Court of Appeal Cases

Court of Appeal, Wellington CA107/02; [2003] 2 NZLR 577
5-6 November 2002; 16 April 2003
Blanchard, Tipping, McGrath, Anderson & Glazebrook JJ

Article 31 - necessary - meaning of necessary - coming directly from

Detention - access to bail - whether Operational Instruction of 19 September 2001 lawful - Immigration Act 1987, ss 128, 128A, 129X

Detention - access to bail - relevance of Excom Conclusion No. 44 - relevance of UNHCR Guidelines on applicable criteria and standards relating to the detention of asylum-seekers - Immigration Act 1987, ss 128, 128A, 128AA

Immigration Act 1987 - detention - access to bail - whether Operational Instruction of 19 September 2001 lawful - Immigration Act 1987, ss 128, 128A, 129X

Judicial review - challenge to Operational Instruction - whether challenge possible - whether lawfulness of Instruction to be coloured by its mode of implementation

Immigration Act 1987 - first available craft - Immigration Act s 128(5)

The Refugee Council of New Zealand Inc and others brought proceedings in which it was alleged that refugee status claimants detained by the New Zealand Immigration Service between 19 September 2001 and 9 May 2002 was unlawful.  This allegation was based on s 128(5) of the Immigration Act 1987.  It was also alleged that operational instructions issued on 19 September 2001 by the general manager of the New Zealand Immigration Service were unlawful as they were inconsistent with the Refugee Convention.  In the High Court, Baragwanath J held that s 128(5) authorised the detention of refugee claimants but found that the operational instructions were unlawful.  The Attorney-General appealed to the Court of Appeal on the second point.  The respondents cross-appealed on the first point.

Held:

1    (unanimously) The power to detain created by the immediate turnaround provisions of s 128(5) of the Immigration Act 1987 applies to refugee status claimants (see paras [7], [19], [96] & [241]).
 
2    (unanimously) The operational instruction issued on 19 September 2001 by the general manager of the New Zealand Immigration Service is valid in law and cannot be read as requiring an unlawful approach by immigration officers to their statutory power of deciding whether refugee status claimants should be detained at the border under s 128(5) of the Act (see paras [27], [118]-[121] & [293]).

3    (per Blanchard, Tipping, Anderson & McGrath JJ) Interpretation of the expression "first available craft" in s 128(5) of the Act must reflect the dictates of the non-refoulement provisions of s 129X of the Act.  The inability to remove a refugee status claimant arising from s 129X necessarily implies that the expression "first available craft" means the first available craft after the claim has been declined.  The purpose of s 128(5) detention is to facilitate the removal of the person from New Zealand.  In the case of a refugee status claimant refused a permit, that removal is not inevitable; it is dependent on whether the claim succeeds or fails.  The prima facie inevitability of removal which s 128(5) implies must, in the case of refugee status claimants, be read as contingent removal.  Put another way, the clear power to detain a refugee status claimant under s 128(5), as a person to whom s 128 undoubtedly applies, was not modified or disapplied when Parliament introduced the specific refugee status claimant regime in 1999 through Part VIA, of which s 129X is the immediately relevant provision.  Parliament must therefore have intended that the purpose of such detention (that is, pending departure on the first available craft) should be interpreted in the case of refugee status claimants in such a way as to accommodate the temporary and, if their claim succeeded, the permanent inability to remove them from New Zealand.  Furthermore, the reference in s 128(11) to the practicability of the person leaving on the first available craft need not be confined to physical impracticability.  It is perfectly reasonable in this context to say that it is impracticable to put a refugee status claimant on what might physically be the first available craft because of the legal impediment to removal pending the determination of the claim (see paras [12], [13] and [94]).

F v Superintendent of Mt Eden Prison [1999] NZAR 420 approved; D v Minister of Immigration [1991] 2 NZLR 673 (CA) and Attorney-General v E [2000] 3 NZLR 257 (CA) referred to.

4    (unanimously) Section 128(13B) confers a discretion on the District Court Judge, who has to be satisfied, explicitly, that s128 continues to apply.  This judicial discretion recognises the opinion expressed by the Executive Committee in Excom Conclusion No. 44 (1986) that detention measures in respect of refugees should be subject to review, albeit following expiry of the initial 28 day period.  The discretion is broadly expressed and not qualified by a requirement that the Judge has to have regard to the provisions of Article 31.2, although clearly it is appropriate to do so.  In exercising the discretion in any particular instance, the District Court must also have regard to all of the circumstances of the case including the known personal history of the individual, the nature of the detention and any relevant legitimate concerns drawn to the Judge’s attention concerning public safety, and security in the international environment at the time.  These observations are of course made concerning s128, in the form it took prior to the coming into force of the 2002 amendment to the Immigration Act.  They apply also to s128A.  Further provision was made in the 2002 amendment to permit conditional release by a District Court Judge during the 28 day period under s128AA, inserted by s10 of that amending Act (see paras [5], [104] & [296]).

5    (per Blanchard, Tipping, Anderson & McGrath JJ) It is not appropriate, when considering the lawfulness of the operational instruction as such, to be influenced by how immigration officers may have dealt with individual cases.  The lawfulness of the instruction must depend on a proper construction of its terms rather than on inferences as to how it may have been interpreted by individual officers.  (See paras [30], [31], [106] & [107]).   

6    (per Blanchard, Tipping & Anderson JJ) There is nothing in the operational instruction which is inconsistent with Article 31 of the Refugee Convention (which says that contracting states shall not apply to the movements of refugees restrictions other than those which are necessary.  Such restrictions must be applied only until their status is regularised or they obtain admission to another country).  (See para [28]).

7    (per McGrath J & Glazebrook J) Excom Conclusion No. 44 (1986) carefully spells out the content of the obligation contained in Article 31(2).  Excom Conclusion No. 44 states confined grounds on which states may conclude detention is necessary, namely to verify identity, to determine the asserted elements of the claim, to deal with cases where claimants have destroyed travel or identity documents or have used fraudulent documents to mislead authorities, and to protect national security or public order.  It is apparently accepted that all such factors, individually or in combination, are capable of giving rise to a situation in which it is necessary to detain a refugee status claimant for a period beyond the initial few days.  On the other hand detention for purposes of deterrence is impermissible.  It also appears that the opinion of the executive committee that detention should normally be avoided is not to be taken as a commitment to the view that it should be exceptional.  Each of those considerations together provide a helpful guide as to when detention of refugee status claimants is necessary (see paras [100], [101], [102], [275], [260] & [271]).

8    (per McGrath J & Glazebrook J) It is appropriate when assessing the obligations under the Refugee Convention to have regard to Excom Conclusion No. 44 and it is also appropriate to have regard to the UNHCR "Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum-Seekers" (February 1999) and to the UNHCR "Detention of Asylum-Seekers and Refugees: The Framework, the Problem and Recommended Practice" (Standing Committee, 15th Meeting, 4 June 1999, EC/49/SC/CRP13) (see paras [100], [111] & [271]).

9    (per Glazebrook J) The word "necessary" in Article 31(2) limits both the extent of any restrictions imposed and the reasons for such restrictions.  The greater restriction there is to be on a refugee claimant's freedom of movement the more scrutiny should be given to the reasons for detention.  The term "necessary" restricts both the extent of restrictions on freedom of movement and the reasons for such restrictions (see paras [259] & [274]).

10    (per Glazebrook J) The law relating to the "coming directly" test in Article 31 is complicated and the subject of much international debate.  Immigration officers, however well trained, could not be expected to address this question.  It is therefore appropriate that the question not be dealt with in the operational instruction (see para [291]).

11    (per McGrath J & Glazebrook J) It is implicit in s 128(5) that the police are to act in light of advice from the Immigration Service (see paras [122] & [292]).

Appeal by Attorney-General allowed and cross-appeal by respondents dismissed.

Other cases mentioned in the Judgment

Benipal v Ministers of Foreign Affairs and Immigration (High Court, Auckland, A993/83, 16 December 1985)
Butler v Attorney-General [1999] NZAR, 205, 220 (CA)
Gillick v West Norfolk and Wisbech Area Health Authority & Anor [1986] 1 AC 112 (HL)
Ministry of Foreign Affairs v Benipal [1988] 2 NZLR 222 (CA)
NZ Fishing Industry Association v Minister of Agriculture and Fisheries [1988] 1 NZLR 544, 551 (CA)
R v Governor of Durham Prison ex parte Singh [1984] 1 All ER 983 (QBD)
R v Home Secretary, Ex p Simms [2000] 2 AC 115, 131 (HL)
R v Secretary of State for the Home Department, ex p Khan [1995] 2 All ER 540 (CA)
Singh v Refugee Status Appeals Authority [1994] NZAR 193
Tan Te Lam v Detention Centre [1997] AC 97 (PC)

Counsel

H M Aikman, A S Butler and A Puata for the appellant
R E Harrison QC and D A Manning for the respondents

Judgments of the Court

Blanchard, Tipping, Anderson JJ [1]
McGrath J [49]
Glazebrook J [125]

BLANCHARD, TIPPING AND ANDERSON JJ
(DELIVERED BY TIPPING J)

Introduction
Power to detain - s128(5) - statutory context
Section 128 itself
Other relevant aspects of s128 - Parliamentary materials - previous authorities
The Operational Instruction
D's case
General observations
Summary
Formal conclusion

Introduction

[1] This appeal concerns the way in which the New Zealand Immigration Service (the Service) deals with people who claim refugee status on arrival in New Zealand.  The first issue involves s128(5) of the Immigration Act 1987 (the Act).  Specifically it is whether the power to detain thereby created applies to refugee status claimants, as that expression is defined in s129B of the Act.  That section sets out definitions applicable to Part VI A which was introduced in 1999 to provide a statutory basis for the system by which New Zealand ensures it meets its obligations under the Refugee Convention defined in s2.  The second issue concerns the validity in law of an Operational Instruction issued on 19 September 2001 by the General Manager of the Service to immigration officers in the field.  The Instruction concerned the “exercise of discretion pursuant to Section 128(5) … to detain persons who have claimed refugee status”.  The Instruction was therefore issued on the premise that s128(5) did contain a power to detain refugee status claimants.  If that is not correct the validity of the Instruction does not arise.

[2] In the High Court Baragwanath J held, first, that s128(5) did create a power to detain refugee status claimants but, second, that the Instruction was invalid.  The Attorney-General, on behalf of the Service, has appealed on the second point.  The respondents have cross appealed on the first point.

Power to detain – s128(5) – statutory context

[3] Although it is long and detailed, it is desirable to set out in full the text of s128 as it stood when these proceedings were commenced.  There have since been amendments brought about by the Immigration Amendment Act 2002 which came into force on 17 June 2002.  At the relevant time s128 provided:

128 Detention and departure of persons refused permits, etc.

(1) This section applies to every person (other than a person to whom section 128B or section 129 of this Act applies) who—

(a) Arrives in New Zealand from another country; and
(b) Is not exempt under this Act from the requirement to hold a permit; and
(c) Either—

(i) Fails to apply in the prescribed manner for a permit; or
(ii) Is refused a permit; or
(iii) Is a stowaway; or
(iv) Is a person whose pre-cleared permit has been revoked by an immigration officer pursuant to section 35F of this Act.

(2) For the purposes of this section, a stowaway shall be deemed to arrive in New Zealand at the time when the craft on which the stowaway is travelling crosses into the territorial limits of New Zealand, and, subject to subsections (3), (13) and (14) of this section, this section shall apply to the stowaway while the stowaway remains within those limits.

(3) This section shall cease to apply to any person (including any stowaway), on the expiration of 72 hours after the time when the craft on which that person was travelling berths, lands, or otherwise arrives in New Zealand, unless that person is sooner detained under this section.

(4) Any person to whom this section applies shall be deemed for the purposes of this Act to be in New Zealand unlawfully, but, for so long as this section applies to that person, that person shall not be liable to be dealt with under any of the provisions of Part 2 of this Act.

(5) Subject to subsection (7) of this section, any person to whom this section applies may be detained by any member of the Police and placed in custody pending that person's departure from New Zealand on the first available craft.

(6) Every person who is placed in custody under subsection (5) of this section and is to be detained overnight shall be detained,—

(a) In the case of an unmarried person who is under 17 years of age, in—

(i) Any residence (within the meaning of section 2 of the Children and Young Persons Act 1974) or other premises under the control of, or approved by, the chief executive of the department for the time being responsible for the administration of the Children, Young Persons, and Their Families Act 1989; or
(ii) Any other premises agreed to by the parent or guardian of that person and an immigration officer; or

(b) In any other case, in—

(i) Any premises approved by the chief executive of the Department of Labour; or
(ii) A Police station.

(7) Where a person to whom this section applies is to be detained for more than 48 hours after the time of that person's detention by a member of the Police under subsection (5) of this section, an immigration officer or a member of the Police shall apply to the Registrar (or, in the Registrar's absence, the Deputy Registrar) of a District Court for a warrant of commitment in the prescribed form authorising the detention for a period not exceeding 28 days of that person in a penal institution or some other premises approved for the purpose by the Registrar (or Deputy Registrar), and the Registrar (or Deputy Registrar) shall issue such a warrant accordingly.

(8) Every application under subsection (7) of this section shall be made on oath, and shall include a statement of the reasons why the person is a person to whom this section applies.

(9) Every such warrant of commitment shall authorise the superintendent of the prison or the person in charge of the other premises to detain the person named in it until—

(a) Required by a member of the Police to deliver up that person in accordance with subsection (11) of this section; or
(b) The release of the person in accordance with subsection (14)(a); or
(c) Subject to subsections (2)(a) and (12) of section 128A of this Act, the expiry of 28 days from the date of the issue of the warrant

whichever first occurs.

(10) Every person detained in a penal institution pursuant to a warrant of commitment issued under subsection (7) of this section shall be treated for the purposes of the Penal Institutions Act 1954 as if that person were an inmate awaiting trial.

(11) When a craft becomes available to take from New Zealand any person to whom this section applies who is in custody pursuant to a warrant of commitment issued under subsection (7) of this section, and it is practicable in all the circumstances for the person to leave on that craft, the superintendent of the prison or the person in charge of the other premises shall, on being required in writing by a member of the Police to do so, deliver the person into the custody of the member of the Police, who shall escort the person or arrange for the person to be escorted to the seaport or airport and ensure that the person is placed upon the craft and detained there until the craft leaves New Zealand.

(12) If, for any reason, the craft ceases to be available to take the person from New Zealand or is, or is likely to be, delayed in New Zealand for more than 24 hours, or if for any other reason the person is unable to leave New Zealand at the expected time, the person shall be returned to the custody from which the person was taken, and for that purpose the warrant of commitment shall be deemed still to be of full force and effect.

(13) Where it becomes apparent to an immigration officer that a person detained in custody under a warrant of commitment issued under subsection (7) is, or is likely to be, unable to leave New Zealand before the expiry of the period for which detention is authorised by the warrant under subsection (9)(c), the immigration officer may either—

(a) Apply to a District Court Judge for an extension, or further extension, of the warrant; or
(b) Notify in writing the Superintendent of the prison or person in charge of the other premises in which the person is detained that the person should be released.

(13A) An application for extension or further extension of a warrant under subsection (13)(a) must—

(a) Be made on oath; and
(b) Include a statement of the reasons why the extension or further extension is requested.

(13B) On an application for the extension or further extension of a warrant of commitment under subsection (13)(a), the Judge may, if satisfied that the person is still a person to whom this section applies, extend or further extend the warrant—

(a) For a further period not exceeding 7 days; or
(b) For such longer period as the Judge thinks necessary in the circumstances to allow all the persons in the group concerned to be properly dealt with, in any case where the person detained under the warrant is a member of a group of people—

(i) Who arrived in New Zealand on the same ship or aircraft; and
(ii) All or most of whom are persons to whom this section applies.

(14) The Superintendent of the prison or person in charge of the other premises in which a person is detained under a warrant of commitment must release the person from custody—

(a) On receiving written notification from an immigration officer under subsection (13)(b) that the person should be released; or
(b) If not earlier released, on the expiry of the period for which detention is authorised under the warrant (as determined having regard to section 128A(2)(a) and (12), where appropriate, and to any extension or further extension of the warrant granted under subsection (13B)).

(14A) On the release of a person under subsection (14),—

(a) Part 2 applies in respect of the person; and
(b) This section ceases to apply in respect of the person.]

(15) A person who is detained under this section shall not be granted bail but may, where section 128A of this Act applies in relation to the person, be released on conditions in accordance with that section.

[5] Then comes s128 itself which, as its heading notes, is concerned with detention and departure from New Zealand of  all persons who are refused a permit to enter.  Section 128A specifies the procedure if a person detained under s128 brings review proceedings.  These include habeas corpus applications.  Basically the continued custody of such a person comes under the control of the District Court which has power, as s128(15) forecasts, to release on conditions in specified circumstances.  In this respect we agree with the observations which McGrath J has made about the judicial role, in particular in his paragraph [104].  We pass by ss128AA-128AD which were enacted in 2002 and come to s128B which is concerned with the detention of people whose eligibility for a permit is not immediately ascertainable.  As aspects of this section are of some present moment, we set out its first four subsections:

(1) This section applies to every person who arrives in New Zealand from another country (not being a person who is exempt under section 11 or section 12 of this Act from the requirement to hold a permit) where—

(a) An immigration officer or any member of the Police has reason to suspect that the person may be a person to whom section 7(1) of this Act applies; or
(b) The person has no appropriate documentation for immigration purposes, or any such documentation held by the person appears to be false,—

and a decision as to whether or not to grant that person a permit or, in the case where the person holds a pre-cleared permit, as to whether or not to revoke that permit, has not been made because the person's status under section 7(1) of this Act cannot be immediately ascertained.

(2) Any person to whom this section applies (including any such person who holds a pre-cleared permit) shall be deemed for the purposes of this Act to be in New Zealand unlawfully, but, for so long as this section applies to that person, that person is not liable to be dealt with under any of the provisions of Part 2 of this Act.

(3) Any person to whom this section applies may be detained by any member of the Police and placed in custody in accordance with this section while a determination is made as to whether or not section 7(1) of this Act applies to that person.

(4) Every such determination shall be made by the Minister acting on the advice of the Commissioner of Police, or of such other adviser as the Minister thinks appropriate in the circumstances of the case.

Section 128 itself

[7] The logical starting point for an examination of the scope of s128(5) is to focus on the provisions of s128(1) which specify to whom the section as a whole applies.  It applies to every person who (a) arrives in New Zealand from another country; (b) is not exempt from holding a permit; and (c) either fails to apply for a permit, is refused a permit, is a stowaway, or is a person whose pre-cleared permit has been revoked.  There can therefore be no doubt that a refugee status claimant, who has been refused a permit, is a person to whom s128 and thus s128(5) is intended to apply.  It must follow that, unless it can be discerned with clarity that Parliament intended refugee status claimants nevertheless to be excluded from the reach of s128(5), either generally or for specific purposes, the power to detain referred to therein applies to them.  For ease of reference we set out s128(5) again:

(5) Subject to subsection (7) of this section, any person to whom this section applies may be detained by any member of the Police and placed in custody pending that person's departure from New Zealand on the first available craft.

[9] Mr Harrison’s argument was that as s129X prevents the removal from New Zealand of refugee status claimants (save in terms of the Refugee Convention), unless and until their claim for refugee status is declined, it must follow that the “immediate turnaround” contemplated by the concept of departure “on the first available craft” prevents s128(5) from applying to refugee status claimants despite its apparently general terms.  It is not immediately easy to reconcile the purpose of s129X with the apparent purpose of s128(5).  The purpose of the latter, at least on the face of the subsection, is to give a power to detain pending removal from New Zealand as soon as an available craft can be found.  When s129X was enacted in 1999, with the introduction of Part VI A, Parliament must have been aware that generally refugee status claimants could not thereafter be removed from New Zealand unless and until their claim was declined.  No amendment was, however, made to the reach of s128 and to the corresponding applicability of s128(5) to refugee status claimants.  The question is whether s129X has the effect of amending, pro tanto, s128(5) by excepting refugee status claimants from its terms, or rather whether s128(5) was intended thereafter to be interpreted by construing the expression “first available craft”, in the case of refugee status claimants, so as to reflect the dictates of s129X.  We are left in no real doubt that the latter must be the correct approach.

[10] It is highly unlikely that Parliament intended to remove altogether the power to detain refugee status claimants under s128(5).  No refugee status claimant refused a permit could then be detained for any period pending the determination of their claim.  All such claimants would have to be allowed to enter New Zealand unlawfully, which Parliament can hardly have intended.  We appreciate that, when detained, persons to whom s128(5) applies are already deemed to be unlawfully in New Zealand (s128(4)).  But that gives no support to the contention that, having refused a refugee status claimant a permit, the Service must nevertheless in all circumstances allow that person to enter New Zealand and be at large.

[11] If s128(5) did not apply to refugee status claimants, there would be a gap in the law.  Section 128B is not designed to apply to all those whose presence at large in New Zealand would be undesirable while inquiries are made into their circumstances.  A refugee status claimant may give no objective reason to suspect in terms of s128B(1)(a); yet to allow such a person to be at large in New Zealand, when their identity, bona fides and antecedents were unknown, might very well be wholly inappropriate.

[12] The inability to remove a refugee status claimant arising from s129X necessarily implies that the expression “first available craft” means the first available craft after their claim has been declined.  The purpose of s128(5) detention is to facilitate the removal of the person from New Zealand.  In the case of a refugee status claimant refused a permit, that removal is not inevitable; it is dependent on whether the claim succeeds or fails.  The prima facie inevitability of removal which s128(5) implies must, in the case of refugee status claimants, be read as contingent removal.  Put another way, the clear power to detain a refugee status claimant under s128(5), as a person to whom s128 undoubtedly applies, was not modified or disapplied when Parliament introduced the specific refugee status claimant regime in 1999 through Part VI A, of which s129X is the immediately relevant provision.  Parliament must therefore have intended that the purpose of such detention (ie. pending departure on the first available craft) should be interpreted in the case of refugee status claimants in such a way as to accommodate the temporary and, if their claim succeeded, the permanent inability to remove them from New Zealand.

Other relevant aspects of s128 – Parliamentary materials – previous authorities

[13] This approach to the interrelation between s128(5) and s129X receives support when reference is made to other aspects of s128 and to relevant Parliamentary materials.  It is also consistent with certain aspects of the amendments to the Act introduced in June 2002.  Section 128(7), which applies when s128(5) detention lasts more than 48 hours, allows a warrant of commitment to be issued for up to 28 days with powers of extension in terms of subss (13) and (13B).  This aspect must envisage the need in some cases to conduct reasonably extensive inquiries before the “turnaround” contemplated by the expression “first available craft” is implemented.  Indeed, in the case of refugee status claimants, the contemplated turnaround must, as noted above, be regarded as contingent.  Furthermore, the reference in s128(11) to the practicability of the person leaving on the first available craft need not be confined to physical impracticability.  It is perfectly reasonable in this context to say that it is impracticable to put a refugee status claimant on what might physically be the first available craft because of the legal impediment to removal pending the determination of the claim.

[14] Consideration must also be given to subs (13B) of s128, introduced into the Act in 1999.  That subsection deals with extensions of warrants of commitment for further periods not exceeding seven days, thus increasing the initial maximum of 28 days.  There is an express power of extension for more than seven days in the case of persons who have arrived in a group.  That provision immediately makes one think of groups of refugees, albeit other groups are possible.  Reference to Hansard makes it quite clear that Parliament had in mind groups of people claiming refugee status.  On the third reading of the Bill which became the Immigration Amendment Act 1999, and introduced subs (13B) into s128, the Minister of Immigration, the Hon Tuariki Delamere said on that subject (Hansard, 30 March 1999 at page 15757):

Part 5, which deals with arrivals and departures, is aimed at creating more flexible detention arrangements in the context of border management if we ever have a boat-people situation.  Hopefully that will never happen to us here, but it is a possibility and we must be prepared for it.  The current 28-day maximum detention period will be amended to allow extensions through the District Court to enable refugee determinations and any subsequent appeals to be finalised.

[16] Finally, there is s128AA, introduced by the 2002 Amendment Act.  Subsection (2) of that section applies to refugee status claimants who are placed in custody under s128(5) or are the subject of a warrant of commitment issued under s128(7).  While a later enactment is not conventionally regarded as available to assist with an earlier interpretation question, it can at least be said in this case that the interpretation of s128(5), which we would favour without reference to s128AA(2), is entirely consistent with the way Parliament saw the matter when that provision was enacted in 2002.

[17] Our view that Parliament must have intended s128(5) to apply and continue to apply to refugee status claimants is consistent with the recent decision of this Court in Attorney-General v E [2000] 3 NZLR 257.  Although the precise point was not in issue in that case, the Court proceeded on the premise that s128(5) applied to refugee status claimants.  In delivering the judgment of Richardson P, Gault J and themselves, Henry and Keith JJ said at 262 (paragraph [18]) that persons covered by s128 (necessarily refugee status claimants) “may be detained [under section 128(5)] by any member of the police and placed in custody pending their departure on the first available craft”.  Thomas J, who dissented on other matters, agreed with that statement, referring as he did, without demur, at 293, to the decision of Anderson J in F v Superintendent of Mt Eden Prison [1999] NZAR 40.  In that case the Judge held that s128(5) applied to refugee status claimants and that the words “first available craft” should be interpreted and applied “with regard to circumstantial reality”.  He held that in the case of refugee status claimants the words meant the first craft able to be used having regard to the circumstances of the case.  The same view of s128(5) is implicit in the decision of this Court in D v Minister of Immigration [1991] 2 NZLR 673 at 675.

[18] The only previous decision which supports the view that s128(5) does not apply to refugee status claimants is that of Chilwell J in Benipal v Ministers of Foreign Affairs and Immigration (High Court, Auckland, A993/83, 16 December 1985).  His Honour was there dealing with s14(1A) of the Immigration Act 1964, the predecessor of s128(5).  Nothing in the decision of this Court, when Benipal came on appeal (Ministry of Foreign Affairs v Benipal [1988] 2 NZLR 222), gave any support to Chilwell J’s view on this point which, with respect, we consider to have been in error.

[19] For these various reasons we would hold that at all times material to these proceedings, the power to detain conferred by s128(5) applied to refugee status claimants.  We therefore agree with the conclusion to which Baragwanath J came on this issue, albeit our process of reasoning has not followed entirely the same path.  We do not, with respect, see any advantage in comparing the Judge’s approach with our own.  We would dismiss the cross appeal.

The Operational Instruction

[20] We turn now to address the Crown’s appeal against the Judge’s conclusion that the Operational Instruction was unlawful.  Here we respectfully differ from the Judge.  At the heart of that difference is our view that, when read as a whole, rather than by reference to selected passages, and when read, as it should be for present purposes, without reference to the way it may have been applied in individual cases, the Operational Instruction does not suffer from the vices ascribed to it by the Judge.  It is necessary to set out the terms of the Instruction in full:

New Zealand Immigration Service
Te Ratonga Manene

19 September 2001

OPERATIONAL INSTRUCTION: EXERCISE OF DISCRETION PURSUANT TO SECTION 128(5) OF THE IMMIGRATION ACT 1987 TO DETAIN PERSONS WHO HAVE CLAIMED REFUGEE STATUS

Section 128(5) of the Immigration Act 1987 provides a power for Police to detain persons who have arrived in New Zealand from another country and failed to apply for a permit or are refused a permit.  The purpose of detention is to effect those persons’ departure from New Zealand on the first available craft.

Where a person has arrived in New Zealand from another country and, upon their arrival, have claimed refugee status under the Refugee Convention, care must be exercised in the invocation of the section 128(5) power.  There are a number of reasons for this:

1. Some of those who arrive at the border and present a claim for refugee status will be recognised as refugees.  For such persons, who already have a well founded fear of persecution and an entitlement to protection, detention, even for a short period of time, will be traumatic;

2. Section 129X(2) of the Immigration Act requires immigration officers, (which by dint of section 139 of the Act includes the Police exercising powers under section 128(5)), to have regard to the provisions of the Refugee Convention in carrying out their functions.  In accordance with Article 31 of the Refugee Convention and also the UNHCR Guidelines on Detention, it is generally that accepted detention of refugees should occur only where necessary;

3. Section 129X(1) provides that no person who is a refugee status claimant (or who has been recognised as a refugee) may be removed or deported from New Zealand unless such removal or deportation is permitted in terms of Articles 32.1 or 33.2 of the Refugee Convention.  This means that for claimants who wish to prepare a claim and pursue any rights of appeal, if held in custody, they may be detained for a not inconsiderable period of time.

However, there will be circumstances where the detention of a person who claims refugee status at the border is justified.  This is particularly where interests of national security or public order and safety arise.  Whether detention is justified will depend upon a close assessment of all of the factors relating to the arrival.  These may include the extent to which that person is able to provide accurate and reliable information as to their identity, the apparent strength or weakness of their claim and the extent to which there are identified risks to public health, safety, security and order.  An assessment of risk to public safety, security, and order will need to take account of the prevailing security situation, both in New Zealand and globally.  In addition, whether or not the person arrived as part of a group of illegal migrants will be an important factor in determining whether detention is, in the circumstances, justified.

Whether detention is justified will also depend upon the type of detention envisaged.  The UNHCR Guidelines on Detention recognise a distinction between detention in a prison environment and accommodation at an open centre with some restrictions on freedom of movement.

To assist in deciding whether or not in a particular case detention is justified, and the type of detention justified, officers should be guided by the following:

If one or more of the following factors exist seeking a section 128 (or 128B) Warrant of Commitment for Detention in a Penal Institution may be justified;

1. Where a refugee status claimant is a person to whom section 7(1) of the Act applies or where detention is otherwise required to protect national security or public order;

2. Where there is reason to suspect that a refugee status claimant is a person to whom section 7(1) applies but their section 7(1) status cannot be immediately ascertained.  This is especially in the case of a group arrival situation where there may be good reason to suspect some of those arriving are people smugglers;

3. Where necessary to verify the identity of a refugee status claimant where identity is in dispute and particularly in the case where identity may impact on the application of section 7(1) of the Act.  Again this is especially relevant in the group arrival situation where there may be reason to suspect persons of people smuggling and the risks in failing to properly ascertain identity are high;

4. Where a refugee status claimant has destroyed or otherwise disposed of their travel and/or identity documents with the intention of misleading NZIS officials as to the details of their travel and/or identity;

5. Where a refugee status claimant has used fraudulent documents in order to mislead NZIS officials (ie. the claim to refugee status follows detection of the fraud by officials or the Police);

6. Where there is a clearly identified risk of a refugee status claimant absconding and that risk cannot be managed by the refugee status claimant being required to reside at the Mangere Accommodation Centre.  Again in the group arrival situation officers will need to carefully consider this ground where some of those presenting claims may have a clear incentive to abscond;

7. Where a claim to refugee status is clearly fraudulent or not related to the criteria for the granting of refugee status laid down in the Refugee Convention nor any other criteria justifying the granting of refugee status; or

8. Where a refugee status claimant has already had a claim to refugee status declined in another Convention Country.

If one or more of the following factors exist seeking a section 128 Warrant of Commitment for Residence at the Mangere Accommodation Centre may be justified:

1. Where the identity (including nationality) of a refugee status claimant cannot be ascertained to the satisfaction of the NZIS and they are not to be detained in penal institution nor does there appear particular reasons for allowing them to enter the community unrestricted;

2. Where there is a risk of a refugee status claimant absconding and that risk can be managed by that refugee status claimant being required to reside at the Mangere Accommodation Centre;

3. Where a refugee status claimant has been in conditions for some period of time that are not conducive to good health;

4. Where a refugee status claimant has arrived as part of a group of 10 or more persons and they are not to be detained in a penal institution nor does there appear particular reasons for allowing them to enter the community unrestricted;

5. Where a preliminary assessment of a refugee status claimant’s claim suggests that the merits of the claim are not strong; or

6. Where a refugee status claimant has no valid travel and/or identity document and there may be delay or difficulty in obtaining those documents in the event that their claim to refugee status is declined.

The detention of persons at the border who claim refugee status but are not granted a permit is not limited to the specific circumstances outlined.  All cases depend upon an individual assessment of their circumstances.

This operation instruction rescinds previous operational instructions concerning the detention of refugee status claimants pursuant to section 128(5) of the Immigration Act 1987.

“Signed”
Chris Hampton
General Manager
New Zealand Immigration Service

[22] We will defer questions of consistency with the Refugee Convention until after we have dealt with the second point.  As foreshadowed above, it is important to consider the Operational Instruction as a whole and against the background that immigration officers can properly be regarded as having a reasonable understanding of the task the legislation gives them when assessing refugee status claimants at their point of entry to New Zealand.  In considering the suggested unlawfulness of the Operational Instruction, the first thing to note is the reference in its heading to “Exercise of Discretion … to Detain…”.  At the very outset the document is framed on the basis that officers at the border have a discretion whether to detain or not.  The document then makes it plain, for the reasons stated, that “care must be exercised in the invocation of the section 128(5) power”.  This is a clear and obvious reference to the alternative of issuing an appropriate permit.  Among the reasons listed for the need to take care is the Refugee Convention requirement that detention should occur only where necessary.  Whether detention of a refugee status claimant is necessary at the point of entry must depend, as would be obvious to any addressee of the Instruction, on a variety of circumstances and their combination in the individual case.

[23] We move next to the introductory words in the third paragraph of the Instruction:

However, there will be circumstances where the detention of a person who claims refugee status at the border is justified.

[25] Next comes a passage on which particular attention was focussed:

To assist in deciding whether or not in a particular case detention is justified, and the type of detention justified, officers should be guided by the following:

[27] Having considered both individual paragraphs of the Instruction and, importantly, the tenor of the document as a whole, we are, with respect to the Judge, of the view that it cannot be read as requiring an unlawful approach by immigration officers to their statutory power of deciding whether refugee status claimants should be detained at the border under s128(5).  It is important to recognise, both in this respect and generally, that what is in issue is the power to detain at the border.  How long, and on what basis, such detention as may initially be determined should last are different issues to which the Instruction is not directed.  We are bound to say that we are surprised at the assertion, let alone the conclusion, that there was anything legally wrong with the Operational Instruction.

[28] We turn now to address the relevant provisions of the Refugee Convention, recalling that Article 31 is specifically mentioned in the Operational Instruction.  That Article says that Contracting States shall not apply to the movements of refugees restrictions other than those which are necessary.  Such restrictions must be applied only until their status is regularised or they obtain admission to another country.  We can see nothing in the Operational Instruction which is inconsistent with or which conflicts with this requirement.  Indeed the necessity criterion is specifically referred to in the Instruction.  Article 33 prohibits return of refugees (refoulement) in circumstances where their life or freedom would be threatened on stated grounds.  A refugee is not, however, entitled to the protection of the non-refoulement provision when there are reasonable grounds for regarding that person as a danger to the security of the country of arrival, or a danger to the citizens of that country, in the latter case because of the conviction of the refugee for a “particularly serious crime”.  Again we can see no inconsistency or conflict between this Article and the terms of the Operational Instruction.

[29] The relationship of the Instruction to the Convention arises because s129D of the Act provides that in carrying out their functions, refugee status officers and the Refugee Status Appeals Authority “are to act in a manner that is consistent with New Zealand’s obligations under the Refugee Convention”.  Section 129E(3) says that no person may be designated or act as a refugee status officer when the person is also currently employed in considering applications for permits or in administering the removal provisions in Part II.  It is refugee status officers who, under s129E(1), determine refugee status claims.  Therefore officers considering whether to grant permits at the border are not strictly governed by s129D.  They must, however, have regard to the Convention in exercising their permit jurisdiction:  see s129X(2).

[30] As foreshadowed earlier, it is not appropriate, when considering the lawfulness of the Instruction as such, to be influenced by how immigration officers may have dealt with individual cases.  The lawfulness of the Instruction must depend on a proper construction of its terms rather than on inferences as to how it may have been interpreted by individual officers in individual cases.  Whether its interpretation or application in a particular case was unlawful will depend on a close consideration of the circumstances of that case against the legal requirements.

[31] We say this because there is no doubt that following the issuing of the Instruction on 19 September 2001, eight days after the Twin Towers disaster in New York, the proportion of refugee status claimants detained at the border, as against those granted permits, dramatically increased.  We consider that the Judge read that circumstance back into the Instruction and took the view that the Instruction itself must therefore have unlawfully induced an erroneous approach to the detention discretion.  As is inherent in what we have written, we do not consider it appropriate to allow the lawfulness of the Instruction itself to be coloured by its mode of implementation in particular cases.  The only proper way to deal with implementation issues is to consider the facts of the individual cases.  Those cases should also be judged against the climate of the times.  Immigration officers could not ignore a rise in the risk to national security, as must obviously have occurred following the events of 11 September 2001.  A general trend following such an event is not therefore a satisfactory basis to decide whether the Service was or was not lawfully implementing its statutory powers under the permit and detention regimes.

[32] Furthermore a representative and global approach is not a sound way of approaching implementation issues.  We do not consider the Court should lend its aid to such an approach, the more so in respect of a period following a major adverse change in the international security climate.  We do not think the High Court should have proceeded in the global representative way it did.  In our judgment the Courts should confine their attention in relation to the actual implementation of the relevant statutory powers to individual cases where the particular facts can receive the necessary close examination.  We therefore respectfully disagree with the Judge’s general and representative approach to this aspect of the case, and confine ourselves on the implementation front to the case of the second respondent, D, whose individual case is the only one before us.

D’s case

[33] The issue in D’s case is whether he was lawfully detained.  That must be addressed on the basis that the officer involved had a power to detain him and that there was no unlawfulness in the Operational Instruction.  The statement of claim does not contain any allegations specific to D’s case.  He simply relies on the general allegations made on a representative basis which, for the reasons already given, we regard as unsubstantiated.  It is said on his behalf that, as a result of these general complaints, he was falsely imprisoned or was detained in breach of his rights under ss21 and/or 22 of the New Zealand Bill of Rights Act 1990.

[34] We can say immediately that we do not regard any aspect of the general representative allegations as constituting in D’s case any breach of either s21 or s22 of the Bill of Rights.  There is no support in those general allegations for the proposition that D’s person was unreasonably seized (s21) or that he was arbitrarily detained (s22).  From the tenor of the Judge’s interim judgment of 31 May 2002, it seems that the focus was almost entirely on the general representative allegations rather than on the particular circumstances of D’s case.

[35] D arrived at Auckland Airport aboard an 8.25am flight on 21 October 2001.  Ms Hodgins was the immigration officer who dealt with him.  On arrival D indicated he wished to claim refugee status.  He was granted such status on 20 November 2001, having been detained during the intervening month at the Mangere Accommodation Centre.  Ms Hodgins took down D’s particulars on an Arrival Interview Form.  He spoke Farsi, so the interview was conducted through an interpreter.  He said he had used a false Iranian passport to escape from Iran and had travelled to Thailand.  From there he came to New Zealand in stages on the false passport of another country.  He said he had been tortured in Iran and was liable to death there as a Christian convert who promoted Christianity.

[36] Ms Hodgins’ preliminary assessment noted that D had no appropriate documentation for immigration or identity purposes.  He had used fraudulent documents in order to mislead Service officials.  She therefore noted that there might be delay or difficulty in obtaining appropriate documents in the event his refugee status claim was declined.  As D had indicated that he had previously been imprisoned or detained, Ms Hodgins gave preliminary attention to whether s7(1) was a basis for refusing entry.  Furthermore, D had indicated he had previously been removed or deported from a country, and had previously been or was under investigation for an offence.  It appeared, however, that these matters might be related to religious persecution which would put a different complexion on them.

[37] Ms Hodgins’ preliminary assessment was that a permit should be refused.  We do not consider there is any basis for concluding that this assessment represented an improper exercise of discretion or was otherwise unlawful.  To grant a permit in the circumstances, as they reasonably appeared to Ms Hodgins, would have been little short of foolhardy.  The picture which emerged at the border was one of considerable uncertainty and the circumstances of D’s case must have given rise to genuine concerns about his background, his bona fides, and whether he posed a threat to the security of New Zealand, to adopt the language of Article 33.2 of the Convention.  We do not consider Ms Hodgins legally erred by not invoking s128B.  In our view the preliminary decision to decline a permit at the border and therefore to detain him at the Mangere Accommodation Centre, at least in the interim, was neither unreasonable nor unlawful.  Detention at the border was “necessary”, in the circumstances of D’s case, within any reasonable interpretation of Article 31.2.

[38] D next had a three hour interview with a refugee status officer.  Nothing emerged which gave Ms Hodgins cause to change her initial assessment.  She therefore formally directed that D be detained under s128(5) and a warrant was sought and obtained authorising his detention for no longer than 28 days.  Ms Hodgins made a formal note of her assessment.  In it she recorded the matters we have already mentioned, adding that D’s identity had not been ascertained to her satisfaction.  That is an acceptable basis upon which detention may be regarded as necessary for Article 31 purposes, as is made clear by the United Nations High Commissioner for Refugees Guidelines for the Detention of Refugees:  see Guideline 3 referred to by D and the other respondents in the statement of claim.  In paragraph 4 of her note, Ms Hodgins showed a clear appreciation that she had to decide whether to detain as well as where.  We consider that in her note Ms Hodgins clearly and faithfully articulated the matters to which she was required to have regard before reasonably and lawfully concluding that in all the circumstances a permit at the border was not warranted in this instance.  She then considered the whereabouts of the detention and decided in favour of Mangere.

[39] We cannot accept that in these circumstances D’s detention can be described as arbitrary or, in the Judge’s word, undiscriminatory.  We consider Ms Hodgins gave careful and appropriate consideration to D’s individual circumstances.  The Judge found that there was a “current wholesale policy of detention”.  That conclusion derived from the figures concerning the number of detentions after the Operational Instruction was given as opposed to earlier.  But the evidence in D’s case shows anything but a rigid policy of detention irrespective of the circumstances.  The Operational Instruction cannot be regarded as instructing officers to adopt such a practice.  We are satisfied that Ms Hodgins did not approach the matter on a wholesale pre-determined basis of the kind alleged.  As is inherent in what we have earlier written, we do not consider it appropriate to adopt the Judge’s wholesale approach as depositive of individual cases, the more so when the evidence in such a case does not justify the conclusion that the impugned approach was taken in that case.

[40] For the reasons we have endeavoured to express, we would hold that the Operational Instruction was not unlawful in any respect.  We would also hold that on the evidence accepted by the Judge there was no unlawfulness in the handling of D’s case at the border.  We say at the border, not to imply any later unlawfulness, but because the focus of the proceedings appears always to have been so limited.

General observations

[41] Before closing this judgment we think it appropriate to make some further observations on two matters; first, the representative dimension and second, the nature of the judgments below.

[42] As to the first, the Judge purported to allow the first respondents, the Refugee Council and the Human Rights Foundation, to represent all refugee status claimants who had been detained between the date on which the Operational Instruction was issued and the date of hearing.  Unusually the application for such a representation order was made by averment in the statement of claim.  The Judge also appears initially to have made the representation order sought on an ex parte basis.  The justification for the original ex parte approach was not self-evident.  It seems to have been that there could not reasonably have been any opposition.  But, as earlier indicated, we consider the global and representative approach has caused difficulties in the consideration of the issues and the Service had reason to oppose a representation order, or at least to have clarified the basis on which the proceedings would continue, if such an order was made.

[43] There were two judgments below, leaving aside a third in relation to stay pending appeal.  The main judgment delivered on 31 May 2002 after a hearing on 9 and 10 May 2002 was delivered as an interim judgment.  As a result it was not easy to determine exactly what it actually decided.  No formal orders were made.  The Judge said his interim judgment had identified several issues which required further consideration.  The interim judgment also reserved all questions of relief.  We can understand the concern expressed by the Service as to how they were placed in the meantime.  On 27 June 2002 the Judge delivered what is described as a supplementary judgment.  He dealt with some matters not addressed in the interim judgment and revisited some matters which he had dealt with in the interim judgment.  We have not thought it necessary or appropriate to complicate our own judgment by distinguishing between the two judgments of the Judge.

[44] In his supplementary judgment the Judge did grant relief in the form of a declaration that the Operational Instruction was unlawful.  Consequential relief, either generally or in respect of D, was further reserved.  And, at this rather late stage, having taken a global and representative approach in his interim judgment, and having revisited the representation issue, the Judge ruled that the individual circumstances of each claim made it impracticable to make a general representation order.  He directed that any claimant, who wished to seek any individual relief beyond the declaration he had made, would have to make an individual application.  The Judge also recorded himself as satisfied, in accordance with the Service’s argument, that D fell within s7(1)(d)(v) of the Act having, on his own admission, been deported from Korea.  Hence he was never entitled to a permit.  Indeed he was expressly prohibited, with immaterial exceptions, from obtaining one.  The Judge went on, however, to say that this did not prevent D from claiming his treatment under s128(5) was unlawful.  We have of course taken a different view of D’s treatment without any reference to the s7(1)(d)(v) point.

[45] We are bound respectfully to suggest that, unless it cannot be avoided or is inherent in any agreement or order for a staged hearing, it is better if all preliminary issues such as representation be determined ahead of trial, and also better if all substantive issues are dealt with in a single composite judgment, even if more than one hearing is necessary to enable all necessary points to be addressed.  Although, sensibly, no issue arose on the point in this Court, the only actual order the Judge seems to have made at the time the Crown appealed was his order declaring the Operational Instruction to be unlawful.  There was no order concerning any particular individual.  The ability to review judicially the Instruction itself, in isolation of any impact which it may have had in an individual case, must be regarded as problematic.  The unlawfulness of the Operational Instruction, even if that were the correct view, would not per se inevitably mean that Ms Hodgins’ treatment of D must have been unlawful.  This case shows how difficult it is to deal appropriately with issues in the abstract and how important it almost always is to consider issues of law against a concrete set or sets of facts.

Summary

[46] In this judgment we have determined:

[a] that refugee status claimants may be detained under s128(5);

[b] that the Operational Instruction is not inconsistent with the Refugee Convention or otherwise unlawful; and

[c] that D was lawfully detained at the border under s128(5).

[47] It may be of course that if individual cases were examined that concern would be allayed, as it has been in relation to D.  We have already indicated that it would not, in our view, be proper for the Court to reach any conclusion simply on the basis of the statistical materials, particularly when they are drawn from a period immediately following an event such as September 11.  But it should be emphasised that this judgment is not to be read as expressing any view on the way in which the s128(5) power and the Operational Instruction have been applied in the case of any individual refugee status claimant other than D.

Formal conclusion

[48] The Court being unanimous as to the result, orders are made:

[a] Allowing the appeal and setting aside the order declaring the Operational Instruction to be unlawful.

[b] Dismissing the cross appeal.

[c] Declaring that there was nothing unlawful in the way D was treated by Ms Hodgins.

[d] Reserving all questions of costs.  If they cannot be agreed between the parties, memoranda may be filed.

Introduction   [49]
Background facts   [50]
High Court judgments   [54]
Legislative history of s128   [66]
Statutory implementation of the Convention   [73]
Attorney-General v E   [75]
Submissions on cross appeal   [81]
Submissions on appeal   [85]
Decision:
i)   Can claimants be detained under s128?  [88]
ii)   The scope of the discretion to detain claimants  [97]
iii)   The judicial discretion to release claimants  [104]
iv)   The validity of the operational instruction  [106]
v)   The position of D and the represented persons  [122]
Conclusion  [124]

Introduction

[49] This is an appeal brought by the Crown against judgments of the High Court holding illegal an operational instruction to immigration officers.  The instruction concerns the approach to be taken to deciding whether to detain arriving travellers who have sought recognition of refugee status.  The issue in the appeal is whether the statutory provisions giving immigration officers power to detain, pending their summary removal from New Zealand, arriving travellers who are refused entry permits apply to those who claim refugee status and, if they do, what constraints there are on those powers in light of the provisions of the Convention Relating to the Status of Refugees 1951 and the New Zealand Bill of Rights Act 1990. The answer to that question will determine whether the operational instruction issued on 17 September 2001 complied with the requirements of the law.

Background facts

[50] The first respondents in the proceeding, who were plaintiffs in the High Court, are the Refugee Council of New Zealand Incorporated and the Human Rights Foundation of Aotearoa New Zealand Incorporated.  The former was established to protect the interests of those claiming, or recognised as having, refugee status and to inform the public about those interests.  The main object of the latter is to promote human rights, and New Zealand’s compliance with its international and domestic human rights obligations, by various means including advocacy.  Both bodies were moved to bring the proceeding by what Professor Bedggood in her affidavit said was their concern that:

…since the terrible events in the United States of 11 September (2001), there has been a significant and legally unjustified shift in approach by the New Zealand Immigration Service towards a practice of wholesale detention of persons arriving in this country who claim refugee status.

[52] The evidence of Mr Kearney, the Immigration Service official in overall charge of entries into New Zealand, was that, between 19 September 2001 and 31 January 2002, 221 persons claimed refugee status, of whom 208 (94%) were detained on arrival in accordance with the operational instruction of 19 September.  However, 131 of the 208 claimants detained were a group from those rescued by the Norwegian vessel, MV Tampa, which the government had agreed to receive and consider for refugee status. The evidence of Mr Lockhart, the chief operating officer of the Immigration Service, was that the rate of detention of arriving spontaneous refugee status claimants had varied over time.  This was due to factors such as the removal in June 1999 of the statutory limit of 28 days on detention associated with the “turnaround” summary removal regime, the increased security concerns that arose during the period leading up to the APEC heads of government meeting held in Auckland in September 1999, a different government policy towards detention of claimants following the change of government in December 1999, and the decision to receive the Tampa group made in August 2001.  Of importance also was the decision to develop the Mangere Accommodation Centre as an alternative to penal institution detention.  It became available in September 2001.

[53] Finally it is well known that spontaneous refugee status claimants rarely have with them any genuine immigration or identity documentation on their arrival.  This factor is relevant to the time required to determine their claims for refugee status and, where they are to be detained, the period of their detention.

High Court judgments

[54] In three separate judgments delivered on 31 May, 4 June and 27 June 2002, Baragwanath J considered the power to detain refugees under s128 of the Immigration Act 1987.  The principal factual focus of the proceeding before him was on the treatment of the second respondent, D, who had been detained by the New Zealand Immigration Service of the Department of Labour following his arrival on 21 October 2001.  The respondents however sought and in the first judgment were granted leave to sue on behalf of all refugee status claimants detained by the New Zealand Immigration Service between 19 September 2001 and 9 May 2002 (the relevant period).

[55] There are three main issues addressed in the judgments.  The first is whether during the relevant period (that is prior to the amendments made in 2002) s128 of the Immigration Act 1987 applied at all to refugee status claimants.  The second issue concerns the extent to which the discretionary detention power under s128(5) is qualified by provisions of the Refugee Convention which are incorporated in the 1987 Act.  Thirdly the Judge had to decide whether the terms of operational instruction issued to immigration officers by the New Zealand Immigration Service on 19 September 2001, relating to the exercise of the power to detain under s128(5), were lawful.

[56] In his first, interim, judgment, Baragwanath J expressed a provisional view that, although the bail of all persons detained under s128 of the Act was prohibited by s128(15), s128A gave such persons a right to apply for bail where judicial review was sought of the decision to detain them.  As the respondents had not advanced this argument, and it was accordingly not addressed at the hearing, the Judge deferred a final decision on the point pending submissions from the Crown. On the balance of convenience, however, he held that there should be access to bail as an interim measure for all those detainees covered by the representation order which he had made.

[57] The Judge then turned to the obligations accepted by New Zealand on its ratification of the Refugee Convention, Article 31.2 of which provides that contracting states may impose only necessary restrictions on the movement of refugees.  Baragwanath J’s view was that detention of claimants was necessary only to the extent that it was required to allow the Refugee Status Branch to perform its functions and to avoid real risks of criminal offending or of the person absconding. He considered Article 31.2 confined the scope of the power to detain under s128.  His view of the scope of the detention power was reinforced by the principle of legality and the Bill of Rights human rights, under which the right to liberty, was of such fundamental importance that it should not be presumed to be subject to any unjustifiable restrictions.

[58] In relation to interpretation of s128, Baragwanath J deferred making a final judgment.  Because of his view that the applicants were entitled to bail anyway, under s128A, he saw the preferable course as being for Parliament to address perceived deficiencies in the operation of s128 itself.  He confined himself to observing that the alternative approaches of denying any application of s128 to refugees, and permitting detention without bail wherever a permit was refused, would both have unacceptable practical results.

[59] Baragwanath J also considered that the current departmental policy set out in the operational instruction of 19 September 2001 which, he said, effectively presumed that there should be detention wherever the identity of a claimant could not be reasonably established, took the reverse of the approach required by Article 31.2.  It was contrary to the principle that fundamental rights are not to be unjustifiably withheld, a principle founded on both the common law and the Bill of Rights Act 1990.  The departmental policy itself was accordingly outside the legitimate range of executive discretion and was illegal.

[60] The second judgment concerned an application by the Crown for a stay of execution of the first interim judgment, insofar as it concerned the right to make bail applications, pending an appeal to this Court.  Because, however, in the Judge’s view the Court had jurisdiction to make the orders it did, and the Crown’s right of appeal would not be rendered nugatory or the public interest damaged, His Honour refused to make an order staying their effectiveness.  He also upheld his earlier making of an ex parte representation order, allowing the plaintiffs to represent all those refugee status claimants detained over the period in question.

[61] After hearing further submissions from the parties, Baragwanath J delivered a third supplementary judgment recording his final determination of the issues raised in the case.  In this judgment he first confirmed his provisional view that s128A allowed those detained under s128 to seek bail.  He also qualified his earlier observation that the necessity test allowed detention where that was required for the Refugee Status Branch of the Department of Labour to perform its functions by adding that it would be unusual for detention to facilitate that work.

[62] The Judge next considered the application of s128 and endeavoured to reconcile what he regarded as two apparently contradictory statutory policies, the need to preserve the security of New Zealand by detaining refugees where there was a security risk or a risk that they would abscond, and the obligation contained in the Refugee Convention and under general principles of human rights to detain refugees only when and for so long as it was necessary to do so.  He concluded that the effect of the former policy was that it was impossible to hold that s128 did not apply to arriving refugee status claimants.  Such a finding would have required all of them be permitted to enter New Zealand and to remain at liberty for a period of 42 days before they could be removed.

[63] The Judge then considered s128(5), which provides that “any person to whom this section applies may be detained by a member of the police and placed in custody pending that person’s departure on the first available craft”.  He decided this passage should be construed as a discretion to continue the period of detention of a refugee status applicant until it was determined whether the applicant was a refugee.  That discretion, however, had to be exercised in accordance with the terms of the Refugee Convention.  This followed from the references to the Convention in the legislation, and the importance of the human rights which such detention would otherwise infringe.  In the result detention could be justified only while the “necessity test”, set out in Article 31.2 of the Convention, was satisfied.  He acknowledged that the absence of immigration documents was a factor which could be taken into account in determining whether detention was necessary.  While the Judge accepted that his approach required a strained construction of the Act, it was nonetheless necessary to make the Act work as intended and to avoid a highly undesirable outcome.

[64] Baragwanath J also confirmed in the third judgment his provisional view that the operational instruction was unlawful. He said that the operational instruction had been directed solely at the form of detention rather than its utility.  It required the Immigration Officer to choose between detention in prison or in the Mangere Detention Centre for refugees.  No consideration was given to whether detention was necessary in the circumstances in accordance with the tests developed by the Judge.  As the operational instruction was inconsistent with the necessity test in Article 31.2 of the Refugee Convention, the Judge held that it was unlawful.

[65] The Judge accordingly made a declaration that the operational instruction was unlawful.  As it was not clear whether the treatment of D was lawful under the regime envisaged by the Judge, questions of relief were reserved for later consideration.  Leave was also reserved for all parties to apply for future directions.

Legislative history of s128

[66] In 1978 amendments introducing new provisions to the Immigration Act 1964 first made provision for summary expulsion from New Zealand of persons refused temporary immigration permits. In the case of such persons the new ss14(1A) and 14A(1) respectively authorised detention by the police “pending that person’s departure from New Zealand on the first available ship or craft,” and required the police to apply to and obtain a warrant from the Registrar of a District Court where the person was to be detained for more than 24 hours.  Section 14A(4) stipulated that “(as) soon as a ship or aircraft becomes available to take the person from New Zealand…” the police would take custody of and arrange for the person to be escorted to the departing ship or aircraft.  It seems apparent from the speech of the Minister of Immigration, Hon Mr Gill, introducing the second reading debate in the House of Representatives that it was anticipated that delays in the departure of persons refused permits would be linked to problems with availability of departing ships or aircraft.  The Minister said:

Obviously if we can make such persons leave New Zealand immediately – for instance on the next aircraft out – we shall do so.  However, if this is not possible we can hold the person in custody until he can leave. (NZPD 1978 1409-1410).

[67] An important new feature of the Immigration Act 1987, which as amended remains the current statute, was the introduction of a requirement that all persons other than those expressly exempted were required to have a permit to be in New Zealand.  Otherwise they were in New Zealand unlawfully. The provisions relating to summary expulsion and associated detention of arriving persons refused permits were included in Part VI of the Act, which deals with Arrivals and Departures.  The 1987 Act provided more comprehensively than had the 1978 legislation for detention of this class of persons pending their departure. The authorised period for detention without warrant was extended from 24 hours to 48 hours.  The warrant authorising detention thereafter, issued by the Registrar on the application of the police, allowed detention for up to 28 days.  A person who had not departed New Zealand at that point, however, would no longer be subject to the summary removal regime but would be released and become liable to be dealt with under removal procedures in Part II of the Act headed Persons in New Zealand Unlawfully. Significantly, in s128(5) the phrase “when a craft becomes available to take from New Zealand any person to whom this section applies” was substituted for the previous “(as) soon as a ship or aircraft becomes available to take the person from New Zealand”.

[68] This implicit recognition that clearing the way for departure would at times take longer than had originally been expected was elaborated on during the second reading debate by Hon Stan Rodger, Minister of Immigration:

Clause 122 (which became s128) is an improved version of the provisions in the present Act for dealing with the position when an arriving traveller is refused a permit and is to be returned to another country.  The present provisions have proved to be deficient in that they did not foresee the possibility of a person being unable to be moved on within a reasonable time.  Action may be delayed if there are problems with documentation or if the person is not acceptable to another country.

[69] In 1991 the 1987 Act was amended to address a newly perceived problem concerning detained arriving persons who had sought judicial review of decisions that had been made to apply s128 to them.  The concern here was that such proceedings were extending periods of detention beyond 28 days with the result that persons then had to be released into the community. Section 128A was introduced in 1991 to provide that the 28 day maximum period of detention was to be exclusive of any period during which such judicial review proceedings were in existence.  In such situations a person detained more than 28 days would not be released but would be brought before a District Court Judge each seven days for consideration of whether continuing custody was appropriate.

[70] Section 128B was also introduced in 1991 to give a power to detain arriving persons suspected of being ineligible for a permit under s7(1), effectively because they posed a security risk.  The section can also be applied to arriving persons who lack appropriate documentation for immigration purposes or have, apparently, falsified such documentation.  Such persons may be detained in custody by the police.

[71] In 1999 s128 itself was amended to allow extension for periods of 7 days of the 28 day limit on detention which had applied since the 1987 Act.  Under s128(13)(a) an application for “an extension, or further extension, of the warrant” could be made to a District Court Judge. Moreover, under s128(13B), in particular circumstances involving arrival of a group of persons on a ship or aircraft, to all or most of which s128 applied, a District Court Judge could extend a warrant for a longer period, if the Judge thought that necessary, “to allow all persons in the group concerned to be properly dealt with…”.

[72] The legislative history of s128 accordingly indicates that originally, in 1978, it was envisaged by the House of Representatives that detention pending removal of those refused temporary permits on arrival would not be for a lengthy period.  The turnaround regime was expected to operate expeditiously.  In 1987 however the legislation concerning detention was altered because of the need to accommodate situations where persons who had arrived but not permitted to enter could not be promptly removed.  By 1999 it had become necessary for further development of the detention provisions to permit repeated extensions, in 7 day increments, of the basic 28 day period of detention under the Registrar’s warrant.  These increments, however, were to be authorised by judicial decision.  And in what was clearly an anticipated situation, involving dealing with a group of persons who had unlawfully arrived together, a Judge could authorise continuing detention for periods greater than 7 days at a time.

Statutory implementation of the Convention

[73] In the 1999 Amendment Act Parliament also gave legislative effect to the Convention Relating to the Status of Refugees 1951 and the 1967 Protocol to that Convention (the Refugee Convention).  New Zealand had acceded to the Refugee Convention in 1960 and the Protocol in 1973, but until 1999 had implemented its obligations in relation to those claiming status as refugees under those treaties through processes that were established by the government.  That framework had given rise to difficulties of several kinds as discussed in cases such as Singh v Refugee Status Appeal Authority [1984] NZAR 193.  This Court suggested in Butler v Attorney-General [1998] NZAR, 205, 220 that at least the Refugee Status Appeal Authority should be established by legislation.  By adding Part VIA to the 1987 Act the 1999 amendment provides a comprehensive regime for making and determining claims for refugee status under the Refugee Convention.  It requires that separately designated departmental staff determine claims to refugee status and exercise the immigration powers under the Act and places legal obligations in relation to duties under the Convention on both categories of staff.  It provides also for appeals against departmental decisions not to recognise a claimant as a refugee.

[74] For present purposes it is sufficient to highlight three particular provisions in Part VIA.  Section 129D requires that those responsible for making determinations of refugee status “act in a manner consistent with New Zealand’s obligations under the Refugee Convention.”  Section 129X(1) prohibits removal or deportation from New Zealand of any person who had been recognised as a refugee or is claiming refugee status unless Articles 32.1 or 33.2 of the Refugee Convention permit.  Those Articles relate to grounds of national security, public order, and security of or danger to the community.  Section 129X(2), on the other hand, requires immigration officers carrying out their functions in relation to a refugee or refugee status claimant to “have regard to” the provisions of Part VIA of the Act and the Refugee Convention.  The text of the Refugee Convention itself is made the Sixth Schedule to the principal Act.

Attorney-General v E

[75] Section 128, as it was during the relevant period when the events with which this judgment is concerned took place, is set out in a schedule to this judgment.  It provides a special regime for summary expulsion from New Zealand of those persons who on their arrival in New Zealand require but are refused permits to enter.  The powers immigration officials exercise under s128 being available for only 72 hours after the arrival in New Zealand of the craft on which the person to whom they are to be applied was travelling, were aptly described as “immediate and temporary” in the judgment of the majority of this Court (Richardson P, Gault, Henry and Keith JJ) in Attorney-General v E [2000] 3 NZLR 257, para [17].  If the powers are not invoked in time,  in order to effect the removal of a person who unlawfully in New Zealand the immigration authorities must resort to the more elaborate procedure for removal under Part 2 of the Act.  That procedure includes a right of appeal to an independent Tribunal against the departmental removal decision.  While the regime under s128 is available or is being invoked the provisions of Part 2 of the Act are not available to the authorities.

[76] It is helpful at this stage to clarify the inter-relationship of the Act’s provisions for detention and removal of arriving persons who are refused permits and certain of those implementing the Refugee Convention, by reference to this Court’s decision in Attorney-General v E.

[77] In E the thirteen respondents had claimed refugee status on their arrival in New Zealand and applied for temporary immigration permits which would allow them to enter and remain pending the determination of their claims.  As is commonly the case with refugee status claimants the respondents did not possess on their arrival any travel documents or proof of their identity. The Immigration Service refused each permit application, and the respondents were detained in prison under s128.  They brought judicial review proceedings in the High Court, challenging the lawfulness of the refusal of their immigration permit applications, but did not separately challenge the lawfulness of their detention.  The High Court held that in refusing them temporary permits the immigration officials had breached the respondents’ legitimate expectations by failing to start the process with a presumption that a temporary permit should be granted to an applicant who was a refugee status claimant in the absence of special circumstances making detention necessary.  Following the High Court judgment the respondents were released from prison on conditions imposed by the District Court pending the outcome of an appeal.

[78] The majority of the Court Appeal disagreed with the High Court’s view that the case was one of legitimate expectation.  The Court held that it rather concerned whether the official, who had exercised discretionary authority to refuse the application for permits, had performed his obligations and, in particular, whether those obligations included a duty to apply the presumption.  In the view of the majority of the Court of Appeal they did not, as the only relevant limit on the discretion to grant or refuse permits under the Immigration Act was the duty of immigration officers under s129X(2), inserted in 1999, which required immigration officers to have regard both to the Refugee Convention and Part VI of the Act.  Furthermore risk management was a relevant factor when departmental officials were considering the grant or refusal of a temporary permit (Para [48]). The Court however also held that the s129X(2) duty applied to immigration officers when they were determining whether to grant temporary permits rather than only when they were considering whether to remove or deport a recognised refugee claimant for the status.  All Judges rejected a Crown submission to the contrary.

[79] In a passage of the majority’s judgment which is of direct relevance to the present appeal the Court addressed an argument by the respondents that detention under s128, following the refusal of temporary permits, was contrary to Article 31 of the Convention.  Article 31.1 prohibits imposition of penalties on refugees, coming directly from the country of persecution, on account of their illegal entry or presence in the country in which they seek refuge.  The majority held that detention under s128 was not contrary to that prohibition, it being  clear from the record of meetings of State Parties that Article 31.1 had no application to the right of states to keep refugee status claimants in custody pending determination of their status (para [45]).  On the other hand Article 31.2, which prohibits restrictions on movements of refugees who have come directly from a country of persecution, other than those which are necessary, did prohibit any unnecessary restrictions on liberty of those persons such as detention.  As the majority said in relation to obligations under Article 31.2:

There is still a judgment call to be made whether there are circumstances which warrant detention.  Those circumstances may incorporate a wide variety of factors which need not be special to the particular applicant. (para [46]).

Submissions on cross appeal

[81] Before us, Mr Harrison QC’s argument in support of the cross-appeal challenged the Judge’s finding that s128 applied to refugee status claimants.  He placed emphasis on the phrase “pending departure on the first available aircraft” which he said both expressed the purpose for which they could be exercised and imposed a temporal limit on exercise of powers under s128(5).  He said the purpose of the power was to detain newly arrived persons pending the next flight out, that being subject only to considerations of travel practicability, which might lead to delays in the prompt turnaround procedure which s128 provided for.  He cited the judgment of Chilwell J in Benipal v Minister of Foreign Affairs & Immigration which held that the purpose of detention under the then s14(1A) was “clearly deportation”, and that because an aircraft was available to take Mr Benipal from New Zealand on every day but one of the lengthy period of his detention he was not being detained to be placed on the next available aircraft.  Mr Harrison also cited numerous overseas authorities for his characterisation of the purpose of s128.

[82] Mr Harrison relied also on a reference made in the decision of this Court in D v Minister of Immigration [1991] 2 NZLR 673 to the lack of any legislative provision in New Zealand for temporary detention of an applicant for refugee status while a claim was being investigated (p676). He argued that amendments to the 1987 Act in 1991 and 1999 did not alter the rapid removal purpose of this part of the legislation.  As well, the addition in 1991 of the power of detention under s128B, if anything, signalled that particular provision to be the legislative response to the gap identified by the Court in D.  Mr Harrison also relied on ss21 and 22 of the New Zealand Bill of Rights Act and the Refugee Convention generally in support of his argument on the application and scope of s128.

[83] Ms Aikman for the Crown submitted that the Judge was right to hold s128 applied to refugee status claimants.  She pointed out that under the statute detention powers were not given in respect of particular categories of arriving persons so that the absence of an express reference to claimants was not significant.  Ms Aikman also submitted that on the broad language of s128(1) its powers can be applied to claimants subject only to the qualification of s129X(2) and to the other restrictions specified in the Act. While s129X(1)  prohibited removal of a refugee or claimant neither that provision, nor anything in the Convention, invalidated detention, indeed the duties under the Act would clearly have the effect of lengthening it in a number of cases.  The Crown also argued that “departure on the first available craft” necessarily contemplated that practical and legal impediments had been overcome including a final determination of refugee status where applicable; at which point a person whose claim was unsuccessful should immediately be deported.

[84] In relation to s128B counsel said that provision was an inappropriate basis for regular processing of refugee status claimants and would not have been seen otherwise by Parliament in 1991.  It makes no provision for bail or discretionary release of those against whom it is invoked.  Section 128 applies prior to a decision being taken on whether to grant a permit in order that the fundamental question of eligibility under s7 can first be considered.  If during the course of detention under s128B eligibility for a permit is established, s128 can then be applied in order to detain arriving persons while their status is examined.

Submissions on appeal

[85] On the Crown’s appeal concerning the Judge’s findings as to the nature of the discretion under s128(5) Ms Aikman relied on the incremental changes to the immigration legislation over the years, particularly in 1999 when the Convention was incorporated into domestic law. Counsel said that s128(13B)(b) plainly contemplated s128 could be applied in a situation of a large group of refugee status claimants arriving by boat.  She submitted that there had been no need to alter s128 explicitly to cover refugee status claimants given the pattern of decisions in New Zealand courts, culminating in E, upholding its application.

[86] Mr Butler in further submissions for the Crown took issue with the Judge’s finding that the operational instruction was unlawful, saying that its terms were permissive and illustrative rather than directory of detention.  The Judge had focussed narrowly on a particular aspect concerned with where people should be detained whereas the instruction had elsewhere emphasised the need for individual consideration of whether there was good reason to release.  The relevant international obligations had been adverted to positively and were considered in making individual decisions.  Mr Butler finally submitted that it was consistent with the Refugee Convention to apply a precautionary approach, as the instruction had, especially where the arriving claimant carried no documentation establishing identity.

[87] Mr Harrison’s response was to argue that if (contrary to his earlier submission) there was power to detain those who claimed refugee status it had been unlawfully exercised.  The operational instruction was a direction to subordinate immigration officers as to how the discretion to detain should be exercised, and had to be expressed consistently with their legal obligations.  The Judge was correct in reading it as concerned with where detention should take place rather than with whether it was necessary as required by s129X(2) and Article 31.2.  In this respect Mr Harrison emphasised the passages in the Instruction giving guidance to immigration officers and said that earlier acknowledgement in the document that detention should not occur unless necessary had not been carried through to them.  Nor had the content of UNHCR guidelines properly been reflected in the guidance.  He submitted that the policy of detention infringed ss21 and 22 of the Bill of Rights.  Moreover powers given to the police had been wrongly exercised by immigration officers.

Decision:

i)  Can claimants be detained under s128?

[88] The first issue, which arises on the cross appeal, is whether s128 empowers at all detention of arriving travellers who have been refused a permit to enter but who claim refugee status. There are several powers of detention which are ancillary to powers of deportation provided for in the Immigration Act 1987.  Counsel for the Crown referred us to ss 59, 60, 75, 78, 91 and 92.  Each covers a particular situation in which the two related powers may be exercised in conjunction. None of the powers conferred by these sections is expressed as attaching to refugee status applicants in particular or for that matter to any other category of persons seeking to remain in New Zealand.  So, if the Act does give power to detain refugee status applicants, that power must be found in one or more of the general powers as mentioned. Subject only to the Act’s restrictions, s128 applies to “every person”…who “arrives in New Zealand from another country…” and “is refused a permit,” (s128(1)(a) and (b)). It is expressed in very wide language. The argument advanced for the respondents on the cross appeal however is, first, that in the context of s128 as a whole, other relevant provisions of the Act, and the Refugee Convention which the Act recognises and incorporates into domestic law, a narrower reading is called for.  It is also said that the purpose for which the power of detention under s128 is given is not met while the person to be detained is seeking to establish entitlement to refugee status, a status which under s129X(1) would preclude the person’s deportation.

[89] I do not accept that the judgment of Chilwell J in Benipal v Ministers of Foreign Affairs and Immigration which was decided in 1985 under the 1964 Act, is of assistance in ascertaining the scope of those to whom s128 may be applied.  Chilwell J’s view was that the 1964 legislation, as amended in 1978, did not allow detention of refugee status claimants pending determination of their status under the Refugee Convention.  No view was expressed on the point by this Court on appeal (Minister of Foreign Affairs v Benipal [1988] 2 NZLR 222).  The legislative history of s128, however, clearly shows that s128(5), arguably, always was and, certainly, has become a provision of broader scope than that addressed by the High Court in Benipal.

[90] It is true, as Mr Harrison pointed out, that in 1991 this Court made clear its view, in D v Minister of Immigration [1991] 2 NZLR 673 that the 1987 Act lacked any provision for temporary detention of applicants for refugee status while their status was being investigated (p676).  The Court had, however, earlier in that judgment, also said that when s128 was being used for turnaround purposes to detain persons unlawfully in New Zealand, investigation could be undertaken of questions of refugee status, which might lead to grant of a permit (p675).  This observation, which was made prior to the enactment of the 1991 amendment, suggests that the Court believed it would be lawful for immigration officials to detain arriving travellers, in order to remove them, to look into whether they were refugees during the period prior to their removal.  That was no doubt seen as consistent with New Zealand’s obligations under the Refugee Convention.

[91] Section 128B applies to every arriving traveller whose eligibility for a permit under s7(1) is uncertain or who arrives with inappropriate or apparently false documentation.  The latter category covers most arriving refugee status claimants.  It empowers detention while a decision is made as to whether a person has previously been imprisoned, deported or there is reason to believe he or she has engaged in terrorism or other criminal activity. Although it was enacted in 1991 as a result of what this Court said in D v Minister of Immigration, s128B is not a provision generally authorising detention of refugee status claimants. The section has a specific public safety purpose and there is no ability for a person detained under it to apply for bail or conditional release.  It operates prior to s128, in that it applies before any decision can be made on whether or not to grant a new arrival a permit, and is not indicative of the scope of detention powers under s128.

[92] The legislative history discussed in this judgment indicates a pattern of continual development of the provisions for detention as an ancillary part of the s128 turnaround regime. It is rather strongly indicative of a move towards increasing recognition by Parliament over the years that s128, by virtue of s128(1)(a), would be applied to secure the removal of arrivals who had been refused permits even though further analysis of their individual situations, possibly including whether they were refugees, and over a lengthy period during which they might be detained, would first be required before a final decision to remove them could be made and given effect.  Over time, the context within which s128 sits in the Act has ceased to have the narrowing effect on the scope of the power of detention that it had in 1978.

[93] In 1999 the provisions of the Refugee Convention were given legislative effect in New Zealand and, at the same time, by enacting s128(13B), Parliament provided generally for extension of detention, under judicial supervision, for periods of seven days at a time following the initial 28 day period of a warrant.  The emerging implicit link between the broadening perceived scope of s128 over the years and the proper ascertainment of the refugee status of claimants under the Refugee Convention became plain.  The necessary implication that s128 including its provision for detention was applicable to arriving refugee status applicants was reinforced and the obligations under Article 31.2 recognised by the fact that opening up of the periods of extended detention under s128 would be subject to judicial supervision.  This development was put beyond doubt with the enactment of s128(13B) in relation to detention of members of a group of persons arriving by boat (or aircraft) where s128 applied to all or most members of the group.  The period of detention authorised by a Judge in those circumstances was not confined to 7 day increments.  Detention can be for such longer period that the Judge “thinks necessary in the circumstance to allow all persons in the group to be properly dealt with”.  The words I have emphasised provide a very clear indication of the applicability of the detention power under s128 to refugee status claimants.

[94] Unlike the Judge I do not regard the phrase qualifying the power to detain under s128(5) (“pending that persons departure on the first available craft”) as in conflict with the necessary implication I see as arising from the pattern of amendment to the section.  The phrase has of course been interpreted by the High Court in F v Superintendent of Mt Eden Prison [1999] NZLR 420 by Anderson J who held:

The ordinary meaning of “available”, as it would apply to subs (5), is “able to be used or turned to account” – New Shorter Oxford English Dictionary.  The section does not envisage the first craft leaving New Zealand but the first craft which is able to be used having regard to the circumstances of the case.  The circumstances of the present case include New Zealand’s obligation to examine and determine the plaintiff’s claim to refugee status.

[95] The purpose of the power to detain an arriving person refused a permit is simply to facilitate his or her expulsion by the police.  Originally, under the 1978 provisions, it was an element of that purpose that the detained person would be promptly removed.  Even before the 1999 amendments were enacted imminent departure was no longer a central part of the purpose of the power where dealing with a person’s legal right not to be removed from New Zealand occasioned delay.  The 1999 legislation put this beyond doubt.

[96] Accordingly on the first issue I would hold that s128 empowers detention of arriving travellers, who have been refused permits to enter New Zealand, even though they have claimed refugee status.  I would accordingly dismiss the cross appeal.

ii)  The scope of the discretion to detain claimants

[97] The second issue concerns the extent to which the power of detention under s128(5) is qualified by the Refugee Convention following its incorporation into New Zealand’s domestic law.  The starting point is that New Zealand’s obligations under the Refugee Convention to persons whose presence in New Zealand is due to a well founded fear of persecution include a duty to ensure that detention is not automatic for arriving persons claiming the status of refugees.  As already indicated, under s129X(2) immigration officers must treat the obligation under Article 31.2 not to restrict movements of refugees unnecessarily as a mandatory relevant consideration in their decisions.  While that obligation is not given the force of law in absolute terms in the legislation the obligations under Article 31.2 must be given genuine attention and thought by immigration authorities.  The obligations may not be “rebuffed at the outset by a closed mind so as to make the statutory process some idle exercise”- NZ Fishing Industry Association v Ministry of Agriculture and Fisheries [1988] 1 NZLR 544, 551.  All this follows from the plain language of s129X(2).

[98] In his third judgment Baragwanath J acknowledged that the terms of the statutory direction under s129X(2) were simply to have regard to the provisions of Part VIA of the Act, dealing with determinations of refugee status and the Refugee Convention.  He then however invoked underlying principles of constitutional and administrative law as indicators of clarification of the meaning of the text of the statute. He said that the weight to be given to s129X(2) was affected by the fact that it gave expression to a principle that some international obligations were so manifestly important that they had to be taken into account in decision making.  Neither the Government, nor the Courts, could avoid giving s129X(2) its proper weight.  From this basis the Judge reasoned that the provision imposed on the Immigration Service a duty to exercise a measured discretion in the use of s128(15), so that there was power to detain only if and for as long as the test prescribed by Article 31.2 were satisfied.  Unless that was done, one or other of the important purposes of the legislation would be defeated.

[99] As well, in his first judgment, Baragwanath J had said that for detention to be “necessary” under Article 31.2 it had to be for no more than the period required to enable determinations of refugee status, or to avoid a real risk of criminal offending and a real risk of absconding.  He elaborated on the first of these elements in his second judgment saying that it would be unusual for detention to be required to facilitate determinations of refugee status.

[100] The obligation under Article 31.2 of the Convention is, of course, not to apply restrictions on movements of refugees other than those which are necessary.  There is a helpful and authoritative elaboration of the content of that very generally expressed duty in the 1986 statement of the Executive Committee of the United Nations High Commissioner for Refugees Programme.  Its value derives in part from the fact that the Executive Committee is itself an assembly of states which has debated the issue and settled on a formal statement concerning it.  In this respect the 1986 statement differs from the UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers.  The UNHCR Guidelines were issued in February 1999 by the Office of the United Nations High Commissioner for Refugees which is established by the General Assembly.  In its 1986 statement, which expressed concern at the number of refugees who were subject to detention pending resolution of their situations, the Executive Committee:

(b) Expressed the opinion that in view of the hardship which it involves, detention should normally be avoided.  If necessary, detention may be resorted to only on grounds prescribed by law to verify identity; to determine the elements on which the claim for refugee status or asylum is based; to deal with cases where refugees or asylum seekers have destroyed their travel and/ or identity documents or have used fraudulent documents in order to mislead the authorities of the State in which they intend to claim asylum; or to protect national security or public order;

…

(d) Stressed the importance for national legislation and/ or administrative practice to make the necessary distinction between the situation of refugees and asylum seekers, and that of other aliens;

(e) Recommended that detention measures taken in respect of refugees and asylum seekers should be subject to judicial or administrative review;

[102] The Judge’s view that a decision by an immigration officer that detention of a refugee status claimant is only necessary if required to enable performance by the Refugee Status Branch of its functions (which he believed would be rare) to avoid a real risk of criminal offending and absconding does not, with respect, accord with the Executive Committee’s view.  It has a restricted focus and does not reflect the margin of appreciation that the parties to the Convention had in mind could properly be exercised by those responsible for making decisions to restrict those claiming status as refugees.

[103] Bearing these factors in mind it is not surprising that in incorporating the Refugee Convention into New Zealand legislation Parliament used a formula giving some but not all of its provisions the force of law.  The expression of a duty under domestic law as being to have regard to a Treaty duty can reflect a perception that the international obligation is an inappropriate standard in itself for more direct implementation.  In this instance Article 31.2, as elaborated by the Executive Committee, has been seen as best incorporated as an important value to which genuine regard should be had in making decisions concerning detention rather than as the touchstone itself for the lawfulness of such detention.  The Judge’s approach, which in the end accords the force of law to this very generally expressed obligation, to my mind contradicts Parliament’s explicit chosen manner of implementation in s129X(2).  While in some instances the distinction between giving effect to an international obligation in making a decision and having regard to it may be a very fine one I do not see that as a particular difficulty in the case of s128(5).  The duty will be complied with if the person deciding the closely linked questions of whether a permit should be granted and, if not, whether a person should be detained has had regard to the standards indicated in Article 31.2 as elaborated by the Executive Committee resolution.

(iii) The judicial discretion to release claimants

[104] What I have said to date concerning the power to detain applies to the period concluding on the 28th day after issue of the detention warrant. An important provision in the 1999 amendment protects the position of those whom the authorities thereafter wish to continue to detain pending ascertainment of their status.  All extensions of the period of detention, following expiry of the initial 28 days under the warrant issued by the Registrar, have to be authorised by a District Court Judge and for periods of no longer than 7 days at a time.  Section 128(13B) confers a discretion on the Judge, who has to be satisfied, explicitly, that s128 continues to apply.  This judicial discretion recognises the opinion expressed by the Executive Committee that detention measures in respect of refugees should be subject to review, albeit following expiry of the initial 28 day period.  The discretion is broadly expressed and not qualified by a requirement that the Judge has to have regard to the provisions of Article 31.2, although clearly it is appropriate to do so (see the discussion in E at paras [38] and [39]).  In exercising the discretion in any particular instance, the District Court must also have regard to all of the circumstances of the case including the known personal history of the individual, the nature of the detention and any relevant legitimate concerns drawn to the Judge’s attention concerning public safety, and security in the international environment at the time.  These observations are of course made concerning s128, in the form it took prior to the coming into force of the 2002 amendment to the Immigration Act.  They apply also to s128A.  Further provision was made in the 2002 amendment to permit conditional release by a District Court Judge during the 28 day period under s128AA, inserted by s10 of that amending Act.

[105] When s128, as it was during the relevant period, is seen in this light the force of Mr Harrison’s argument that s6 of the Bill of Rights favours an interpretation of s128 that does not authorise unreasonable seizure or arbitrary detention falls away.  The s128 regime permits detention for the short initial period of up to 48 hours as it seems was envisaged by those framing the Convention (Goodwin-Gill (1996) p247). Thereafter detention for a further period of 28 days was permitted, but only after having regard to requirements of Article 31.2, and subject to judicial review by the High Court.  After that 28 day period any continuation of detention was subject to a judicial discretion.  Genuine regard to the necessity for detention is required of the officials making the initial decisions to apply s128 at the border. That regime did not offend ss21 and 22 of the Bill of Rights or the Refugee Convention itself, so there is no need for the Court to have particular regard to rights based interpretations.

iv)  The validity of the operational instruction

[106] In my view it is open to a litigant in the position of the first respondents, or a refugee status claimant such as the second respondent, to seek judicial review of a departmental statement giving guidance to decision makers in the nature of the operational instruction.  In Gillick v West Norfolk and Wisbech Area Health Authority & Anor [1986] 1 AC 112 the House of Lords accepted that advice given by a health authority to medical practitioners, in relation to the provision of contraception to women under 16 years of age, was amenable to review for error of law (per Lord Bridge at p193 and Lord Templeman at p206).  In that case, though not in this, the legal question arose in an area of social and ethical controversy, but that did not persuade the Court it was inappropriate to rule on the legality of the advice.  It is likewise appropriate that in a case such as this a New Zealand court should be prepared to rule on the legality of the operational instruction where the proceeding raises a live issue concerning the application of s128.

[107] Problems however are highly likely to arise where the proceeding seeks to go beyond review of the terms of the policy statement itself to bring a representative proceeding to determine the rights of all those to whom it was applied over a given period.  Such proceedings cannot readily be determined in the abstract, that is without reference to the particular circumstances of application of the official guidance in individual cases.  In this case, however, it is unnecessary for me to go further into those difficulties, as they apply to those who were the subject of the representation order, as I have reached a clear view on the lawfulness of the terms of the operational instruction that resolves their position.

[108] The Act gives immigration officers the power to grant arriving persons claiming refugee status a permit to enter New Zealand (s9A(1)(b) and 35A).  The nature of the permits and the discretionary power to grant them are discussed in the majority judgment in E (in particular at paras [10], [12], [34], [42] and [47]).  Mr Harrison argued that the power to detain is a separate power, but that fails to recognise that the consequence of refusal of a permit is that the arriving person is unlawfully in New Zealand (s120(4)).  The suggestion that the Immigration Service should allow persons into the community who have been refused entry permits is not consistent with the scheme and purpose of the permit provisions of the Act.  It follows that it must have been contemplated by Parliament that the power to detain will in general be exercised if a permit is refused, with subsequent release into the community being governed by the statutory regime.  That also appears to be consistent with provisions of Annex 9 to the Chicago Convention which provides a means for returning arriving persons by air, without the need to obtain identification documents, if they have not been permitted to enter.  The responsibility for removal is then that of the airline bringing to New Zealand the person who arrived with deficient documentation. (cf s125).

[109] Individual circumstances of those concerned in relation to the need for their detention accordingly should be taken into account at the time their applications for a permit are being considered (as suggested in E at para [46]).  Because of the close linkage of the two powers in the scheme of s128 of the Act, the discretion at the permit stage is also constrained by the duty to have regard to the Refugee Convention. It is nevertheless a wide discretion.  Furthermore if s129X(2) is complied with when a permit is refused, and no new relevant factors are brought to the attention of the immigration officer making the decision to detain, the officer may rely on the consideration given to the circumstances of the arriving claimant in refusing a permit, as the basis for a detention decision.  The evidence of Ms Hodgins, an immigration officer, was that the final decision to grant or refuse a temporary permit is not made until the claim for refugee status has been submitted and relevant matters arising from it taken into account.  The lawfulness of the operational instruction of 19 September 2001, which along with provisions in the NZIS Operations Manual is the official guidance to those exercising the powers, is to be considered in this context.

[110] Mr Harrison accepted that the operational instruction acknowledged that detention of claimants should occur only where necessary, but argued, in effect, that this was an introductory or prefatory part of the instruction, which was overridden in later provisions giving more particular guidance to officers making decisions.  He also criticised the failure to bring the UNHCR Guidelines on detention to bear in the decision-making process.  There is a basis for the latter criticism in that, although the operational instruction refers to the Guidelines as supportive of the generally accepted view that detention should occur only where necessary, it does not acknowledge the terms of their recommended approach to detention.  The Guidelines express the view of the UNHCR that detention is “inherently undesirable”.  They also say that it may “exceptionally be resorted to for (stated) reasons as long as this is prescribed by a national law which is in conformity with general norms and principles of international human rights law”.  Finally the Guidelines say “there should be a presumption against detention.”

[111] The UNHCR Guidelines are important as a statement of international standards for government policies and practices.  Glazebrook J’s judgment at paras [266] and [276] indicates how the Guidelines have been influential in decisions to develop an alternative means, of restricting movement of refugee status claimants, to detention in a prison.  I have myself found them of considerable general assistance in the preparation of this judgment.  The Guidelines do not however have a status in relation to interpretation of the Refugee Convention that is equal to that of the resolutions of the UNHCR Executive Committee.  For that reason on questions of interpretation I have focussed in this judgment on the Executive Committee’s views which in any event I regard as the most valuable guide for the Court, among the available international materials, as to the meaning of Article 31.2 as incorporated by s129X(2). (See paras [100] and [101] above.)

[112] The operational instruction itself is a two and a half page document headed:

OPERATIONAL INSTRUCTION: EXERCISE OF DISCRETION PURSUANT TO SECTION 128(5) OF THE IMMIGRATION ACT 1987 TO DETAIN PERSONS WHO HAVE CLAIMED REFUGEE STATUS

[113] The document continues with the statement that there will, however, be circumstances where detention at the border is justified.  Considerations of national security, public order and safety are mentioned.  Whether detention is justified is said to depend on a close assessment of all factors relating to the arrival.  These include whether accurate and reliable information as to identity can be provided, the apparent merits of the person’s claim to refugee status and the extent to which risks to public health, safety and order are identified.  The assessment must take account of the security situation in New Zealand and globally.  If persons are arriving as part of a group of illegal migrants that is an important factor.  As the UNHCR Guidelines recognise a distinction between detention in a prison and accommodation in an open centre (with restrictions on freedom of movement), the instruction says that the type of detention envisaged by the officer is relevant to whether it is justified.

[114] The passages summarised above are followed by two lists of particular factors which, where they exist, may justify, in the case of the first list, detention in a penal institution and, in that of the second, detention at the Mangere Accommodation Centre.  The factors in the first list include where detention “is otherwise required” to protect national security or public order, whether s7(1) of the Act (which has a public safety focus) applies, whether detention is necessary to verify disputed identity, whether travel or identity documents have been destroyed by the person in order to mislead officials, whether there is a clearly identified risk of absconding that cannot be managed at the Mangere Accommodation Centre, and where the claim to refugee status is fraudulent, or a previous claim has been declined in another Convention country.

[115] The factors which the instruction says may justify detention in the Mangere Accommodation Centre include situations where identity cannot be ascertained to NZIS satisfaction and there appear no particular reasons for allowing unrestricted entry to the community, where there is a risk of absconding that can be managed at the Centre, where the claimant has been in conditions that present a health risk, or is part of a group arrival, whether the applicant has a claim for refugee status which on a preliminary assessment does not seem strong, and whether the person has no valid travel and/or identity documents.

[116] The substantive part of the document then concludes with the following statement:

The detention of persons at the border who claim refugee status but are not granted a permit is not limited to the specific circumstances outlined.  All cases depend upon an individual assessment of their circumstances.

[118] The starting point in considering the legality of the instruction must be s129X(2).  The requirement to have regard to the terms of Article 31 of the Convention is met, in the instruction’s first section, by the explicit reference to the Article which is reinforced by the statement of the need to exercise care.  It is unnecessary to consider the meaning of the phrase “coming directly from a territory” which qualifies Article 31 as it was not addressed in the operational instruction.  The discussion of circumstances justifying detention lists factors reflected in the Executive Committee’s statement with the addition of the apparent strength or weakness of the claim to be recognised as a refugee.  The last-mentioned factor involves an immigration officer making a preliminary assessment of the merits of the claim for the purposes of deciding whether or not to grant a permit, or to detain the person, and has of course no bearing on the outcome of the person’s claim to be recognised as a refugee.  In those circumstances it is a legitimate relevant consideration in the process of risk management with which the Act is concerned. Nor is consultation at this stage with officers of the Refugee Status Branch precluded by the limitation on the role of immigration officers under Part VIA of the Act (s129E(3)).

[119] I do not accept that the instruction, in going on to discuss particular factors relevant to the two different types of detention, overrides what is a balanced presentation of factors relevant to detention in the earlier passages.  Nor do I accept that the earlier passages can be dismissed as merely introductory or prefatory in their content, which was how Mr Harrison described them.  I respectfully disagree with the view of Baragwanath J that in reality the instruction is confined to the place of detention rather than whether it should occur.  A fair reading of the whole document does not to my mind give that meaning or impression.  I also accept that the availability of the Mangere Accommodation Centre is a relevant consideration which may justify a lawful detention in circumstances where officials would previously have been hesitant over whether to detain an arriving refugee status claimant in prison.

[120] The instruction has a precautionary theme but I detect no bias towards detention.  The limits on the discretion to detain under s128(5) do not require an approach which starts from a presumption against detention as part of the process of dealing with arriving travellers who claim to be refugees.  The power is a broad one and it was within its scope for the Immigration Service to have regard to the continuing international security situation at the time the instruction was given. The government was entitled to take such an approach.  The principal protection given a refugee under s128 during the relevant period was that given by the requirement that, after 28 days, continuing detention would be the subject of a judicial decision.  Until then officials making decisions operated with powers principally qualified by the requirement to have genuine regard to Article 31(2) before making the linked decisions concerning permits and detention.  In my view the operational instruction was in accord with the statutory limits of the powers concerned.

[121] For these reasons I would allow the Crown’s appeal and hold that the operational instruction is not expressed in terms that are unlawful.

v)  The position of D and represented persons

[122] D was a passenger on a flight from Fiji travelling on a false passport.  On arrival he claimed refugee status.  His case was presented in this Court as in the High Court on the basis of the unlawfulness of the instruction.  The circumstances in which the decision to refuse his application for a permit and to detain him at the Mangere Detention Centre were made are summarised in the judgment prepared by Tipping J. They included D’s acknowledgement that he had previously been deported from South Korea, a matter that the immigration officer said engaged s7 of the Act. There is nothing in the circumstances of her dealing with D’s case which indicates that D’s detention was outside of the s128(5) power.  I would accordingly dismiss D’s claim.  I would also set aside the finding that the detention of D was an unlawful seizure or arbitrary detention in breach of ss21 and 22 of the Bill of Rights.  In agreement with the Judge I do not accept that it is shown in D’s case that the power to detain was inappropriately exercised by immigration officers rather than by the Police.  It was implicit in s128(5) that the police would act in light of the advice of the Immigration Service.  In the 2002 amendment this implication has been made explicit by amendment to s128(5).

[123] Likewise my finding that the operating instruction was lawful removes the basis for the Judge’s finding that refugees generally were unlawfully detained during the relevant period.

Conclusion

[124] For these reasons I would allow the appeal and dismiss the respondents’ claims.  I would also dismiss their cross-appeal.

First Schedule

Section 128 of the Immigration Act 1987 prior to coming into effect of the 2002 amending Act.

128 Detention and departure of persons refused permits, etc.

(1) This section applies to every person (other than a person to whom [section 128B or] section 129 of this Act applies) who-

(a)  Arrives in New Zealand from another country; and
(b)  Is not exempt under this Act from the requirement to hold a permit; and
(c)  Either-

     (i)   Fails to apply in the prescribed manner for a permit; or
     (ii)  Is refused a permit; or
     [(iii) Is a stowaway; or
     (iv) Is a person whose pre-cleared permit has been revoked by an immigration officer pursuant to section 35F of this Act.]

(2) For the purposes of this section, a stowaway shall be deemed to arrive in New Zealand at the time when the craft on which the stowaway is travelling crosses into the territorial limits of New Zealand, and, subject to subsections (3), (13) and (14) of this section, this section shall apply to the stowaway while the stowaway remains within those limits.

(3) This section shall cease to apply to any person (including any stowaway), on the expiration of 72 hours after the time when the craft on which that person was travelling berths, lands, or otherwise arrives in New Zealand, unless that person is sooner detained under this section.

(4) Any person to whom this section applies shall be deemed for the purposes of this Act to be in New Zealand unlawfully, but, for so long as this section applies to that person, that person shall not be liable to be dealt with under any of the provisions of Part 2 of this Act.

(5) Subject to subsection (7) of this section, any person to whom this section applies may be detained by any member of the Police and placed in custody pending that person’s departure from New Zealand on the first available craft.

(6) Every person who is placed in custody under subsection (5) of this section and is to be detained overnight shall be detained,-

(a)   In the case of an unmarried person who is under 17 years of age, in-

(i)   Any residence (within the meaning of section 2 of the [Children, Young Persons, and Their Families Act 1989]) or other premises under the control of, or approved by,
the [chief executive of the department for the time being responsible for the administration of the Children, Young Persons, and Their Families Act 1989]; or
(ii) Any other premises agreed to by the parent or guardian of that person and an immigration officer; or

 (b)   In any other case, in-

(i)   Any premises approved by the [chief executive of the Department of Labour]; or
(ii)  A Police station.

(7) Where a person to whom this section applies is to be detained for more than 48 hours after the time of that person’s detention by a member of the Police under subsection (5) of this section, an immigration officer or a member of the Police shall apply to the Registrar (or, in the Registrar’s absence, the Deputy Registrar) of a District Court for a warrant of commitment in the prescribed form authorising the detention for a period not exceeding 28 days of that person in a penal institution or some other premises approved for the purpose by the Registrar (or Deputy Registrar), and the Registrar (or Deputy Registrar) shall issue such a warrant accordingly.

(8) Every application under subsection (7) of this section shall be made on oath, and shall include a statement of the reasons why the person is a person to whom this section applies.

(9) Every warrant of commitment shall authorise the superintendent of the prison or the person in charge of the other premises to detain the person named in it until-

(a)  Required by a member of the Police to deliver up that person in accordance with subsection (11) of this section; or
[(b) The release of the person in accordance with subsection (14)(a);
       or
(c)  The expiry of the period for which detention is authorised by the warrant (as determined having regard to section 128A(2)(a) and (12), where appropriate, and to any extension or further extension of the warrant granted under subsection (13B)),-]

whichever first occurs.

(10) Every person detained in a penal institution pursuant to a warrant of commitment issued under subsection (7) of this section shall be treated for the purposes of the Penal Institutions Act 1954 as if that person were an inmate awaiting trial.

(11) When a craft becomes available to take from New Zealand any person to whom this section applies who is in custody pursuant to a warrant of commitment issued under subsection (7) of this section, and it is practicable in all the circumstances for the person to leave on that craft, the superintendent of the prison or the person in charge of the other premises shall, on being required in writing by a member of the Police to do so, deliver the person into the custody of the member of the Police, who shall escort the person or arrange for the person to be escorted to the seaport or airport and ensure that the person is placed upon the craft and detained there until the craft leaves New Zealand.

(12) If, for any reason, the craft ceases to be available to take the person from New Zealand or is, or is likely to be, delayed in New Zealand for more than 24 hours, or if for any other reason the person is unable to leave New Zealand at the expected time, the person shall be returned to the custody from which the person was taken, and for that purpose the warrant of commitment shall be deemed still to be of full force and effect.

(13) Where it becomes apparent to an immigration officer that a person detained in custody under a warrant of commitment issued under subsection (7) is, or is likely to be, unable to leave New Zealand before the expiry of the period for which detention is authorised by the warrant under subsection (9)(c), the immigration officer may either-

(a)  Apply to a District Court Judge for an extension, or further extension, of the warrant; or
(b)  Notify in writing the Superintendent of the prison or person in charge of the other premises in which the person is detained that the person should be released.

(13A) An application for extension or further extension of a warrant under subsection 13(a) must-

 (a)  Be made on oath; and
 (b)  Include a statement of the reasons why the extension or further extension is requested.

(13B) On an application for the extension or further extension of a warrant of commitment under subsection (13)(a), the Judge may, if satisfied that the person is still a person to whom this section applies, extend or further extend the warrant-

(a)  For a further period not exceeding 7 days; or
(b)  For such longer period as the Judge thinks necessary in the circumstances to allow all the person in the group concerned to be properly dealt with, in any case where the person detained under the warrant is a member of a group of people-

    (i)  Who arrived in New Zealand on the same ship or aircraft; and
    (ii)  All or most of whom are persons to whom this section applies.

(14) The Superintendent of the prison or person in charge of the other premises in which a person is detained under a warrant of commitment must release the person from custody-

(a)  On receiving written notification from an immigration officer under subsection (13)(b) that the person should be released; or
(b)  If not earlier released, on the expiry of the period for which detention is authorised under the warrant (as determined having regard to section 128A(2)(a) and (12), where appropriate, and to any extension or further extension of the warrant granted under subsection (13B)).

(14A) On the release of a person under subsection (14),-

(a)  Part 2 applies in respect of the person; and
(b)  This section ceases to apply in respect of the person.

(15) A person who is detained under this section shall not be granted bail but may, where section 128A of this Act applies in relation to the person, be released on conditions in accordance with that section.

Second Schedule

Executive Committee for the United Nations High Commissioner for Refugees

Conclusion No. 44 (XXXVII) – 1986    Detention of Refugees and Asylum Seekers

The Executive Committee,

Recalling Article 31 of the 1951 Convention relating to the Status of Refugees,

Recalling further its Conclusion No. 22 (XXXII) on the treatment of asylum seekers in situations of large-scale influx, as well as Conclusion No. 7 (XXVIII), paragraph (e), on the question of custody or detention in relation to the expulsion of refugees lawfully in a country, and Conclusion No. 8 (XXVIII), paragraph (e), on the determination of refugee status,

Noting that the term ‘refugee’ in the present Conclusions has the same meaning as that in the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, and is without prejudice to wider definitions applicable in different regions,

(a)  Noted with deep concern that large numbers of refugees and asylum seekers in different areas of the world are currently the subject of detention or similar restrictive measures by reason of their illegal entry or presence in search of asylum, pending resolution of their situation;

(b)  Expressed the opinion that in view of the hardship which it involves, detention should normally be avoided.  If necessary, detention may be resorted to only on grounds prescribed by law to verify identity;  to determine the elements on which the claim to refugee status or asylum is based;  to deal with cases where refugees or asylum seekers have destroyed their travel and/or identity documents or have used fraudulent documents in order to mislead the authorities of the State in which they intend to claim asylum;  or to protect national security or public order.

(c)  Recognized the importance of fair and expeditious procedures for determining refugee status or granting asylum in protecting refugees and asylum seekers from unjustified or unduly prolonged detention;

(d)  Stressed the importance for national legislation and/or administrative practice to make the necessary distinction between the situation of refugees and asylum seekers, and that of other aliens;

(e)  Recommended that detention measures taken in respect of refugees and asylum seekers should be subject to judicial or administrative review;

(f)  Stressed that conditions of detention of refugees and asylum seekers must be humane.  In particular, refugees and asylum seekers shall, whenever possible, not be accommodated with persons detained as common criminals, and shall not be located in areas where their physical safety is endangered;

(g)  Recommended that refugees and asylum seekers who are detained be provided with the opportunity to contact the Office of the United Nations High Commissioner for Refugees or, in the absence of such office, available national refugee assistance agencies;

(h)  Reaffirmed that refugees and asylum seekers have duties to the country in which they find themselves, which require in particular that they conform to its laws and regulations as well as to measures taken for the maintenance of public order;

(i)  Reaffirmed the fundamental importance of the observance of the principle of non-refoulement and in this context recalled the relevance of Conclusion No. 6 (XXVIII).

Introduction  [125]
Background facts  [129]
Does s128 of the Immigration Act 1987 allow the detention of refugees? [145]
The text of the legislation
  Submissions of counsel [146]
  Discussion [150]
  Conclusion [192]
Legislative history and judicial interpretation [195]
  Discussion on legislative history [228]
  Conclusion [236]
Interpretation taking account of fundamental human rights [239]
Conclusion on s128 [241]
Was the Operational Instruction of 19 September 2001 lawful? [242]
Contents of Operational Instruction [243]
Decision of Baragwanath J [248]
Submissions of the parties [252]
Discussion  [254]
  The role of the Refugee Convention [255]
  Place of detention only? [285]
  Coming directly from a territory [291]
  Must the police make detention decision? [292]
Conclusion on Operational Instruction [293]
Was the detention policy lawful? [297]
Conclusion  [302]

Introduction

[125] The Refugee Council and the Human Rights Foundation represent the claimants for refugee status who were detained by the New Zealand Immigration Service between 19 September 2001 and 9 May 2002.  They claim that the detention of such claimants during that period was unlawful.  D was detained from his arrival in New Zealand on 1 October 2001 until 20 November 2001 when his claim for refugee status was upheld.  D was provided as an example of a detainee and is a party to the litigation but the case was conducted as a general one on behalf of all detainees.

[126] In three judgments, delivered on 31 May, 4 June and 27 June 2002, Baragwanath J held that there was power to detain refugee status claimants under s128 of the Immigration Act 1987 (the Act) but that the Operational Instruction relating to such detention and issued to immigration officers by the New Zealand Immigration Service on 19 September 2001 was not lawful.  This is because it was inconsistent with the Refugee Convention (defined in s2 of the Act as meaning the United Nations Convention Relating to the Status of Refugees 1951 and including the Protocol Relating to the Status of Refugees 1967.  Refugee status claimants are defined in s129B of the Act as “persons who have made a claim in New Zealand to be recognised as a refugee in New Zealand and whose claim has not been finally determined under this Act.”)

[127] The Attorney-General appeals against that latter decision and the respondents cross-appeal against the first finding.  They also cross-appeal against the judgment to the extent Baragwanath J failed to uphold the claim that the detention policy of the Immigration Service was at the relevant time unlawful and contrary to the New Zealand Bill of Rights Act 1990 (NZBORA).

[128] There are thus three main issues for this appeal – (a) whether s128 allows the detention of refugee status claimants, (b) if so, whether the Operational Instruction is lawful, and (c) whether the detention policy of the Immigration Service was lawful.

Background facts

[129] Before the coming into force of amendments to the Immigration Act 1987 in 1999, s128 was not extensively used for the detention of refugee status claimants.  This was because of the 28 day limit on detention that applied before those amendments (affidavit of Andrew Lockhart, 18 April 2002, para 7).  Although there was no statutory bar on removal of refugee status claimants, as a matter of practice claimants were not removed (unless there were major security concerns) until their claims had been dismissed and all avenues of appeal exhausted.

[130] Following the entry into force of the 1999 amendments 51 claimants were detained between June and December 1999, approximately half during the APEC Heads of Government meeting in September 1999.  The total numbers of persons who claimed refugee status at the border during this period was 195.  Thus some 26% of claimants were detained during this period (Supplementary affidavit of Andrew Lockhart, 14 October 2002, para 17).

[131] On 10 December 1999 the Hon Lianne Dalziel became Minister of Immigration.  She considered that the detention of refugee status claimants in penal institutions was acceptable only where there were serious concerns about a claimant.  She was also, however, aware that the numbers of refugee status claimants arriving in New Zealand who did not possess travel documents had increased markedly and that there was a possibility that refugee status claimants could arrive in large groups.  She was concerned that, if it was necessary to detain large number of claimants, penal institutions would not be adequate or appropriate.  As a result it was decided that the Mangere Refugee Resettlement Centre, already in use for the reception and resettlement of refugees under the United Nations High Commissioner for Refugees (UNHCR) quota, be developed as an alternative to detention in a penal institution for claimants “who presented security, identity or other concerns but for whom penal institution  detention was not appropriate” (affidavit of Hon Lianne Dalziel, 15 April 2002, para 6).

[132] As a result of the Minister’s concerns rates of detention fell markedly (affidavit of Andrew Lockhart, 18 April 2002, para 9).  In the period between October 1999 and 18 September 2001 595 persons claimed refugee status upon arrival in New Zealand. Only 29 persons were detained under s128 (some 5%).  Of these 12 were released before their refugee status claims were determined, 11 of them claimants in the case of Attorney-General v E [2003] 3 NZLR 257 (affidavit of Stewart Kearney, 18 April 2002, paras 9 and 13).

[133] Between 19 September 2001 and 31 January 2002 of the 221 persons claiming refugee status 208 were refused a permit and detained (some 94% – see affidavit of Stewart Kearney, 18 April 2002, para 1).  Most of these were detained in the Mangere Centre.  Of the persons detained in that period as at 31 January 2002 146 had been granted refugee status, 13 had been refused and 49 still had their claims or appeals to be finally determined (para 15).  In total 19 persons were released with permits in that period before their refugee status claim had been finally determined, one of those because the District Court judge did not extend the warrant of commitment (para 5).

[134] The period was an unusual one in that the New Zealand Government had decided to receive a large number of refugee status claimants who had been rescued from a sinking boat by a Norwegian freighter, the MV Tampa, and refused entry into Australia (see Ruddock v Vadarlis [2001] FCA 1329).  All of the Tampa claimants were detained on arrival and formed 63% of the detainees during the period.  All but one of the Tampa claimants had their status as refugees recognised.  I note that, if the Tampa claimants are removed from the figures, the percentage detained reduces to 85.6% (being 77 of 90 claimants).

[135] Section 128 is used for persons other than refugee status claimants but not as a matter of course.  Between 1 July 2001 and 1 April 2002, 285 people other than refugee status claimants were declined permits to enter New Zealand and turned around under Part IV of the Act.  All but 25 were removed from New Zealand without being detained under s128.  Detention only occurred where rapid return was not possible (affidavit of Andrew Lockhart, 18 April 2002, para 3).

[136] The policy in respect of the detention of refugee status claimants refused a permit at the border was at that time contained in the Operational Instructions issued on 19 September 2001 and 24 September 2001, the latter dealing with the detention of children and young persons.  The 19 September Operational Instruction replaced a much less detailed Instruction of 6 October 1999 and is set out in full in the judgment prepared by Tipping J at para [20].

[137] The Instruction issued on 19 September 2001 was based on a draft of 7 September 2001.  The draft was modified after the September 11 terrorist attack on the World Trade Centre in New York.  The Minister deposed that she had asked the immigration service to review security measures taken in relation to border controls and immigration, including the approach to refugee status claimants.  She wanted to be able to assure the public of New Zealand and other governments with whom New Zealand was co-operating that the identity of all individuals entering the country was known and that security and any other relevant concerns had been resolved before such persons were granted entry (affidavit of Hon Lianne Dalziel, 15 April 2002, para 10).

[138] The modification that was made following September 11 was the addition of the first ground under the section dealing with possible detention in the Mangere Accommodation Centre as follows:

Where the identity (including nationality) of a refugee status claimant cannot be ascertained to the satisfaction of the NZIS [Immigration Service] and they are not to be detained in penal institution (sic) nor does there appear particular reasons for allowing them to enter the community unrestricted.

[140] The 19 December Instruction thus recommends that the decision to detain should be revisited after the initial 14 to 20 day period to ensure that the considerations which informed it are still current, especially as regards the issue of identity.  It goes on to say:

In particular, where you can be satisfied on the appropriate balance of probabilities as to the identity of the claimant, (including by reference to the information noted above), it is clearly desirable to order that person’s release at that stage if that means there are no outstanding concerns. This is in preference to waiting until the expiry of the initial 28 day period when the matter will be subject to mandatory judicial review.

I record that to date issues around the strength or weakness of claims and general issues of absconding have not had any particular bearing on decisions under section 128(5). Given the current security climate where questions of identity and security are the primary themes, this approach seems sensible and should continue.

[143] One point of particular note is stressed in the affidavit of Mr Curtis (18 April 2002) who is in charge of the Mangere Centre.  He states that he and his staff are very conscious of the need to facilitate rights of access to legal representation.  A building at the Centre has been made available for use by residents and their legal representatives.  There are a number of rooms available with doors that can be closed to ensure privacy.  In addition, residents are able to use the telephone in the staff-room and the room would be cleared so that the call may be made privately.

[144] It is also worthwhile to set out at this point the reasons for the role taken by the Refugee Council and the Human Rights Foundation in these proceedings.  As set out in the affidavit of Professor Bedggood of 31 January 2002 those organisations were concerned that there has been since September 11 a practice of wholesale detention of refugee status claimants.  They point to the fact that rates of detention have risen from less than 5% in the period up to 18 September 2001 to 94% during the period 19 September 2001 to 31 January 2002.  This in their submission raises important issues of human rights and doubts about New Zealand’s adherence to its international obligations.  It is not feasible in their opinion to bring a claim such as this in the name of the detained individuals as such individuals are, at least until their claims are favourably determined, fearful of authority and reluctant to draw attention to themselves by standing up for their legal rights.

Does s128 of the Immigration Act 1987 allow the detention of refugees?

[145] Dr Harrison QC, on behalf of the respondents, submitted that s128 is not available to detain claimants at all.  That this is the case emerges in his submission from a purely textual consideration of s128, from a consideration of s128 in its historical context and in particular in the context of the amendments to the Act made in 1999 and finally is clear if s128 is interpreted from a fundamental human rights perspective, both in terms of the NZBORA and the Refugee Convention.  I examine each of these contentions in turn.

The text of the legislation

Submissions of counsel

[146] Dr Harrison concentrated on s128(5) and submitted that this is the operative provision, which limits the whole of the section.  Section 128(5) provides that “any person to whom this section applies may be detained by any member of the Police and placed in custody pending that person’s departure from New Zealand on the first available craft.”

[147] Dr Harrison submitted that this subsection not only sets out a temporal limit on the use of s128 but also a substantive qualification.  Detention is only available pending a person’s departure from New Zealand and can only be used for the purpose of effecting departure.  It is a section designed to effect a “prompt turnaround”.  The section in his submission can only be used for persons who can be required to depart from New Zealand.  By s129X(1) no person who has been recognised as a refugee or who is a refugee status claimant can be removed from New Zealand unless the provisions of art 32.1 or art 33.2 of the Refugee Convention allow the removal or deportation.  As refugee status claimants and refugees cannot be removed, s128 cannot be used to detain refugees.

[148] Ms Aikman, on behalf of the Attorney-General, submitted that s128 and s129X must be read together.  The fact that s129X expressly prohibits removal pending a determination of refugee status does not invalidate detention but merely extends the period for which s128 may operate.  She referred in this regard to Anderson J’s decision in F v Superintendent of Mt Eden Prison [1999] NZAR 420, a case heard before s129X came into force.  Anderson J held that the right to turn persons back at the border had to be exercised with regard to New Zealand’s international obligations but that imported an incidental necessity for some degree of detention.  In s128 the term “first available craft” had therefore to be interpreted as the first craft which is able to be used, having regard to the circumstances of the case, including examining the plaintiff’s claim for refugee status.

[149] Dr Harrision in reply submitted that F v Superintendent of Mt Eden Prison was wrongly decided.  The term “available” in s128(5) must mean available as a matter of fact, possibly subject to considerations of reasonableness and practicality such as travel security issues, issues of the most suitable ultimate destination and perhaps travel documentation issues.  Its meaning cannot be stretched in his submission to include matters of legal obligation on the part of the New Zealand Government.

Discussion

[150] General Remarks:  If Dr Harrison is correct and s128(5) places a substantive as well as a temporal limit on detention under s128 then in my view there are both conceptual and practical impediments to its use in the refugee context.

[151] Persons whose claim to refugee status is accepted (and it is clear that such an acceptance does not create refugee status but is merely declaratory of that status – see G Goodwin-Gill “Article 31 of the 1951 Convention relating to the Status of Refugees: Non-penalization, Detention and Protection” ((UNHCR, 2001) p8) can only be removed from New Zealand in circumstances allowed by the Refugee Convention (and such circumstances are rare).  Such persons cannot be detained for the purpose of effecting their removal from New Zealand when (in most circumstances) they cannot be so removed.  The same conceptual problem does not arise for those who are mere claimants but fail to have their status as refugees recognised.  Such persons can be removed from New Zealand, even if that can only take place after their claim has been dealt with.

[152] The difficulty (both practically and conceptually) is in distinguishing between the two groups as it is not possible to be sure that a person’s status as a refugee will not be recognised until the statutory process designed to undertake the assessment of refugee status claims is completed.  There is in any event no real attempt to distinguish between the two categories before deciding to detain (see para [141] above).  Nor would it be proper for that to be attempted.  The functions of immigration officials and those who must determine claims for refugee status are clearly separated in the Act.  The Act gives only to refugee status officers the role of determining refugee status claims (s129E).  Those officers must consider the claims properly (s129F) and are precluded from considering applications for permits (and consequently making detention decisions) or administering the removal provisions - see s129E(3).

[153] The other practical difficulty is that the purpose of detention of refugee status claimants is not in many cases in fact to effect departure but is to enable identity to be established and any other security concerns to be satisfied.  This is clear in particular from the affidavit of Mr Lockhart, the Chief Operating Officer of the New Zealand Immigration Service, sworn on 18 April 2002.  If there were power to detain only for the purpose of effecting departure and that is not at least one of the purposes of the detention, then detention, even for the purpose of satisfying security concerns, would be unlawful.

[154] There are other mechanisms in the Act for dealing with persons who pose security risks, namely s128B, Part III and Part IVA.  If s128 cannot be used to deal with security concerns this does not indicate a gap in the legislation.  Even if there were such a gap, unless the text of s128 in the light of its purpose mandates such an interpretation, the Court should not fill it, especially given important human rights are at issue.

[155] It therefore becomes necessary to examine in detail s128 both in itself and in the context of the Act to see if Dr Harrison’s contention can be sustained.  The relevant legislation is the Immigration Act 1987 before its amendment by the Immigration Amendment Act 2002.  The text of s128 at the relevant time is set out at para [3] of the judgment prepared by Tipping J.

[156] Detailed Analysis of s128:  Section 128(1) of the Act states that the section applies to every person who arrives in New Zealand from another country and who, not being exempt from the requirement to hold a permit, fails to apply for a permit, is refused a permit, is a stowaway or is a person whose pre-cleared permit has been revoked by an immigration officer.  Section 128 does not, however, apply to persons covered by s129, being transit passengers, or those to whom s128B applies.  Section 128B authorises detention where a person’s status under s7(1) of the Act cannot be immediately ascertained and, as a result, there has been no decision either to revoke a pre-cleared permit or to grant a permit.  Section 7(1) sets out categories of persons who are ineligible for permits, for example a person who has been convicted of any offence for which they have been sentenced to five or more years imprisonment, a person who has been deported from New Zealand or from another country, or a person who the Minister has reason to believe has engaged in an act of terrorism inside or outside New Zealand.

[157] It is common ground that persons claiming refugee status who are refused permits would come within the category of persons described in s128(1), although Dr Harrison submitted that, where there are security concerns about a claimant, the proper course is for s128B to be used or the provisions, such as Part IVA, dealing specifically with persons who are security risks.  I discuss this contention later.  I do comment, however, that it may perhaps be thought that, if there were other limits as to the type of persons that came within s128 (e.g. an exclusion of refugee status claimants), then these would be set out in s128(1).

[158] Section 128(2) sets the deemed time of arrival of a stowaway in New Zealand and s128(3) provides a time limit for the application of the section.  It provides that the section ceases to apply to a person on the expiration of 72 hours after the time when the craft on which the person is travelling arrives in New Zealand, unless that person is sooner detained.  This would support the proposition that the section is designed to effect a “prompt turnaround”.

[159] Section 128(4) provides that any person to whom the section applies is deemed for the purposes of the Act to be in New Zealand unlawfully but that, for so long as the section applies, that person is not liable to be dealt with under the provisions of Part II of the Act, ss45-70.  Part II of the Act provides procedures for removal from New Zealand of persons in New Zealand unlawfully as well as an appeal procedure.  By s4(2) any non-New Zealand citizen who is in New Zealand and who is not the holder of a permit or exempt from the requirement to hold a permit is deemed to be in New Zealand unlawfully.  By virtue of s129X(1) and s53(2)(b) refugee status claimants cannot be removed from New Zealand until their claim has been finally determined.  Part II can thus usually have no application to claimants, although a right to bring an appeal to the Removal Review Authority is preserved for those refugee status claimants who are granted temporary permits under s129U(4).

[160] Dr Harrison argued that it is in s128(5) that the operative part of the section first appears.  As a matter of literal interpretation there is nothing in that section to exclude the contention that the qualification “pending departure on the first available craft” is only a temporal limitation, being one that sets the maximum time of detention.  Neither is there anything in the literal wording that would exclude the contention that detention can only be for the purpose of effecting departure.

[161] The latter interpretation is supported by the case of R v Governor of Durham Prison ex parte Singh [1984] 1 All ER 983 which involved consideration of a power to detain an individual pending his deportation.  It was held that the power to detain was given in order to enable the machinery of deportation to be carried out and was impliedly limited to a period which was reasonably necessary for that purpose; the period being dependent on the circumstances of the particular case.  The power was not to be exercised if it was not possible within a reasonable time to operate the machinery provided by the legislation for removing the person who was intended to be deported.

[162] This limitation as to purpose was approved by the Privy Council in Tan Te Lam v Detention Centre [1997] AC 97.  In that case their Lordships’ view was that the courts should construe strictly any statutory provision purporting to allow the deprivation of individual liberty by administrative detention (p111).  This case was relied on by Dr Harrison as binding authority for the proposition that there is both a limitation as to purpose and a temporal limitation in the use of a phrase such as “pending departure.”

[163] I do note that the different circumstances involved in these two cases may, as the Crown submitted, limit their usefulness as an interpretive aid to s128(5).  Neither involved refugee status claimants whose claims had still to be determined.  Singh was not a refugee situation at all but involved a person who was already being detained as a result of criminal offending and whose detention had continued after a deportation order had been made against him.  Tan Te Lam involved detention after a refugee claim had been denied but with the detention continuing for several years because the individuals could not be repatriated to Vietnam without the consent of the Vietnamese government.  This length of detention was held to be unreasonable.

[164] The case of R v Secretary of State for the Home Department, ex p Khan [1995] 2 All ER 540 (CA) can be seen as consistent with the Crown’s submission that prohibition of removal pending a determination of refugee status does not invalidate the detention but merely extends the period for which the detention provision can operate.  The applicants applied for writs of habeas corpus to secure their release contending that there was no power to detain them because of the protections against removal provided by asylum legislation.  The Court of Appeal held that a person who entered the country illegally could be lawfully detained pending determination of his or her asylum application.  Nothing in the legislation prevented the giving of directions for removal in respect of such a person although such directions could not be given while the asylum application was outstanding.  Dr Harrison sought to distinguish this case because the power of detention relied on was to detain “pending the giving of directions”.  The directions related to removal, however, and so this distinction is not in my view sustainable.  Alternatively Dr Harrison submitted that it was wrongly decided as a matter of interpretation.

[165] I note also that, if s128(5) is considered in the context of the whole section, this promotes the interpretation that the limitation is temporal only.  Although not phrased in such terms, s128 as Dr Harrison acknowledged, is in fact concerned with removal and not voluntary departure.  In context therefore the phrase “pending departure on the first available craft” may rather mean “pending removal on the first available craft”.  Such an interpretation would accord with the Crown’s submission that the word “available” means legally as well as practically available since the government cannot remove people in contravention of its own laws and therefore immigration officers would first need to be satisfied that a claimant has failed in having refugee status recognised before removal could take place.  Once a claim is declined, a temporal limitation in s128(5) would, on such an analysis, serve the purpose of protecting detainees so that they cannot be held in custody indefinitely.

[166] Even if this interpretation is accepted the problem discussed above still remains.  It is not possible to distinguish between those whose claims will fail and those whose refugee status will be recognised.  Those recognised as refugees were only ever able to be removed in exceptional circumstances.  Thus for those recognised as refugees a temporal limitation tied to removal would not be a limitation at all.  On the other hand, those recognised as refugees would almost certainly be issued with permits and therefore be removed from the ambit of s128 in any event.  There are also other temporal limitations in the section as indicated below.  There is therefore no unsurmountable obstacle to an interpretation that invests s128(5) merely with a temporal limitation.

[167] Section 128(6) deals with the place of detention of various categories of persons.  Section 128(7) provides a time limit on detention without further formalities being undertaken.  That subsection provides that, where a person is to be detained for more than 48 hours, an immigration officer or a member of the Police must apply to the Registrar of a District Court for a warrant of commitment.  The Registrar is obliged to issue such a warrant, provided it is for a period not exceeding 28 days.

[168] Section 128(8) provides that any application under subs(7) must be made on oath and shall include a statement of the reasons why the person is a person to whom s128 applies.  It is the first three subsections of s128 that are worded as setting out the application of the section.  It must therefore be to those first three subsections that this requirement is directed.  It may be thought somewhat surprising, if subs(5) sets out a substantive limitation as to the purpose of detention, that a statement on oath as to the purpose of detention is not also required.  Without such a statement a Registrar would be obliged to issue a warrant without having evidence before him or her as to the purpose of detention and therefore would be unable to satisfy him or herself that the stated purpose of detention is lawful.

[169] Section 128(9) states that every warrant of commitment shall authorise the Superintendent of the prison (or any other premises) to detain the person named in it until required by the Police to deliver up the person in accordance with subs11, until release in accordance with subs(14)(a) or until the expiry of the period for which detention is authorised by the warrant or by any extension.

[170] There are thus three occasions when release can occur – one through the effluxion of time (and expiry of the warrant).  The fact that this is the case does not necessarily suggest that the section can be used to detain persons for purposes other than to effect departure from New Zealand.  The second occasion for release is where subs(11) applies.  This provides that, when a craft becomes available to take a person from New Zealand and it is practicable in all the circumstances for the person to leave on that craft, the person shall be delivered up to a member of the Police and escorted to the craft.  Certainly therefore one of the occasions for releasing a person is when that person is placed on the first available craft.

[171] The third occasion for release is where written notification is given under subs(13)(b).  This then obliges release under subs(14)(a).  Subsection 13 applies when it becomes apparent that a person detained in custody under a warrant of commitment is likely to be unable to leave New Zealand before the expiry of the period for which detention is authorised.  In that case an immigration officer can either apply for an extension to a District Court Judge or provide written notification that the person should be released.  Again this appears to contemplate that detention is related to the purpose of effecting departure.

[172] Subsection 12 also appears to assume that detention is related to departure from New Zealand.  It deals with continued detention where a person has been delivered to a craft in accordance with subs(11) and that craft ceases to be available or is delayed for more than 24 hours or where, for any other reason, the person is unable to leave New Zealand at the expected time.

[173] Subsection 13A provides that any application for extension of any warrant of detention made to a District Court judge under subs(13)(a) must be made on oath and include a statement of the reasons why the extension or further extension is requested.  This is in contrast to the position under subs(8) discussed above.  As subs(13) applies where a person is unable to leave New Zealand before the expiry of the period for which detention is authorised, it would appear to be contemplated that the application for extension should at least state why the person has been unable to leave New Zealand.  This again may indicate that s128 is designed to be used to effect departure.

[174] Dr Harrison submitted that the term “unable to leave” suggests an impediment to departure which operates in practical terms as distinct from a legal prohibition on removal as provided by s129(X)(1) or by some administrative consideration such as the prior completion of the processing of a refugee status claim.  The interpretation he suggested is the most obvious one on the ordinary meaning of the words but, when considered in context, another meaning is possible.  As discussed above, s128 is concerned not with voluntary departure but with removal.  In context therefore the phrase “unable to leave” may mean “unable to be removed”.

[175] Under subs(13B) a Judge may, on any application for extension of a warrant of commitment and if satisfied that the person is still a person to whom s128 applies, extend the warrant.  Here the permissive language is to be contrasted with the mandatory language in subs(7).  Such extensions must be for a period not exceeding 7 days but there is the possibility of a longer period where there is a group of persons involved who arrived in New Zealand on the same ship or aircraft and where all or most of those persons come within s128.  In this case the warrant can be extended for “such longer period as the Judge thinks necessary in the circumstances to allow all the persons in the group concerned to be properly dealt with” – subs(13B)(b).

[176] The reference to groups of persons arriving on the same ship or aircraft would appear to be aimed at mass arrivals.  Such mass arrivals are likely to include refugee claimants.  If subs(13B)(b) does not apply to refugee claimants it would thus appear to have very limited application.  The use of the terminology “properly dealt with” seems particularly apt for refugee status claimants, given they must be dealt with under the statutory process for determining claims and are not able to be removed from New Zealand unless and until the claim has failed.  The phrase “dealt with” is unlikely to be referring to removal from New Zealand.  Mass (as against a staged) removal would cause major practical problems.

[177] Subsection (14A) provides that, where a person is released under subs(14) (that is on the expiry of the period of the warrant or on written notification of an immigration officer), then Part II of the Act applies in respect of that person and s128 ceases to apply.  This may, as Dr Harrison pointed out, militate against an interpretation that s128 can apply to refugee status claimants.  Part II deals with removal which, under s129X(1), cannot apply to refugee status claimants. I note here though the existence of s129U(4) discussed above and the fact that s129X(1) will cease to apply once a claim has been finally rejected because the individual would then no longer fit the definition of a refugee status claimant.

[178] Subsection 15 provides that a person who is detained under s128 shall not be granted bail but may, where s128A applies, be released on conditions in accordance with that section.

[179] Provision for conditional release for s128 detainees has now been included under the 2002 amendments under s128AA, without the need to file review proceedings (as is required under s128A).  Section 128AA(2) states that this subsection applies to a refugee status claimant who is placed in custody under s128(5) or is the subject of a warrant of commitment issued under s128(7). Such a person (or an immigration officer) may apply under subs(3) for an order for conditional release. While clearly pointing to the conclusion that s128 must have been seen by Parliament in 2002 as applying to refugee status claimants s128AA was not part of the statute at the relevant time and cannot strictly be used to interpret s128 prior to its introduction.  It is mentioned only for the sake of completeness.

[180] Section 128 in context of Act:  Moving now to consider s128 in the context of the Act as a whole, it is appropriate first to consider s128A referred to above.  I then move on to examine Dr Harrison’s submissions on the context of the Act.

[181] Section 128A applies where review proceedings, including an application for a writ of habeas corpus, have been brought.  If such review proceedings are brought then the period of 28 days specified in s128 is extended for the period of the review proceedings.  Under s128A therefore detention can be prolonged past the availability of a craft where the detainee chooses to issue review proceedings, although conditional release is possible.

[182] The existence of s128A may provide some support for the proposition that s128(5) is intended to provide merely a temporal limit and that s128A serves the purpose of protecting a detainee against removal where a craft is available to effect departure from New Zealand before completion of any challenge proceedings.  By analogy that could extend to refugee status claims.  If there is a gap, it may then be, as Baragwanath J suggested in his supplementary judgment of 27 June 2002, the lack of ability to effect conditional release for refugee status claimants while their claim is being considered (which has now been at least partially rectified by Parliament in the 2002 amendments to the Act discussed above).

[183] Moving to Dr Harrison’s submissions, he first submitted that indirect textual support for interpreting s128(5) as a ‘prompt turnaround’ provision emerges from s125(4)(b) of the Act.  That requires the carrier (such as an airline) which brings an illegal entrant to New Zealand not only to provide outward passage for him or her at its expense, but also “to pay all costs (if any) incurred by the Crown in detaining and maintaining that person pending the person’s departure from New Zealand”.  In Dr Harrison’s submission that is an obvious reference to (at least) detention under s128 and s128B.  I note here that s125 reflects the “turn around” obligation on airline operators contained in the 1944 Convention on International Civil Aviation (the Chicago Convention) and particularly Annex 9 of the Convention which makes airline operators responsible for the custody and care of international passengers arriving at an airport until they are admitted into New Zealand and obliges them to transport any inadmissible passenger back to the point of embarkation or to the first port en route where that passenger is admissible.  Section 128(5) goes further than the Chicago Convention in that it applies to carriers generally and not merely to airlines.

[184] Dr Harrison submitted that it is only reasonable to regard the Legislature as having intended recovery of the costs of detention of a traveller under s128, if the use of that provision is limited to “prompt turnaround” purposes.  It would not be reasonable for Parliament to have intended recovery from the carrier of all costs of an indefinite detention, or indeed a detention pending determination of the traveller’s refugee claim, far less any subsequent appeal against its rejection.  That would amount to requiring the carrier to subsidise New Zealand’s performance of its obligations under the Refugee Convention – a highly unlikely prospect, and one not lightly to be attributed to Parliament.

[185] It certainly would be odd if the Legislature intended a carrier to subsidise detention while refugee status claims were investigated.  It is also, however, unlikely that the Legislature intended carriers to subsidise detention while extensive inquiries were undertaken as to whether a person came within s7(1).  This would not be a warrant to read down the detention power in s128B and thus should not operate in that manner for s128 either, if s128 is not otherwise limited in the manner contended for by Dr Harrison.  It may be rather that the obligation for the carrier to pay the costs of detention would be read down to exclude extended detention where departure is not effected on the first craft available in a practical sense.

[186] I move now to consider s128B.  As indicated above, Dr Harrison submitted that the scheme of the Act is that there are specific sections to deal with persons about whom there are security concerns and that this suggests s128 should not be used for that purpose.  He refers in particular to s128B.  This section allows detention where there is reason to suspect that the person may be a person to whom s7(1) of the Act applies or where a person has no appropriate documentation or has false documentation and the person’s status under s7(1) cannot be immediately ascertained.

[187] The fact that there are other sections in the Act that allow detention does not in my view necessarily mean that refugee claimants cannot be dealt with under s128.  Indeed the fact that there are a number of different sections dealing with persons who pose security risks (see also for example Parts III and IVA) may suggest that there is intended to be a choice depending on the particular circumstances.

[188] Section 128B and s128 apply to different categories of persons.  Section 128 only applies where a person has been refused a permit.  Section 128B applies where a decision whether or not to grant a permit has not been made because a person’s status under s7(1) cannot be immediately ascertained.  The detainees who are the subject of this case had all been refused permits.  Section 128B therefore did not apply.  It would not be appropriate to force immigration officers to delay their decision as to whether or not to grant a permit if, for example, they have decided that a permit should not be granted whether or not s7(1) applies to the person.  Neither in my view would it necessarily be appropriate to delay the decision as to whether or not to grant a permit and to consider the use of s128B in all cases where appropriate documentation is not held even where there may be no real s7(1) concerns.

[189] I do note, however, that the terms of s128B(5) support the interpretation of s128 as a section authorising detention to effect departure.  It provides that, once a determination is made as to whether or not s7(1) applies, unless the person is granted a permit, the person may be treated as a person to whom s128 applies.  Section 128B(5)(b) and (c) both refer to departure on the first available craft.  Section 128A(5)(a) has a similar reference.

[190] Dr Harrison’s next submission was that it is significant that there is no provision in Part VIA of the Act (the Part of the Act setting up the statutory regime for determining refugee status claims) dealing with the detention of such claimants.  Dr Harrison accepted, however, as he must, that refugee status claimants can be detained under s128B or Part IVA of the Act.  There is no mention of refugee status claimants in s128B.  The lack of a reference to refugee status claimants in s128 is therefore not determinative.  Part IVA (which is concerned with the detention and removal of persons covered by the Act who pose a security risk) does mention refugees. Section 114Q provides that, despite anything in Part IVA the removal or deportation of refugee status claimants whose status has not been determined is prohibited.  Its purpose can be seen as reinforcing s129X and putting it beyond doubt that s129X applies to Part IVA.

[191] Dr Harrison submitted that an explicit mention of refugee status claimants is necessary in s128 because of s128(5) and s129X.  I agree that this would have put the position beyond doubt but it seems to me that this point is merely putting the same argument in a different way.  If the use of s128 is limited to detention for the purpose of effecting removal then, as s129X does not allow removal, s128 cannot be used for refugee status claimants.  If s128 is not so limited then s129X cannot create such a limitation.

Conclusion

[192] The wording of s128(5) can support the interpretation that effecting departure must be the purpose of detention.  However, the phrase “pending departure” can also be interpreted as having a mere temporal connotation, setting the maximum period for detention but not limiting the purpose of detention.  Taken in the context of the section as a whole most of the section appears to assume that the purpose of the section is to effect departure (although references to departure are not necessarily inconsistent with s128(5) having a temporal connotation).

[193] There are important exceptions and I refer in this regard to subs(8) and subs(13B)(b).  These – and in particular subs(13B)(b) – may suffice to require the second interpretation.  There are also conflicting indications as to whether the section can in any event apply to refugees – see subs13B(b) as compared to subs(4) and subs(14A) although again subs(13B)(b) is a strong indicator that it can.  The context of the Act as a whole provides some assistance in choosing between the two interpretations, although again there are indications that point both ways.  On balance the context of the Act may also favour the second interpretation.

[194] The text of a statute must always be the starting point when embarking on any process of statutory interpretation.  In this case the text does not provide a definite answer, even taking account of the statute as a whole.  I now move on to examine the legislative history to see if that sheds further light on the purpose of the provision.  I also examine relevant case law.

Legislative history and judicial interpretation

[195] Immigration Act 1964: The forerunner of s128 was first introduced in 1978 into the predecessor of the current Act, the Immigration Act 1964.  The relevant sections provided as follows:

s14(1A) Where an application for a temporary permit is refused, the person concerned may be detained by any member of the police pending that person’s departure from New Zealand on the first available ship or aircraft.

s14A Detention of persons awaiting departure from New Zealand (1) Notwithstanding anything in section 14 (1A) of this Act, where a person to whom that subsection applies is to be detained for more than 24 hours, a member of the Police shall apply to the Registrar (or, in his absence, the Deputy Registrar) of a Magistrate’s Court for a warrant authorising the detention of that person in a prison, and the Registrar (or Deputy Registrar) shall issue such a warrant in the form set out in the Third Schedule to this Act.

[197] The Hon T F Gill, in introducing the amendment, stated that it provided for persons, who were refused permission to land in New Zealand, to be detained pending departure ((30 November 1977) 416 NZPD 5342).  The Statutes Revision Committee in reporting back on the amendment noted that it “will be particularly valuable where the person in question cannot leave New Zealand that day, or if the person is considered likely to commit an offence or to be a threat to public safety if not held in custody” (Statutes Revision Committee, Report on Immigration Amendment Bill No. (2) (18 May 1978) 417 NZPD 100).  The Committee proposed an amendment to require that, where a person was to be detained for more than 24 hours before departure, a warrant should be obtained.  This proposal resulted in s14A(1).  The report noted that in the vast majority of cases the person concerned would be detained for less than 24 hours and that a person who believed that he was being improperly held in custody would have access to the courts through a writ of habeas corpus to challenge the detention.

[198] The Hon T F Gill, introducing the second reading debate, intimated that the section would be used in limited circumstances.  He referred to persons about whom there were concerns that they may commit offences or be a threat to public safety ((4 July 1978) 418 NZPD 1409).  He indicated that such persons would be made to leave immediately if possible but, if not, they would be held in custody until they could leave.  He continued as follows:

This is merely a common-sense arrangement as we cannot allow a person to enter the country and move about freely if we have evidence that such a person is likely to commit an act that will endanger human lives. ((4 July 1978) 418 NZPD  1410)

A person detained under 14(1A) is detained pending deportation from New Zealand on the first available ship or aircraft.  The purpose of detention is clearly deportation.  The purpose of a refugee status application [as made  by the plaintiff] is to seek a determination of refugee status.  Detention pending determination of such an application is not authorised by section 14(1A).

The purpose of the detention is to place the detainee on a ship or aircraft for transportation from New Zealand.

[202] This Court in Minister of Foreign Affairs v Benipal [1988] 2 NZLR 222, 233 stated that “for the most part we would not question the statements of principle made by the Judge in his very thorough judgment”.  The Court then went on to indicate one exception regarding Chilwell J’s finding that a prospective detainee had a right to be heard before a warrant was issued, noting that rights of hearing are not normal before the issue of warrants of detention, although invariably there are prescribed conditions that must be fulfilled.  This Court did not disapprove of the comments regarding the purpose of s14(1A) and s14A(1) but did not specifically refer to them either.

[203] Immigration Act 1987:  In 1987 the Immigration Act 1964 was replaced by the current Act.  The 1987 Act represented a major change in principle as the Explanatory Note indicated.  Under the 1964 Act permits were required to enter New Zealand. Under the 1987 Act permits are required to be in New Zealand and any person who is not the holder of a permit or exempt from the requirement to hold one is deemed to be in New Zealand unlawfully.  The 1987 Act also heralded a major change in principle as to how such persons were dealt with.  Under the 1987 Act a person who is in New Zealand unlawfully is not (unlike under the 1964 Act) dealt with by way of criminal sanctions or by deportation.  Rather that person is subject to removal.  A person who is removed from New Zealand is free to apply to come to New Zealand again at any time after the expiry of five years or such shorter period as the Minister may mandate in any particular case.

[204] The 1987 Act carried forward the detention power introduced in 1978.  The Explanatory Note set out the purpose of the clause that was to become s128 as being a ‘turnaround provision’.  In contrast to the provisions in the 1964 Act, however, a maximum detention period of 28 days was introduced:

Clause 122 provides a special ‘turnaround’ procedure for persons (including stowaways) who arrive in New Zealand from another country and, for various reasons, are not permitted to come into New Zealand lawfully.  Rather than deal with such persons under Part II of the Bill, the aim of this clause is to turn them round quickly on the first available craft without having to go through the removal warrant process.  If any such person is to be detained for more than 48 hours, application must be made to a Registrar (or Deputy Registrar) of a District Court for a warrant of commitment.  The Registrar accordingly issues a warrant that will authorise the detention in custody of the person for up to 28 days.  If it becomes apparent that the person is unable, or is likely to be unable, to leave New Zealand within that period, or the person has not left at the end of that period, clause 122 will cease to apply and the person will thereupon become liable to be dealt with by way of the removal procedures under Part II of the Bill.

[206] Cooke P, in giving the judgement of this Court, rejected the argument (similar to the one Dr Harrison made) that, because Part III of the Act contained a procedure for the deportation from New Zealand of suspected terrorists, a permit should not be refused because of concerns about security (p675).  He noted that, where a security clearance is available, refugee status claimants were allowed to remain in the country until the refugee question was fully investigated under procedures set up to do so.  He did not see any reason why, while a person unlawfully in New Zealand was detained under s128, investigations of questions of refugee status, which might lead to a permit, should not be undertaken.  He recognised, however, that the procedures could not be fully utilised within the 28-day period allowed under s128.  He went on to say that this meant that, if security clearance could not be given, “there is no statutory provision for detaining such people for more than 28 days and there is no way in which the Court could invent such a provision” (p676).  He went on to draw attention to the lack in New Zealand of “any legislative provision for the temporary detention of applicants for refugee status while their status is being investigated.”  He expressed no view as to whether such a provision was warranted as that was for the consideration of the Government and Parliament but said:

We say only that the present statute law does have the result that, because of the security risk in New Zealand, Government officers may have at times to send away, and perhaps back to persecution, persons who may have genuine reasons to fear persecution for their political beliefs. (p676)

[208] In terms of s128 the main change was that the 28-day period of detention authorised under that section was, under the new s128A, to be reckoned exclusive of any period taken up in review proceedings or proceedings on an application for a writ of habeas corpus.  The Explanatory Note said that this was to ensure that such proceedings could not be used as a mechanism effectively to negate the whole purpose of the section.  It went on to refer to the provision as a fast turnaround provision:

The basic effect of the new section 128A is to provide that the flat 28-day period of detention currently provided for in section 128 will be extended by any period during which review proceedings or habeas corpus proceedings are brought by the person detained.  Without this provision, the whole aim of that section, which is the fast turnaround of persons denied entry to New Zealand, can be defeated simply by the bringing of proceedings.

[210] If recognition of refugee status was refused and any available appeal right exhausted then the person would be subject to the s128 procedure “pending departure from New Zealand on the first available craft” (Explanatory Note, xvii). If the claim was allowed and the person was still detained under s128B then the Commissioner of Police was required to decide whether or not the person was a danger to the security of New Zealand within 72 hours of the decision to uphold the claim.  Section 128B(6) provided that, where the Commissioner determined that a person was not a danger to the security of New Zealand or was unable to decide within the time limit, the person was to be released from custody and granted a permit.  Section 128B(7) provided that, where the Commissioner determined that the person was a danger the security of New Zealand, he or she was to be given an opportunity to rebut that determination.  If the Commissioner’s determination remained unchanged then the person would be subject to detention under section 128 “pending departure from New Zealand on the first available craft”.

[211] Concerns were raised with the provisions in submissions to the Select Committee.  The Report of the Labour Committee at p10 in section 8.6.1 and 8.6.2 summarised the submissions as follows:

Submissions stated that there should be detention only where there are compelling reasons for believing that there is a threat to national security, that the detention should be lawful, and the asylum seekers should be kept separate from criminals in prisons.  Such submissions stated that prisons are not acceptable as places to hold asylum seekers while their security status is being determined, and there should be a separate facility for asylum seekers.

The United Nations 1951 Convention relating to the Status of Refugees and the 1984 Convention Against Torture were cited as the conventions that are being jeopardised by this bill.  Submissions stated that New Zealand’s human rights record was tarnished by the detention procedures for asylum seekers during the Gulf War, and were concerned that the same situations could occur under the provisions of this bill.

[213] In introducing the second reading the Hon W F Birch, the Minister of Immigration, made it clear that s128B was regarded as the appropriate vehicle for dealing with refugee claimants where there were security concerns as it did not require a fast turnaround.  He said:

The proposed new section 128A provides for the 28-day period of detention to be extended when review proceedings are brought.  However, judges may order the release of persons in certain circumstances.  The proposed new section 128B provides for detention when eligibility for a permit cannot immediately be ascertained on arrival.  The Court of Appeal has noted limitations in the current Act.  Rather than a fast turn-round of persons declined entry it may be desirable to allow entry after a proper determination of the case.  That is what the Court of Appeal suggested earlier this year in a judgment brought down during the Gulf War.  At the same time the interests and the security of the public need to be protected.

New Zealand will continue to honour its obligations under the United Nations convention relating to the status of refugees.  When determining the eligibility for entry takes more than 28 days, judges will be able to order detention for additional 7-day periods. ((22 October 1991) 520 NZPD 5022-5023)

Current sections in the Act allow for the detention and, if necessary, turn-around at airports of persons whose permits are revoked or whose immigration status on arrival is not certain.  The Bill extends the coverage of these provisions to pre-clearance situations. ((1 July 1993) 536 NZPD 16532)

[216] Section 128 was amended at the same time to allow extensions to warrants of commitment past the 28-day period by 7-day periods.  Those 7-day periods could be longer in the case of groups who arrived together – see subs(13B)(b).  The new subs(14A) provided that, on the release of a person under subs(14), Part II of the Act would apply to that person.  Interestingly s128 was described in the Explanatory Note as “the provision that deals with the detention and departure of persons (including persons such as stowaways) who are refused a permit on arrival in New Zealand”, a rather more neutral description than the one that had been given to it previously.

[217] Section 128B(5) was amended to deal with the situation where, even if s7(1) did not apply to a person, there may be other reasons for refusing a permit.  As the Explanatory Note set out the existing section did not provide for the case where, although the s7(1) prohibiting criteria did not apply to the person, information received in the course of inquiries indicated that for other reasons such as health or character the person did not meet the requirements of normal temporary entry policy (Explanatory Note xv).  In such a situation the person was now to be dealt with under s128 where previously they would have been released.  Section 128B(11A) was also added to clarify the relationship between s128 and s128B.  Section 128B(11A) provides that, where s128B ceases to apply and persons detained become subject instead to s128, the warrant of commitment is treated as if it had been issued under s128.

[218] At this time Part IVA was also inserted into the Act containing special procedures for cases involving security concerns, including those involving refugee status claimants.

[219] The Hon T J Delamere, Minister of Immigration, introducing the second reading debate, stated that the changes to s128 related particularly to mass arrivals and also allowed the continued custody of a person who, on the way to the airport to be removed, claimed refugee status.  He said:

A further change is the provision to allow continued detention where entry is denied, particularly in situations where a mass arrival – such as by boat – has occurred.  It is likely to be only a matter of time before New Zealand has to deal with such a situation.

The Bill also provides for the continued custody of a person who, on the way to the airport to be removed from New Zealand, claims refugee status in an attempt to delay the process.  Statistics show that 100 percent of people who make a claim for refugee status at this point have been declined by the Refugee Status Appeal Authority.  This sole intention is to further delay the inevitable. ((12 September 1998) NZPD 12790)

Part 5, which deals with arrivals and departures, is aimed at creating more flexible detention arrangements in the context of border management if we ever have a boat-people situation.  Hopefully that will never happen to us here, but it is a possibility and we must be prepared for it.  The current 28-day maximum detention period will be amended to allow extensions through the District Court to enable refugee determinations and any subsequent appeals to be finalised. ((30 March 1999) NZPD 15757)

While existing legislation is adequate for processing individual claimants in turn-round situations, the New Zealand Immigration Service considers that existing legislation does not go far enough to enable the processing of a mass arrival.  Sections 37 to 39 of the Immigration Amendment Act, which amends sections 128 and 128B of the principal Act, provide the necessary framework for processing a mass arrival.  These sections include provision for the continued detention of a group of individuals, allowing any claim for refugee status and appeal to be determined and any consequential actions to be finalised.  The new provisions provide for the continued detention of persons who arrive in New Zealand as part of a mass arrival, until such time as all claims for refugee status and any consequence arising from those decisions have been finalised.  The provisions also reinforce the responsibility of the New Zealand Immigration Service as the primary agency for processing and maintaining such persons. ((15 June 1999) 578 NZPD  17351)

[I]n my view no craft was or would be able to be used to effect the plaintiff’s departure from New Zealand until the process should finally be completed, and then only if the result should be unfavourable to the plaintiff. Only following such disposition could some craft be the ‘first available craft’ within the contemplation of s128(5). (p425)

[224] The majority judgment discussed the scheme of the detention regime in paras [17]-[20].  It commented in para [20] on s128 being a rapid removal section:

Two comments of a general character may be made about these powers.  They emphasise that people who are quickly identified as being in New Zealand unlawfully are subject to detention and rapid removal, without the safeguards by way of appeal, available for instance to those who overstay temporary permits or who are refused residence.  But those powers are subject to safeguards both through the statutory powers conferred on District Court Judges and, as the statute acknowledges, through judicial review.

[226] Later, when discussing the limits on removal of refugee claimants under s129X, the comment was made that “the provisions of arts 31.1 and 31.2 [of the Refugee Convention] are also relevant to the powers to grant temporary permits and the closely-related powers of detention under s128 and s128A” (para [33]).  In para [38] the majority said that the refusal of a temporary permit appears inevitably to bring with it detention under s128.  At para [45] they said that art 31.1 does not prohibit keeping claimants in custody pending determination of status but noted in para [46] that art 31.2 does prohibit unnecessary restrictions on movement or liberty and it is necessary for a judgment call to be made as to whether there are circumstances that warrant detention but that the factors considered need not be special to the particular applicant.  In para [48] the majority commented that s128 and s128A contain significant safeguards against undue or unjustified detention by expressly bringing consideration under the auspices of the District Court.  The majority therefore were unable see a justification for requiring a presumption that a temporary permit be granted. In their view neither the Act nor the Refugee Convention supported such an approach.  They finally said that risk management is a relevant factor when a temporary permit application is under consideration.

[227] In his dissenting judgment Thomas J determined the scope of the discretion available to immigration officers by reference to Part VIA of the Act which requires immigration officers to have regard to the Refugee Convention.  In his view immigration officers had to take account of Part VIA and the Convention and this obligation confined their discretion. (para [74]).  Thomas J considered that the officer in this case had been too ready to detain the respondents and his decision was inconsistent with the Act, government policy and the Convention. (para [105]).  Thomas J, however, said that it was “common ground” that claimants may be detained under s128.  For him the issue was the limit of the discretion to detain under that section (para [111]).

Discussion on legislative history

[228] As indicated above, the predecessor of s128 was introduced into the Immigration Act 1964 in 1978.  It is clear from the remarks of the then Minister of Immigration that the provision’s purpose was to effect a “prompt turnaround” and that it was intended to have a limited application.  There was also High Court authority in Benipal to the effect that the provision was not available to detain refugee status claimants pending the determination of their claims.  At the time the 1987 Act was passed the Court of Appeal hearing in Benipal was still pending.

[229] When the 1987 Act was enacted a provision for detention similar to that which had been considered in Benipal was included – s128.  I agree with Dr Harrison that Parliament must be taken to have been cognisant of the High Court decision in Benipal when it enacted s128 but it also must have been aware an appeal was pending.  It is clear from the Explanatory Note that s128 was still regarded as a quick turnaround section, although there was a recognition that there could be circumstances, such as problems with travel documentation, where longer detention may be necessary - hence the 28-day limit introduced.  This represents a shift from the position under the Immigration Act 1964 where it was clear that Parliament expected detention periods always to be short.  The difference between the two provisions in this regard may limit the weight to be given to Benipal when interpreting s128.

[230] The case of D v Minister of Immigration provides some support for Dr Harrison’s submissions, this Court stating that there was no provision for the temporary detention of applicants for refugee status while their status was being investigated.  It also, however, can be seen as providing support for the Crown’s contentions.  The case involved refugee status claimants.  This Court did not comment on counsel’s argument recorded at p675 that s128 was not being used for legitimate ‘turn around’ purposes, but as a machinery for temporary and inadequately long detention while investigation was made into claims for asylum and refugee status.  It must have considered that s128 was available for the detention of such claimants as the Court had earlier said that investigation of questions of refugee status of detainees could be undertaken which might lead to a permit.  The decision was confined to the finding that detention could not extend beyond 28 days without either release or removal.  There was of course at that stage no statutory bar to the removal of claimants for refugee status.

[231] The amendments introduced in response to D v Minister of Immigration, however, tip the balance in Dr Harrison’s favour again.  It is absolutely clear that s128B was, as Dr Harrison submitted, introduced as the vehicle to deal with the concerns expressed by this Court.  As originally introduced the amendments to s128B were to allow the detention of refugee status claimants until the determination of their claims.  This ability was removed at Select Committee stage.  The reason for this was clearly set out.  It was considered that detention was only appropriate where there were s7(1) or other security concerns.  These would be dealt with by detention under s128B.

[232] If this case had come before the Court just after the 1991 amendments the legislative history would have been conclusively in favour of interpreting s128 as being a quick turnaround provision with s128B being the vehicle for detention of claimants if there were security concerns.  On the other hand it was also clear that s128 still allowed detention of refugee status claimants once a permit had been refused but only for the 28 day period and presumably only to effect removal.  The question therefore is whether the 1999 amendments changed this position.

[233] As indicated, the position before the 1999 amendments was that refugee status claimants could be detained under s128 but probably only for the purposes of effecting their removal.  They could not be detained until their claims were finally determined either under s128 or s128B, in the case of s128 unless that determination took less than 28 days and, in the case of s128B, unless doubts as to their s7(1) status persisted and a District Court judge agreed to extend the commitment past 28 days.

[234] The 1999 amendments were made in the context of the introduction of a statutory regime dealing with refugees.  There is no indication that the amendments to s128 and s128B were not to have the same focus as the other amendments and thus that they did not relate to refugees.  There was no explicit recognition that the introduction of s129X was to exclude refugees from the ambit of s128.  Indeed the indications are to the contrary.  The extension of the period of a warrant under s128 past the 28 days with judicial supervision introduced and the provisions relating to group arrivals would appear to have been directed specifically at refugee status claimants.  That refugee status claimants were the focus of the amendments to s128 is also clear from the Parliamentary debates, particularly those relating to the bringing forward of the time those amendments came into force.

[235] Section 128 as amended in 1999 was also the focus of Attorney-General v E.  In that case the majority commented that s128 is a quick turnaround section but nevertheless discussed in some detail the question of detention of refugee status claimants not granted permits and assumed that s128 allowed detention.  Although not strictly part of the ratio, the discussion on detention is so clearly tied in to the ratio that in my view it must be seen as inextricable.  I note too that specific arguments were put to the Court on that occasion that detention was not appropriate on the basis of the UNHCR “Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum-Seekers” (10 February 1999) (UNHCR Guidelines) (discussed below) and must be taken to have been rejected – see discussion at paras [38] – [39] of that case.

Conclusion

[236] The 1991 amendments (and to a lesser extent the legislative history before that date) support the contention of Dr Harrison that before the 1999 amendments, the detention power in s128 was only to be used to facilitate removal.  There was no statutory bar on the removal of refugee status claimants before 1999 and so the section could nevertheless be used for the detention of refugees.  Detention could not, however, last for more than the 28 days without release or removal (unless review proceedings were instituted by the claimant).  Investigations as to refugee status could be undertaken during the 28-day period (D v Minister of Immigration).

[237] In 1999 a statutory regime for the determination of refugee status claims was introduced. Refugee status claimants were not specifically excluded from the ambit of s128.  Rather, amendments were made to s128 which were clearly designed to apply to such claimants.  A Court should be reluctant to find that Parliament has enacted provisions without meaning (or with very limited application) as would be the case if s128 did not apply to claimants for refugee status.  In this case, as s128 is capable of differing interpretations, a meaning is to be preferred that best accords with what Parliament can be taken to have intended would be the meaning, purpose and effect.  The 1999 amendments therefore support the interpretation that s128 is intended to apply to claimants notwithstanding s129X(1).  If it does apply to claimants then, because of the conceptual difficulties referred to above, s128(5) must necessarily be a temporal rather than a substantive limitation.

[238] In addition, the case of Attorney-General v E was decided on the basis that refugee status claimants could be detained under s128.  It would be inappropriate to depart from a recent decision of this Court in that regard.  The Immigration Service was entitled to rely on that case and was clearly doing so.

Interpretation taking account of fundamental human rights

[239] Dr Harrison submitted that, even if there is some ambiguity in s128, a strict or narrow construction is required.  This is on the basis of s6 of the NZBORA and is also mandated at common law, particularly in relation to executive powers of detention.  He relies on statements such as those by the House of Lords in R v Home Secretary, Ex p Simms [2000] 2 AC 115, 131 where Lord Hoffman said that fundamental rights could not be overriden by general or ambiguous words and, in the absence of express language or necessary implication to the contrary, the Courts presume that even the most general words were intended to be subject to the basic rights of the individual.  He also referred to ss21 and 22 of NZBORA and the Refugee Convention itself, together with the supporting material dealing with the obligations of States under the Convention in relation to the detention of claimants and refugees.

[240] This point can be shortly dealt with.  The matters Dr Harrison raises are, as discussed below, of relevance in considering the limits of any detention power. However, it is clear that detention of claimants is contemplated under the Refugee Convention.  As this is the case the matters referred to cannot be used to mandate an interpretation that no detention at all is allowable under s128.

Conclusion on s128

[241] Section 128 can be interpreted in the manner contended for by the Crown or by Dr Harrison.  There are indications in the section itself and the Act generally which point both ways.  The legislative history before 1999 would support Dr Harrison’s contention but the 1999 amendments favour the Crown’s contention.  These amendments show a clear intent for s128 to apply to refugee status claimants and there was no exclusion of claimants from s128 even though they came within the section before 1999.  I hold therefore that s128 can apply to refugee status claimants and as a consequence that the limitation in s128(5) must be temporal only.

Was the Operational Instruction of 19 September 2001 lawful?

[242] The next question is whether the Operational Instruction of 19 September 2001 was lawful. Before turning to discuss the decision of Baragwanath J in this regard and the submissions of the parties I summarise the contents of the Operational Instruction.

Contents of Operational Instruction

[243] The Instruction is divided into two parts.  The first part is general but states that care must be exercised before invocation of the s128 power.  It then sets out a number of reasons for caution.  The first is that it is recognised that those whose claim for refugee status is genuine will already have a well-founded fear of persecution and a consequent entitlement to protection.  For those persons, detention, even for a short period, will be traumatic.  The second is that s129X(2) of the Act requires immigration officers to have regard to the provisions of the Refugee Convention in carrying out their functions.  There is then a reference to art 31 and the UNHCR Guidelines on detention (discussed later) and the fact that it is generally accepted that detention of refugee status claimants should only occur where necessary.  Thirdly there is reference to the fact that claimants, who wish to prepare a claim and pursue any rights of appeal, may be held in custody for a not inconsiderable period of time.

[244] It then states that detention of a refugee status claimant can, however, be justified particularly where interests of national security or public order and safety arise and that any decision will depend upon a close assessment of all the factors relating to the arrival:

These [factors] may include the extent to which that person is able to provide accurate and reliable information as to their identity, the apparent strength or weakness of their claim and the extent to which there are identified risks to public health, safety, security and order. An assessment of risk to public safety, security, and order will need to take account of the prevailing security situation, both in New Zealand and globally.

[246] Criteria which it says may justify detention in a penal institution include where a refugee status claimant is a person to whom s7(1) applies or where detention is otherwise required to protect national security or public order, where a claimant has destroyed identity documents with the intention of misleading officials as to details of their travel and/or identity, where fraudulent documents are at issue and the claim for refugee status follows detection of that fraud, where there is a risk of absconding that cannot be managed in the Mangere Centre, where a claim is clearly fraudulent or not covered by the Refugee Convention and where a refugee status claimant has already had a claim to refugee status declined in another Convention Country.  It is worth setting out two of the grounds under this heading in full as they provide one reason (the issue of people smuggling) why the Immigration Service has a particular concern about group arrivals:

Where there is reason to suspect that a refugee status claimant is a person to whom section 7(1) applies but their section 7(1) status cannot be immediately ascertained. This is especially in the case of a group arrival situation where there may be good reasons to suspect some of those arriving are people smugglers.

Where necessary to verify the identity of a refugee status claimant where identity is in dispute and particularly in the case where identity may impact on the application of section 7(1) of the Act. Again this is especially relevant in the group arrival situation where there may be reasons to suspect persons of people smuggling and the risks in failing to properly ascertain identity are high.

Where a refugee status claimant has arrived as part of a group of 10 or more persons and they are not to be detained in a penal institution nor does there appear particular reasons for allowing them to enter the community unrestricted.

[248] Baragwanath J held both in his interim judgment of 31 May 2002 and in his supplementary judgment of 27 June 2002 that the detention power under s128(5) could only be used where the necessity test set out in art 31(2) of the Refugee Convention was met.  This interpretation was in his view also mandated because fundamental human rights were at issue.

[249] He stated that delay in securing identity information was relevant to the proper exercise of the detention discretion but was not decisive of it.  In his view the statement of principle in the Operational Instruction, added as a result of concerns in the aftermath of September 11, as set out at para [138] above, reverses the approach required by art 31.2 of the Refugee Convention which requires liberty, except to the extent that detention is necessary.

[250] He said that detention should be the minimum required to allow the Refugee Status Branch to be able to perform its functions, to avoid real risk of criminal offending or to avoid real risk of absconding.  He also indicated that the economic interest of retaining the right given under the Chicago Convention to compel a carrier to remove a person without charge would not by itself justify continued detention.

[251] In his supplementary judgment of 27 June 2002 he noted that it would be unusual for detention to be necessary to facilitate the work of the Refugee Status Branch.  He also in that judgment recorded that he construed the Operational Instruction as dealing solely with the form of detention rather than whether detention should occur at all.  He then made a declaration that the Operational Instruction of 19 September 2001 was unlawful.

Submissions of the parties

[252] Dr Harrison supported Baragwanath J’s conclusion that the Operational Instruction was unlawful.  In particular, he supported the Judge’s finding that, on a proper reading, the Operational Instruction only directs attention to the place of detention rather than on whether to detain at all.  In addition, he submitted that, as any decision not to grant a permit automatically led to detention, there is never proper consideration given to whether or not to detain.  He argued that the necessity test promulgated by Baragwanath J was required not only by the Refugee Convention but also because fundamental human rights were at issue.  He also submitted that the Operational Instruction could be impugned for setting out irrelevant considerations.  Taking into account the merits of a claim is not allowed because deciding on refugee claims is not part of the statutory role of the immigration officers.  The existence of the Mangere Centre is also irrelevant to any decision whether to detain.  As a separate ground of cross-appeal it was argued that the s128(5) discretion is required to be exercised by a member of the police and not, as occurred in the case of the detainees, by an immigration officer.

[253] The Crown on the other hand submitted that there is no illegality.  On a fair reading of the Instruction as a whole it directs attention both to the place of detention and whether to detain.  In addition, contrary to the judge’s view, immigration officers are only required to consider the Refugee Convention as a relevant consideration but are not bound to take it into account.  Even if that were wrong, the judge’s definition of necessity in this context is too narrow and his finding that the Operational Instruction sets up a reverse onus is based on taking one sentence out of context.  The judge also, in the Crown’s submission, failed to take proper account of the fact that the Operational Instruction deals only with detention at the border and that there is a review process as well as judicial supervision after 28 days.  The Crown also challenged the judge’s findings on the Chicago Convention.  Finally, the Crown argued that different considerations apply to claimants who have not come directly from a territory where their life or freedom has been threatened.

Discussion

[254] From the judgment of Baragwanath J and the submissions of the parties it appears necessary to deal with the following issues:  (a) the role of the Refugee Convention in detention decisions under s128, (b) the contention that the Operational Instruction of 19 September 2001 deals only with the form of detention, (c) whether there is a difference if a person does not come directly from the affected territory, and (d) whether the detention decision must be made by the police.

The role of the Refugee Convention

[255] By virtue of s129X(2) immigration officers carrying out their functions in relation to a refugee status claimant must “have regard to” the provisions of Part VIA of the Act and the Refugee Convention.  Thus the Refugee Convention is a mandatory relevant consideration in the exercise of the s128 detention powers.

[256] The requirement in s129X(2) to have regard to the Refugee Convention is not a formulation that excludes the consideration of other factors.  Any other factors in a s128 detention decision, however, must take account of the fact that any decision to detain deprives an individual of liberty.  The right not to be subject to arbitrary detention is a fundamental human right and one affirmed by s22 of NZBORA.  It must be assumed that Parliament intended the s128 power to be interpreted in a manner consistent with such rights and s6 of NZBORA would mandate such an interpretation where, as here, there are no contrary legislative indications.  Any restrictions on liberty must be able to be justified and be no greater than necessary.

[257] This suggests a similar “necessity” test to that which is required under the Refugee Convention but not limited to the factors that would be relevant in a Refugee Convention context alone.  In this regard therefore I am in agreement with the approach taken by Baragwanath J.  I do comment, however, that in my view Baragwanath J’s formulation of the necessity test is too strict, even if the Convention alone is taken into account.  In that regard I agree with McGrath J’s remarks at para [102] of his judgment.

[258] Requirements of Refugee Convention:  It is useful at this point to set out what is required under the Refugee Convention.  The starting point in this discussion must be the Convention and in particular art 31 which provides as follows:

31.1 The contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

31.2 The contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularised…

[260] As McGrath J notes at para [100] of his judgment, art 31.2 is a generally expressed duty.  This is likely to be one of the reasons why Parliament used the formulation “have regard to” rather than importing the Convention duties directly.  The duty in art 31.2 has been elaborated on by the Executive Committee of the UNHCR in 1986 (Executive Committee of the High Commissioner’s Programme conclusions on “Detention of Refugees and Asylum-Seekers”  (Conclusion No. 44 (XXXVII), 37th Session, 15 October 1986, A/AC.96/688), (“Conclusion 44”).  The Conclusion states that detention should normally be avoided.  It goes on to say:

If necessary, detention may be resorted to only on grounds prescribed by law to verify identity; to determine the elements on which the claim for refugee status or asylum is based; to deal with cases where refugees or asylum seekers have destroyed their travel and/or identity documents or have used fraudulent documents in order to mislead the authorities of the State in which they intend to claim asylum; or to protect national security or public order.

[262] The UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers issued in February 1999 to give effect to the principles in Conclusion 44 attempt to provide further guidance on this issue.  The relevant part of these Guidelines is annexed as Appendix C.  The first point to note about these Guidelines is the definition of detention in Guideline 1 as being:

Confinement within a narrowly bounded or restricted location, including prisons, closed camps, detention facilities or airport transit zones, where freedom of movement is substantially curtailed, and where the only opportunity to leave this limited area is to leave the territory.

[264] Guideline 3 then states that detention of asylum-seekers should only be resorted to in exceptional circumstances and that there should be a presumption against detention which should be resorted to only when alternative monitoring mechanisms will not be effective in the individual case.  It also says that account should be taken of whether detention is reasonable and whether it is proportional to the objectives to be achieved.  If judged necessary it should only be imposed in a non-discriminatory manner for a minimal period.  It then elaborates on the grounds set out in Conclusion 44 that may justify detention and interprets them in a restrictive manner – for example in the case of destroyed documents it states that what must be established is the absence of good faith on the part of the claimant to comply with the verification of identity process, and in terms of protection of national security and public order it states that this relates to cases where there is evidence to show that the asylum-seeker has criminal antecedents and/or affiliations which are likely to pose a risk to public order or national security should he/she be allowed to enter.

[265] I do note, however, that it is against the background of the definition of detention in Guideline 1 that Guideline 3 must be interpreted.  It is implicit in the Guidelines that restrictions on freedom of movement that are less restrictive than detention should be able to be imposed more freely to deal with the issues raised in Conclusion 44.  Another manner of expressing this is to say that the necessity standard is variable depending on the nature of the restriction on freedom of movement to be applied.

[266] Guideline 4 sets out suggested alternatives to detention beginning with reporting and residency requirements and going on to suggest provision of a guarantor or surety, release on bail and finishing with open detention centres.  These are defined as “specific collective accommodation centres where they [claimants] would be allowed permission to leave and return during stipulated times.”  This could fit the description of the Mangere Centre although, as we have not had full evidence on that point, it is inappropriate to comment further.  I comment that the alternative of open centres is the last in the list and thus is presumably seen as involving a greater restriction on freedom of movement and thus a correspondingly higher threshold before it should be imposed compared to the less restrictive alternatives.

[267] The Guidelines go on to deal with minimum procedural safeguards and factors relevant to detention of particular categories of claimants, such as those under 18 years and women.  They also deal with minimum conditions of detention.

[268] I also refer to the document entitled “Detention of Asylum-Seekers and Refugees: The Framework, the Problem and Recommended Practice” (Standing Committee, 15th meeting, 4 June 1999, EC/49/SC/CRP.13) (“Framework Document”).

[269] The Framework Document was intended to summarise the applicable principles under the Convention in relation to detention.  It reiterates the conclusions of Conclusion 44 and the Guidelines, saying at para 12 that the Guidelines “brought together important international law principles relating to detention with existing UNHCR doctrine.  They set out minimum standards for what might be considered acceptable state practice.”  At para 13 it stated that the revised 1999 Guidelines reiterate the principle that detention of asylum-seekers should be an exception, not the rule.  It is worth setting para 15 out in full as this deals with identity concerns, which it states should not routinely be judged as making detention necessary, absent other factors.

Many jurisdictions make detention of asylum-seekers mandatory where the person does not have identity documents, or uses false documents.  States must, however, recognize that the very circumstances which prompt the flight may compel an asylum-seeker to leave without documents or to have recourse to fraudulent documentation when leaving a country where his/her physical safety or freedom is endangered.  Where such compelling circumstances exist, the use of such documentation would be justified.  Where there is a willingness on the part of the asylum-seeker to cooperat[e] with the verification of identity process and asylum-seekers have not destroyed their documents with the sole purpose of misleading the authorities, detention in order to verify identity should not routinely be judged necessary, in the absence of other factors.

(a) Governments should ensure that detention of asylum-seekers is resorted to only for reasons recognized as legitimate, consistent with international standards and only when other measures will not suffice;  detention should be for the shortest possible period;

(b) The detaining authorities must assess a compelling need to detain that is based on the personal history of each asylum-seeker;

(c) If detained, asylum-seekers should be provided in writing, in a language they understand, with the reasons for detention, together with a written explanation of their rights and how to exercise them;

(d) Each decision to detain should be reviewed periodically as to its necessity and its compliance with relevant legal standards by a court or similar competent independent and impartial body.  Where legal aid is available, asylum-seekers should have access to it;

(e) Alternative and non-custodial measures, such as reporting requirements, should always be considered before resorting to detention;

(f) Detained asylum-seekers should be held in conditions appropriate to their status and not with persons charged with or convicted of criminal offences (unless so charged or convicted themselves);

(g) Detained asylum-seekers should be given adequate access to UNHCR, their legal representatives and their relatives;

(h) Time-frames governing the duration of detention of asylum-seekers should not be unreasonable and should be prescribed by law;

(i) Unaccompanied minors should never be detained on account of illegal entry or presence;

(j) UNHCR, legal representatives and, where appropriate, specialized non-governmental organizations should have access to all places of detention, including transit zones at international ports and airports;

(k) All custodial staff should receive training related to the special situation and needs of asylum-seekers.  …

[272] I am not to be taken as suggesting that the Guidelines are binding.  They are, as their name suggests, guidelines only and are to be seen as an interpretive aid, in the same way that Court decisions from other jurisdictions would be regarded – see remarks of the majority in Attorney-General v E at para [39].  Obviously the Guidelines and the other documents have to be adapted as necessary to New Zealand conditions and in this case to the fact that other considerations can be taken into account in deciding whether detention is necessary than those relevant to the Convention alone.

[273] Operational Instruction and the Refugee Convention:  I move  now to examine whether the Operational Instruction reflects what is required under the Refugee Convention and, to the extent this may be different, NZBORA.

[274] From the analysis of the requirements of the Guidelines set out above it is clear that the greater restriction there is to be on a claimant’s freedom of movement the more scrutiny should be given to the reasons for detention.  I would adopt this analysis as fitting with the analysis of the term “necessary” in para [259] above as restricting both the extent of restrictions on freedom of movement and the reasons for such restrictions.  This also accords with NZBORA.

[275] Where there is to be a major restriction on the freedom of movement through detention as defined in Guideline 2 (which would occur in New Zealand where detention is to be in a penal institution) the factors discussed in Guideline 3 that can point to detention being necessary appear to require an  element of “fault” on the part of the claimant.  Again this appears to me to be appropriate and is the approach taken by the Operational Instruction with factors set out as possibly justifying detention in a penal institution including a person coming within s7(1), the destruction of documents with intent to mislead, the risk of absconding and a fraudulent claim to refugee status.  Even if those factors are present, either singly or in combination, the Instruction does not mandate detention.  The Operational Instruction still requires the considerations set out in the first part of the Instruction to be taken into account and an assessment made as to whether in the light of all the circumstances detention is necessary for a particular individual.  This approach is in my view in accordance with the Refugee Convention.

[276] Moving to the factors set out in the Instruction as relevant to a decision as to possible detention in the Mangere Centre I note first that, as the restrictions on freedom of movement are less than if detention takes place in a penal institution, then, in accordance with the principles set out in the Guidelines, the factors that may justify detention can be correspondingly less stringent.  This also is reflected in the Operational Instruction.  It is clear too that the presence of the factors set out in this part do not mandate detention.

[277] There were a number of specific issues that have been raised by Dr Harrison in relation to this section of the Instruction and I turn to these now.  The first is that there is a reversal of the presumption against detention (in relation to factor 1 and presumably factor 4).  The second is that it is not appropriate to take into account the Chicago Convention (which must be presumed to be behind factor 6) and thirdly that regard should not be had to the merits of a claim (factor 5).

[278] For ease of reference I repeat the relevant paragraphs here:

1. Where the identity (including nationality) of a refugee status claimant cannot be ascertained to the satisfaction of the NZIS and they are not to be detained in penal institution nor does there appear particular reasons for allowing them to enter the community unrestricted;

…

4. Where a refugee status claimant has arrived as part of a group of 10 or more persons and they are not to be detained in a penal institution nor does there appear particular reasons for allowing them to enter the community unrestricted;

5. Where a preliminary assessment of a refugee status claimant's claim suggests that the merits of the claim are not strong;  or

6. Where a refugee status claimant has no valid travel and/or identity document and there may be delay or difficulty in obtaining those documents in the event that their claim to refugee status is declined.

[280] However, a first impression regarding the lack of merit in a claim would not in my view of itself be enough to justify detention without the presence of other factors suggesting detention is necessary.  A first impression can never be other than that.  In addition, it would be the first impression of a person unused to and untrained in refugee matters about people who may be tired after long travel and who will certainly be very anxious about their future.  If they are refugees they will have a well-founded fear of persecution, and will no doubt be suffering from the effects of that persecution.  Difficulties in communication may be further compounded by language and cultural factors.

[281] Chicago Convention:  In relation to the Chicago Convention, the Crown submitted that the judge wrongly considered that reliance on this was fiscally motivated and thus that it was inappropriate to take it into account given the importance of the human rights involved.  The importance of the Chicago Convention in the Crown’s submission rather relates to the difficulty of securing turnaround for undocumented persons who are admitted into New Zealand.  If arrivals are not admitted into New Zealand then Annex 9 of the Convention provides a means by which return travel may be arranged without the need to procure identity documents.  Factor 6 is couched in terms of difficulties in obtaining documentation rather than referring to fiscal concerns which supports the Crown’s contention.  The Crown accepts that this consideration alone would not be sufficient to justify detention without the presence of other factors and that its importance as a consideration declines after the initial period.  With those caveats it is difficult to see that this consideration is of no relevance.  It may, however, be better if the caveats were made clear in the Instruction.

[282] Reversal of Presumption:  Moving finally to the reversal of presumption point I note first that this argument is difficult to sustain when the first part of the Instruction is clearly directed towards a decision of whether to detain.  That part of the Instruction shows no bias towards detention (and if anything a bias the other way).  The wording of two sentences in the second part of the Instruction cannot override this and cannot render the whole Instruction unlawful.

[283] It is true that factor 1 does imply a presumption of detention when identity is uncertain.  As indicated above, factor 1 was added in response to the events of September 11 and its purpose was to allay concerns both of the New Zealand public and the international community.  Whether detention is necessary cannot be assessed in a vacuum and must be assessed against the international and domestic conditions applying at the time.  In the aftermath of September 11 a more cautious approach was warranted but any decision to detain must still recognise that detention, even in an open centre, restricts freedom of movement.  There is still a need to consider whether detention is really necessary in each individual case to allay security concerns, even in a heightened security environment.  It must also be recognised that, given the travel difficulties faced by most refugee status claimants, a presumption in favour of detention of all claimants whose identity is uncertain would amount effectively to a wholesale policy of detention.  Adherence to factor 1 would not go so far as this as it does recognise there might be exceptions, but the wording should be changed in my view to make it clear that there should not be a presumption in favour of detention where identity is uncertain if no other factors suggest detention is necessary - see the remarks on identity in the Framework Document quoted earlier at para [269]).

[284] The same sort of considerations apply to factor 4 but to a lesser extent.  There may be particular logistical issues with group arrivals, particularly at the point of first arrival, and s128(13B)(b) provides legislative recognition of this.  Immigration officials must still, however, ensure that the detention of each individual in the group is necessary and, if so, that it lasts for the minimum time possible.  If detention is for administrative purposes related to the processing of a group, it must in my view be for administrative necessity and not administrative convenience.  It is likely to be justifiable on such grounds only for a short period after first arrival, without other factors being present in the case of a particular individual that would point to the necessity for continued detention.

Does the Operational Instruction deal only with the place of detention?

[285] As this was a specific finding of Baragwanath J I deal with this separately.  In my view it is clear from a reading of the Instruction as a whole that it does not just deal with the place of detention but also deals with whether detention is justified.

[286] As indicated above, the first half of the Instruction is devoted to the decision as to whether to detain.  The second half is rather a confusing mix as it purports to deal with both decisions but without distinguishing between the two.  If the second half stood alone then there would have been an argument that, although it purported to deal both with whether to detain and where, it would likely to have been read as really only directed to the latter and thus would likely have led to error.  Even though the second half does not stand alone and thus the Instruction cannot be read in this manner, it would be beneficial to tidy up the second half and separate out the factors relating to whether detention should take place from those dealing with the place of detention (even though this will involve some repetition).  The fact that this was not done cannot constitute illegality, however.

[287] In practice the decision whether or not to detain is tied to the permitting decision, with the decision not to grant a permit automatically leading to a decision to detain – see affidavit of Diana Hodgins of 9 April 2002 (para 28).  This means that the first half of the Instruction is really a discussion of whether or not to issue a permit.  It would be better if the Instruction set this out so that the connection is clearly in the minds of officials.  This would ensure that the factors set out in that first half are taken into account at the permitting stage but I accept that the connection would be obvious to immigration officers as it is the invariable practice to link a lack of permit with detention.

[288] Read in this light the second half of the Instruction makes more sense as it does then become largely a discussion of the place of detention, the decision to refuse a permit having already been made in accordance with the factors set out in the first half. The fact that the second half of the Instruction is expressed as still being concerned with whether to detain can be seen as an additional protection for claimants.  A more detailed assessment in accordance with the factors set out in the second half may still result in the issue of a permit.

[289] As a matter of law I do not consider that the detention decision is necessarily tied to the permitting decision.  While anyone in New Zealand without a permit is in New Zealand unlawfully, there is no criminal sanction.  Section 128 itself envisages that release can occur without a permit and therefore for someone to be released from detention to be in New Zealand unlawfully. Even while in detention, under s128(4) detainees are deemed to be in New Zealand unlawfully.  Equally, however, there is nothing that prohibits a link being made between the permitting decision and the detention decision.  It can also hardly be deemed unreasonable in any sense of the word for an immigration officer to be reluctant to release a person without a permit who will then be at large unlawfully in New Zealand.

[290] Finally on this topic it is worth stressing that if, in the case of any individual, the permitting decision does not consider and where appropriate take into account the factors that are relevant to a detention decision, then there will be an error of law.

Coming directly from a territory

[291] The Crown’s submission was that there may be different considerations for some refugee status claimants because they have not come directly from a territory where their life or freedom has been threatened.  This is not a point that is addressed in the Operational Instruction and it is therefore unnecessary to deal with it.  I do comment that it is appropriate in my view that it is not dealt with in the Operational Instruction.  The law relating to the “coming directly” test is complicated and the subject of much international debate.  Immigration officers, however well trained, could not be expected to address this question.  In addition, NZBORA issues will still arise in relation to such persons.

Must the police make the detention decision?

[292] Dr Harrison argued that the s128(5) discretion must be exercised by a member of the police and not by immigration officials.  This point was rejected by Baragwanath J.  I too would reject it. I agree with McGrath J that it is implicit in s128(5) that the police are to act in light of advice from the Immigration Service (see para [122] of his judgment).

Conclusion on Operational Instruction

[293] Although I suggest some changes in wording I do not consider that the Operational Instruction of 19 September 2001, properly interpreted, is unlawful.  The Instruction is clear that a detention decision must assess all the factors relating to the arrival of the claimant and make a decision based on an individual assessment of circumstances.  There is a specific reference to art 31 of the Refugee Convention and the Guidelines and the fact that detention should only occur where necessary.  There is also a reminder that genuine claimants will find even a short period of detention stressful.  This approach is clearly in line with the Refugee Convention.

[294] The Instruction lists factors that may (but not must) justify detention in a penal institution.  These factors all require some ‘fault’ on the part of the claimant.  This accords with the approach in the Guidelines which suggest that the greater the restriction on freedom of movement, the greater the risk to public order or national security must be.  The Mangere Centre provides more freedom of movement.  It is appropriate therefore for the factors that may (not must) justify detention in that centre are less stringent than in the case of possible detention in a penal centre.  Again this is in accordance with the Guidelines.  Whether detention is justified either in a penal institution or the Mangere Centre must be assessed in the light of the considerations set out in the first half of the Instruction and all the circumstances in each individual case.  Construed properly, therefore, the Instruction is in line with the approach mandated by the Refugee Convention and indeed by NZBORA.

[295] It must be remembered, however, that the choice being made by immigration officers is a choice between release into the community with no restrictions at all and detention in an open centre.  Especially in times of heightened security consciousness this could create a bias towards detention.  It may be that many security concerns could be met by lesser restrictions on freedom of movement than provided at the Mangere Centre, such as reporting or residence requirements discussed in Guideline 4.  This would require legislative amendment.  I do note that the situation of detainees has been ameliorated and the options extended by the introduction of s128AA under which conditional release is now available, but it may be that consideration should be given to introducing a wider range of options.

[296] Before leaving this topic I comment that the Operational Instruction only deals with the initial decision to detain.  There are other safeguards built into the detention regime.  Administrative review is undertaken, according to the December Lockhart memorandum, after 14-20  days.  Judicial review is available under s128A, although as legal aid is not available for such applications and many claimants may be unwilling to ‘rock the boat’, that may in many cases be an illusory safeguard.  As mentioned, conditional release is now available, however, which provides another option.  Finally the detention is subject to judicial supervision after the initial 28-day period.  Such judicial supervision is not a rubber-stamping exercise.  Judges must give proper consideration as to whether there is a necessity for continued detention.  In this regard I agree with the remarks of McGrath J at para [104] of his judgment.

Was the detention policy lawful?

[297] On the basis of the percentages of claimants detained, Baragwanath J in his 31 May interim judgment concluded that there was a wholesale policy of detention and that detention was essentially indiscriminate.  The “necessity for detention” test was not in his view being applied.  In the supplementary judgment of 27 June he did not give any relief to any of the individual claimants in this regard on the basis that they should make individual application.  Nor did he make the requested declaration that the refugee policy was unlawful.  Dr Harrison submitted that such declarations should have been made.

[298] As indicated in the judgment prepared by Tipping J, the increase in the use of the detention power in the period after the Operational Instruction of 19 September 2001 does give cause for concern.  An increase in detention rates from 5% to 94% (or 85.6% if one excludes the Tampa claimants) can only be described as dramatic.  The concern is that, despite the terms of the Operational Instruction, there has in practice been a presumption in favour of detention and no real consideration given to whether detention is necessary (as is required by the Operational Instruction, the Refugee Convention and NZBORA).

[299] This was an unusual period, however.  The detention figures included the Tampa arrivals (and s128(13B)(b) is statutory recognition of the issues raised in the case of group arrivals of this kind).  The availability of the Mangere Detention Centre would also have had an effect (and, as discussed above, not necessarily an illegitimate one) on the levels of detention.  Further, there was a heightened security situation after September 11.  In addition, the one example of a detention decision that was put forward for the period, being the detention of D, does not support a contention of detention without due consideration of individual circumstances.  The circumstances of D’s arrival and the detention decision are discussed in the judgment prepared by Tipping J.  That the detention of D in the Mangere Centre was necessary was a conclusion clearly open to Ms Hodgins, given the combination of identity and s7(1) issues in D’s case.

[300] No definitive finding on whether the detention policy is unlawful can be made given the unusual features of the period as outlined above and (at the least) in the absence of individual examples where a conclusion that detention was necessary was much more dubious than in D’s case.  If those rates of detention continued, however, over a longer period the situation may be different.  The Crown submitted that the detention rates have fallen markedly but this may be because the Operational Instruction of 19 September 2001 was replaced after Baragwanath J’s judgment by one containing more restrictive criteria.

[301] I comment too that any decision that the detention policy was unlawful would not necessarily affect the legality of particular individual detention decisions.

Conclusion

[302] For the reasons given above I consider that s128 is available for the detention of refugee status claimants.  I have also concluded that it is not possible at this stage to make any findings with regard to the unlawfulness or otherwise of the detention policy of the Immigration Service.  I would therefore dismiss the cross-appeal.

[303] I would allow the Attorney-General’s appeal on the basis that the Operational Instruction is not unlawful (although I have suggested some wording changes).
 

Solicitors for the appellant: Crown Law Office (Wellington)
Solicitors for the first and second respondents: Ryken & Associates (Auckland)

1. Drugs, alcohol, offensive weapons and disabling substances must not be brought into the Centre.
2. Residents must not take or use property that does not belong to them without permission of the owner or the Person in Charge of the Centre.
3. Residents must not enter the bedroom of another resident (without the permission of that other resident).
4. Residents must not eat or drink in the accommodation buildings.
5. Residents must not do anything that would endanger the safety or well-being of any person or damage any property, and they must not smoke in any building.
6. Residents must behave in an orderly and considerate manner at all times, having regard for the other residents at the Centre.
7. Residents must keep their person, clothing, room and personal effects clean and tidy.
8. Residents must observe the wakeup and lights out times.
9. Residents must not entertain visitors except with the permission of the Person in Charge or other responsible staff member, in the designated area and at the designated times.
10. Residents must comply with instructions from the Person in Charge in relation to emergency situations (e.g. fire alarm).
11. Residents must not commit criminal offences while at the Centre or while on leave.
12. At no time are residents permitted to be in identified “prohibited areas”.
13. Residents must have the written permission of the Person in Charge of the Centre or a responsible authorised staff member to be absent from it.  Where residents have been granted permission to be absent from the Centre for a specified time they must sign out in the Residents’ Register before leaving the Centre and they must sign in in the Residents’ Register upon their return to the Centre.  Failure to comply with this rule may mean removal from the Centre, detention in a prison and being charged with a serious criminal offence.

I _____________________________ have had the rules set out above read to me and I understand them and agree to abide by them.  I understand that a breach of these rules, particularly rule 13 about not leaving the Centre without permission, may result in me being charged with criminal offending by the Police and/or being detained in a prison.

Signed _______________________
           (Resident)
 

I, _________________________ have read this document to the resident and they understand its contents.

Signed ____________________________  Date ______________
               (Interpreter or Staff Member)
 

1. Residents have the right to be treated with humanity and with respect for the inherent dignity of their person.
2. Although residents may be granted leave from the Centre, while at the Centre they are legally detained.
3. Residents have the right to know the reason for their detention and the basis for it.
4. Residents have the right to test in court the lawfulness of their detention at the Centre.
5. Residents have the right to contact a solicitor or counsel (or any responsible adult where the resident is under 17 years of age) and, subject to reasonable practicability, to see and communicate in private with the solicitor or counsel or responsible adult.
6. Residents have the right to privacy in their affairs.  Residents’ rooms will not be searched except by the Police acting pursuant to their powers.  Residents will not be searched unless incidental to a lawful physical restraint or if they are searched by the Police acting pursuant to their powers.
7. Residents have the right to freedom of thought, conscience, religion and belief and the right to express those things.  Residents may use available telephones and may write and send letters to this end.
8. Residents have the right to practice their religion and to enjoy their culture, including the use of their language.
9. Residents have the right to pursue fully any claim to refugee status lodged in New Zealand.
10. Residents have the right to complain to the Person in Charge and to an Ombudsman about any matter affecting their treatment or welfare.

These rights are conferred principally by the New Zealand Bill of Rights Act 1990 and the Immigration Act 1987.

I _____________________ have had the rights set out above read to me and I understand them.

Signed ___________________________
                     (Resident)
 

I __________________________________ have read this document to the resident and they understand its contents.

Signed ___________________________ Date ____________________
              (Interpreter or Staff Member)
 

Guideline 1:  Scope of the Guidelines

These guidelines apply to all asylum-seekers who are being considered for, or who are in, detention or detention-like situations.  For the purpose of these guidelines, UNHCR considers detention as:  confinement within a narrowly bounded or restricted location, including prisons, closed camps, detention facilities or airport transit zones, where freedom of movement is substantially curtailed, and where the only opportunity to leave this limited area is to leave the territory.  There is a qualitative difference between detention and other restrictions on freedom of movement.

Persons who are subject to limitations on domicile and residency are not generally considered to be in detention.

When considering whether an asylum-seeker is in detention, the cumulative impact of the restrictions as well as the degree and intensity of each of them should also be assessed.

Guideline 2:  General Principle

As a general principle asylum-seekers should not be detained.

According to Article 14 of the Universal Declaration of Human Rights, the right to seek and enjoy asylum is recognised as a basic human right.  In exercising this right asylum-seekers are often forced to arrive at, or enter, a territory illegally.  However the position of asylum-seekers differs fundamentally from that of ordinary immigrants in that they may not be in a position to comply with the legal formalities for entry.  This element, as well as the fact that asylum-seekers have often had traumatic experiences, should be taken into account in determining any restrictions on freedom of movement based on illegal entry or presence.

Guideline 3:  Exceptional Grounds for Detention

Detention of asylum-seekers may exceptionally be resorted to for the reasons set out below as long as this is clearly prescribed by a national law which is in conformity with general norms and principles of international human rights law.  These are contained in the main human rights instruments.

There should be a presumption against detention.  Where there are monitoring mechanisms which can be employed as viable alternatives to detention, (such as reporting obligations or guarantor requirements [see Guideline 4]), these should be applied first unless there is evidence to suggest that such an alternative will not be effective in the individual case.  Detention should therefore only take place after a full consideration of all possible alternatives, or when monitoring mechanisms have been demonstrated not to have achieved the lawful and legitimate purpose.

In assessing whether detention of asylum-seekers is necessary, account should be taken of whether it is reasonable to do so and whether it is proportional to the objectives to be achieved.  If judged necessary it should only be imposed in a non discriminatory manner for a minimal period.

The permissible exceptions to the general rule that detention should normally be avoided must be prescribed by law.  In conformity with EXCOM Conclusion No. 44 (XXXVII) the detention of asylum-seekers may only be resorted to, if necessary:

(i) to verify identity.

This relates to those cases where identity may be undetermined or in dispute.

(ii) to determine the elements on which the claim for refugee status or asylum is based.

This statement means that the asylum-seeker may be detained exclusively for the purposes of a preliminary interview to identify the basis of the asylum claim.  This would involve obtaining essential facts from the asylum-seeker as to why asylum is being sought and would not extend to a determination of the merits or otherwise of the claim.  This exception to the general principle cannot be used to justify detention for the entire status determination procedure, or for an unlimited period of time.

(iii) in cases where asylum-seekers have destroyed their travel and/or identity documents or have used fraudulent documents in order to mislead the authorities of the State, in which they intend to claim asylum.

What must be established is the absence of good faith on the part of the applicant to comply with the verification of identity process.  As regards asylum-seekers using fraudulent documents or travelling with no documents at all, detention is only permissible when there is an intention to mislead, or a refusal to co-operate with the authorities.  Asylum-seekers who arrive without documentation because they are unable to obtain any in their country of origin should not be detained solely for that reason.

(iv) to protect national security and public order.

This relates to cases where there is evidence to show that the asylum-seeker has criminal antecedents and/or affiliations which are likely to pose a risk to public order or national security should he/she be allowed entry.

Detention of asylum-seekers which is applied for purposes other than those listed above, for example, as part of a policy to deter future asylum-seekers, or to dissuade those who have commenced their claims from pursuing them, is contrary to the norms of refugee law.  It should not be used as a punitive or disciplinary measure for illegal entry or presence in the country.  Detention should also be avoided for failure to comply with the administrative requirements or other institutional restrictions related residency at reception centres, or refugee camps.  Escape from detention should not lead to the automatic discontinuation of the asylum procedure, or to return to the country of origin, having regard to the principle of non-refoulement.

Guideline 4: Alternatives to Detention.

Alternatives to the detention of an asylum-seeker until status is determined should be considered.  The choice of an alternative would be influenced by an individual assessment of the personal circumstances of the asylum-seeker concerned and prevailing local conditions.

Alternatives to detention which may be considered are as follows:

(i) Monitoring Requirements.

Reporting Requirements:  Whether an asylum-seeker stays out of detention may be conditional on compliance with periodic reporting requirements during the status determination procedures.  Release could be on the asylum-seeker’s own recognisance, and/or that of a family member, NGO or community group who would be expected to ensure the asylum-seeker reports to the authorities periodically, complies with status determination procedures, and appears at hearings and official appointments.

Residency Requirements:  Asylum-seekers would not be detained on condition they reside at a specific address or within a particular administrative region until their status has been determined.  Asylum-seekers would have to obtain prior approval to change their address or move out of the administrative region.  However this would not be unreasonably withheld where the main purpose of the relocation was to facilitate family reunification or closeness to relatives.

(ii) Provision of a Guarantor/Surety.  Asylum-seekers would be required to provide a guarantor who would be responsible for ensuring their attendance at official appointments and hearings, failure of which a penalty most likely the forfeiture of a sum of money, levied against the guarantor.

(iii) Release on Bail.  This alternative allows for asylum-seekers already in detention to apply for release on bail, subject to the provision of recognisance and surety.  For this to be genuinely available to asylum-seekers they must be informed of its availability and the amount set must not be so high as to be prohibitive.

(iv) Open Centres.  Asylum-seekers may be released on condition that they reside at specific collective accommodation centres where they would be allowed permission to leave and return during stipulated times.

These alternatives are not exhaustive.  They identify options which provide State authorities with a degree of control over the whereabouts of asylum-seekers while allowing asylum-seekers basic freedom of movement.

Guideline 5:  Procedural Safeguards

If detained, asylum-seekers should be entitled to the following minimum procedural guarantees:

(i) to receive prompt and full communication of any order of detention, together with the reasons for the order, and their rights in connection with the order, in a language and in terms which they understand;
(ii) to be informed of the right to legal counsel.  Where possible, they should receive free legal assistance;
(iii) to have the decision subjected to an automatic review before a judicial or administrative body independent of the detaining authorities.  This should be followed by regular periodic reviews of the necessity for the continuation of detention, which the asylum-seeker or his representative would have the right to attend;
(iv) either personally or through a representative, to challenge the necessity of the deprivation of liberty at the review hearing, and to rebut any findings made.  Such a right should extend to all aspects of the case and not simply the executive discretion to detain;
(v) to contact and be contacted by the local UNHCR Office, available national refugee bodies or other agencies and an advocate.  The right to communicate with these representatives in private, and the means to make such contact should be made available.

Detention should not constitute an obstacle to an asylum-seekers’ possibilities to pursue their asylum application.  ……

Guideline 10:  Conditions of Detention

Conditions of detention for asylum-seekers should be humane with respect shown for the inherent dignity of the person.  They should be prescribed by law.

Reference is made to the applicable norms and principles of international law and standards on the treatment of such persons.  Of particular relevance are the 1988 UN Body of Principles for the Protection of all Persons under any form of Detention or Imprisonment, 1955 UN Standard Minimum Rules for the Treatment of Prisoners, and the 1990 UN Rules for the Protection of Juveniles Deprived of their Liberty.

The following points in particular should be emphasised:

(i) the initial screening of all asylum-seekers at the outset of detention to identify trauma or torture victims, for treatment in accordance with Guideline 7;
(ii) the segregation within facilities of men and women;  children from adults (unless these are relatives );
(iii) the use of separate detention facilities to accommodate asylum-seekers.  The use of prisons should be avoided.  If separate detention facilities are not used, asylum-seekers should be accommodated separately from convicted criminals or prisoners on remand.  There should be no co-mingling of the two groups;
(iv) the opportunity to make regular contact and receive visits from friends, relatives, religious, social and legal counsel.  Facilities should be made available to enable such visits.  Where possible such visits should take place in private unless there are compelling reasons to warrant the contrary;
(v) the opportunity to receive appropriate medical treatment, and psychological counselling where appropriate;
(vi) the opportunity to conduct some form of physical exercise through daily indoor and outdoor recreational activities;
(vii) the opportunity to continue further education or vocational training;
(viii) the opportunity to exercise their religion and to receive a diet in keeping with their religion;
(ix) the opportunity to have access to basic necessities i.e. beds, shower facilities, basic toiletries etc;
(x) access to a complaints mechanism, (grievance procedures) where complaints may be submitted either directly or confidentially to the detaining authority.  Procedures for lodging complaints, including time limits and appeal procedures, should be displayed and made available to detainees in different languages.

Conclusion

The increasing use of detention as a restriction on the freedom of movement of asylum seekers on the grounds of their illegal entry is a matter of major concern to UNHCR, NGOs, other agencies as well as Governments.  The issue is not a straight-forward one and these guidelines have addressed the legal standards and norms applicable to the use of detention.  Detention as a mechanism which seeks to address the particular concerns of States related to illegal entry requires the exercise of great caution in its use to ensure that it does not serve to undermine the fundamental principles upon which the regime of international protection is based.