Wen v Chief Executive of the Department of Labour HC Wellington Civ-2010-485-2556

[2010] NZHC 2446

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2010-485-2556

UNDER  THE JUDICATURE AMENDMENT ACT

1972

IN THE MATTER OF     AN APPLICATION FOR JUDICIAL REVIEW OF A DEPORTATION ORDER SERVED UNDER S 176 OF THE IMMIGRATION ACT 2009

BETWEEN  SHICAN WEN Applicant

ANDTHE CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR Respondent

Hearing:         22 December 2010 (Heard at Wellington)

Counsel:         R Woods for Applicant

V Casey for Respondent

Judgment:      22 December 2010

JUDGMENT OF JOSEPH WILLIAMS J

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 4.00pm on the 22nd December 2010.

Solicitors:

Crown Solicitor, Wellington

R Woods, Barrister, Wellington,  email: [e-mail]

SHICAN WEN V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR HC WN CIV-2010-485-

2556 22 December 2010

[1]      Mr Wen is in prison.  A removal order is to be executed on Christmas day deporting him to China.  The applicant seeks interim orders preventing the removal, releasing Mr Wen from jail and freezing that position until the substantive judicial review proceeding is resolved.

[2]      The applicant has been  in New Zealand illegally for 11  years.   He was crewing on a Korean fishing boat but he jumped ship in Christchurch.  He says his employer obtained his travel papers from the authorities in China and held them throughout his employment, and that he had never seen them.

[3]      The applicant was born and raised in China but his parents are North Korean and they may have been illegal immigrants into China.  Despite having been raised in China, Mr Wen speaks Mandarin only poorly.  He and his family are all native speakers of Korean.  He has no travel documents currently in his possession.

[4]      The  essential  argument  advanced  by  Mr  Woods  on  his  behalf  was  that Mr Wen’s citizenship was ambiguous.  Since he had never seen his own passport and did not have any papers with him when he jumped ship, Mr Wen did not know whether he was a Chinese citizen or not.  This raised the possibility that even if he was accepted into China he would in due course be deported back to North Korea. Once there the risk was that he would be treated as a defector and possibly killed or tortured.

[5]      The  law  is  clear  (see  Attorney-General  v  Zaoui[1])  that  New  Zealand’s obligations  to  prevent  refugees  from  being  subjected  to  torture  or  arbitrary deprivation of life are absolute.

[1] [2005] NZSC 38 at [16].

[6]      The Chief Executive of the Department of Labour opposed the application arguing that the fear expressed by Mr Wen was pure speculation.

[7]      On 15 December 2010, the Chinese Embassy issued Mr Wen a permit for entry into China and today at court counsel handed up a letter dated today’s date

confirming that the applicant is in fact a Chinese national.  There can now be no risk that Mr Wen will be on-deported to North Korea.

[8]      In Parmanadan v Minister of Immigration[2] the Court of Appeal made it clear that interim relief will not be granted without the applicant having a reasonable chance of success in challenging his proposed removal.  Given the clarification of Mr Wen’s nationality there is no prospect that the removal order in his case will be overturned.

[2] [2010] NZCA 136.

[9]      The application is dismissed accordingly.

[10]     The Chief Executive of the Department of Labour seeks costs.  Ms Casey for the Chief Executive argued that the application was made late and that Mr Woods had been advised earlier that Mr Wen was a Chinese national.  I do not think an order for costs is appropriate in this case.  It is true that proceedings started late.  On the other hand it was  only at the last minute that  final and  irrefutable clarification

became available to me.  Costs will lie where they fall.

Joseph Williams J