Yu v Ministry of Business, Innovation and Employment

[2015] NZHC 1939

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2015-404-1858 [2015] NZHC 1939

BETWEEN

YAQI YU

Plaintiff

AND

MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Defendant

Hearing:	14 August 2015 (by telephone)
Counsel:	F C Deliu for Plaintiff M Hodge and O Klaassen for Defendant
Judgment:	14 August 2015

(ORAL) JUDGMENT OF HEATH J

Solicitors:

R Zhao, Auckland
Meredith Connell, Auckland
Counsel:

F Deliu, Auckland

YU v MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2015] NZHC 1939 [14 August 2015]

[1]      Ms  Yaqi  Yu  applies  for  an  interim  order  under  s 8  of  the  Judicature

Amendment Act 1972 to prevent her from being removed from New Zealand at

11pm this evening.1

[2]      Ms Yu returned to New Zealand from China yesterday afternoon.  She was refused entry on the basis that she had failed to declare tobacco products in excess of the duty free quota.   I am told that she had 800 cigarettes as opposed to the 50 permitted.  A further ground is she had breached conditions of her visa by studying in the same educational institution, but at the wrong campus, before she left.   A decision was made that she be deported.

[3]      I have received evidence on behalf of Ms Yu in support of the application. One affidavit has been sworn by her sister, Ms Yashan Yu and the other by a solicitor who attempted to see her at Auckland Airport this afternoon, Mr Han Zhang.  I have now had an opportunity of reading both of those affidavits.

[4]      I  am  minded  to  grant  an  interim  order  given  the  fact  that  Ms  Yu  had previously been studying in New Zealand apparently without incident.  The first of the alleged breaches, while potentially serious (and, I add that I have no real information at this stage as to the circumstances in which it occurred) is not necessarily of a type that would persuade a Court that she should be immediately removed from the country.

[5]      I am informed by Mr Hodge and Ms Klaassen, both of whom have appeared helpfully on a Pickwick basis on behalf of the Immigration Service, that a consequence of Ms Yu remaining in New Zealand would be a detention for a period of 96 hours following which a warrant would be required.

[6]      I make an interim order that Ms Yu ought not to be removed from New Zealand at 11pm this evening and is brought before the High Court at 10am on Monday 17 August 2015 for the purpose of reviewing the position.  At that time the presiding Judge will be able to make an informed decision on whether to continue

the interim order. At present it will be made pending further order of the Court.

1      Generally, see Esekielu Attorney-General (1993) 6 PRNZ 309 (HC).

[7]      At the time that Ms Yu appears, she will not have served the whole of the 96 hours in detention, so the question whether a warrant is required can be addressed at that hearing.

[8]      Mr Deliu, for Ms Yu, asks that counsel for the Immigration Service facilitate the provision of documentation to him that will enable proper consideration of Ms Yu’s position at the weekend.  Mr Hodge and Ms Klaasen have indicated they will assist as much as they reasonably can.

[9]      At present Ms Yu has not had access to a lawyer.  That is explained in the affidavit sworn by Mr Zhang.  Given that Ms Yu will be detained over the weekend, Mr Deliu should be able to exercise access to her so as to take instructions and advise  the  Court  on  Monday  morning  how  it  is  submitted  that  matters  should proceed, from his client’s perspective.

[10]     All questions of costs are reserved.

P R Heath J