DING V MINISTER OF IMMIGRATION HC AK CIV-2005-404-4900

DING V MINISTER OF IMMIGRATION HC AK CIV-2005-404-4900 1 September 2005IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2005-404-4900UNDER the Judicature Amendment Act 1972 IN THE MATTER OF a decision under the Immigration Act 1987 BETWEEN YUEYING DING Plaintiff AND MINISTER OF IMMIGRATION Defendant Hearing: 1 September 2005 Appearances: John Foliaki for Plaintiff Gareth Neil for Defendant Judgment: 1 September 2005JUDGMENT OF HARRISON J_________________________________________________________________________________ SOLICITORS Inder Lynch (Manukau) for Plaintiff Meredith Connell (Auckland) for Defendant[1] Today Ms Yueying Ding filed an application for judicial review of a decision or decisions made by the Minister of Immigration. She has also sought an interim order under s 8 Judicature Amendment Act 1972. [2] At short notice an immigration officer, Mr Philip Zhou, has sworn a very helpful affidavit in opposition. He has produced a large number of the documents relevant to Ms Ding's application. Among them are two removal orders made by the Minister, one on 11 June 2004 and the latest made on 23 August 2005. Without traversing the relevant history, it is common ground that the Department has recently located and arrested Ms Ding and intends to deport her from New Zealand on a plane to China at 10 p.m. today. [3] Ms Ding has been in New Zealand illegally for many years. She was refused refugee status on 8 June 2000. Her husband, Mr Guang Wei Ye, was removed from New Zealand in December 2004. [4] However, there is one complicating and problematic factor. While in New Zealand Mr Ye and Ms Ding have had three children, Willie, Candy and Tim aged eight, six and five respectively. I understand all three are fluent in Cantonese. Nevertheless, they are New Zealand born and this is their home. Deportation of both parents to China would lead inevitably to their removal to what must be a relatively alien society. I do not overlook the point made by Mr Neil for the Minister that Mr Ye and Ms Ding have relatives in China. [5] Mr Zhou has sworn an affidavit confirming that, in reaching his decision to make an order removing Ms Ding, he took into account the interests of the three children. In my judgment this area of Mr Zhou's decision requires careful scrutiny. I am particularly mindful of New Zealand's obligations under the Convention on the Rights of a Child 1989. The decision to remove Ms Ding will inevitably have such a significant effect on the lives of the three children that I am satisfied that their interests should be preserved, represented and heard on Ms Ding's substantive application. [6] Accordingly, I make these orders:a) The removal order made by the immigration officer dated 23 August 2005 is stayed or suspended until further order of the Court. (However, I note that this order does not and should not operate as a direction to the Department to release Ms Ding from its custody. Mr Neil points out that the Department can only hold Ms Ding in custody for a term of seven days before it must seek the sanction of the District Court to renew its existing warrant. I do not envisage that the terms of this order will require many extensions of that warrant); b) I request the registry to allocate an urgent fixture for determination of Ms Ding's application for judicial review. While this decision will rest with the List Judge, I recommend that a date be allocated within the next month. One day should be sufficient. Within that time I direct the plaintiff to file an amended statement of claim identifying with greater clarity the grounds and relief sought; c) I direct the registry to appoint Mr Rodney Harrison QC as counsel for the children. In the event of his unavailability, I request the registry to engage Mr Grant Illingworth QC for that purpose; d) Leave is reserved for all parties to seek further orders. I suggest that once the appointment of counsel for the children is confirmed, all counsel should confer about a timetable and seek an urgent judicial conference with the Judge assigned to hear the application. [7] Mr John Foliaki has sworn an affidavit in support of Ms Ding's application and has appeared today as counsel. He is well aware of his ethical obligations but has explained that he had no choice but to assume both roles (i.e. of deponent and counsel) given the constraints of time. I accept his explanation without hesitation. I have, though, recommended that he engage senior counsel to represent Ms Ding's interests.[8] Costs of today's hearing are reserved. ______________________________________ Rhys Harrison J