 14 July 2004 before the permit expired. You will also note from the letter of 14 July 2004 that we advised NZIS that as they do not readily qualify for any identifiable category for residence a Special Direction Application was being made on the grounds outlined in that letter. There was also a hand-written note on the second page of our letter which states: We understand a form for residence (and fee) is not required unless the Special Direction is granted.[9] Mr Pa'u attached to his letter some thirty pages of documents to support the Special Direction Application. These included an employment agreement and letters of support. In response NZIS extended the plaintiffs' work permits for three months to allow them to file residency permit applications and advised Mr Pa'u of this by letter 13 September 2004.[10] The work permits were to expire 13 December 2004. Mr Pa'u deposes that he lodged applications for residency permits by letter 29 November 2004. That letter stated:We act for the above named and note that they are currently on valid work permits. We have been instructed to lodge permanent residence applications for both of them. We do not consider that they readily qualify for any particular ground of permanent residence and accordingly seek a grant of permanent residence as an exception to policy. They have previously received a Special Direction from the Minister allowing them to apply for work permits and permanent residence. This letter is dated 18 November 2003. [11] Attached to the letter were application forms, medical certificates, police clearance certificates and letters of support from members of the community. NZIS did not respond to or acknowledge the letter until January 2005, after the work permits had expired. On about 17 January 2005 it returned Mr Pa'u's letter 29 November 2004 and the documents sent with it, rejecting them as incomplete. Mr Pa'u says that this was because some documents were incomplete or required amendment. There is no copy of the NZIS letter exhibited to any affidavit so I do not know the precise reasons for the rejection. [12] Mr Pa'u deposes that he made further attempts during 2005 to have the residency application dealt with under s 35A IA (now required because the work permits had expired). NZIS internal records show at least one contact with Mr Pa'u (presumably by telephone) in which he refers to an earlier s 35A application (of which the NZIS has no record) and noting his intention to lodge a further such application. [13] Mr Pa'u wrote to NZIS 4 October 2005 regarding a s 35A application. There was no response from NZIS. On 3 November 2005 Mr Pa'u wrote again, referring to his 3 October 2004 letter and stating that he had been unaware that the residency permit applications had not been received and were not being processed:I note from the file that well within the time limit required, I lodged an Application for Permanent Residence. For some reason, the Application was returned in January 2005 with a request for further material. An Application for Special Direction was then made by my firm and it has now been discovered that for some reason that Application has not been processed. Accordingly, I make a further Application for Special Direction enabling this family to be considered for permanent residence, as an exception to policy.[14] Mr Pa'u then wrote on 8 November 2005 making a request under s 35A. [15] Application Information retrieved from the NZIS database was later provided to Mr Pa'u pursuant to his request under the Official Information Act 1982. It shows what information NZIS had available when considering the s 35A request. Under the heading "Background of case" there is chronology, which relevantly records:• 13 September 2004 – WP approved for another three months as an exception to policy, for the purpose of lodging RP application. Last permit expired 13 December 2004.• 14 December 2004 – RP application lodged and was returned failed lodgments on 17 January 2005, as applicant was not on a valid permit.• There have been no further applications lodged after this until now when the s 35A application was lodged on 8/11/05. [16] The reference to "RP application" is, presumably, the letter 29 Novemebr 2004. It is notable that the date that NZIS recorded receipt of it is the day after the work permits expired. [17] Under the heading "Assessment" in the same printout NZIS recorded:Applicant and agent have failed to act on the minister's direction. They have been given two opportunities – the second being the last, on the clear understanding to lodge an application for a residence permit. Also there are no special circumstances surrounding this case.[18] The internal NZIS record of determination of the s 35A request (also provided under the Official Information Act 1982) notes under "Relevant Information for Consideration":Applicants' lawyer, Paul Junior Pa'u, stated in his letter 3 November 2005, that any delay has not been the fault of the Kesonsung family. He said that he was unaware that the Special Direction applications had not been received and were not being processed by Immigration. There is no record in AMS of having received any special direction applications.[19] On 19 December 2005 NZIS wrote to the plaintiffs in the following terms:I am writing with regard to your request for a further work permit, submitted on 8 November 2005 under s 35A of the Immigration Act 1987. Section 35A is the part of the Act that covers people whose permits have expired and who do not currently hold a valid permit. It is important you know that as your permit has expired, s 35A(2)(a) states that there is no obligation on any Immigration Officer to consider your request, or to accept an application from you. This letter is to advise you that, although I have considered your request, I am not prepared to grant it, as I do not consider that this is justified in the circumstances of your case[20] On 13 January 2006 Mr Pa'u wrote to NZIS advising that the plaintiffs were considering judicial review proceedings in response to the declinature of their s 35A request. He asked for the reasons on which the decision had been based and for a copy of the NZIS file pursuant to the Official Information Act 1982. There was no answer to that request and a further letter 26 January 2006 went unanswered as well. Mr Pa'u wrote again on 2 February 2006. The NZIS privacy officer then contacted Mr Pa'u advising that she required fresh authorisation allowing him to obtain the information. The NZIS files were provided on about 28 February 2006. [21] On 1 March 2006 Mr Fennell, an Immigration Officer, contacted Mr Pa'u to discuss the removal procedure. Mr Pa'u told him that the plaintiffs intended to apply for special directions from the Minister of Immigration and sought Mr Fennell's agreement not to forcibly remove them immediately. There is a dispute as to exactly what was agreed and I consider this aspect later. [22] On 16 March 2006, with no application for special directions having been lodged with the Minister or judicial review proceedings filed, NZIS issued removalorders and took Mr Kesonsung into custody. Shortly afterwards Mr Pa'u wrote to the Associate Minister of Immigration. On 23 March 2006 the Associate Minister responded, declining to intervene but advising that the plaintiffs would not be subject to the usual five-year ban from re-entering New Zealand once they had been removed. The judicial review proceedings were filed 24 March 2006.Grounds advanced for judicial review[23] At the hearing of this application, Mr Illingworth QC tendered a draft first amended statement of claim and I have proceeded on the basis of this document. There are two causes of action proposed. The first is a challenge to the decision 19 December 2005 declining the applications for further permits (the December decision). This decision is said to be invalid because it was: a) Unreasonable b) Disproportionately harsh c) Based on a material error of fact d) Made in circumstances of procedural unfairness e) Contrary to law and made without taking into account adequately at all the interests of the plaintiffs' New Zealand born child. [24] The second cause of action relates to the decisions to serve the plaintiffs with removal orders, not cancel the removal orders and not to intervene (referred to as "the March decisions"). The basis for this challenge is that those decisions were invalid as being: a) Unreasonable; b) Disproportionately harsh;c) Based on a material error of fact; d) Made in circumstances of procedural unfairness, including arranging for Mr Kesonsung to be arrested contrary to the plaintiffs' legitimate expectation based on an agreement between Mr Pa'u and Mr Fennell and in conducting the humanitarian interview without Mr Pa'u being present; e) Were contrary to the law as having been made without taking into account adequately at all the interests of the New Zealand born child of the plaintiffs. [25] Three major issues formed the basis for the s 8(2) application: a) Whether the December decision was made on the basis of a mistaken fact, namely that the plaintiffs had not made an application for residency permits prior to their work permits expiring on 13 December 2004; b) Whether the March decisions were invalid because they ignored the plaintiffs' legitimate expectation that they would not be removed prior to having their application for judicial review dealt with; c) Whether NZIS was obliged to take into account the interests of the plaintiffs' child either at all (in the case of the December decision) or to a greater extent than what they did (in the case of the March decisions).December Decision: Mistake of Fact[26] The plaintiffs say that Mr Pa'u's letter 29 November 2004 and its supporting documents constituted an application for residency permits made before the work permits expired on 13 December 2004. However, they say that NZIS made the December decision under the misapprehension that the plaintiffs had not made theirapplications for residency permits prior to the work permits expiring. This error then forced the plaintiffs into making a request under s 35A, which was, in turn, partly declined because of the Immigration Officer's belief that they had failed to comply with the Minister's earlier direction to file their residency application permits prior to the expiry of their work permits. [27] For the Crown, Ms Longdill made three submissions. First, she said that the letter 29 November 2004 did not constitute an application because it was defective, not having been made in accordance with the requirements of the Immigration Act and its regulations. Secondly, there was no obligation on NZIS to give reasons for its decision under s 35A and that the plaintiffs could not elevate the notes retrieved from the NZIS internal database to reasons which could be subject to review. Thirdly, the plaintiffs were out of the time permitted by s 146A IA to bring judicial review proceedings and although s 146A did allow leave to be granted to do so, the plaintiffs could not satisfy the test for the granting of leave. Therefore, there could be no serious contest between the parties.Letter 29 November 2004 an application?[28] The plaintiffs say that their applications for residency were made by way of Mr Pa'u's letter 29 November 2004. Ms Longdill submitted that this letter and its supporting documents did not constitute applications because they were not in the prescribed form, as required by s 17 IA. Because the NZIS letter returning the documents has not been annexed to any affidavit it is not possible to say what the reason for rejection was. It may have been very minor. Ms Longdill accepted in argument that there could be situations where a very minor defect would not entitle an Immigration Officer to reject an application. On the face of the letter, the substantive requirements for the applications appear to have been met to the extent that NZIS could have accepted it for determination. In these circumstances the letter should be regarded as an application for the present purposes.Mistake of fact[29] The plaintiffs say that the Immigration Officer who made the December decision acted under the mistaken belief that the plaintiffs had not filed their applications for residency permits prior to 13 December 2004, as had been required by the Minister, whereas the letter 29 November 2004 satisfied that requirement. [30] Ms Longdill referred to the fact that under s 35A the Minister and his delegates have an extremely broad discretion and are not obliged to even consider applications or, if they do consider them, to give reasons. She relied on Singh v Chief Executive Department of Labour (CA235/96, 19 May 1997). However, I respectfully agree with Potter J's observation in Awan v Minister of Immigration(HC AK M404/781/00, 12 July 2000) that, in relation to a decision to decline to consider under s 35A:While there is no obligation to consider the application or to give reasons, where reasons are stated for any decision under s 35A, as they were in this case, a reason based on a clear error of fact will render the decision reviewable: see Daganayasi v Minister of Immigration [1980] 2 NZLR 130, per Cooke J; Air New Zealand v Wellington National Airport (unreported on this point, CA73/92, 24 September 1992) citing the judgment of Cooke pNew Zealand Fishing Industry Association v Minister of Agriculture & Fisheries [1988] 1 NZLR 544 at 552.[31] In this case the NZIS letter 19 December 2005 stated:This letter is to advise you that, although I have considered your request, I am not prepared to grant it as I do not consider that this is justified in the circumstances of your case.[32] I consider that this statement constituted a reason given, namely that the circumstances did not justify granting the request. If the circumstances referred to were wrong in a material way then the decision based on them should be reviewable. The error that is alleged is sufficiently significant to justify a review of the decision. [33] Ms Longdill's next submission was that the internal notes drawn from the NZIS computer database cannot be elevated to reasons or otherwise relied on for the purposes of judicial review proceedings. However, I prefer Mr Illingworth's submission based on the decision of the Supreme Court of Canada, Baker v Ministerof Citizenship & Immigration (1999) 174 DLR (4th ) 193 that if internal notes are provided in response to a request for reasons then they can be relied on as evidence of the reasons for the decision. [34] It appears that the NZIS information was not recorded contemporaneously, since both receipt of the application in December 2004 and rejection of it in January 2005 were recorded in the same entry. As I observed earlier, the notes record that that the plaintiffs' residency application was made on 14 December 2004, after the work permits had expired. It seems likely that it is this entry that led the Immigration Officer making the December decision to proceed as if this were the case. However, the copy of the letter annexed to Mr Pa'u's affidavit is marked "by courier ", indicating that it was delivered by courier, in which case it would have reached the NZIS well before 14 December 2004. So it seems an extraordinary (and unlucky for the plaintiffs) coincidence that the application should have been recorded as being received on that day. [35] One significant consequence of this apparent error is that, had the letter been recorded as having been received even one day earlier, the plaintiffs may not have had to make the s 35A request at all. NZIS would almost certainly have been required to give reasons and the question over whether the internal records could be used would not have arisen at all.Plaintiffs out of time under s 146A[36] Section 146A(1) Immigration Act 1987 imposes a three month time limit for commencing judicial review proceedings:Special provisions relating to judicial review of decisions under this Act (1) Any review proceedings in respect of a statutory power of decision arising out of or under this Act must be commenced within three months after the date of the decision, unless the High Court decides that, by reason of special circumstances, further time should be allowed.[37] The judicial review proceedings were filed on 24 March 2006, five days after the three-month limitation period expired. The plaintiffs accordingly need leave toproceed with this ground of review. The question for me is whether I am required to determine the leave issue before considering whether there is a serious contest on this cause of action. [38] Ms Longdill strongly urged that I should consider and determine the leave issue at this stage on the basis that if leave was not justified then there was simply no judicial review proceeding in relation to the December decision in respect of which judicial proceedings could be brought or interim relief granted. She relied on Rajan v Minister of Immigration (CA89/03, 3 July 2003):The term "special circumstances" is a commonly used phrase in the New Zealand statute books. It requires circumstances that are uncommon, not commonplace, out of the ordinary, abnormal – see at Cortez Investments Limited v Olperhert & Collins [1984] 2 NZLR 434 in which this Court considered the meaning of special circumstances in the context of s 151 of the Law Practitioners Act 1972. Whether there are special circumstances justifying an extension of time must be assessed in the context of the legislation involved. The Immigration Act confers rights of appeal in respect of decisions relating to residents, revocation of residence, removal and deportation. However, strict time limits are placed on such appeals. Section 146A time limits to filing of judicial review proceedings must be interpreted in that context. This means that the discretion to extend time should not be exercised too readily and very rarely if the delay is long. The Rajans' application was filed one month late and thus would require an extension of one third of the time limit. In the context of the Immigration Act this cannot necessarily be seen as a short delay Examination of the merits could tip the balance in a marginal case. For example, where the delay is not long, there is some excuse for that delay and the merits apparently strong, an extension of time could be justified. We doubt however that even very strong merits could ever justify an extension if (as here) there is no proper excuse for the delay in filing.[39] Mr Illingworth submitted that the issue of leave is not one that should form part of my consideration of an application for interim relief under s 8(2). He says that such a requirement would fetter the power and, given the nature of the interim relief available under s 8(2) and the often urgent circumstances in which such relief is granted, it would be inappropriate to require the determination of a s 8(2) application to encompass issues such as leave. Alternatively, he agreed that I could treat the issue of leave as, itself, one of the issues to be determined in accordance with the test in Esekielu.[40] Neither counsel referred to authority for their respective propositions. There is no authority that I am aware of dealing specifically with this issue. However, I consider that the issue has some analogy with the decisions involving strike-out applications where, as a result of proceedings being brought out of time, it is alleged that there is no cause of action disclosed. [41] In Ronex Properties Limited v John Laing Construction Ltd & Ors [1982] 3 All ER 961, the UK Court of Appeal considered an application to strike out a claim against a third party on various grounds including that the proceedings disclosed no reasonable cause of action because the claims were time barred by s 2(1) Limitation Act 1939. Donaldson LJ said (p 965):Authority apart, I would have thought that it was absurd to contend that a writ or a third party notice could be struck out as disclosing no cause of action merely because the defendant may have a defence under the Limitation Act. Whilst it is possible to have a contractual provision whereby the effluxion of time eliminates a cause of action and there are some provisions of foreign law which can have that effect, it is trite law that the English Limitation Acts bar the remedy and not the right, and furthermore that they do not even have this effect unless and until pleaded. Even when pleaded, they are subject to various exceptions, such as acknowledgement of a debt or concealed fraud which can be raised by way of reply Where it is thought to be clear that there is a defence under the Limitation Act, the defendant can either plead that defence and seek the trial of a preliminary issue or, in a very clear case, he can seek to strike out the claim on the ground that it is frivolous, vexatious and an abuse of the process of the Court and support his application with evidence. But in no circumstances can he seek to strike out on the ground that no cause of action is disclosed.[42] Agreeing with that conclusion, Stephenson LJ observed:There are many cases in which the expiry of the limitation period makes it a waste of time and money to let a plaintiff go on with his action. But in those cases it may be impossible to say that he has no reasonable cause of action. The right course is therefore for a defendant to apply to strike out his claim as frivolous and vexatious and an abuse of the process of the Court, on the ground that it is statute barred.[43] Matai Industries Limited v Jensen [1989] 1 NZLR 525 at 531 also involved an application to strike out proceedings on the ground that some or all of the causes of action were statute barred. Tipping J referred to Ronex, accepting its effect in relation to applications to strike out a claim as disclosing no reasonable cause ofaction merely because there was a good limitation defence, although that was not the precise ground being advanced. In relation to the application before him, the learned Judge said:If the plaintiff in opposition to the defendants' proposition can show that it has a fair argument that the claim is not statute barred or that the limitation period does not apply or is extended for any reason, then of course the matter must go to trial. To hold the interests of plaintiffs and defendants in fair balance in this context the Court should in my view be slow to strike out a claim or cause of action altogether in limine but against that, if the position is quite clear, then a defendant should not be vexed by having to go to full trial when the answer is obvious and inevitable.[44] In the absence of any authority relating to the circumstances arising in this case but drawing assistance from Ronex and Matai Industries, I propose to adopt the following approach. First, the mere fact that judicial review proceedings have been brought outside the limitation period specified by s 146A does not mean that the statement of claim does not disclose a good cause of action. At that point, the plaintiff may still apply for leave and the defendant may either plead the limitation defence or apply to strike out the proceeding on the ground that it is frivolous and vexatious or an abuse of process. [45] Secondly, in the context of an application under s 8(2) I do not consider that it is my task to determine whether the plaintiffs should have leave under s 146A. Instead, I view the limitation issue as one of the issues on which the plaintiffs must satisfy me that there is a serious contest on which they have a respectable chance of success. [46] The Crown says the plaintiffs would not obtain leave because there is no proper excuse for the delay in filing and the substantive merits of the case are weak. It is true that the reason for the delay in filing the proceeding is not expressly dealt with in Mr Pa'u's affidavit. It may be, as Ms Longdill submitted, that there was a conscious decision not to file the proceedings until after the approach to the Minister had been dealt with. However, I am unable to make that inference on the material available to me. The plaintiffs would not have been in a position to assess the merits of judicial review proceedings until they had obtained copies of the NZIS file on 28 February 2006. The present case is distinguishable from Rajan, in which thegrounds for review were general and could have been pleaded before the NZIS documents had been obtained. In this case, the plaintiffs could not possibly have known of the mistaken factual basis for the decision until they received the NZIS file. [47] Further, Mr Pa'u practises in Auckland and, until 16 March 2006, the plaintiffs lived and worked in Kerikeri. After the removal orders were served on 16 March 2006 Mr Kesonsung was in custody in Papakura and Mrs Kesonsung was still in Kerikeri, working and looking after the couple's child. So receiving advice, making decisions and giving instructions was likely to be a fairly slow process. It is relevant that the proceedings were filed only five days outside the limitation period. [48] In these circumstances (and coupled with the view I have taken as to the merits of the substantive ground for judicial review) the plaintiffs must surely stand a respectable chance of obtaining leave under s 146A.Care of Children Act 2004[49] The plaintiffs assert that there is a serious issue in relation to both the December and March decisions arising from the defendant's failure to adequately consider the interests of the plaintiffs' child, who is a New Zealand citizen. In essence, the argument is that the obligations on the Minister, as expressed inPuli'uvea v Removal Review Authority (1996) 2 HRNZ 510 (CA), have been overtaken by the introduction of the Care of Children Act 2004, the effect of which is to require much greater attention to be paid to the interests of the New Zealand citizen children of those unlawfully in the country facing the prospect of removal. This issue has been the subject of extensive argument in two recent cases, Ding & Ors v Minister of Immigration (HC AK, CIV-2005-404-4900) and Qiu & Ors v Minister of Immigration (HC AK, CIV-2005-404-3211), the decisions in which cases have been reserved. [50] Mr Illingworth submitted that if the High Court in Ding and Qiu accept the proposition that the Care of Children Act 2004 requires closer scrutiny to the welfare and interests of such children then a real issue would arise in this case because thedefendant clearly failed to take any account of the interests of the child in December 2005 and paid little more than lip service through the humanitarian interviews in March 2006. Mr Illingworth did however accept that the facts of this present case are not as compelling as Ding, since the child will return to Thailand and will only be temporarily separated from her father. Nevertheless, Mr Illingworth submitted that there is a tenable issue which should be determined at a substantive hearing. [51] Ms Longdill submits that the Care of Children Act 2004 has no direct application to proceedings under the IA and would bring major consequences not intended by Parliament if that were held to be the case. She points to the significant factual differences, some of which I have already noted and which include the fact that as a result of ministerial intervention the plaintiffs are no longer subject to the five year ban that would normally apply upon deportation. [52] I do not wish to express any view on this issue because of the pending decisions in Ding and Qiu. Ms Longdill submitted that any decision in this case would set a precedent in the area pending the outcome in the Ding and Qiu decisions. I wish to avoid doing that and am satisfied that there are sufficient other triable issues between the parties that I do not need to do so.Legitimate expectation[53] The final ground relates solely to the March decisions. It is that the plaintiffs had a legitimate expectation that such orders would not be issued or enforced while the plaintiffs pursued their legal rights, including judicial review proceedings and that if they failed they would be given the chance to depart voluntarily. This expectation is based on an alleged arrangement between Mr Pa'u and Mr Fennell. [54] Mr Pa'u maintains that Mr Fennell agreed not to take action until both an approach to the Minister and judicial review proceedings had been resolved. Mr Fennell rejects this, saying that he would never agree to an open-ended arrangement such as Mr Pa'u describes and does not have the power to do so.[55] I find it impossible to determine this dispute on the evidence before me. On the one hand it seems unlikely that Mr Fennell, an experienced Immigration Officer, would agree or even give the impression of agreeing to an arrangement that he says he does not have power to agree to. It seems equally unlikely that an experienced barrister would fail to protect his clients' interests by filing the proceedings without genuinely believing that it was safe to wait. Mr Pa'u was conscious that judicial review proceedings might be filed, having flagged that possibility in an earlier letter to NZIS. [56] I observe that, even if the arrangement did cover the filing of judicial review proceeding, it is unlikely that it would have covered the period beyond the limitation period under s 146A. Mr Pa'u must have known that it was not for Mr Fennell to agree to that. However, this would not affect the assertion that Mr Fennell agreed not take action to remove the plaintiffs forcibly. If Mr Pa'u's recollection is right, then there would clearly be a serious contest. On the evidence before me, I must conclude that there is an equal prospect of success for both parties on this issue. It follows that the plaintiffs must have a respectable chance of success on it.Result[57] I grant interim relief as sought by the plaintiffs. [58] Costs are reserved. [59] The parties have agreed a timetable for the disposal of the judicial review proceedings as follows: a) Plaintiffs to file amended statement of claim, application for leave under s 146A and affidavits in support of that application by 13 April 2006. b) Plaintiffs to file remainder of substantive affidavits in support of the judicial review proceedings by 27 April 2006.c) Defendants to file affidavits in reply 11 May 2006. d) Plaintiffs to file any affidavits in reply to defendant's affidavits 18 May 2006. e) There is to be a two-day fixture allocated as soon as possible after 18 May 2006 at which both the s 146A leave application and the judicial review proceedings will be determined. ____________________ P Courtney J