Vilceanu v Attorney-General HC Auckland CIV 2010-404-4358

[2011] NZHC 1547

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2010-404-4358

BETWEEN	CEZAR VILCEANU First Plaintiff
AND	CONSTANTA VILCEANU Second Plaintiff
AND	ADRIAN VILCEANU Third Plaintiff
AND	LISA VILCEANU Fourth Plaintiff
AND	THE ATTORNEY-GENERAL First Defendant
AND	THE MINISTER OF IMMIGRATION Second Defendant
Hearing:	31 March 2011
Counsel:	FC Deliu for plaintiffs IC Carter for defendants
Judgment:	4 April 2011 at 2:30 PM

JUDGMENT OF FAIRE J

Solicitors:           Amicus Lawyers, PO Box 68 559, Auckland 1145

Crown Law, PO Box 2858, Wellington 6140

VILCEANU V THE ATTORNEY-GENERAL HC AK CIV 2010-404-4358 4 April 2011

The application

[1]      The plaintiffs apply for orders:

(a)      That an amicus, Dr Rodney Harrison QC, be appointed; or

(b)That a counsel for child, Dr Rodney Harrison QC, be appointed to represent the third and/or fourth plaintiffs.

[2]      A second application has been listed for mention.  It is an application by the defendants for an order striking out the third and fourth plaintiffs. Mr Deliu advised that if the first application is refused an order may be made striking out the third and fourth plaintiffs.  I proceed on that basis.

The proceeding

[3]      The plaintiffs apply for judicial review of the decision of the Minister of Immigration given on 29 June 2010 in which he declined to intervene.  The decision letter recorded that the plaintiffs are now in New Zealand unlawfully and should depart immediately or face removal action.

[4]      The proceeding has been allocated a one-day fixture for 5 May 2011.

Background

[5]      The  first  and  second  plaintiffs  and  their  son, Adrian Vilceanu,  are Romanian citizens by birth.  Mr and Mrs Vilceanu were born on 1 April 1970 and 3 December 1970 respectively.  Their son, Adrian, was born on 30 January

1996.   A fourth member of the family, Lisa, was born in New Zealand on

20 September 2005.   Adrian and his parents emigrated to New Zealand on

21 January 2004.  They obtained their residence permits under residence visas issued by the Immigration Service in London.  A residence permit entitles the

holder to live in New Zealand indefinitely.  Applications for such permits must apply in the prescribed manner.  One of the requirements is that the applicants are of good health.

[6]      Adrian was born with Thalassaemia Major.  That was first diagnosed in

2001.   He received his first blood transfusion in Romania in that year. Transfusions continued until he arrived in New Zealand in 2004.  His condition was not disclosed to immigration officials.  Instead it was declared that Adrian did not suffer from any illness.   Had that disclosure been made the family would have been denied residency.

[7]      The family have, over the past five years, been the subject of protracted litigation.  There have been two decisions of the Deportation Review Tribunal, a judgment of the High Court1 and a judgment of the Court of Appeal.2

[8]      The residence permits initially granted to the father, mother and son, Adrian, were revoked by the Minister of Immigration for failure to disclose Adrian’s pre-existing serious medical condition.   The Minister’s residence permit revocation was ultimately confirmed in the second Deportation Review Tribunal decision dated 10 July 2009.3    In that decision it declined to make a humanitarian exception  for the family.   The effect of the decision  was to confirms  the  Minister’s  revocation  of  Mr and  Mrs  Vilceanu  and  Adrian’s residence permits with the consequence that they lost the right to remain in

New Zealand indefinitely in terms of the Immigration Act 1987, s 22.

[9]      The second decision of the Deportation Review Tribunal included a full consideration  of  the  plaintiffs’  circumstances,  including  the  effect  that departure from New Zealand might have on both children, that is Adrian and Lisa.   The family did not exercise their statutory right of appeal from that

decision.  They have not applied for judicial review of that decision within the

1      The Minister of Immigration v Vilceanu HC Wellington CIV 2007-485-377 and 835,

11 December 2007.

2      Vilceanu v Minister of Immigration [2008] NZCA 486.

3      Vilceanu v Minister of Immigration [2009] NZDRT 21.

time limit for judicial review of immigration decisions.4     The second Deportation Review Tribunal decision is therefore final under the Immigration Act 1987, s 117(6).

[10]     Mr Carter analysed for me the second Deportation Review Tribunal decision.    He noted it contained an exhaustive consideration of the humanitarian factors relevant to Adrian and Lisa, the two children.   He submitted the Minister was not required to duplicate that examination because it had been recently undertaken by a specialist immigration tribunal: Huang v Minister of Immigration5 and Ye v Minister of Immigration.6

[11]     Mr Carter noted that the application for judicial review in this case raises the standard grounds.  There is an allegation of legitimate expectation, unreasonableness  and  failure  to  take  into  account  relevant  considerations. Also, two claims are made under the New Zealand Bill of Rights Act 1990,

alleging failure to give reasons7 and alleging breach of the right to freedom of

association.8

[12]     Mr Carter submitted, and I did not understand Mr Deliu to take issue with this, that the legal issues raised by the application for judicial review are quite narrow.   The Supreme Court confirmed that, in immigration cases involving removal or deportation of parents of minor children, the interests of the children should usually be represented by parents and the children should not be made parties to the litigation or be separately represented.9    The rare exception is where there is good reason to believe that the parent will be not adequately represent the child’s interests. The Supreme Court  stated:10

The second question which arises under this head concerns whether and when children should be made parties to litigation or be separately represented. The starting point is the same as for the first stage. Generally  children’s  interests  in  this  kind  of  litigation  should  be

4      3 months: Immigration Act 1987, s 146.

5      Huang v Minister of Immigration [2009] NZSC 77, [2010] 1 NZLR 135 at [5]-[9].

6      Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [28].

7      New Zealand Bill of Rights Act 1990, s 27.

8      Section 17.

9      Ding v Minister of Immigration (2006) 25 FRNZ 568; Ye v Minister of Immigration [2008] NZCA 29, [2009] 2 NZLR 596

10     Ye v Minister of Immigration, above n 6 at [49].

represented by parents. A child may, however, need to be separately represented if there is good reason to believe that the parent will not adequately  represent  the  child’s  interests.  In  that  event  the  court should appoint counsel to represent the child. If that occurs it is not necessary to make the child a formal party to the proceedings. If any question arises of the child commencing proceedings, the ordinary rules of court concerning that situation will apply.

[13]     There is nothing before the court to indicate that the parents will not adequately represent the children’s interests.   There is no parental dispute. There is no incompetence.  Mr Carter drew attention to the Care of Children Act 2004 and the United Nations Convention on the Rights of Children as support for the principle that in the absence of exceptional circumstances the interests of children are advanced by their parents.

[14]     To complete his analysis of the position, Mr Carter referred to two decisions from the United Kingdom: EM (Lebanon) (FC) v Secretary of State for the Home Department11  and ZH (Tanzania) (FC) v Secretary of State for the Home Department.12    Those decisions confirm that separate party status and separate legal representation of minor children in immigration litigation

where there is a prospect of deportation of the parents is generally wrong in principle and would be rare in practice.  Mr Carter also drew attention to the judgment of Brennan J in the High Court of Australia in Kioa v West where the court rejected the argument that a minor citizen child in that case was entitled

to a separate hearing and, presumably, to separate representation.13

[15]     The  prosecution  of  this  matter  will  require  counsel  to  advance  all relevant matters which might support the relief sought.  The relief ultimately is designed to achieve a position where the first and second plaintiffs and their son, Adrian, might stay in New Zealand.  When looked at in this light there is no reason to doubt that Mr Deliu on behalf of the family will not advance all relevant  considerations  and,  in  particular,  considerations  which  are  related

particularly to Adrian and Lisa.

11     EM (Lebanon) (FC) v Secretary of State for the Home Department [2008] UKHL 64, [2009] 1 AC 1198.

12     ZH (Tanzania) (FC) v Secretary of State for the Home Department [2011] UKSC 4.

13     Kioa v West (1985) 159 CLR 550 at 629-630.

[16]    The result is that I conclude that there is no proper basis for the appointment of counsel to represent the two children in this case.

[17]     I pass briefly to consider where there are any additional matters that might justify the appointment of an amicus curiae.  The power to appoint an amicus curiae is contained in the Judicature Act 1908, s 16.

[18]     An amicus curiae may be appointed to assist the court where the court perceives an interest which is not properly represented by the actual parties to the litigation.  The court considers it appropriate to hear from a third person on matters of third party concern: Edwards v Toime.14

[19]     The interests of Adrian and Lisa will be well and truly represented by their parents and their parents’ counsel.   There are, in fact, no concerns that their position will not be fully a fairly placed before the court.  Nor have I any concern at all that the court will not be properly assisted by counsel in determining the issues raised by the judicial review proceeding. Accordingly, I am not satisfied that there is any basis for the order sought.

[20]     In line with the position outlined in [2] of his judgment it is appropriate that  I  make  orders  removing  the  third  and  fourth  plaintiffs  from  this proceeding.  For that reason, such orders are made.

[21]     On the question of costs I record that counsel were in agreement that I should make no order at this stage but simply reserve costs.  That, then, is the reason why costs will be reserved.

Orders

[22]     I order as follows:

(a)       The application is dismissed.

14     Edwards v Toime CA272/04, 18 April 2005.

(b)The   third   and   fourth   plaintiffs   are   struck   out   from   the proceeding.

(c)       Costs in respect of the application are reserved.

JA Faire J