Teenage Kiwi fears deportation because parents are overstayers

Eason Diao's mum says her son has done them proud by winning awards in school, swimming and ballroom dancing. Photo / Dean Purcell

It was January 2009, and Eason Diao vividly remembers a few men forcing their way into his home, pushing him against the wall and taking photos of him.

His dad, Chuanjin Diao, was pushed to the ground and arrested as his mum, Xianglan Hao broke down and started screaming.

Eason was then just 5 years old, and didn't understand at the time that his parents were overstayers from China and had been living in New Zealand unlawfully.

Diao, an overstayer of more than 18 years, died suddenly two weeks ago after falling off a ladder.

Eason, now 17, said scenes from 12 years ago have started returning to his mind and he is filled with fear that his 65-year old overstayer mother will now be the target for deportation by Immigration NZ.

Eason Diao says his family have been living in fear of Immigration, and the feeling is "horrible". Photo / Dean Purcell

Under the British Nationality and NZ Citizenship Act 1948, Eason automatically became a citizen because he was born before the law change in 2006.

He is one of an unknown number of children born to parents who were in New Zealand at the time. The family's immigration adviser Tuariki Delamere, a former minister for immigration, said Eason's parents were legitimately and lawfully served deportation orders in 2009 as they had been overstayers and had no rights to stay.

"When I was Minister of Immigration I always signed off on the deportation of such persons, except when those persons were the parents of a New Zealand citizen child," Delamere said.

"That is why I agreed to represent the parents because their son Eason was by birth a New Zealand citizen."

It was alleged that immigration officials forced their way into the family's home, grabbed Eason off the couch as he was watching TV, pushed him against the wall and snapped photos they needed for a Chinese entry permit so they could send him back with his parents.

His father was arrested and taken to Mt Eden prison pending deportation.

Tuariki Delamere looked after Eason for three months in 2009 when his father was jailed and mother hospitalised. Photo / Glen Jeffery

"At the time the late Mr Diao was being held in Auckland Prison pending deportation, Ms Hao was not taken into custody so that she could look after Eason," Delamere said.

"I then discovered that immigration officers were conspiring with the Chinese Consulate to have him issued a Chinese travel document, so that he could be deported as well."

Delamere said Hao suffered a mental breakdown and was admitted to hospital, and Diao was held in prison for three months before he was released.

"During that time, Eason lived with me and my family and attended primary school with several of my children until his parents were able to care for him," Delamere said.

"I have, in a way become Eason's de facto Kiwi grandfather, which is why he always calls me Koro. Eason has been a record of success at school as a student, as an Auckland swimming champion and as a national champion ballroom dancer."

Xianglan Hao says she is terrified about being separated from her son. Photo / Dean Purcell

Delamere says he will now be fighting for Hao to remain in New Zealand with Eason because "all they now have left is each other".

He believed it was only appropriate for the Minister to grant her a residence visa under humanitarian circumstances, or at least a one day visa so she can test her case with the Immigration and Protection Tribunal.

"Hao and her late husband did not have work visas, but they established a small but very successful home painting business enabling them to buy a mortgage-free home," Delamere said.

"However, she is today, still an overstayer, and therefore at risk of being deported at any time."

Delamere was planning to lodge a special directions request for her to remain.

Diao came to New Zealand on a business visa in 2001 and Hao, 65, arrived on a visitor visa. Both did not renew their visas when they expired and became overstayers.

Eason said he and his mother felt extremely vulnerable without his dad.

"Dad was our rock, he was my everything, and he's always been the one reassuring us. Now that he's gone, I really don't know what to do," he said.

"My family have always been living in fear, hiding from Immigration officers and bracing for the worst that we may be taken to prison and thrown out. It is a horrible feeling."

Eason said he feels like he is an undocumented immigrant even though he is a citizen of New Zealand.

He is also scared that he would be "deported by default" if his mother was to be deported because he is still a dependent child under the law.

Hao said she and her late husband came to New Zealand from Liaoning and decided to remain so Eason could have a better life.

"We felt Eason will get better education and opportunities in New Zealand, and everything we have done is focused on him," she said.

"My husband and I couldn't have asked for a better son, now I am just praying that I will not be taken away from him," she said.

Hao said Eason, now a year 12 student at Macleans College, has made them proud by regularly winning awards and trophies.

She said Eason excelled in his studies, and also in ballroom dancing and swimming.

Now she's lost her husband, Hao said she was terrified of being separated from her son.

Stephen Vaughan, INZ's general manager border and visa operations, confirmed Eason is a NZ citizen and his mother was "in New Zealand without a valid visa and is therefore unlawful".

"Mr Diao who has now passed away was also unlawfully in New Zealand," Vaughan said.

He said Hao should approach INZ to discuss her case and options for remaining in New Zealand.

An estimate in 2017 put the number of overstayers in New Zealand at around 11,000.

A University of Otago study in 2012 found the rights of children were often not protected in deportation cases.

The report, by Charlotte Kempthorne, concluded that despite individuals having rights in law, the existing balancing test failed to uphold the United Nations Convention on the Rights of the Child (UNCRC).

"These children are some of the most vulnerable members of New Zealand society," Kempthorne wrote.

"It is absolutely vital that immigration law be structured to promote a consistent commitment to their rights. These children deserve nothing less."