Teng v Minister of Immigration HC Auckland CIV-2010-404-008463

[2010] NZHC 2412

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-008463

UNDER  the Judicature Act 1972

IN THE MATTER OF     an application for review of the decision to execute a Deportation Order served on 16

December 2010

BETWEEN  FEI TENG Applicant

ANDMINISTER OF IMMIGRATION First Respondent

ANDKERRY SHANE SWEETMAN Second Respondent

Hearing:         22 December 2010

Counsel:         J Nguy for the Applicant

A R Longdill for the Respondent

Judgment:      22 December 2010

ORAL JUDGMENT OF PRIESTLEY J

Counsel:

J Nguy, Jesse & Associates, DX CP 18014, Auckland 1143. Fax [phone]. Email: [email protected]

A R Longdill, Meredith Connell & Co, P O Box 2213, Auckland 1140. Fax: [phone]

Email: [email protected]

TENG V MINISTER OF IMMIGRATION HC AK CIV-2010-404-008463 22 December 2010

[1]      This is an application for judicial review coupled with urgent injunctive relief under s 8 of the Judicature Amendment Act 1972.

[2]      The urgency is because arrangements have been made to deport the applicant

to the People’s Republic of China this evening.

[3]      As is so often the case, behind the proceedings lies something of a human tragedy.

[4]      I need not narrate, in the circumstances, the applicant’s immigration history. He arrived in New Zealand as a teenager in January 2003 on a student visa.  Over the next six years a number of student and visitor’s permits were issued to him.  The last expired in mid March 2010.  Since that time the applicant has, as he acknowledges, been residing in New Zealand illegally.

[5]      He came to the attention of the police and the immigration authorities in the middle of this month.  As a result he was served with a deportation order under the new legislation. The relevant deportation order is dated 16 December.

[6]      Although an application was filed with the new Immigration and Protection Tribunal yesterday, the grounds on which the applicant relied (s 206(1)(a)) are not available.   This is because the applicant failed to exercise his statutory right of appeal on humanitarian grounds under s 47 of the Immigration Act 1987, which was the predecessor of s 154(2) of the 2009 Act.

[7]      The relevant transitional provision contained in s 453(1) makes it clear that no fresh right of appeal is available to people who fail to exercise a previous right of appeal which, to a large extent, s 154(2) duplicates.

[8]      The relevant immigration officer, Mr K S Sweetman, has filed an affidavit which Mr Nguy is not in a position to challenge.   Whilst the applicant was in custody, although there was no statutory obligation to do so, there was a detailed interview which seems to have recorded all the applicant’s relevant personal circumstances.

[9]      The humanitarian  grounds on which the applicant relies are first that he engaged an immigration consultant in the middle of this year who applied unsuccessfully and, I suspect in an otiose fashion, for various permits.  The services of this consultant are seen to be incompetent.  The second ground is understandable difficulties which the applicant might have are in re-integrating himself into Chinese society and the closely related difficulties which his fiancée/partner, Ms Huang, who has also filed a supporting affidavit, might encounter.

[10]     I am not oblivious to these human problems.  However, the central issue is whether grounds have been made for this Court to exercise its powers (which have an important constitutional role) under s 8 of the Judicature Amendment Act.

[11]     Ms Longdill has referred me to the frequently approved dictum of Hammond J in Esekielu v Attorney-General.[1]   This approach has received the imprimatur of the Court  of  Appeal  in  recent  times  in  Singh  v  Minister  of  Immigration[2]    and Parmanadan v Minister of Immigration.[3]

[1] Esekielu v Attorney-General (1993) 6 PRNZ 309 (HC).

[2] Singh v Minister of Immigration [2009] NZCA 50.

[3] Parmanadan v Minister of Immigration [2010] NZAR 424.

[12]     The central issue is whether, as a threshold in immigration cases, there is a realistic probability of a judicial review application succeeding on the merits or, to use the words of Hammond J, a real contest between the parties where the applicant has a respectable chance of success.

[13]     I do not consider that places the bar too high.  However in the s 8 context I do not consider the appellant has any realistic chance of success whatsoever.

[14]     The only button the applicant has not hitherto pushed is to seek a special direction from the Minister.   However, there is clear authority that the special direction powers are rarely exercised and in any event, the continued presence of a person in New Zealand is not a prerequisite to the exercise of that power.

[15]     There can, in my view, be no challenge at all (which is what the application seeks), to the lawfulness or propriety of the 16 December 2010 deportation order.

The applicant’s statutory rights to have his humanitarian circumstances heard were exhausted  by 1  May  2010.    The  deficiencies  of  the  immigration  consultant  he engaged cannot properly be called into aid in this situation.

[16]     Unfortunately the stark fact remains that the appellant has been unlawfully in New Zealand since mid March.  His statutory remedies have been exhausted.  I can see no respectable challenge being launched in respect of the Minister’s decision to deport him tonight.

[17]    In those circumstances therefore the application is dismissed.   I see no impediment in the way of deporting the applicant to China this evening.  I do record, however, that I consider Mr Nguy has brought these proceedings promptly.  Unlike a lot of counsel faced with the dilemma his client faced, Mr Nguy has not resorted to bringing other types of proceedings which would have had even less chance of success.  Mr Nguy’s approach throughout has been responsible and realistic and the Court is obliged to him for the heroic efforts he has made on his client’s behalf.

[18]     My instinctive discretionary approach would have been to decline any costs application, given the personal dilemma of the applicant, had costs been sought. However,  Ms  Longdill  has  indicated  to  me  that  she  wants  to  reserve  costs. Doubtless whether a costs application is going to be pursued is a matter to which she will need to  give consideration.   The humanitarian interview form suggests the applicant has $50,000 available to him.   Whether that sum remains inside the jurisdiction very long is a matter on which I will make no comment.  However, I do not regard Ms Longdill’s approach as being improper or unreasonable in the circumstances. Thus costs are reserved.

[19]     If costs are being sought they need not be determined by me.

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Priestley J