Ana v Minister of Immigration HC Wellington CIV 2010-485-2541

[2010] NZHC 2324

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2010-485-2541

IN THE MATTER OF     the Habeas Corpus Act 2001

BETWEEN  FEFILOI ANA Applicant

ANDMINISTER OF IMMIGRATION Respondent

Hearing:         20 December 2010

Counsel:L Ah Hoi for Applicant (Next Friend) I Carter for Respondent

Judgment:      20 December 2010

ORAL JUDGMENT OF MILLER J

[1]      Before me is an application for Habeas Corpus brought on behalf of Ms Ana by her Next Friend, Councillor Litea Ah Hoi.   I allowed Ms Ah Hoi to represent Ms Ana today, although she was not present.

[2]      Ms Ana is a citizen of Tuvalu and the mother of three children who, by reason of being born in New Zealand, are citizens of this country.  She is also the subject of a decision of the Removal Review Authority dated 15 April 2010, in which it was held that there were no exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for her to be deported to Tuvalu.

[3]      It appears that the Immigration Service has now begun to take steps to have Ms Ana deported.  However, no removal order has issued.  Rather, on 25 November the Immigration Service wrote to her inviting her to leave New Zealand by today, 20

December, failing which removal action might be initiated without further notice.

FEFILOI ANA V MINISTER OF IMMIGRATION HC WN CIV 2010-485-2541  20 December 2010

Miss Ana is not in custody.  She has gone into hiding.  The application accordingly does not challenge her  detention;   on the  contrary, it  asks that the Minister of Immigration be compelled to come to Court and explain how the Order of the Authority can possibly be lawful.

[4]      The difficulty with this for present purposes is of course that unless Ms Ana has been detained by the State, there is no scope for a Writ of Habeas Corpus to issue in her favour.  She must wait until such time as she has been detained.  If and when that day arrives I record that it would appear that the grounds of such application would not be substantially the same as those advanced today for purposes of s 15(1) of the Habeas Corpus Act.

[5]      In the meantime the application must be dismissed.

Miller J

Solicitors:

Crown Law, Wellington for Respondent