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Court of Appeal Cases
Chief Executive of the
Department of Labour v Yadegary
Court of Appeal,
Wellington CA199/2007; [2008] NZCA 295;
[2009] 2 NZLR 495
19 March 2008; 13 August 2008
William Young P,
O'Regan and Baragwanath JJ
Detention -
detention for unreasonable period - public interest - exceptional
circumstances - whether detention in custody pending removal may become
illegal if it continues for unreasonable period - Immigration
Act 1987, s 60
Mr Yadegary, a citizen
of the Islamic Republic of Iran, arrived in New Zealand in 1993,
whereupon he destroyed his Iranian passport. Three applications
for refugee status followed. Each was unsuccessful, as was an
application to the Removal Review Authority, an application for
judicial review and applications to the Minister of Immigration. On 2
November 2004 Mr Yadegary was served with a removal order, taken
into custody and held at Auckland Central Remand Prison where he
remained under
successive warrants issued by the District Court. On 4 April 2007 he
was released by order of the High Court: Yadegary v Manager, Custodial Services,
Auckland Central Remand Prison [2007] NZAR 436 (Courtney J). The
Chief Executive of the Department of Labour appealed against that
decision.
The detention for two
years and five months was brought about by Mr Yadegary's refusal to
sign an application for an Iranian passport and for its part the
Iranian regime would not accept repatriation of its nationals without
such
passport. Mr Yadegary could have ended his detention by applying for an
Iranian passport, in which case he would have been immediately removed
from New Zealand. But he persistently refused to do so.
The question raised by
the appeal concerned the interpretation and effect of s 60 of the
Immigration Act 1987 which itself had been amended in response to a
decision of the
High Court ordering the release of two Iranian overstayers who
had similarly refused to apply for Iranian passports: Mohebbi v Minister of Immigration
[2003] NZAR 685. The amendment removed the three month limit to
detention in the case of persons whose own conduct is a reason for
their inability to leave New Zealand.
In the Court of Appeal
the majority (Baragwanath & O'Regan JJ) agreed that the appeal
should be dismissed but for different reasons. William Young P
dissented.
Held (per
Baragwanath J):
1 The
concepts of "unreasonable period" and "public interest" in s 60(3) of
the Immigration Act 1987 applied to persons falling within subs (6)
(see paras [7] to [9]).
2
By the terms "reasonable" and "exceptional circumstances" in s 60,
Parliament
intended to preserve the right to be free from detention that is
inappropriate, unnecessary and unpredictable. It could be only in the
most unusual of circumstance that detention for a period that is
unreasonable could nevertheless be in the public interest (see paras
[39], [40] & [71]).
3
Detention of persons falling within s 60(6) must terminate if either:
(a) There are exceptional circumstances, which
includes the case where further detention would be for an unreasonable
period unless it is in the public interest to make a warrant of
commitment; or
(b) The purpose of placing the person on a craft that
is leaving New Zealand is no longer being served.
These categories may overlap (see para [83]).
4
What is an unreasonable period may depend upon two particular
considerations. One is a realistic prospect that the means of removing
the person from New Zealand will come into existence, as by the
securing of an agreement with the authorities of another state. The
other is simply that too much time has elapsed. What is in the public
interest also requires particular consideration (see para [84]).
5
As to "unreasonable period", the principle of legality requires very
clear language before there is departure from the constitutional basic:
in New Zealand we do not imprison for long periods persons who have not
offended gravely against the criminal law. The principles behind our
sentencing and bail legislation reflect an awareness that deprivation
of liberty is a severe step and that alternatives should always be
considered. In the present case, at the time of the District Court
Judge's decision Mr Yadegary had already been in detention for two
years. At least an additional six months must have been in the Judge's
contemplation. In terms of the application of the Parole Act 2002 the
total would equate to a term of between and seven and a half years
imposed by a criminal court at the time. At the time of the decision of
the District Court Judge it was apparent that the reasons Mr Yadegary
was not able to leave New Zealand were likely to remain in existence
for what would, by New Zealand standards, constitute an unreasonable
period. It follows that the "not unreasonable" time ground of s
60(3)(b) was not established (see paras [107] & [108]).
6
As to "public interest", the purpose of ensuring deportation and a high
level of compliance with immigration law indicate a firm perspective
that it is in the public interest to deport overstayers expeditiously
and to ensure that breaches immigration law are taken seriously. But
difficulty in the deportation process is already dealt with under s
60(3)(c), and the reasonableness requirement in that subsection cannot
be short-circuited by an appeal to the public interest. Some other
circumstance is needed such as, for example, risk of offending or
absonding. In the present case, the only factor that could take Mr
Yadegary's case outside the normal circumstances that would call for a
s 60(3)(c) assessment was his refusal to sign the travel documents.
There is no danger to the public and a very low flight risk. The fact
that terrorism suspects are eligible to apply for bail is a significant
pointer against the proportionality of treating public interest as
requiring indefinite detention in the present case. There was not
sufficient public interest in Mr Yadegary's detention to
warrant further incarceration beyond a reasonable period. It followed
that the ground in s 60(3)(d) was not established (see paras [109]
&
[110]).
Held (per O'Regan J):
7
I disagree with the analysis of Baragwanath J that a judge determining
whether an uncooperative detainee's warrant for detention should be
renewed is required to be satisfied that the reasons that the detainee
cannot leave New Zealand under s 60(3) continue and are likely to
continue "but not for an unreasonable period" or that it is "in the
public interest" that the detainee's detention continue. In my view, s
60(6A) provides its own authority for a Judge to extend a warrant
whether s 60(3) applies or not - all that is required is that the Judge
had decided not to order the detainee's release under s 60(6) (see para
[188]).
8
On the facts before us I accept that the purpose of removing Mr
Yadegary remains achievable because the negotiations with Iran may
yield a result that makes it possible to remove him without his signing
anything. I also accept that continued detention of Mr Yadegary would
serve the subsidiary purpose of detering non-cooperation by others (see
para [191]).
9
The question is whether Mr Yadegary's position amounted to an
exceptional circumstance at the time the District Court considered the
application for the extension of the warrant of commitment. It is clear
that the mere fact of imprisonment for more than the three month
maximum period referred to in s 60(7) does not constitute
exceptionality. Those who delay their removal by their own actions are
not entitled to the protection of that time limit (see para [192]).
10
The time factor cannot be excluded from the consideration of
exceptional circumstances. If it were excluded, as the Crown argued it
should be, indefinite imprisonment would have to be countenanced, and
the Crown rightly conceded the section did not provide for that. I
agree with Baragwanath J that, if the time factor was intended to be
excluded from the analysis of exceptional circumstances, s 60(6) would
have needed to say so (see para 193).
11
The circumstances would be exceptional if the only method of removing
Mr Yadegary was with his cooperation and the purpose of coercion could
not be expected to succeed. If the coercion purpose could not be
expected to succeed, neither could the overarching purpose of effecting
Mr Yadegary's removal. The point at which the purpose of coercion can
be said to have failed is a matter on which views can reasonably
differ, but I would be prepared to find on the present facts that it
had been reached after 29 months of detention. Such a period is also
sufficient in my view to disincentivise non-cooperation (though I
acknowledge that an even longer period of detention would provide an
even greater disincentive). It has to be remembered that the situation
which led to the enactment of s 60(6) was that there was a three month
maximum. Mr Yadegary was in detention for almost ten times as long as
that (see para [194]).
Held (per William
Young P) (dissenting):
13 It is
implicit in the scheme of ss 59 and 60 that the detention which is
contemplated is for the purpose of facilitating removal. I am therefore
prepared to accept that there may be cases where removal is so unlikely
or remote in time as not to warrant detention (see para [218]).
14 In
a situation which is covered by s 60(6), the critical issue is whether
there are "exceptional circumstances" and the reasonableness or
otherwise of the period of detention which is brought about by the
recalcitrance of the detainee is not a controlling consideration. In
saying this, however, I am not disputing the relevance of length of
detention. A period of detention which goes beyond what could have been
contemplated by the legislature in enacting s 60(6) will, I accept,
amount to an exceptional circumstance (see para [226]).
15 I
proceed on the basis that the legislation would not permit holding Mr
Yadegary in prison until he either dies or cooperates in his removal
(which is what I mean by indefinite detention). I see such a limitation
as able to be achieved by either (or both):
(a) Construing or applying the exceptional
circumstances test so as to include detention which has - or threatens
to - become indefinite; and
(b) Accepting that detention which has (or threatens
to) - become indefinite is necessarily associated with any prospect of
removal in unacceptably unlikely or remote in time.
I do not think it matters which approach is taken. For ease of
discussion I propose to treat indefiniteness of length of detention as
an independent basis justifying release. I should make it clear,
however, that I see a difference between indefinite detention (as I
have defined it) and indeterminate detention which is contemplated
under s 60(6) in the sense that at the point detention begins, it is
not necessarily going to be clear when it will end (see para [229]).
16
This analysis does not solve the fundamental problem of identifying a
point in time when detention must cease and exposes a fundamental
weakness in the legislative scheme in the context of the sort of
Iranian overstayers to whom it was addressed. Unless there is a
diplomatic solution, there will necessarily come a time when a detainee
who refuses cooperation will have to be released. Of course,
identifying the length of time after which the courts will require
release (which in reality is what the judgment of Courtney J does) is
an invitation to such overstayers to sit out the government and in this
way obtain de facto residency (which, subject to the possibility of a
diplomatic solution, is what Mr Yadegary has now managed to do) (see
para [230]).
17 I
am not particularly enamoured of my own interpretation of the section.
In involves a degree of coercion which, as well as being a little
uncomfortable to contemplate, will not necessarily be effective; this
because even on my approach, a detainee in Mr Yadegary's situation will
know that, absent a diplomatic solution, he or she will eventually be
released (albeit on my approach probably after a period considerably
longer than two years). On the other hand, at least on my approach, the
policy under-pinning s 60(6), imperfect though it may be, is given a
chance to work. A section is not given a chance to work if the courts
treat as an exceptional circumstance a period of detention during which
Mr Yadegary was seeking to remain in New Zealand and thus could not
sensibly have been expected to leave voluntarily (see para [231]).
18 It
is at least possible that Mr Yadegary might eventually cooperate in his
return and I do not see the proposed removal of Mr Yadegary as so
unlikely or remote as to no longer justify detention. The possibility
of Mr Yadegary submitting to removal has yet to be excluded. Given that
the underlying statutory purpose may still be achieved, the detention
was not indefinite (see paras [254], [255] & [257]).
19 As
to whether there are exceptional circumstances which warrant Mr
Yadegary's conditional release, the sort of circumstances which are
part and parcel of the ordinary run of cases which must have been
envisaged when the legislative scheme was enacted do not seem to me to
be properly regard as "exceptional". So the general unpleasantness of
imprisonment (which is a given in any debate about imprisonment) and
predictable impacts of detention on Mr Yadegary seem to me to be of no
more than contextual significance. Nor in the absence of flight risk
(because absence of flight risk is a precondition to the discretion to
release under s 60(5), which is constrained by s 60(6)) (see para
[262]).
20
The only factor associated with the case which might be exceptional is
the length of Mr Yadegary's detention. I have no difficulty in
accepting that length of detention may be an exceptional circumstance.
I also agree that whether any particular period of detention amounts to
an exceptional circumstance falls to be determined in the context of
the other time limits stipulated in s 60 (72 hours, 7 days and three
months). But it also falls to be determined in the context of the sort
of situation which the legislature must have envisaged as likely to
arise involving an obdurate detainee who was not prepared to cooperate
in repatriation. In this context, s 60(8) is of significance. If the
judgment of Courtney J is upheld, the next person in Mr Yadegary's
situation will be reasonably confident that, absent a change in policy
by the Iranian government, he or she will gain de facto residency
rights if prepared to spend say two years in prison. Someone who
prefers to live in New Zealand rather than Iran may well be prepared to
undergo two years imprisonment on that basis. So the reality is that
the result of this case will encourage non-compliance with immigration
laws, both by Mr Yadegary (who will be encouraged to remain in resolute
defiance of his obligations under s 45 of the Act) and by anyone else
similarly placed. As already indicated by my approach to the issues
associated with remoteness of removal and whether Mr Yadegary's
detention had become indefinite, I think that the underlying
legislative purpose had not been spent in his case at the time he was
released. In short, I am of the view that the circumstances of Mr
Yadegary were not exceptional (see paras [263] to [266]).
Appeal dismissed
Other cases
mentioned
in the judgment
A-G
for Canada v Cain, A-G for
Canada v Gilhula [1906]
AC 542 (PC)
Al-Kateb v
Godwin (2004) 219 CLR 562 (HCA)
Auckland District Court v
Attorney-General [1993] 2 NZLR 129 (CA)
Canada
(Minister of Citizenship & Immigration) v
Kamail [2002] FCT 381
Canada
(Minister
of Citizenship and Immigration) v Romans [2005] FC 435
Clark v Martinez
543 US 371 (2005)
Clarke v Police
(High Court Auckland AP208/95, 11 October 1995)
Creedy v Commissioner of
Police (2008) NZELC 99,336
Crowley’s Case (1818) 2 Swans
1, 67-8; 36 ER 514, 53 (HC)
Danchevsky v Danchevsky [1974]
3 All ER 934 (CA)
Enfield London Borough Council v Mahoney
[1983] 1 WLR 749 (CA)
Eshugbayi
Eleko v Government of Nigeria (Officer
Administering) [1931] AC 662 (PC)
Ghuman v
Registrar of the Auckland District Court [2004] NZAR 440 (HC)
Khawaja
v Home Secretary [1984] AC 74 (HL)
Lawrence v Texas 539 US 558
(2003) (USSC)
Lema v INS 341 F 3d 853 (2003)
Minister of
Immigration and Multicultural and Indigenous Affairs v Al
Masri (2003) 126 FCR 54
Mohebbi v Chief Executive of the
Department of Labour
(High Court Auckland CIV 2007-404-3710, 5 November 2007)
Mohebbi v Minister of
Immigration [2003] NZAR 685
Padfield
v Minister of Agriculture, Fisheries and Food
[1968] AC 997 (HL)
Pelich v INZ 329 F 3d 1057 (2003)
R (on the application
of Saadi and others) v
Secretary of State for the Home Department [2002] 1 WLR 3131
(HL)
R (ex parte A) v
Secretary of State for the Home Department [2007] EWCA Civ 804
R (A) v Home Secretary [2007]
EWCA Civ
804
R (I) v Home Secretary [2003] INLR
196 (CA)
R (Q) v Home Secretary
[2006] EWHC 2690 (Admin)
R v Andersen [2005] 1 NZLR 774 (CA)
R v Asfaw [2008] 2 WLR 1178 (HL)
R v Goodwin (No 2) [1993] 2 NZLR
390 (CA)
R v Governor of Durham Prison, ex
parte Hardial Singh [1984] 1 WLR 704 (QBD)
R v Home Secretary ex parte Simms
[2000] 2 AC 115 (HL)
R v Kelly
[2000] QB 198 (QB)
R v
Uxbridge Magistrates’ Court, ex p Ademi [2001] QB 667 (QB)
Rajamani v R
[2008] 1 NZLR 723 (NZSC)
Re Barrell Enterprises
[1973] 1 WLR
19 (CA)
Re Davies (1888) 21
QBD 236
Rojas v The Queen (1978) 88 DLR
(3d) 154
Roodal v State of Trinidad and Tobago [2005]
1 AC 328 (PC)
Sahin v Canada (Minister of Citizenship
and Immigration)
[1995] 1 FC 214
Solicitor-General v
Siemer (High Court Auckland CIV 2008-404-472, 8 July 2008)
Tan Te Lam v Tai A
Chau Detention Centre [1997] AC 97 (PC)
Taunoa v Attorney-General [2008] 1
NZLR 429 (NZSC)
van
Alphen v The Netherlands Comm
305/1988 23 July 1990 (UNHRC)
Wilkins &
Field Ltd v Fortune [1998] 2 ERNZ 70
Wong v R
[2008] NZSC 29
Yadegary v Manager, Custodial Services,
Auckland Remand Prison [2007] NZAR 436
Zadvydas v Davis 533 US 678 (2001)
Zaoui v Attorney-General
[2005] 1 NZLR 577
Counsel
M S R Palmer and B J R Keith for the
appellant
DJ Ryken for
the respondents
Judgment of the Court:
A The appeal is
dismissed.
B The appellant must pay the
respondent’s costs which we fix at $6,000 plus usual disbursements.
C The Court orders that the affidavits of Arron Baker may not be
searched nor published.
REASONS
Table
of Contents
The appeal and its context
Background facts
The immediate legislative
scheme
The submissions
Tools of interpretation
Text
The Bill of Rights Act and the
principle of legality
Context
New Zealand imprisonment
policy
Criminology and the criminal law
The purposes of detention under s 60
Custodial sentences in New Zealand
(i)
The Sentencing Act 2002
(ii)
The Bail Act 2000
(iii) The Immigration Act 1987
(iv) Appropriate lengths of
imprisonment
Discussion
Purposes
The principle
Review of the District
Court decision
The grounds in s 60(3) and (6)
Section
60(3)(c)
Section
60(3)(d)
The presence of a s 60(6) factor and
exceptional circumstances
Application of principles
Unreasonable
period
Public
interest
Exceptional
circumstances
Summary: evaluating subs
(6) cases
The alternative ground:
arbitrary detention
Decision
Orders
Appendix
The
international context
(i)
The United Kingdom
(ii) Hong Kong
(iii) Canada
(iv) Australia
(v) USA
The appeal and its context
[1] The respondent is an
Iranian national who is unlawfully in New Zealand. In November 2004 he
was detained by a warrant of commitment made under s 60 of the
Immigration Act 1987. He remained in detention until April 2007, when
he was released by order of the High Court: Yadegary v Manager, Custodial Services,
Auckland Remand Prison [2007] NZAR 436. The Chief Executive of
the Department of Labour now appeals against that decision.
[2] The respondent had destroyed his
passport and, as Iran will not accept repatriation of its nationals
without a passport, he could not be deported. The respondent could have
ended his detention by applying for an Iranian passport to replace the
one he destroyed, in which case he would have been immediately
deported. But he has persistently refused to do so.
[3] The question raised by this
appeal concerns the interpretation and effect of s 60 as part of the
scheme for removal of unlawful immigrants from New Zealand. The section
was amended in response to a decision of the High Court which ordered
the release of two Iranian overstayers who refused to apply for
passports: Mohebbi v Minister of
Immigration [2003] NZAR 685. The amendment removed the
three-month limit in the case of persons whose own conduct is a reason
for their inability to leave New Zealand (s 60(6)). Certain other
aspects of the amendment must be examined in detail.
[4] Being unlawfully in New
Zealand, the respondent is obliged by law to leave (s 45). A removal
order was made against him by an immigration officer (s 54). He was
arrested (s 59) and detained under a series of warrants of commitment
issued by a District Court Judge and extended several times (s 60). Two
years after the respondent was first imprisoned, an application for a
further extension of the warrant of commitment was heard by Judge
Field. The Judge was satisfied that the respondent had committed no
criminal offence, was not a flight risk, and had support available if
granted conditional release from detention (available under s 60(5)).
But he understood s 60(6) to prohibit release in the absence of
“exceptional circumstances”. The Judge considered that there were no
“exceptional circumstances” and so granted the Crown’s application and
ordered that the warrant be extended. On judicial review of that
decision, Courtney J in the High Court decided that there were
“exceptional circumstances” and ordered that the respondent be released
on bail.
[5] Under international law the
decision whether a non-citizen may remain in New Zealand is the sole
prerogative of the executive. That is, in general, also the domestic
law of New Zealand. An often-cited statement (see R (on the application
of Saadi and others) v
Secretary of State for the Home Department [2002] 1 WLR 3131
(HL) at 794 –
795) is that of Lord Atkinson, giving the decision of the Privy Council
in A-G for Canada v Cain, A-G for Canada v Gilhula [1906]
AC 542 at 546:
One of the rights possessed by
the supreme power in every State is the
right to refuse to permit an alien to enter that State, to annex what
conditions
it pleases to the permission to enter it, and to
expel or deport from the State, at
pleasure, even a friendly alien, especially if it
considers his presence in the State
opposed to its
peace, order, and good
government, or to its social or material
interests: Vattel, Law of
Nations, book 1, s. 231; book 2, s. 125
[6] The allusion is to the elected
government, which has plenary
authority to admit immigrants to the country. It is only when statute
otherwise provides,
as in the case of
successful applicants to the Removal Review Authority (ss 47 - 52),
that the executive’s decision is not final. So the crucial question is
the meaning and
effect of s 60 in its amended form.
[7] I have reached the conclusion
that the learned District Court Judge
erred in extending the warrant of commitment. Because of the way the
legislation
was read in the
District Court and the High Court, as in this Court, the parties
confined their submissions to the concept of “exceptional
circumstances” in the new s 60(6). As a
result those Courts did not recognise the significance of the concepts
of “unreasonable period”
and “public interest” in s 60(3) which are imported in the present
class of case by
the new s 60(6A)(a)(ii). Courtney J was however right to grant relief
on the
exceptional circumstances ground.
[8] The other members of this Court
are of a different opinion as to
whether the concepts of “unreasonable period” and “public interest” in
s 60(3)
apply to persons falling
within subs (6). In my view the plain language of subss (3) and
(6A)(a)(ii) says that s 60(3) does apply. The other members regard subs
(3) as inapplicable, despite
the language, because the amendment to meet the Mohebbi decision introduced the
“exceptional circumstances” test for persons falling within subs (6);
that, they
consider, is inconsistent with the continued application of subs (3).
They say, in short, that
Parliament has made a mistake and we should read the section as if the
reference to subs (3)
were deleted.
[9] My view is that, since
Parliament has stated that subs (3) as well
as subs (6) applies, and since such construction can be adopted
consistently with
Parliament’s expression of its purpose, both subsections must be
applied by the Court. This
construction also accords with the New Zealand Bill of Rights Act 1990
(the Bill of Rights Act)
and the principle of legality. Moreover if doubt existed as to what
that purpose is, it must
be resolved in favour of the common law presumption in favour of
ability to apply for bail,
which under the Immigration Act is preserved even for terrorism
suspects and others who
threaten national security. Bail conditions are devised to ensure that
due process of law
is followed. If the Crown’s continued attempts to reach agreement with
Iran succeed, such
conditions should ensure that the respondent remains available to be
removed from New
Zealand.
Background
facts
[10] The respondent
arrived in New Zealand on 1 October 2003, whereupon
he destroyed his Iranian passport. This fact, and the fact that he
declines to apply
for a replacement, is central to the case and must be set in context.
Such conduct, like the
use of a false passport, may in the case of a bona fide refugee status
claimant have reduced
moral and sometimes legal significance: see R v Asfaw [2008] 2 WLR 1178 (HL)
approving R v
Uxbridge Magistrates’ Court, ex p Ademi [2001] QB 667 (QB),
followed in Ghuman v
Registrar of the Auckland District Court [2004] NZAR 440 (HC).
There is at present
no agreement between New Zealand and Iran by which the respondent could
be removed
there without his consent. While New Zealand has been negotiating with
Iran to alter its
policy of refusing entry to its citizens if they do not hold a
passport, there is no
evidence of likelihood of any change in the foreseeable future. As a
Christian convert, the
respondent believes that to return to Iran would expose him to risk of
death and he therefore
declines to apply for a passport. The relevant New Zealand authorities,
including Judges of the
District Court and of the High Court, accept the honesty of his belief.
[11] On his arrival in October
2003, the respondent applied for refugee
status on the ground of political persecution. The application was
declined by the
Refugee Status Branch of the Department of Labour (the RSB) and an
appeal to the Refugee
Status Appeals Authority (the RSAA) was dismissed. While the
respondent’s credibility
was accepted by the RSAA, which found that he might suffer difficulties
in Iran, the
ground of well-founded fear of persecution was not established.
[12] Following his conversion to
Christianity, the respondent made a
second application, based on fear of religious persecution. The
application was rejected by
the RSB and the RSAA. An application to the High Court for judicial
review of that
decision was dismissed. A third application to the RSB and to the RSAA
was dismissed as showing
no change of circumstances.
[13] An application to the Removal
Review Authority was also dismissed
and the dismissal was sustained on application to the High Court for
judicial
review. Applications
to the Minister of Immigration seeking a special direction in favour of
the respondent under s 130 were also rejected.
[14] On 2 November 2004 the
respondent was served with a removal order
and taken into custody at Auckland Central Remand Prison where he
remained under
successive warrants issued by the District Court. After delivery of
Courtney J’s judgment
on 4 April 2007 he was released on conditions fixed by the District
Court. Those included
residence at a stipulated address, a curfew between 7 pm and 7 am, and
reporting to
the police three times a week.
[15] The 29 months in custody took
their toll on the respondent. A
psychiatrist reported in July 2005:
He presents with a mixture of
both anxiety and depressive symptoms in
direct response to both his
incarceration and his ongoing uncertainty about
the possible
length of that
incarceration. In my opinion Mr Yadegary currently
qualifies for the diagnosis of adjustment disorder with depressed mood
and anxiety as per
the
Diagnostic and
Statistical Manual 4TR (DSMIV TR)) of the American
Psychiatric Association.
I am
also of the opinion that Mr Yadegary’s symptoms appear to be
worsening while incarcerated. It appears likely
that his symptoms will continue to
develop to the
point where he
develops a major depressive episode in the future unless
there is significant alteration to his
current circumstances. Continued
incarceration without
a release date will
result in deterioration of Mr Yadegary’s mental
state.
[16] The High Court Judge stated:
[63] The circumstances of the
detention and Mr Yadegary’s psychological response to them are hardly
unusual. Regrettably, many people find
themselves in
the Auckland Central
Remand Prison and find the conditions difficult to
bear. However,
not many spend more than two years there with the prospect of
ongoing
detention for an
unknown period (possibly years) without having
committed or even being accused of any crime.
The
immediate legislative scheme
[17] When he was served
with a removal order, the respondent became
liable to be removed from New Zealand under Part 2 of the Immigration
Act (ss 53 –
4).
[18] It is necessary to reproduce
the essential sections. I have
italicised relevant provisions and underlined those of special
importance. I have added in
bold certain words
and numbers. Since the factual and legal setting for the analysis must
be provided, their discussion is deferred to [66] – [69].
55 Content and effect of removal
order
(1) A removal order authorises
any member of the police to take into
custody the person named in the order
and to proceed to execute the order in accordance
with section 59.
…
59 Execution of removal order
(1) ❶ Any member of the police may arrest
without warrant a person on
whom a removal order has been served
and detain that person in accordance
with this section.
(2) The purpose of arrest and
detention under this section is to
execute the removal order by placing the
person on a craft that is leaving New
Zealand.
(3) A person arrested and
detained under this section may be detained
for up to 72 hours without further
authority than this section pending their
placement on a craft that is leaving New
Zealand.
…
60 Release or extended detention
if craft unavailable, etc, within a
72-hour period
(1) Where a person is arrested
and detained under section 59 and it
becomes apparent that –
(a)
no craft will be available within the 72-hour period specified in
that section;
or
…
(c) it is not practicable for the person to be
placed on a craft within
the 72-hour
period; or
(d)
for some other reason the person is unable to leave New Zealand within the 72-hour period, –
then, unless the person is
released, an immigration officer must
arrange for the person to be brought before
a District Court Judge for the purpose
of obtaining a warrant of
commitment.
(2) Subject to any extension of
it under subsection (4) or subsection
(6A), a warrant of commitment issued
under this section authorises the
detention of the person named in it for a
period of 7 days or such shorter period as
the Judge thinks necessary to enable
the execution of the removal order.
(3) ❷ ❹ A Judge may issue a warrant of
commitment on the application of
an immigration
officer if satisfied
on the balance of probabilities that
the person in custody is the person named
in the removal order and that any of the following applies:
(a) A
craft is likely to be available, within the proposed period of the warrant of commitment, to take
the person from New Zealand:
(b)
The practical difficulties that meant that the person could not be placed on an available craft
within 72 hours are continuing and are likely to continue, but not for
an unreasonable period:
(c) The other
reasons the person was not able to leave New Zealand within the 72-hour period are
still in existence and are likely to remain in
existence, but not for an unreasonable period:
(d) In all the
circumstances it is in the public interest to make a
warrant of commitment.
(4) ❸
❽ If at the expiry of a warrant of
commitment made under this
section the person has still not left
New Zealand, then, unless released, the
person must be again brought before a
Judge for an extension of the warrant of commitment,
in which case subsections (2) and (3) (and, if appropriate, subsection
(6A)) apply.
(5) If a person is brought before a Judge
under subsection (4) for a
second or subsequent time the Judge may,
where it seems likely that the detention
may need to be extended a number of
times, and where satisfied that the
person is unlikely to abscond otherwise
than by leaving New Zealand, instead of extending
the warrant of commitment for a further period of up to 7
days, order that the person be
released subject to—
(a) Such conditions as to the
person's place of residence or as to reporting
at specified intervals
to an office of the Department of Labour
or a Police station as
the Judge thinks fit; and
(b) Such other conditions as the
Judge may think fit to impose for the purpose
of ensuring compliance
with the residence and reporting conditions.
(6) ❻
Unless
the
Judge considers that there are exceptional
circumstances that justify the
person’s
release, ❺ a Judge may
not order the release of a person under
subsection (5) if—
(a)
the person is
currently a refugee status claimant who claimed refugee status only
after the removal order was served; or
(b) a direct or
indirect reason for the person being unable to leave New Zealand is or was
some action or inaction by the person occurring after the
removal
order was served.
(6A)
❼ Where a Judge
determines not to order the release of a person to
whom subsection
(6)
applies, the Judge may—
(a) extend the
warrant of commitment for a further period of up to 30 days,
in which case—
(i) the warrant
authorises the detention of the person named in
it for the period
specified in the extension of the warrant; and
❽
(ii) subsections
(3) to (6) and this subsection apply at the expiry
of the
extension of the warrant; and
(b) make any orders
and give any directions that the Judge thinks fit.
(7) No
person may be
detained under 1 or more warrants of commitment
under this Part for a
consecutive period of more than 3 months, unless the
person is a person to
whom
subsection (6) applies.
(8) In making any
decision under this section a Judge is to seek to
achieve an outcome that
ensures
a high level of compliance with immigration laws.
(9)
No release of a
person under this section in any way affects their
liability for later detention and
removal.
[19] The general
purposes of arrest and detention under these
provisions are stated in ss 59(2) and 60(8): to execute the removal
order by placing the person
on a craft leaving New Zealand and to achieve a high level of
compliance with immigration
laws. The specific purpose of subss (6) – (7) is to impose an incentive
on the
person to conform with the immigration laws.
[20] Parliament contemplates by ss
59(3) and 60 that removal will
normally take place within a 72-hour period. Close judicial control of
the statutory
processes is stipulated. If removal within such period is not
practicable (s 60(1)(c)) the
person must (unless released, an option not generally considered
appropriate in cases
falling within s 60(6)) be brought before a District Court judge for
the purpose of obtaining a
warrant of commitment (s 60(1)).
[21] Subject to s 60(6), a judge
may issue a warrant if the person is
not able to leave New Zealand within 72 hours, but not if the inability
will extend for
an unreasonable period (s 60(3)(c)), unless it is in the public
interest to make a warrant of
commitment (s 60(3)(d)). Warrants are generally for no longer than 7
days (s 60(2)) with a
maximum of 30 days at a time (s 60(6A)). And, again subject to s 60(6),
where a person who is
unlikely to abscond comes before the judge on a second or subsequent
occasion, the judge
may order the person’s release subject to appropriate reporting and
other conditions.
Except in cases falling within s 60(6), no one may be detained for a
consecutive period
of more than three months (s 60(7)).
[22] Subsection (6) however
provides an exception to the limitations on
issue of warrants and on the court’s powers to order release from
detention. A judge may
not order release under subsection (5) if:
a direct or indirect reason for
the person being unable to leave New
Zealand is or was some action or inaction by
the person occurring after the removal
order was
served.
Unless there are
exceptional circumstances that justify the person’s
release.
[23] There can be no doubt that the
respondent’s continued refusal to
apply for an Iranian passport constitutes “some action or inaction by
the person occurring
after the removal order was served” and is “a direct or indirect reason
for the person
being unable to leave New Zealand”.
[24] Before proceeding further it is
necessary to dispose of a
difficulty arising from the way the legislation is drafted. If it is
clear that deportation within
72 hours will not be
possible, looking at s 59 alone it is arguable that there is no power
of arrest under that section. It could be said that the purpose of
arrest and detention
under s 59(2) is confined to execution of the removal order by placing
the person on a craft that is
leaving New Zealand within that time.
Such reading is supported by s 60(1) which permits
the issue of a warrant “where a person is arrested and detained under
section 59 and it
becomes apparent that … it is not practicable for the person to
be placed on a craft within the
72-hour period” (s 60(1)(c)). It is also consistent with a reading of s
60(2) that the
authorised detention is “for a period of seven days … to enable the
execution of the removal
order”, ie removal within seven days
must be in contemplation.
[25] But ss 59 and 60 are to be read
as a whole, which includes s
60(6). That makes plain that a person may be under detention and unable
to leave New
Zealand because of some action or inaction on his part after the removal order was served.
It follows that the textual argument in [24] cannot succeed. Section
59(2) is not to be
confined to the case where the person will be removed within 72 hours
but extends to cases
where that is not possible. On such reading, s 60(1) is not limited to
the case where it
became apparent after arrest and detention that it is not practicable
for the person to be
removed within the 72 hour period. Rather it extends to cases where it
becomes apparent at some
other stage, as after service of the removal order in terms of subs
(6)(a). Likewise s 60(2)
may be read to authorise the detention either for a period of seven
days (if removal
is not imminent), or for a shorter period (if it is). The alternative
to such construction would
be to deprive subs (6) of effect, which is a conclusion the Court will
decline to reach if, as
in this case, another option is reasonably available.
[26] Once that construction is
adopted there is, at first sight, no
difficulty in operating the successive stages as argued by the parties
and accepted in the lower
Courts. This is also the construction preferred by the other members of
this Court.
(1) A removal order is served
and executed under s 59;
(2)
If the person cannot be removed within 72 hours an immigration
officer applies for a warrant under s
60(1);
(3)
The warrant is issued under s 60(2) for seven days if it is in the
public interest (s 60(3)(d)) which s
60(6) may justify;
(4)
If the person cannot be removed before the expiry of the first
warrant a further application will be made
under s 60(4). If the conditions in
60(6) are extant release may not be
ordered in the absence of exceptional circumstances; and
(5)
If s 60(6) applies, the three-month time limit under s 60(7) is
excluded.
[27] But as is apparent from the
difference of opinion in this Court
the scheme is in fact more complex. To explain it requires further
detail of the parties’
submissions, of legal principle, of fact, and of New Zealand’s policy
concerning imprisonment.
The
submissions
[28] The Deputy Solicitor-General
contends for the Crown that Courtney
J erred in directing the respondent’s release because there are no
exceptional
circumstances in this case. He submits that there is nothing
exceptional about a person’s
failure or refusal to sign a passport application which would enable
his removal from New Zealand;
rather it is a deliberate policy adopted to resist the operation of the
law which
imposes an obligation to leave New Zealand. Nor, says the Crown, can
simple passing of time ever
fall within the concept of exceptional when it is open to the person
imprisoned to
bring the detention to an end at any time, by signing the passport
application and there is the
prospect of removal proceeding as a result of diplomatic negotiations.
So the case falls
outside the s 60(6) ground on which release from detention is
permissible. There is no
other justification for release. This Court should therefore allow the
appeal and return the
respondent to detention.
[29] Mr Ryken for the respondent
submits that Courtney J construed and
applied the law correctly. The learned Judge stated:
[31] The opening words of s
60(6) specifically envisage that there will
be people to whom s 60(6) applies who
should nevertheless be entitled to
conditional release.
In adding these
words, Parliament had drawn back from the kind of
unmistakable language used by the Australian
legislature. I find that the opening
words must have been intended by
Parliament to ensure that there was a safety net that
would prevent the literal effect of s 60(6)
being implemented. The result is that the
Hardial Singh principles apply to those
detained under s 60(6) as to any other person
detained under s 60.
…
[34]
Clearly, the words “exceptional circumstances” require
circumstances that are special and not usually
encountered. But because the phrase is not
qualified so
as to be limited to
humanitarian factors whereas it is so qualified
elsewhere in the Act, I do not consider that it
needs to be strictly limited to
humanitarian factors in
the sense of
physical or mental well-being. I infer that a broader
meaning was intended. Given my conclusion
that the Hardial Singh
principles are to
be implied
into s 60(6), I find
that “exceptional circumstances” must include
detention that would be regarded as
unreasonable within those principles. Only in this
way can the
Hardial Singh principles be given
effect to.
…
[63] … Against the background of his good character and the likely
effect of ongoing detention on his mental
condition, in the absence of any other
factor, I consider that ongoing detention
would be unreasonable.
[64]
Against those factors, however, is Mr Yadegary’s obstructiveness.
He could secure his removal from New
Zealand at any time. He has a genuine
belief that he
will be in danger if
he does that. However, it was beyond the scope of
either the District Court considering the
application for extension of the warrant
or of this Court in reviewing the District
Court’s decision to enquire into the
foundation for that belief. While accepting
that the belief is genuine, I must proceed
on the basis that Mr Yadegary’s status has
been properly determined and that he
could, if he wished, effect his removal from
this country within a very short time
by applying for
a passport.
[65]
Given my earlier conclusion as to the intention behind s 60(6)
that a person in Mr Yadegary’s position be
treated less favourably, I accord this
factor significant
weight. However, it
cannot have the status of a trump card. There is a
point at which the unreasonableness of
ongoing detention outweighs the need to
sanction
obstructive conduct.
This does, of course, give rise to the unpalatable
possibility that a detainee may be able to
secure release simply by enduring
detention long
enough for a Court
to declare further detention unreasonable. However,
had Parliament
intended the sanctioning of obstructive conduct to prevail
over other factors it could have stated its
intention in unmistakable terms. It
has not done so.
[66]
I find that, even taking into account Mr Yadegary’s
obstructiveness, the circumstances of his detention
are such as to make further detention
unreasonable.
Exceptional
circumstances therefore exist for the purposes of s 60(6)
and Mr Yadegary is entitled to
conditional release under s 60(5).
Tools
of interpretation
[30] The Courts have at their
disposal a range of tools for
interpreting legislation that is susceptible of more than one meaning.
First, Parliament has directed
the Courts when construing legislation to consider both its text and
its purpose
(Interpretation Act 1999, s 5). Second, Parliament has directed the
Courts to prefer an interpretation
that is consistent with the rights and freedoms contained in the Bill
of Rights Act where such
a meaning is available (Bill of Rights Act, s 6). Third, recourse may
be had to
settled common law principles of statutory interpretation, which
include the principle of
legality and the principle of proportionality.
[31] In the present case, the issue
arises as to the correct
application of the procedures in s 60 and, on my reading, we are
required to give meaning to concepts of
“unreasonable period”, “exceptional circumstances” and “public
interest”.
Text
[32] Under s 60(3) a
person may be kept in detention as long as the
detention will not be for an unreasonable period or it is in the public
interest to continue
the detention. As earlier noted, in considering whether these criteria
are satisfied, regard must
be had to the stipulation that a person caught by s 60(6) may not be
released unless
there are exceptional circumstances.
[33] The definitions of the three
material expressions are
indeterminate. Parliament has refrained from setting time frames for
the operation of s 60(6) and it
is not our task to do so. The rule of law requires that laws be as
clear and predictable as
practicable (see John Finnis Natural
Law (1980) at 270). But as Jeremy Bentham observed in his
“Theory of Legislation” (Etienne Dumont edition translated and edited
by CM
Atkinson, 1914) at 62:
… the legislator, who cannot
pass judgment in particular cases, will
give directions to the tribunal in the form of
general rules, and leave them with a
certain amount of latitude in order
that they may adjust their decision to the special
circumstances.
[34] It is neither practicable nor
desirable for us, in the context of
a single appeal, to seek to give a ruling as to the precise meaning of
“exceptional”,
“reasonable” or “public
interest”. In this judgment I will consider only whether the particular
circumstances of this case fall within those broad concepts.
The Bill of Rights
Act and the principle
of legality
[35] Section 6 of the
Bill of Rights Act requires that legislation be
interpreted so as to give effect to the rights and freedoms contained
in that Act.
Similarly, the principle of
legality requires that the law be applied consistently with fundamental
human rights. In a celebrated passage in R v Home Secretary ex parte Simms
[2000] 2 AC 115
at 131 (HL) Lord Hoffmann stated:
Parliamentary sovereignty means
that Parliament can, if it chooses,
legislate contrary to fundamental
principles of human rights…. The constraints
upon [the] exercise [of its power] by
Parliament are ultimately political, not
legal. But the principle of legality means that
Parliament must squarely confront what
it is doing and accept the political cost.
Fundamental rights cannot be overridden
by general or ambiguous words. This is because
there is too great a risk that the
full implications of their unqualified
meaning may have passed unnoticed in the
democratic process. In the absence of express
language or necessary implication to the
contrary, the courts therefore
presume that even the most general words were intended
to be subject
to the basic rights of the individual. In this way the courts
of the United
Kingdom, though
acknowledging the sovereignty of Parliament, apply
principles of constitutionality little
different from those which exist in countries
where the power of the legislature
is expressly limited by a constitutional document.
[36] It is therefore to be assumed
that, when it enacted s 60(6),
Parliament did not intend to infringe fundamental liberties. That
conclusion is supported by its
use of the terms “exceptional circumstances” and “unreasonable”. While,
as the President
explains (at [258], see also O’Regan J’s discussion at [195] – [197]),
the
“exceptional circumstances” test has been held to be exacting when the
right to trial by at least
11 jurors is lost (Rajamani v R
[2008] 1 NZLR 723 (SC) and Wong v R
[2008] NZSC 29), the
approach used in those cases in
favorem libertatis is not to be applied in
reverse. On the contrary, in cases where the exception would affect
personal liberty a more generous
approach is adopted. In R v Kelly
[2000] QB 198 (QB) where the Court of Appeal
construed legislation requiring it to impose a mandatory life sentence
unless there were
exceptional circumstances, Lord Bingham of Cornhill CJ said (at 208)
that “[w]e
must construe “exceptional” as an ordinary, familiar English adjective,
and not as a
term of art.” That decision was followed by the Supreme Court in Creedy v Commissioner of
Police (2008) NZELC 99,336 at [32] (discussed by O’Regan J at
[198]). Here, where s
60(6A) imports the reasonableness test of s 60(3), “exceptional”
naturally bears the
first meaning in the Oxford English Dictionary: “out of the ordinary
course, unusual,
special”.
[37] The next question is which
rights are implicated in the current
case. Two are potentially relevant. The first is the right to liberty
of the person,
formulated in the Bill of
Rights as the right not to be arbitrarily arrested or detained (s 22).
The second is the right not to be subject to cruel or
disproportionately severe treatment,
identified in s 9 of the Bill of Rights. Each of these rights must be
construed using both the
language of the Act and the common law (s 28 of the Bill of Rights Act
states that existing
rights or freedoms shall not be restricted by reason only that they are
included only in part).
[38] As to liberty of the person,
the Bill of Rights and the principle
of legality require us to presume that Parliament did not intend to
authorise arbitrary
detention. The focus must be on the term “arbitrary”, rather than on
the idea of lawful
detention, otherwise the right would be substantially diluted. In van Alphen v The Netherlands Comm
305/1988 23 July 1990 (UNHRC) cited in R v Goodwin (No 2) [1993] 2 NZLR
390 at 393 (CA)
it was accepted that “arbitrary” included not merely concepts of
unlawfulness,
but also “inappropriateness, injustice and lack of predictability.” In
a similar
vein, Thorp J in Clarke v Police
HC AK AP208/95 11 October 1995 at 8 defined arbitrary as
“unreasonable, unnecessary or unprincipled.”
[39] It follows that by the terms
“reasonable” and “exceptional
circumstances”, Parliament intended to preserve the right to be free
from detention
that is inappropriate,
unnecessary and unpredictable.
[40] It could be only in the most
unusual of circumstance that
detention for a period that is unreasonable could nevertheless be in
the public interest.
[41] As to the right not to be
subjected to treatment that is
disproportionately severe, the standard by which that is to be measured
is that treatment be “so
severe as to shock the national conscience”: Taunoa v Attorney-General [2008] 1
NZLR 429 (SC)
at [289]. Reasonableness is a less exacting test. Here there are no
findings as
to the conditions likely to have been experienced by the respondent in
detention, beyond the
evidence that he was seriously assaulted and of there being some effect
on his mental health.
Context
[42] Because the words
of the
statute are indeterminate, we must look
at the context in considering how they should be understood. I begin
with certain
criminological materials which illuminate the nature of imprisonment. I
then move on to discuss
the local legal context. (The approach in other jurisdictions is
sketched in an
appendix to this judgment at [134] – [162].) Once this background is in
place I return to analyse
the words of the legislation in the light of the Interpretation Act,
the Bill of Rights
Act and the common law principles of statutory interpretation.
New
Zealand imprisonment policy
Criminology and the
criminal
law
[43] Imprisonment is now the most
stringent form of punishment known to
the law of New Zealand. As the Supreme Court stated in Zaoui v Attorney-General
[2005] 1 NZLR 577 at [52]:
… it is of prime importance that
any powers of detention be approached
in light of the fundamental right, long
recognised under the common law, of liberty
for all
persons subject only
to such limits as are imposed by law.
[44] The importance of the basic
right to be free from detention is
evident in New Zealand’s legislation as from principles of the common
law. Before
moving to discuss the legal framework, I mention some academic
literature.
[45] Deprivation of liberty is used
as a common form of punishment of
those who have committed grave crimes. In A Rage to Punish (1994) Lois G
Forer, an
American trial judge for 16 years, records the lack of general public
awareness of what
happens inside prison walls (at 74). He urges consideration of the need
for imprisonment of
non-violent offenders (at 95), which carries by necessary implication
the need to justify the
length of any prison term. An analogous theme is advanced by Professor
McSherry of Monash
University in her essay “Sex, Drugs and Evil Souls” (2006) 32 Monash
Law Review 237 at
269, discussing the principle nulla
poena sine lege - that punishment should be
confined to cases of criminal conduct.
[46] In “Imprisonment: An expanding
scene” Maguire, Morgan and Reiner
(eds) The Oxford Handbook of
Criminology (4ed 2007) 1110 Rod Morgan and Alison
Liebling say at 1107-1108:
The most fundamental way of
answering the question, ‘What are prisons
for’, is to distinguish the three legal
functions, custodial, coercive and punitive.
Suspects
refused bail and detained before trial, or convicted but not
yet sentenced, are held in custody to ensure
that the course of justice proceeds to
its conclusion and that everyone concerned is
protected against the likelihood of harm in
the interim. A small number of non-criminal
prisoners – held under the Immigration
Act, for
example – are
imprisoned pending completion of enquiries or execution
of and administrative decision. There
is no justification for holding such
prisoners in conditions more oppressive than
is warranted by the fact of custody
itself, either because they are not eligible
for punishment (the unconvicted are
subject to the presumption of innocence) or, if
convicted, because the court has not
yet determined that loss of liberty is the
appropriate sentence.
Offenders
held coercively – nowadays almost entirely fine defaulters –
are kept in prison for as long as they fail
to comply with a court order that they
pay a financial
penalty enforced by
the court. As soon as they pay, or once the
custodial period in lieu of payment is served, they
are released. In this case the prison,
the loss of
liberty, and
possibly also the conditions in custody, is used to
pressurise the offender into conforming.
Finally,
there are persons held punitively – nowadays the great
majority – as a sanction for offences of which
they stand convicted. Since the
abolition of the death
penalty in 1965
imprisonment has been the most serious penalty the
courts can impose in Britain. The
punishment of imprisonment for sentenced
prisoners might
comprise both loss
of liberty and harsh living conditions in the name
of ‘less eligibility’ … or deterrence.
Today prison administrators generally
disavow such
purposes,
reiterating Paterson’s famous dictum that offenders are sent
to prison ‘as a punishment, not for punishment.’
The purposes of
detention under s 60
[47] I consider that the purposes of
detention under s 60 must be
custodial (to facilitate deportation) and coercive (to encourage the
recalcitrant to sign).
These immediate purposes both contribute to the ultimate purpose of
securing the respondent’s
removal from New Zealand. This being a civil and not a criminal
procedure, I do not
consider that punishment of the recalcitrant for refusing to sign, or
indeed (beyond
what is inherent in the coercive) to deter others, is a legitimate
purpose. While deterrence
can be an important element of the criminal law, quite explicit
language would be required
to justify civil detention in order to dissuade others. Properly, the
Deputy
Solicitor-General did not seek to justify continued detention on the
basis that s 60(8) contains a
purpose of ensuring compliance by others with immigration law.
[48] While Parliament has accepted
the need for detention in cases
coming within s 60(6), such considerations bear on whether the term of
the detention
is longer than for “a reasonable period” and also on what is in the
public interest. They are
also relevant to understanding when detention would fall within
“exceptional
circumstances that justify the person’s release.”
Custodial sentences in
New Zealand
[49] The insistence in
the criminological literature on viewing
custodial sentences as being of the most serious character is echoed in
the New Zealand
legislative context.
(i)
The Sentencing Act 2002
[50] Parliament’s intentions with
regard to the role of imprisonment in
New Zealand’s penal system are most evident from the Sentencing Act
2002. Section 10A
sets out the hierarchy of sentences and orders that may be imposed,
from the least
restrictive to the most restrictive:
(a) discharge or order to come
up for sentence if called on:
(b) sentences of a
fine and reparation:
(c) community-based
sentences of community work and supervision:
(d) community-based
sentences of intensive supervision and community detention:
(e) sentence of home
detention:
(f) sentence of
imprisonment.
[51] Section 8(g) of the Sentencing
Act requires the Court to impose
the least restrictive outcome that is appropriate in the circumstances
in accordance with
this hierarchy.
[52] That there is an emphasis in
the criminal arena on imposing the
least restrictive outcome is an important indicator when assessing
detention in the
administrative arena, as in the case of immigration detention.
(ii)
The Bail Act 2000
[53] After sentencing, bail is one
of the key areas where the law must
deal with the propriety of imprisonment. In Zaoui the Supreme Court confirmed
the
inherent authority of the High Court to grant bail in all cases, civil
and criminal, where
someone is detained. The inherent jurisdiction by its very nature
protects the basic liberty of
the individual to be free from detention, even if on a conditional
basis.
[54] The Courts are well accustomed
in the most serious criminal cases,
including murder, to the exercise of jurisdiction under the Bail Act
2000 which
sets out the public
interest considerations. They include:
8 Consideration of just cause
for continued detention
(1)
In considering whether there is just cause for continued detention,
the court must take into account—
(a)
whether there is a real and significant risk that—
(i) the defendant may fail to
appear in court on the date to which the defendant has been
remanded; or
(ii) the defendant
may interfere with witnesses or evidence; or
(iii) the defendant
may offend while on bail; and
(b) any matter that
would make it unjust to detain the defendant.
(2)
In considering whether there is just cause for continued detention
under subsection
(1), the court may take into account the following:
(a) the nature of the offence with which the defendant is charged, and whether it is a grave or less
serious one of its kind:
(b)
the strength of the evidence and the probability of conviction or otherwise:
(c)
the seriousness of the punishment to which the defendant is liable, and the severity of the
punishment that is likely to be imposed:
(d)
the character and past conduct or behaviour, in particular proven criminal behaviour, of the
defendant:
(e)
whether the defendant has a history of offending while on bail, or breaching court orders,
including orders imposing bail conditions:
(f)
the likely length of time before the matter comes to hearing or
trial:
(g)
the possibility of prejudice to the defence in the preparation of
the defence
if the defendant is remanded in custody:
(h)
any other special matter that is relevant in the particular circumstances.
[55] The statutory scheme is
consistent with the principles of the
common law, each of which keeps a careful and proportionate balance
between the competing
public interests of protection of the public and avoiding unnecessary
detention.
(iii)
The Immigration Act 1987
[56] In accordance with conventional
New Zealand standards I take the
scheme of the Immigration Act to apply as far as practicable the
principle that
imprisonment is limited to cases of practical necessity. For example,
where there is an obvious
flight risk and perhaps other risks in relation to persons whose
eligibility for a permit is
not immediately ascertainable, custody may be appropriate. Section
60(6) applies that
principle to the removal of those who fall within it.
[57] The Supreme Court in Zaoui at [48] recounted the various
regimes
for bail and conditional release provided by the Immigration Act. The
Court found
that the scheme of
the Act did not reveal a consistent approach to detention in
immigration cases (at [49]).
[58] Under Part 6 persons whose
eligibility for a permit is not
immediately ascertainable may not be granted bail (s 128B(15)).
However, in such a case the
detention must be reviewed if no determination has been made after 28
days and every
seven days thereafter (s 128B (9) and (10)). If a determination is made
that the permit
should be refused, the person must not be granted bail but may be
conditionally released from
detention (s 128(15)) unless they are caught by s 60(6). Under Part 3
even
persons threatening national security and suspected terrorists must be
brought before the
District Court within 48 hours and may be released on conditions
pending deportation (s
79(1)(b)(ii)).
(iv) Appropriate
lengths of imprisonment
[59] The laws of sentencing, bail
and immigration detention all reflect
the fundamental proposition that deprivation of liberty in the form of
imprisonment is
a serious matter, but that it is appropriate in some cases. It is
therefore instructive to
take into account the type of cases in which imprisonment similar to
what the respondent has
undergone have been considered appropriate.
[60] The respondent has served 29
months in detention. Statistics
produced by Soboleva, Kazakova and Chong Conviction and Sentencing of Offenders in
New
Zealand: 1995 to 2005 (Ministry of Justice, December 2006)
recording sentencing
statistics in New Zealand contain the following results at 71 and 89:
Table
1: Average custodial sentence length (months) imposed by type of
violent offence 1996 – 2005
Offence |
1996
|
1997
|
1998
|
1999
|
2000
|
2001
|
2002
|
2003
|
2004
|
2005
|
Kidnapping/abduction |
37.9
|
36.1
|
39.5
|
29.3
|
32.2
|
31.7
|
43.3
|
32.9
|
31.5
|
35.0
|
Attempted sexual violation |
41.1
|
61.0
|
47.1
|
49.2
|
43.4
|
55.0
|
57.3
|
62.5
|
44.1
|
52.8
|
Indecent assault |
21.4
|
19.9
|
20.4
|
21.6
|
20.7
|
22.8
|
19.7
|
18.9
|
24.1
|
18.2
|
Robbery
|
16.0
|
20.4
|
22.9
|
22.2
|
21.4
|
24.1
|
19.1
|
23.1
|
24.1
|
24.1
|
Grievous assault |
21.1
|
21.8
|
22.9
|
22.0 |
25.6
|
23.6
|
25.4
|
23.7
|
24.1
|
24.1 |
Table
2: Average custodial sentence length (months) imposed by type of
offence against the administration of justice 1996 – 2005
Offence |
1996
|
1997
|
1998
|
1999
|
2000
|
2001
|
2002
|
2003
|
2004
|
2005
|
Failure to answer bail |
2.0
|
1.9
|
2.1
|
2.0
|
2.1
|
2.1
|
1.9
|
1.8
|
2.1
|
2.1
|
Breach protection/non
-molestation order |
2.0
|
3.4
|
2.9
|
3.3
|
3.3
|
3.4
|
3.9
|
4.0
|
3.9
|
3.8
|
Escape custody |
5.3
|
4.9
|
6.5
|
4.5
|
5.4
|
5.6
|
5.8
|
6.6
|
4.1
|
4.4
|
Obstruct/pervert course
of justice |
9.1
|
9.0
|
12.4
|
9.8
|
10.3
|
9.1
|
11.5
|
12.2
|
10.9
|
10.1
|
Other against justice |
5.1
|
12.5
|
5.0
|
3.1
|
7.0
|
4.2
|
3.8
|
10.2
|
3.9
|
4.7
|
[61] It should be noted that
to reflect actual time served such periods
must generally be reduced by somewhere between one-third and two-thirds.
[62] It is apparent from these
statistics that the respondent has spent
an amount of time in custody comparable to that which would be served
by a person convicted
of a serious offence.
[63] The period is far in
excess of what would be expected for any
other breach of or refusal to comply with a legal order or process. No
general statistics
for New Zealand
contempt cases resulting in imprisonment were presented, but Table 2
above indicates the period of detention deemed appropriate for offences
against judicial
processes. The decision of the Full Court of the High Court in Solicitor-General v
Siemer HC AK CIV 2008-404-472 8 July 2008 cites the English
regime at [92] – [93].
[64] In the absence of New
Zealand statistics it is convenient to
consider a selection of the longest custodial sentences imposed for
contempt in the United
Kingdom since 1981 when the Contempt of Court Act of that year capped
the period of
imprisonment for contempt at two years (extracts from Arlidge, Eady and
Smith On
Contempt (3ed 2005) Appendix 3):
Table 3: Examples of penalties
imposed for contempt since 1981
Name
of Case
|
Nature of Contempt
|
Penalties
|
James (1988) 1 Cr App R (S) 392
|
Threat
of violence to a witness and a suggestion that he give false evidence.
"A very serious contempt ... upon a man who was clearly susceptible." |
Two
years' imprisonment upheld.
|
Att-Gen v Jackson [1994] COD 171
|
Series
of threatening phone calls made from person to a witness.
|
12
months' imprisonment upheld.
|
Stredder [1997] 1 Cr App R (S) 209
|
The
appellant spoke to the sole prosecution witness at his trial whose car
had been damaged ("That was just a warning"). He also said "I'll do you
when I see you anyway". This was "unplanned, hot headed, rash but,
nevertheless, severely threatening".
|
12
months' imprisonment upheld.
|
Mitchell-Crinkley [1998] 1 Cr App
R (S) 368
|
The
appellant was a friend of an accused person. He recognised a juror
and telephoned him, mentioning that the previous jury had been
discharged.
"A grave case".
|
12
months' imprisonment upheld.
|
Mesham v Clarke [1989] 1 FLR 370
|
Repeated
breaches of a non-molestation and exclusion order, despite
express warning from the judge.
|
Maximum
sentence of two years'
imprisonment upheld.
|
Lightfoot v Lightfoot [1989] 1 FLR
414
|
Breach
of an order not to dispose of any monies received, and to pay them
into a joint account. He received £30,000, none of which paid
into the joint account.
|
18
months' imprisonment upheld.
|
Re O (Contempt Committal) [1995]
2 FLR 767
|
Parents
writing anonymous letters in breach of an injunction. They would
apparently stop at nothing to secure the return of their "former
children" who
had been adopted. There was a danger of destabilising the adoption and
the parents' conduct constituted an attempt to pervert the course of
justice.
|
12
months' imprisonment upheld.
|
A-A v B-A [2001] 4 FLR 1
|
The
husband raped the wife during the currency of restraining orders.
|
12
months' imprisonment for the
contempt in respect of rape.
Upheld on appeal.
|
[65] It may be noted that while
the inherent power of the New Zealand
High Court to sentence for contempt is unlimited, the maximum penalty
for contempt
under the Crimes Act 1961, s 401 and the Summary Proceedings Act 1957,
s 206 is three
months imprisonment or a fine of $1,000.
Discussion
[66] Against that
setting I return to the application of s 60, using
the numbering I have inserted in the legislation set out at [18] above.
First period of detention
(1) ❶
The person is arrested and detained under s 59.
(2) ❷
If the person cannot be removed within 72 hours a warrant may be
issued under s 60(3) provided one of
the conditions in that subsection is
satisfied. The warrant can be issued for up
to seven days (60(2)).
Second and subsequent periods of
detention
(3) ❸
When the warrant expires, the person must be brought before a
judge for extension of the warrant, in
which case s 60(4) provides that subs (2)
and (3) and (6A) apply.
It is
at this point that the difference between my interpretation and
that of the other members of the Court
occurs in the case of a person falling
within subs (6). If subs (3) is given
effect, then the judge must undertake the
assessment required by that subsection as
to whether an extension should be
granted. In doing so the judge must take
account of what Parliament says in subs
(6), (6A)
and (7) about how persons affected by subs (6) are to be treated; I return to that point shortly. ❹
On that view, the judge may not issue a warrant “for an unreasonable
period” unless “in all the circumstances
it is in the public interest to make a
warrant of commitment”.
(4) Once a second or subsequent warrant has been issued, the judge may consider conditional release
under subs (5) unless the person is a subs
(6) person.
❺ If the person is a subs (6) person, the judge may not order
release under subs (5) unless there are
exceptional circumstances. ❻
The
other members of the Court consider that there is an inconsistency between the requirements in subs
(3) and the provision of subs (6) that
the judge
may not order release unless there are exceptional circumstances.
I return
also to that point.
(5) ❼ If a new warrant is issued and there are no exceptional
circumstances, the warrant may be extended for up
to 30 days and the three month time
limit is excluded.
(6) ❽
In that event, at the expiration of the warrant subs (3) – (6)
and (6A) apply in the same manner
(starting again from (3) above).
[67] I return to the two points
arising from the foregoing analysis.
The first is that at the subs (4) stage subs (2) and (3) and (6A)
apply. The second is that
there is inconsistency between the requirements of subs (3) and (6).
They may be dealt with
together.
[68] It is axiomatic that a
statute must be read as a whole. Here that
entails reading “exceptional circumstances” as consistent with and
informing the
interpretation of both
“unreasonable period” and also the further subs (3) exception that “it
is in the public interest to make a warrant of commitment”. Such
construction gives effect to the
language of both subs (3) and of subs (6), each of which Parliament has
said apply at
the expiry of a warrant under subs (6). I recognise with respect that
the Minister referred
only to “exceptional circumstances” as avoiding indefinite detention of
a person who refuses
to sign a passport application (see the Hansard passage reproduced by
O’Regan J at [167]).
But the constitutional duty of the Court is to apply the language
selected by
Parliament. It must do so in full.
[69] “Unreasonable” is a
flexible term which will readily accommodate
the requirements of exceptionality, and thus recognise the need to
treat differently
cases falling within subs (6), for which Parliament contemplates longer
detention to give
effect to the purposes of the section, and those to which subs (6) does
not apply. In a
context where subs (6) has no application, “unreasonable” will be
measured against the three month
limit of subs (7). Where subs (6) does apply, “unreasonable” will be
measured against the
fact that the three month limit has been disapplied; that the test of
subs (6) is of
“exceptional circumstances”; and in the light of the general purposes
of ss 59(2) and 60(8) and the
specific purposes of imposing an incentive on the person to conform
with the immigration
laws (subs (6) – (7)).
Purposes
[70] The Interpretation
Act requires consideration of the purpose of
the statute in construing “unreasonable”, “exceptional circumstances”
and “public
interest”. As earlier noted, two principal purposes are expressly
stated. Section 59(2)
states that “the purpose of arrest and detention under this section is
to execute the removal order
by placing the person on a craft that is leaving New Zealand”. This
purpose is reiterated in
s 60(2). That subsection is expressed as being subject to subsections
(4) and (6A),
but that qualification logically applies to the time period for review
(seven days), rather
than the purpose. A second purpose is stated in s 60(8). That is “to
achieve an outcome
that ensures a high level of compliance with immigration laws.”
[71] So long as the detention
serves the s 59(2) and 60(8) purposes it
will be rare that the circumstances could be exceptional, the period of
detention
unreasonable, and that the public interest would not require continued
detention. But since subss
(3) and (6) must be given due weight there will be circumstances where
the statutory
purposes are being pursued, but the person cannot be detained because
there is no
sufficient public interest and detention would be for an unreasonable
period, which may mean that
there are exceptional circumstances which also require release. If the
detention does not
serve the statutory purpose at all there is simply no basis for
detention. This possibility
was an alternative ground raised by the respondent and is discussed
below at [123].
[72] Returning to the three
purposes of detention identified by Morgan
and Liebling (at [46] above) I have noted that the purposes of
immigration detention
under s 59 are custodial –
to ensure proceedings can be executed swiftly, and coercive – to
encourage compliance with immigration laws. There is no punitive
purpose. Unlike in the UK
and the USA, in New Zealand failure or refusal to sign a passport
application to
facilitate removal is not a criminal offence triable in a criminal
court and punishable by a
penalty.
[73] But it is obvious that
Parliament was concerned that
non-compliance should not be seen as an easy option. The clear policy
of section 60(6) is that
detention is to be employed as an incentive to compliance with a
removal order. This interpretation
is reinforced by the fact that subs (6) was added as a direct result of
the High Court’s
grant of habeas corpus to Mr Mohebbi who, in circumstances somewhat
analogous to the present, had
refused to apply for an Iranian passport.
The
principle
[74] The present
judgment does not propose any easy option. It
contemplates imprisonment to seek to achieve the statutory purposes
until, on the
stern test appropriate
for cases falling within subs (6), it becomes unreasonable to continue
the detention or unless the public interest otherwise requires. I cite
at [35] the common law
rule that legislation is presumed to conform with constitutional
principle, at least unless very
clear language to the contrary is used.
[75] The constitutional
principle in favour of preserving liberty can
be traced back to at least 1215, when the Magna Carta expressly
prohibited detention
otherwise than by law. That measure was confirmed in 1297 and remains
part of New Zealand law:
see s 3(1) of the imperial Laws Application Act 1988 and Reprinted
Statutes vol 30 at
26. It is given effect by the common law presumption that, where more
than one
construction is available, the law should be interpreted in favorem libertatis adopted in
Crowley’s Case (1818) 2 Swans
1, 67-8; 36 ER 514, 53 (HC). Kersley, Broom’s
Legal Maxims
(10ed 1939) cites the extended form: in
favorem vitae libertatis et innocentiae omnia
praesumuntur. In its form in
favorem vitae, the maxim was recently cited by the successful
appellant in Roodal v State of Trinidad and Tobago [2005]
1 AC 328 at 336 (PC). The
principle, which underlies the onus of proof in criminal cases, is of
general application. To
continue detention for a period that is “unreasonable” would plainly,
in my view, run contrary
to New Zealand’s constitutional values. No New Zealand authority was
cited to us to
justify such a result.
[76] I therefore respectfully
differ from O’Regan J. To justify
detention for a term that is unreasonable, via the reference in subs
(6A)(ii) back to “this
subsection”, would give no effect to the fact that “this subsection”
also refers to subs (3) and
thereby imports the reasonableness test in that subsection. O’Regan J’s
construction would
add by implication to the language of sub (6A):
(ii) subsections (3) to (6) and
this subsection apply at the expiration
of the warrant the words [but subsection (3) applies only if
subsection (6) no longer
applies to the person].
I recognise that
sometimes the Court is compelled, in order to avoid an
absurd result, to read words in to a statute. But while the
interpretation proposed by O’Regan
J is no doubt a logical possibility, the Court should be reluctant to
read words in;
and the more so when the consequence would be detention for an
unreasonable period. The literal
construction suggested in this judgment requires no addition: the
statement that
“this section appl[ies]” empowers the Judge to extend the warrant
provided the conditions of
subs (3) are satisfied. It would terminate detention at the point where
to continue it would be
unreasonable. No “public interest” in terms of s 60(3)(d) was
identified.
[77] The literal construction
is also consistent with the two evident
purposes of s 60: to seek a high level of compliance with immigration
laws (subs (8)); and
to seek removal by imposing an incentive on the person to conform with
those laws (subss
(6) – (7)), even though that incentive is lesser than the alternative
of indefinite
detention.
[78] The liberty principle in
my respectful view is also relevant to
the President’s argument that the approach adopted in this judgment
does not square
with the policy
expressed in subss (6) and (8) of s 60. Certainly the starting point of
this judgment, as of the other judgments of the Court, is s 5 of the
Interpretation Act,
which requires the Court to examine not only the language but the
purpose of the measure. It is
common ground that subss (6) and (8) are clear pointers to the general
legislative policy.
The point of difference concerns whether the text is to be overridden
by other indicators of
policy.
[79] The President relies on
the historical context, which is recounted
by the Minister of Immigration in the Hansard passage referred to at
[167]. The President
proceeds on the basis that s 60(6) was introduced “on a particular
assumption as to its
effect” (at [223]).
[80] But that conclusion
reaches beyond the language Parliament has
selected. While reference to Hansard will often shed light on what
policy Parliament
has adopted, it is ultimately the language of the statute, read in the
light of accepted
conventions of interpretation, which constitutes the law. The other
members of the
Court acknowledge linguistic difficulty with their preferred
interpretation (at [165],
[223] and [231]). While the literal construction does not in my view
give rise to uncertainty, if
contrary to that opinion there is any lack of specificity, I prefer the
approach that the
statute should not be extended beyond the limits of its language and
that any residual doubt be
resolved by the presumption in favour of liberty.
[81] The New Zealand patterns
of use of imprisonment do not permit of
long term detention for those who have not been convicted of serious
crime. In
cases where the elapsed period is not unreasonable another warrant can
be issued and
the subs (4) procedure may then be employed, and so on until the
unreasonable period in subs
(3)(c) is reached and the public interest no longer applies,
exceptional circumstances have
arisen, or the purposes of ss 59(2) and 60(8) are no longer operative.
[82] For detention to remain
lawful, each step in the process must be
in furtherance of the purpose of placing the person on a craft that is
leaving New Zealand (s
59(2)). That point is made by the Minister, who disavowed indefinite
detention, even for a
person who refuses to cooperate.
[83] In summary, detention of
persons falling within s 60(6) must
terminate if either:
(a) there are exceptional circumstances, which includes the case where
further detention would be for an unreasonable period unless it is in
the public interest to make a warrant of commitment; or
(b) the purpose of placing the person on a craft that is leaving New
Zealand is no longer being served.
These categories may overlap.
[84] What is an unreasonable
period may depend upon two particular
considerations of present relevance. One is a realistic prospect that
the means of
removing the person from New Zealand will come into existence, as by
the securing of a agreement
with the authorities of another state. The other is simply that too
much time
has elapsed (a topic considered in R
v Governor of Durham Prison, ex parte Hardial Singh
[1984] 1 WLR 704 (QB) judgment discussed at [139] – [140] of the
Appendix). What is in
the public interest also requires particular consideration.
Review of the District Court decision
[85] This appeal is from
a judicial review of a District Court
decision. The basis for such review was outlined by Thomas J in Auckland District Court v
Attorney-General [1993] 2 NZLR 129 at 133 (CA):
It is based on the fundamental
premise that statutory (and some
prerogative powers) can be validly exercised only
within their true limits. It is the task
of the High Court to determine those limits and it
does so by the process of judicial
review. But the High Court cannot review its own
decisions; it must determine its own
jurisdiction and, if it is responsible for
any irregularity, the defect must be
corrected by the Court itself or on appeal: see Isaacs v Robertson [1985] AC 97,
per Lord
Diplock at p 103.
[86] Since the grounds in s 60(3)
were not taken into account by the
District Court in considering the Crown’s application, its decision was
defective. In
considering what relief should follow it is necessary to consider:
(a) whether Judge Field was properly satisfied on the balance of
probabilities that one of the conditions of s 60(3) was established
(either that the
detention would not be for an unreasonable period or that it was
required in the
public interest); and, whether the Judge correctly decided there were
no
exceptional circumstances and therefore he could not make an order for
release;
(b) if not, whether continued detention would serve the statutory
purposes.
[87] These must be considered
in light of the essential facts before
the District Court, which were:
(a) The respondent had been held in Auckland Central Remand prison for
two years;
(b) He could have secured his own release by signing the travel
documents;
(c) It was not clear when negotiations with Iran allowing for the
respondent’s release by deportation might be completed;
(d) There was no evidence that the respondent’s determination not to
sign travel documents would be altered by further time in prison;
(e) There was little risk that the respondent would abscond or commit
an offence if released;
(f) The respondent honestly believed that return to Iran would place
his life and health at risk; and
(g) He had suffered psychological damage as a result of his time in
prison and further detention would be detrimental to his health.
It is also relevant to our decision that the respondent has now been on
bail since the orders following the High Court judgment.
The grounds in subss 60(3) and (6)
[88] It has been noted
that the District Court Judge seems not to have
been invited to consider the grounds in s 60(3); nor was the High
Court; nor were we.
But since they
provide the basis of the Court’s jurisdiction to extend a warrant they
must form the starting point of any analysis.
[89] I repeat that subs (3)
states that a Judge may issue a warrant of
commitment on the application of an immigration officer if satisfied on
the balance of
probabilities that any of the following applies:
(a) a craft is likely to be
available, within the proposed period of the warrant of commitment, to take
the person from New Zealand:
(b)
the practical difficulties that meant that the person could not be placed on an available craft
within 72 hours are continuing and are likely to continue, but not for
an unreasonable period:
(c)
the other reasons the person was not able to leave New Zealand within the 72-hour period are
still in existence and are likely to remain in existence, but not for
an unreasonable period:
(d)
in all the circumstances it is in the public interest to make a
warrant of commitment.
For present purposes
the relevant grounds are (c) and (d).
Section
60(3)(c)
[90] There is no
question that at the time of the District Court
judgment (November 2006) the reasons Mr Yadegary was unable to leave
New Zealand were
still in existence
and were likely to remain in existence. There is an issue as to whether
those factors were likely to remain in existence for an unreasonable
period. If they were
likely to remain in existence for no more than a reasonable period this
ground would not
have been made out.
[91] The questions which, in my
view were for consideration by the
Judge, were whether he was satisfied on the balance of probabilities
that the negotiations
would be concluded in early 2007 as the Crown suggested and if so
whether that would be a
“reasonable” period of detention.
[92] The factors were that Mr
Yadegary could not be removed because the
Iranian government would not allow him entry without an Iranian
passport and
because he would
not sign the application that would allow him to acquire such a
passport. Judge Field had before him an affidavit by the National
Manager, Border Security and
Compliance
Operations of Immigration New Zealand, Mr Baker, suggesting that
negotiations with Iran on an agreement that would allow repatriation of
Iranian citizens who
refused to sign passport applications might be concluded in early 2007.
The Judge noted
that the respondent viewed this with “some scepticism”, and the Judge
did not
come to any
conclusion on the likely length of time before negotiations would be
concluded. There was no suggestion that the respondent was likely to
relent and sign the
documents. The respondent’s opinion as to the negotiations has to date
proved correct.
[93] In the High Court,
Courtney J had the advantage of a second
affidavit by Mr Baker that gave further detail about continuing
negotiations. She was
satisfied that progress was being made. But she concluded that there
was no “certainty as to when
the negotiations might actually produce an agreement that can be
implemented” (at [53]).
She noted that Mr Baker did not provide any objective basis for
thinking an agreement
would be concluded in early 2007 (at [53]).
[94] Judge Field had even less
information before him as to the
likelihood of negotiations being concluded. The only evidence he had
was a statement of opinion
that an agreement might be reached in early 2007. I consider he could
not have been
satisfied on the balance of probabilities that Mr Yadegary would be
able to be deported at that
time.
[95] Even if the Judge had
been satisfied that Mr Yadegary would be
deported in early 2007 he would have next had to consider whether
detention during that
time would be unreasonable, employing the test stated at [69] above.
This is
discussed further below at [99] and following.
Section
60(3)(d)
[96] It would still have been
possible for the Judge to have issued a
warrant if para (d) was satisfied, that is, if in all the circumstances
it was in the
public interest to issue a warrant. This ground does not specify any
reasonable time requirement.
See below at [109] – [110].
[97] In interpreting this term
it should be recalled that the Judge is
required to seek to achieve an outcome that ensures a high level of
compliance with
immigration laws.
The presence of a s
60(6) factor and
exceptional circumstances
[98] Because the
respondent falls within s 60(6), the question of
exceptional circumstances arises. See below at [111] and following.
Application of principles
Unreasonable period
[99] From the principles
outlined above I draw together the factors
that contribute to my conclusion of what constitutes an unreasonable
period of detention in
the present case.
[100] This appeal concerns the
case of self-induced impediment to
removal considered in overseas decisions cited in the Appendix
including Tan Te Lam v Tai A
Chau Detention Centre [1997] AC 97 (PC) (below at [103] – [104]
and [144]), the
English cases subsequent to Hardial
Singh, albeit with a different statutory formula (below at
[141] – [142]), the Canadian decision Canada
(Minister of Citizenship & Immigration) v
Kamail [2002] FCT 381 (below at [151]) and the US cases Pelich v INZ 329 F 3d 1057 (2003)
(below at [161]) and Lema v INS 341 F 3d 853 (2003) (below at [162]).
Other cases, where
removal was generally prevented by a refusal of foreign states to admit
the
detainee, and Hardial Singh,
where the appellant had lost rather than destroyed his passport and
delay in securing a replacement did not lie with him, are
distinguishable. In the former
cases detention can contain a potential incentive to the detainee to
assist the removal
process which is absent from the latter.
[101] The reasons for detention
are custodial and coercive. The extent
to which detention would continue to serve these purposes is relevant
to the
reasonableness of the period of detention.
[102] Overseas standards such
as those discussed in the Appendix are
relevant as a broad reality check: see for example Lawrence v Texas 539 US 558
(2003).
While the cases show a willingness to maintain detention to provide an
incentive to
overstayers to facilitate their deportation, there is little evidence
in the states against which we
are accustomed to compare ourselves of administrative detentions for
really long periods,
with the exception of in Al-Kateb v
Godwin (2004) 219 CLR 562 (below at [156]). That
decision has been severely criticised, notably by the three very
experienced dissenters.
[103] The decision of most
assistance to the Crown is Tan Te Lam,
where
the Privy Council restored orders of habeas corpus granted to
applicants
who had experienced
detention for periods ranging between 35 months and 68 months. The
Board’s view, with which I agree, was that the fact that the detention
is self-induced by
reason of the failure to apply for voluntary repatriation is a factor
of fundamental importance
in considering whether, in all the circumstances, the detention is
reasonable. These
remarks were made in the context of periods of detention which
considerably exceeded that
experienced by the respondent. Accordingly that case favours the Crown
argument.
[104] But social conditions in
Hong Kong, where in the period leading
to the withdrawal of the British Crown over 20,000 migrants awaited
repatriation to
Vietnam, have little to do with the standards we apply in New Zealand.
I appreciate the
undesirability of drawing a line of reasonableness of term of
detention. Nevertheless, short of
imputing a parliamentary purpose of detention of non-offenders for
terms equivalent to those
imposed on the very worst criminals, there is no escape from the need
to make the
proportionality judgment in relation to New Zealand standards, that is
an integral part of the
judicial office.
[105] In the present case there
is a low risk of the respondent
absconding, and the imprisonment is unlikely to achieve its coercive
aims. An alternative
to imprisonment, by release on conditions under s 60(5), is available
and was properly
employed by Courtney J.
[106] On the other hand,
Parliament’s intention to discourage people
from taking advantage of the fact that they cannot be deported without
their
cooperation must weigh
heavily in the analysis. Care must be taken not to give the impression
that a person who is unlawfully in New Zealand but cannot be deported
unless he or she
cooperates will be given free entry to the country if prepared to
undergo a certain term of
imprisonment in exchange. In the present case the respondent could (in
a double sense) determine
the length of his detention by agreeing to sign the documents.
[107] But as the criminal and
contempt cases show, the principle of
legality requires very clear language before there is departure from
the constitutional basic:
in New Zealand we do not imprison for long periods persons who have not
offended gravely
against the criminal law. The principles behind our sentencing and bail
legislation
reflect an awareness that deprivation of liberty is a severe step and
that alternatives
should always be considered. In the present case, at the time of the
District Court Judge’s decision
the respondent had already been in detention for two years. At least an
additional six
months must have been in the Judge’s contemplation. In terms of the
application of the Parole
Act 2002 the total would equate to a term of between and seven and a
half years imposed by
a criminal court at the time.
[108] I have concluded that at
the time of the District Court Judge’s
decision it was apparent that the reasons the respondent was not able
to leave New
Zealand were likely to remain in existence for what would, by New
Zealand standards,
constitute an unreasonable period. It follows that the “not
unreasonable” time ground of s
60(3)(b) was not established.
Public
interest
[109] The purposes of
ensuring deportation and a high level of
compliance with immigration law indicate a firm perspective that it is
in the public
interest to deport overstayers expeditiously and to ensure that
breaches immigration law
are taken seriously. But difficulty in the deportation process is
already dealt with under s
60(3)(c), and the reasonableness requirement in that subsection cannot
be short-circuited
by an appeal to the public interest. Some other circumstance is needed
such as, for
example, risk of offending or absconding.
[110] In the present case, the
only factor that could take the
respondent’s case outside the normal circumstances that would call for
a s 60(3)(c) assessment was
his refusal to sign the travel documents. There is no danger to the
public and a very low
flight risk. The fact that terrorism suspects are eligible to apply for
bail ([58] above) is a
significant pointer against the proportionality of treating public
interest as requiring indefinite
detention in the present case. I do not consider there is a sufficient
public interest in the
respondent’s detention to warrant further incarceration beyond a
reasonable period. It follows
that the ground in s 60(3)(d) is not established.
Exceptional circumstances
[111] As the foregoing
analysis above has shown, the question of what
constitutes an unreasonable period should take into account whether
there are
exceptional circumstances in subs (6) cases.
[112] In this Court the Crown’s
principal submission was that, given
the respondent’s power to secure release by signing a passport
application (ie by
assenting to deportation), mere passing of time cannot be a
consideration unless the negotiations
with Iran have concluded. As I understood the submission, it was based
on a premise of
human autonomy – that detention from which the detainee can escape by
his own decision
is self-induced and no responsibility of the Crown, which would be very
happy to see him
released. On that argument detention of a person who has committed no
offence could last
many decades and as long as that of the worst criminal.
[113] It has been noted that
such submission is not supported by either
the text or the purpose of s 60(6). Textually, it would require the
Court to ignore the
prohibition of
detention for an “unreasonable period” in s 60(3)(c) and would read in
to the unconditional expression “exceptional circumstances” the
unexpressed condition “save
any consideration of term of imprisonment”. In terms of purpose it
would require the
Court to disregard evidence that continued imprisonment could not serve
the stated
statutory purpose of removing the person from New Zealand. Nor does the
Crown argument meet
the principles of legality and proportionality.
[114] Reading together the
criteria of “unreasonable period” and
“exceptional circumstances,” I agree with the result reached by
Courtney J.
Summary: evaluating subs
(6) cases
[115] I offer the
following summary of considerations relevant to a
decision on an application to extend a warrant in a subs (6) case.
[116] The fact that the
detention may be terminated at the will of the
person detained is of great significance. Normally refusal will be not
only unexceptional but
the very
justification for the detention. Exceptionality may arise from the
reasons for the refusal.
[117] The honesty and
rationality of the person’s reasons for declining
to sign are material to the ultimate judgment. Refusal by a person who
lacks honest belief
in justification for refusal is unlikely to be classed as something
exceptional (although
lapse of time may be). While the person is bound by decisions of the
proper authorities on the
topic of justification of belief, rationality is not an identical
concept. The less rational
the belief the weaker the argument of exceptionality is likely to be;
and vice versa.
[118] Evidence of ill-health
and adverse effect of prison conditions
may be relevant.
[119] The duration of the
detention to date and in prospect is of
considerable relevance. The prospect of a substantial term yet to serve
will usually provide an
incentive to sign. The fact that a substantial term has been served may
suggest a reducing
likelihood that further detention will further the statutory purpose.
In considering
the significance of duration regard may be had to patterns of
sentencing for criminal
offending and contempt of court as well as to the conditions of
detention.
[120] In making the overall
determination, Parliament’s terms
“reasonable” and “exceptional” and the common law principles of
legality and of
proportionality can be decisive. They are to be considered together.
Germane to them are
attitudes in New Zealand and like communities to the significance of
imprisonment
for mid to longterm periods. For a broad reality check overseas
patterns may be taken into
account.
[121] Where there is reason to
apprehend flight risk and where there is
risk of offending if granted liberty, different considerations will
arise. Neither of those
considerations applies in this case.
[122] These considerations are
not exhaustive, and every case will turn
on its own facts.
The alternative ground:
arbitrary
detention
[123] Courtney J in the
High Court did not deal with the possibility
that the detention was arbitrary in the sense that it did not serve the
statutory purpose, a
possibility that both parties have addressed in their submissions to
this Court. I have set
out the purposes of detention above at [19], [47] and [70] – [73].
[124] In the Crown’s
submission, so long as there is significant basis
for belief that detention will serve the statutory purposes it will
fall within the
general policy of the
Immigration Act and the specific policy of s 60(6).
[125] The judgment in Hardial Singh, despite its
different facts,
warrants careful examination. Lord Woolf’s first proposition
undoubtedly conforms with
settled principles
of New Zealand public law: that detention, like any exercise of public
authority, must be for the authorised purpose – here, that of
deportation. His second
proposition is that the power of detention, given to enable that
purpose to be carried out, must be
limited to a period which is reasonably necessary for that purpose; and
if the purpose
cannot be carried out within a reasonable period the power of detention
may not be exercised.
It is implicit that in such circumstances there can be no detention or
any existing detention
must be terminated. Again the principle conforms with New Zealand law.
[126] Statutory powers may be
used only in order to carry out the
purposes of the legislation: Padfield
v Minister of Agriculture, Fisheries and Food
[1968] AC 997 (HL).
Reading s 60(6)(b) within such a context indicates a legislative
purpose of detention different from, for example, that of s
79(2)(b)(ii) (ordinary bail in
immigration cases) –
namely to provide to the detained person an incentive to take whatever
action will result in his or her removal from New Zealand, so
fulfilling the purposes of ss
59(2) and 60(8). But detention is lawful only so long as it continues
to be performed for
the purpose of securing the respondent’s departure from New Zealand.
[127] Where there is little or
no prospect that the detainee will
respond to this encouragement, continued detention cannot realistically
be said to fall
within the purpose of
enabling the removal order to be executed, as it is not contributing to
removal in any greater way than could be achieved by the lesser option
of release on bail,
available for terrorist suspects.
Decision
[128] I have concluded
that the District Court Judge erred in the
exercise of his power to grant an extension to a warrant of commitment
under s 60 of the
Immigration Act. In addition, even if he had exercised his discretion
correctly, at the
time of the District Court judgment there was no prospect of ability to
remove the respondent
within a period that was reasonable by New Zealand standards. No public
interest beyond that in
seeking to secure the respondent’s deportation was argued. That is in
my opinion
insufficient to justify continued detention.
[129] Nor can it reasonably be
said that the detention of the
respondent was contributing any longer to his removal from New Zealand.
It was obvious that
continuing imprisonment was not going to influence the respondent to
sign the travel documents.
There was no risk that he would abscond, so release from detention to
bail conditions
would not have inhibited deportation processes should entry to Iran be
secured. There was no
realistic prospect that detention would achieve the purposes set out in
the statute. It follows
that to continue the detention in these circumstances could only be to
do so for reasons
other than seeking to remove the respondent from New Zealand. It would
therefore exceed the
power conferred by s 60(6).
[130] To those may be added the
fact that the respondent has now been
on bail for over a year without incident. It follows a fortiori that to
return him to
prison at this point, for what would in reality amount to an indefinite
period, could serve no lawful
purpose. Whatever the position before the District and High Courts, the
circumstances are
now exceptional and justify the respondent’s remaining on bail subject
to the current
conditions.
[131] The Crown submitted that
if we were minded to reject the Crown’s
arguments we should nevertheless send the case back to the District
Court.
[132] I am however satisfied
that, in this case involving human
detention, we must, as I have sought to do, accept the responsibility
for determining whether
the respondent’s limited liberty is lawful because the term remains
reasonable; the
public interest is still being served; and the circumstances are not
exceptional. Authority for
such a course may be found in Khawaja
v Home Secretary [1984] AC 74 (HL) which followed
Lord Atkin’s notable judgment in Eshugbayi
Eleko v Government of Nigeria (Officer
Administering) [1931] AC 662 (PC) and was applied in Zaoui. That authority is
sufficient to justify such course: while intensity of judicial review
will vary according to
context, the topic of liberty of the individual requires close scrutiny
by a court of review or
appeal. The District Court, with its great experience in the day-to-day
operation of the
Immigration Act, does not claim greater competence than this Court
where human liberty is in issue.
Indeed, as Potter J pointed out in a second Mohebbi case (Mohebbi v Chief Executive of the
Department of Labour
HC AK CIV 2007-404-3710 5 November 2007), there is a right of
appeal under s 72 of the District Courts Act 1947 to the High Court
from decisions
under s 60. A further appeal to this Court is available by leave. There
is no justification
for imposing on the respondent a more onerous test than would have
applied had the
different procedural course been adopted.
Orders
[133] O’Regan J is in
agreement as to the result, although for
different reasons outlined in his judgment below. We therefore make the
following orders:
(a) The appeal is dismissed.
(b) The appellant must pay the respondent’s costs which we fix at
$6,000 plus usual disbursements.
(c) That the affidavits of Arron Baker, which disclose evidence of the
Crown’s negotiations with the state of Iran which are still continuing,
be not
searched nor published.
Appendix
The international context
[134] The law and public
policy considerations differ markedly from
state to state, but it is nevertheless informative to take into account
the approach in other
jurisdictions. It is convenient to sketch in an Appendix the approaches
to immigration
detention in other common law jurisdictions. To provide context I refer
to statistics from
a report by the Office of Inspector General, United States Department
of Homeland Security
entitled Detention and Removal of Illegal Aliens
(2006) at 19. The report states that, of
the 7,144 Iranian immigrants illegally in the US as at 29 June 2004,
105 were detained,
and 7,039 were not.
[135] Although the legislative
background differs among states, there
is a consistent reluctance on the part of the courts to find that
indefinite or
long-term detention is
justifiable in cases such as the present.
(i)
The United Kingdom
[136] Unlike in New Zealand, in
the United Kingdom it is an offence to
refuse to cooperate with making an application for travel documents
where
required to do so by the
Secretary of State: Asylum and Immigration (Treatment of Claimants,
etc) Act 2004, s 35. The maximum penalty that may be imposed is a term
of imprisonment not
exceeding two years and a fine.
[137] The immigration regime in
the United Kingdom is also different
from that in New Zealand in that detention may be authorised by the
Home Secretary.
It emphasises
executive decision-making, unlike the statutorily constructed judicial
decisions that authorise detention in New Zealand. The authority stems
from the
Immigration Act 1971. Schedule 3, paragraph 2(3) provides:
Where a deportation order is in
force against any person, he may be
detained under the authority of the [Home
Secretary] pending his removal or departure
from the
United Kingdom.
[138] Nevertheless, the comments of
the English courts on factors
relevant to the appropriate length of detention are relevant to the
analysis of
appropriate length of detention in New Zealand. In particular, the
cases address the question of what
is a reasonable length of detention in the face of intransigence on the
part of the person
held in detention.
[139] In the leading case of Hardial Singh, Lord Woolf, then a
Judge of
first instance, stated at 706:
Although the power which is
given to the Secretary of State in
paragraph 2 to detain individuals is not subject to
any express limitation of time, I am
quite satisfied that it is subject to limitations. First
of all, it can only authorise
detention if the individual is being detained in one case
pending the making of a deportation order
and, in the other case, pending his removal.
It cannot be used for any other
purpose. Secondly, as the power is given in order
to enable the machinery of deportation
to be carried out, I regard the power of
detention as being impliedly limited to a
period which is reasonably necessary for that
purpose. The period which is reasonable
will depend upon the circumstances of the
particular case. What is more, if there
is a situation where it is apparent to the
Secretary of State that he is not going to
be able to operate the machinery provided in the
Act for removing persons who are intended
to be deported
within a reasonable period, it seems to me that it would be
wrong for the Secretary of State to seek to
exercise his power of detention.
In
addition, I would regard it as implicit that the Secretary of State
should exercise all reasonable expedition to
ensure that the steps are taken which will
be necessary to ensure the removal of the
individual within a reasonable time.
[140] Woolf J would have granted
habeas corpus to a man who had been
imprisoned on burglary charges and would have been released on 23 May
1983. But in
January 1983, being apprehensive following a visit from immigration
officials that he
might be deported, he became distressed and absconded from prison,
thereby losing
remission. He was then due for parole on 20 July 1983 and but for a
decision of the Home
Secretary to deport him because of his offences he would then have been
released. He remained
in detention until the hearing and judgment on 13 December 1983. The
Judge decided that
unless the 7Home Office evidence were filed within three days, showing
that the
applicant would be removed within a very short time indeed, habeas
corpus would issue.
[141] A second relevant case is
R (A) v Home Secretary [2007]
EWCA Civ
804. In that case the Home Secretary accepted that where there is no
risk of
absconding or of serious offending, in the ordinary way there is no
obvious reason for the Home
Secretary to exercise the power of detention: at [53]. Keene LJ at [82]
recognised
that it is exceptional to regard lengthy administrative detention as
lawful where there is
some prospect of removal but no clearly predicted date for it but since
the appellant in
that case could have voluntarily ended his detention he considered that
the detention was
reasonable. A practical test, recognised by the Divisional Court in R (Q) v Home Secretary
[2006] EWHC 2690 (Admin) per Auld LJ at [22], is whether “the process
towards
deportation appeared … to have current momentum.” In that case the
delay was the result of
dilatoriness on the part of the authorities of the detainee’s home
country in processing his travel
documents.
[142] In R (I) v Home Secretary [2003] INLR
196 (CA) Simon Brown LJ
rejected an argument that refusal to accept voluntary repatriation was
an
irrelevant consideration,
because the question was the legality of the continued detention
pending enforced removal and the premise of that question was
unwillingness to go. He noted that
in Hardial Singh willingness
to return voluntarily had been a factor in the applicant’s
favour and accordingly the converse must be relevant. He distinguished
the position in Hong
Kong (discussed below at [143] – [144]) where the Ordinance referred to
the relevance
of failure to apply for voluntary repatriation, but added at [31]:
… that is not to say that the
court should ignore entirely the
applicant’s ability to end his detention by returning home
voluntarily.
Mummery J,
dissenting, considered that the detention was lawful. Dyson
LJ, in a passage at [51], emphasised by Mr Ryken, said:
… the mere fact (without more)
that a detained person refuses the offer
of voluntary repatriation cannot make
reasonable a period of detention which would
otherwise be unreasonable.
He accepted a point
made by Mummery J, that if it might be inferred
from the refusal of voluntary repatriation that the detained person was
likely to abscond,
the refusal was relevant to the reasonableness of the duration of the
detention. But he
added at [52] that:
The relevance of the likelihood
of absconding, if proved, should not be
overstated. Carried to its logical
conclusion, it could become a trump card that
carried the day
for the Secretary of
State in every case where such a risk was made out
regardless of all other considerations, not
least the length of the period of
detention. That would be a wholly unacceptable outcome
where human liberty is at stake.
(ii) Hong Kong
[143] The Hong Kong Immigration
(Amendment) Ordinance 1991 provided
that a former resident of Vietnam who had not been granted an exemption
might be
detained in a
detention centre pending (1) a decision to grant or refuse him
permission to remain in Hong Kong and (2) after refusal, pending
deportation. The statutory
test for legality of
detention was whether the period was “reasonable” having regard to all
circumstances including whether the person had declined arrangements
made or proposed
for his removal.
[144] Given the use in the
Ordinance of the standard of “reasonable” it
is unsurprising that in Tan Te Lam
the Privy Council held that the Hardial
Singh principles
applied. Delivering the advice of the Board Lord Browne-Wilkinson at
111 recognised that:
… the legislature can vary or
possibly exclude the Hardial Singh
principles. But … the courts should construe
strictly any statutory provision purporting
to allow the
deprivation of
individual liberty by administrative decision and should
be slow to hold that statutory provisions
authorise administrative detention for
unreasonable
periods on in
unreasonable circumstances.
At 114 – 115 the
Board stated:
In their Lordships’ view the
fact that the detention is self-induced by
reason of the failure to apply for voluntary
repatriation is a factor of fundamental
importance in
considering whether,
in all the circumstances, the detention is
reasonable.
As Toulson LJ
pointed out in R(A) (at
[48]), the requirement of the
Ordinance to consider whether the person had refused to take part in a
voluntary scheme of
repatriation was germane to the Privy Council’s decision.
(iii) Canada
[145] In Canada there is no
limit on the period for which a person may
be detained, subject to regular reviews. Unsurprisingly, the issue of
potentially
indefinite detention has arisen in a number of cases and under
different immigration statutes.
[146] In Rojas v The Queen (1978) 88 DLR
(3d) 154 the Ontario Court of
Appeal considered the case of a citizen of the Dominican Republic, who
had
been held in custody
for over ten months pending his deportation. Although it is not
entirely clear from the report, it appears that he was refusing to
leave Canada voluntarily.
The Canadian
authorities were having significant difficulty finding a country to
accept him, including the Dominican Republic which would not renew his
passport.
[147] The relevant statute
permitted detention only “pending”
deportation. In the Ontario High Court, Linden J held that it was “well
settled that a person
cannot be held in custody indefinitely under a detention order”: (1977)
40 CCC (2d) 316 at 323.
On the facts, however, it was held that Mr Rojas was not being detained
indefinitely.
Despite the prospects of further delay, the efforts to secure his
removal were not
hopeless. The Court of Appeal affirmed Linden J’s decision and was in
substantial agreement
with his reasons.
[148] In Sahin v Canada (Minister of Citizenship
and Immigration)
[1995] 1 FC 214 in a disputed refugee claim (to which New Zealand law
takes a different
approach) Mr Sahin, a Turkish national, had been held in detention for
14 months following
his arrival in Canada. He had been granted refugee status, but the
decision was under appeal.
[149] The adjudicator’s
decision to continue to hold Mr Sahin in
detention was appealed to the Federal Court. Rothstein J took the view
that detention under
the Immigration Act 1985 could not be indefinite (at 227 – 228):
Having regard to the fact that
detention under section 103 of the
Immigration Act is not for the purpose of
punishment after conviction, but rather, in
anticipation of an individual’s likely
danger to the public or likely failure to appear
for inquiry, examination or removal, I do not
think such detention may be indefinite.
[150] Rothstein J concluded that
the adjudicator had erred in law by
not taking, in particular, s 7 of the Canadian Charter of Rights and
Freedoms into
consideration.
Indefinite detention could constitute a deprivation of liberty contrary
to the principles of fundamental justice. He formulated the following
non-exhaustive list of
principles,
observing that the considerations relevant to a specific case, and the
weight to be placed upon them, will depend upon the circumstances of
the case (at 231 –
232):
(1) Reasons for the detention,
i.e. is the applicant considered a
danger to the public or is there a concern
that he would not appear for removal. I
would think that
there is a stronger
case for continuing a long detention when an
individual is considered a danger to the
public.
(2)
Length of time in detention and length of time detention will
likely continue. If an individual has been held
in detention for some time as in the
case at bar, and a
further lengthy
detention is anticipated, or if future detention time
cannot be ascertained, I would think that
these facts would tend to favour
release.
(3)
Has the applicant or the respondent caused any delay or has either
not been as diligent as reasonably
possible. Unexplained delay and even
unexplained lack of diligence should
count against the offending party.
(4)
The availability, effectiveness and appropriateness of alternatives
to detention
such as outright release, bail bond, periodic reporting,
confinement to a particular location or
geographic area, the requirement to report
changes of address or telephone numbers, detention
in a form that could be less
restrictive to the individual, etc.
A
consideration that I think deserves significant weight is the amount
of time that is anticipated until a final
decision, determining, one way or the other,
whether the
applicant may remain
in Canada or must leave.
[151] Kamail concerned an Iranian who
could not be deported because he
refused to sign travel documents. He was released on bail after four
months’ detention
but the bail decision was overturned on appeal. O’Keefe J held that, on
a proper application
of the Sahin factors, Mr
Kamail should not have been released. His continued detention was
entirely due to his refusal to sign travel documents. O’Keefe J
regarded this factor as
weighing heavily against release, and concluded that to allow Mr
Kamail’s release at this stage
would be to undermine the Canadian immigration system.
[152] The issue of indefinite
detention arose again in Canada
(Minister
of Citizenship and Immigration) v Romans [2005] FC 435. The
detainee was a chronic
paranoid schizophrenic with numerous violence, drug and dishonesty
convictions. He was
detained in April 1999 and had remained in immigration detention for
five and a half years
while various appeals and challenges to his deportation order were
conducted. In August 2004,
despite still being regarded as an ongoing danger to the public, Mr
Romans was released
because his detention had become effectively indefinite and was
therefore contrary to s 7 of
the Charter. (It should be noted that within 48 hours of his release Mr
Romans was
detained involuntarily under mental health legislation.)
[153] The decision to release
Mr Romans was affirmed on appeal.
Mactavish J held that the Sahin principles had been properly applied
and his detention could
reasonably be classified as indefinite. It appears that the requirement
that a person
be only detained “pending deportation” (cf Rojas) was read into the
Immigration and
Refugee Protection Act 2001 at [51]:
While those held in immigration
detention are entitled to a detention
review every thirty days, and may be held
only as long as a removal order is pending, nevertheless, when a number of
steps remain to be taken before the
removal process can be implemented, and the time
required to complete those steps is
unknown, a lengthy detention may, for
practical purposes be reasonably termed
“indefinite”.
[154] Given that Mr Romans’
detention had become indefinite, it was
open to conclude that this violated s 7 of the Charter and he should
accordingly be
released. This was despite the fact that he was acknowledged still to
pose an ongoing danger to
the public. For this reason, Mactavish J also held that the Board was
wrong not to attach
conditions to Mr Romans’ release.
(iv)
Australia
[155] Section 196 of the
Australian Federal Migration Act 1958 states:
(1) An unlawful non-citizen
detained under s 189 [which required an
officer to detain an unlawful non-citizen]
must be kept in immigration detention
until he
or she is
(a)
removed from Australia …; or
(b)
deported …; or
(c)
granted a visa.
…
(3)
To avoid doubt, subsection (1) prevents the release, even by a
court, of an unlawful non-citizen from
detention …
[156] This section was construed by
a divided High Court of Australia
in Al-Kateb. The appellant
wished to leave Australia but as a stateless person was
unable to secure the necessary international cooperation to do so.
There was no real
likelihood or prospect of his removal in the reasonably foreseeable
future. Three of the four senior
judges, including the Chief Justice, considered that his indefinite
detention could not be
justified. The appellant must be released since continued imprisonment
could not serve the
purpose of detention – that the appellant should leave Australia. The
majority however
considered that the language of the statute admitted of no such
implication. The appeal
against an order effectively of indefinite detention was dismissed.
(v) USA
[157] Section 234(1) of
the Immigration and Nationality Act 1953 (8 USC
1253) provides a four year prison term for wilful refusal to apply for
travel
documents.
[158] Zadvydas v Davis 533 US 678 (2001)
is the leading authority on
the interpretation of s 243(a)(6), which authorises the further
detention of persons who have
not been removed during the 90-day statutory “removal period” if they
are determined to
be either a risk to the community or unlikely to comply with the order
of removal. At issue was
whether the words “may be detained beyond the removal period” permitted
the
indefinite detention of such persons. The petitioners in Zadvydas were not frustrating the
deportation process; no country was willing to accept either of them.
[159] The Supreme Court
rejected the Government’s argument that an
alien could be detained indefinitely, rather than only for the period
reasonably
necessary to secure his removal. The Court, with responsibility for
setting general standards
for the United States, fixed a term of six months as the time for which
an alien might
reasonably be detained for removal purposes. If after that period the
alien provides good reason
to believe there is no significant likelihood of removal in the
reasonably foreseeable future,
the Government must furnish evidence to rebut that conclusion.
[160] In Clark v Martinez 543 US 371 (2005),
Zadvydas was held to be of
general application. The report of the US Department of Homeland
Security
states cited above at
[134] states at 17:
Thousands of criminal aliens
with final orders are released because of
the unwillingness
of some countries to issue travel documents necessary for
repatriation. [The two cases cited] mandate
the release of criminal and other
high-risk aliens 180 days after the issuance of a
final removal order, if their repatriation
is not likely to occur in the reasonably
foreseeable future, except in “special circumstances”…[(defined as (1)
highly contagious disease that
threatens public safety; (2) where release would
have foreign policy implications; (3)
where there is high threat to national
security; (4) violent criminals with a mental
disorder)].
[161] In Pelich the Court of Appeals for the
Ninth Circuit held that
Zadvydas did not save an alien
who whose own conduct was responsible for his continued
detention.
[162] Lema concerned an individual who
was refused to co-operate in his
removal to Ethiopia and as a result had been detained for over two
years. The same
Court concluded (at 856 – 857) that continued detention was appropriate
as Mr Lema was
unable to show that there was no significant likelihood of removal in
the reasonably
foreseeable future:
We cannot know whether an
alien’s removal is a “remote possibility,”
Zadvydas, 533 U.S. at 690, 121 S.Ct. 2491,
until the alien makes a full and
honest effort to secure travel documents. A
particular alien may have a very good chance
of being removed, but if that alien is
refusing to cooperate fully with
officials to secure travel documents, neither the INS nor a
court can sensibly ascertain the
alien’s chance of removal… . We conclude that 8
U.S.C. § 1231(a)(1)(C), interpreted
mindful of the concerns underlying Zadvydas and Pelich, authorizes the INS’s
continued
detention of a removable alien so long as
the alien fails to cooperate fully and
honestly with officials to obtain travel
documents.
O’REGAN J
Introduction
[163] Prior to his
release after the delivery of the decision under
appeal, Mr Yadegary had been in detention for two years and five
months. He is unlawfully in
New Zealand. The intention of Immigration New Zealand (INZ) is that he
will be
repatriated to Iran as soon as that can be achieved. However, that will
not be able to occur unless he
signs an application for an Iranian passport, which he consistently
refuses to do, or if New
Zealand and Iran successfully conclude an agreement under which
Iranians unlawfully in
New Zealand can be repatriated to Iran without the need to apply for a
passport. We are
told the efforts to achieve such an agreement are proceeding but after
some years of effort
there is still no timeframe for the conclusion of the process.
[164] The District Court Judge
found that Mr Yadegary had genuine
reasons for refusing to sign a passport application form. The fears
which Mr Yadegary has
about persecution if he returns to Iran are, on the basis of the
findings of the Refugee
Status Appeals Authority, not well founded. An alternative view would
be that Mr Yadegary does
not genuinely fear persecution, but is so adamantly opposed to the
prospect of return to
Iran that he refuses to sign the application forms. Either way, his
attitude is characterised
by a high level of obduracy and determination which, given the length
of time he endured
in detention prior to the High Court decision, seems unlikely to be
altered.
Section 60 in context
[165] Baragwanath J has
highlighted the rather awkward drafting of ss
59 and 60 at [19] – [27] of his judgment. The amendment made to s 60 to
deal with
uncooperative detainees sits rather uneasily with the rest of s 60.
While s 60(6) appears, on
its face, to create a quite separate, and considerably more draconian,
regime for such persons, the
drafter has not entirely separated the legal requirements relating to
them from the
remainder of s 60. The result is something of a conundrum.
[166] The Hansard record from
the debate leading to the supplementary
order paper containing the provisions which became s 60(6) and (6A)
assists in
identifying the legislative context. The historical context is outlined
at [216] in the
judgment of William Young P.
[167] The then Minister of
Immigration, Hon Lianne Dalziel, described
the reason for the amendments in the following terms (4 September 2003)
611 NZPD 8405:
This amendment was required to
address a serious situation where a High
Court ruling
enabled the release from detention of two individuals who were
unlawfully in New Zealand and awaiting
removal. The only reason they were still in New Zealand was that we were unable
to obtain travel documents for them
because, in both cases, they refused to sign
applications for them. The fact that
both were released without conditions is
of significant concern. It occurred
because there was no basis to detain them, so
there was no basis to impose conditions on
them, either. The fact that the judge said the
writ of habeas corpus was issued
“albeit with some reluctance” was a significant
signal from the court that it was up to
Parliament to fix this.
Section
60 came into force in 1999, when National was changing the
rules around removals from New Zealand. The
3-month limitation was believed to be a
sufficient
balance between the
time needed to obtain travel documents and the
amount of time someone would be detained. No
one contemplated someone holding out for 3
months– effectively,
preventing that person’s removal and effecting
that person’s freedom. I hope the lawyers who
successfully argued for this loophole
are satisfied
at the result of
their work and at what they have achieved for their
clients.
I
hope that, in light of the changes that have been brought in, the
Green Party stops saying this amendment is
indefinite detention. It is not. It is a
warrant of
commitment that can
be renewed on a 30-day basis by a court. The court
retains the ability to consider exceptional
circumstances, even though it is the
action or inaction of the individual concerned that
means he or she cannot be removed. If
the particular
individuals concerned had signed their applications, they
would not be in detention–they would be
gone–and, if certain charges were proven, maybe
a woman would not be lying critically
ill in hospital today. I am not blaming
anyone for that; it would be wrong to do so. I
would say, though, that members of the
Opposition would do that if it were the
other way round–they would blame this
Government if we had been responsible for
bringing in section 60. But it is not a
case of fault; nobody could have foreseen that
this would occur.
[168] The Minister was adamant that
the new provisions did not provide
for “indefinite detention”, even for a person who was refusing to
cooperate. As she
correctly pointed out, the Court retained the power to order release if
there were exceptional
circumstances even though the reason for detention was the failure of
the detainee to
cooperate. In light of that comment, it is hard to see why the fact
that detention is effectively
self induced should be seen as a conclusive factor against a finding of
exceptional
circumstances. Of course, if a Court does find that there are
exceptional circumstances, then the
detainee can be released on conditions (unlike the release of Mr
Mohebbi, which had to be done
unconditionally), as, in fact, happened in the present case.
Purposes
[169] As explained by
William Young P at [214] – [215], the sections
were originally drafted with a view to being compliant with the Hardial Singh
principles, because the time periods for detention were closely
circumscribed and the purpose of
detention under s 59 (and the continuation of detention under s 60) was
stated to be to
enable the execution of the removal order: s 59(2). A warrant from a
judicial officer is required
for detention under s 60. Section 60(3) requires the Judge to consider
whether the delay in
executing the warrant is “for an unreasonable period”, and if so a
further warrant of
commitment is not available unless there is some other “public
interest” reason.
[170] The maximum period of
detention is three months: s 60(7).
[171] Against this background
of carefully circumscribed provisions for
detention, s 60(6) is a significant departure from the regime which
existed prior to the
amendment which added s 60(6) to the Act.
[172] Courtney J concluded
that the purpose of detention of a detainee
to whom s 60(6) applied was still the execution of the removal order.
While that is so,
the special
circumstances which arise when the detainee fails to cooperate engage
subsidiary purposes of encouraging or coercing cooperation and
prevention of abuse of the
system (obtaining effective rights of residence even though not
entitled to them).
Section 60(8) evidences that purpose. In determining whether
exceptional circumstances have arisen,
those subsidiary purposes are important factors.
Exceptional circumstances
Unreasonableness
[173] Courtney J saw the
application of the Hardial Singh
principle as
requiring an interpretation of “exceptional circumstances” as being
effectively
synonymous with
unreasonable. I do not believe that that is correct.
[174] As explained at [169], s
60 as originally drafted effectively
incorporated the Hardial Singh
principles. However, in enacting s 60(6) and (6A), the
legislature departed from the then existing regime which was consistent
with the Hardial Singh
principle of unreasonableness and applied a more exacting test of
exceptional
circumstances. In other words, the introduction “of exceptional
circumstances” in s 60(6)
imposed a higher threshold than unreasonableness.
[175] What was meant by
exceptional takes colour from the Hansard
debate: it was not intended that s 60(6) impose indefinite detention
for detainees who
were refusing to cooperate in their removal, nor did the three month
maximum apply.
Time
[176] On behalf of the
Crown, Mr Palmer suggested that exceptional
circumstances are limited to circumstances relating to the detainee,
i.e. matters of a
humanitarian nature such as illness (physical or mental) or the like
which cannot be adequately
provided for in the prison environment. However, unlike other
provisions in the Act which
expressly refer to exceptional circumstances of a humanitarian nature
(see, for example, s
47) the present section does not. In principle, I cannot see why the
extensive period
of time for which someone has been detained cannot be brought to bear
in the
consideration of the existence of exceptional circumstances.
[177] The circumstances which
arise where an application for refugee
status occurs (s 60(6)(a)) provide an interesting contrast to the
present situation.
Where a detainee seeks refugee status after a removal order has been
served, one can assume
that the outcome will be known within a few months or, at most,
something over a year
(depending on the exercise of appeal rights). The additional purpose in
that case is to
ensure that the tactic of making a belated claim for refugee status
does not yield the beneficial
side effect of de facto residency. But in order to achieve this, the
period of detention will
be a finite period and, in many cases not significantly greater than
the three month maximum
provided for in s 60(7).
Purpose
[178] In the case of
someone in Mr Yadegary’s position, the elimination
of the time factor from the “exceptional circumstances” inquiry would
mean that, absent
illness or the like, detention could continue indefinitely, unless Mr
Yadegary gives in. But
Mr Palmer submitted that the Crown was not contending for indefinite
detention –
he put his case this way:
… it is at no point suggested
that s 60(6)(b) must be interpreted to
authorise indefinite detention. Rather,
absent exceptional circumstances,
detention is authorised for so long as
voluntary repatriation is available but
intentionally obstructed by the person
concerned and, in addition, where
there is
also the prospect
of removal proceeding as a result of diplomatic negotiations.
…
Provided diplomatic negotiations retain momentum, rather than failed,
as in having
“stalled”, it is submitted that detention remains authorised by
s 60(6)(b).
(Emphasis
added.)
[179] The Crown accepts that,
where the overarching purpose of s 60,
removal from New Zealand of a person who is in New Zealand illegally,
could no
longer be achieved, continued detention would not be permitted. It also
appears that the
Crown accepts that, if the negotiations with Iran were to break down so
that removal of Mr
Yadegary without the need for him to sign an application form was
foreclosed, then the
purpose of removing him could no longer be achieved. That in turn
appears to involve an
acceptance that there is no real prospect that Mr Yadegary will sign an
application form. I
consider that to be a realistic assessment of the position.
[180] Given the position taken
by the Crown, its case appears to depend
on the continued viability of the negotiations with Iran. The updating
affidavit
provided by the responsible official for the purposes of this appeal
indicated those negotiations
continuing to make progress, but without providing an indication of the
likelihood of
success or the likely timeframe. Nevertheless, I am prepared to accept
that, even if it is
assumed that Mr Yadegary will never sign an application for an Iranian
passport, the
purpose of removing him from New Zealand remains a possibility because
it is
possible that the negotiations with Iran will eventually succeed. Thus,
if the test
postulated by the Crown is applied, there is no basis for ordering that
Mr Yadegary’s detention
cease on the basis that the purpose of removing him is no longer
achievable.
Analogy with contempt of court
[181] On the other hand, if the
negotiations with Iran do break down,
then in my view the prospects of Mr Yadegary signing an application
form are now so remote
that it should be accepted that no reasonable prospect of removing him
exists. As I
understand it the Crown accepts that. I reach that conclusion because
in my view the obduracy
shown by Mr Yadegary, enduring imprisonment for 29 months, is such that
there
can now be no realistic prospect of his yielding to the coercion
imposed on him by
his detention.
[182] The present situation has
a number of similarities to the
flouting of court orders, leading to imprisonment for contempt. William
Young P refers to the
case of Re Davies (1888) 21
QBD 236 at [251] of his judgment. In that case, Mrs Davies
was imprisoned for 18 months when she refused to abide by an injunction
issued against
her. Matthew J referred to a need to ensure that the punishment is
commensurate with
the offence: at 238.
[183] The President also refers
to Re Barrell Enterprises
[1973] 1 WLR
19 (CA), which dealt with the failure of the appellant to deliver
certain documents to
the Official Receiver, when required to do so by court order. She was
found to be in contempt
of court and imprisoned pending compliance with the order. After five
months of
incarceration, the court of appeal ordered her release, notwithstanding
her continued
non-compliance with the order. Russell LJ observed (at 27):
If we thought it at all likely
that the dismissal of all Miss Barrell’s
applications to this Court and the continuance
of her incarceration for some reasonable
period
would lead to her
producing the securities or enabling them to be
recovered by the Official Receiver then we would
be in favour of refusing her
application for release.
We cannot accept a
proposition that a person committed for failure to
obey a mandatory order should never be
released so long as he continues in
disobedience.
The only case that
could be thought to support that proposition was
Corcoran v Corcoran
[1950] 1 All ER 495, where Wilmer J used firm language, no
doubt with a
view to inducing the
contemnor to comply with the order of the Court.
It is inconceivable
that with a view to enforcement of its order the Court
should keep a
man or woman in
prison for life or for a long term of years.
[184] Russell LJ did
not accept the proposition that compliance would
be likely if the contemnor had to face the possibility of truly
indefinite detention. He
said (at 27):
[Counsel] for the Official
Receiver suggested that with the dismissal
of these appeals against the original
finding of contempt, Miss Barrell would
now be forced for the first time to face the
grim reality of her situation, and be
therefore more likely to give an acceptable
explanation as to these documents. But we
do not think there is the least likelihood
that if the appellant were kept in prison
she would now within a short time disclose the
true story of these securities. We
very much doubt if she would ever do so … .
[185] A similar sentiment was
expressed by Lord Denning MR in
Danchevsky v Danchevsky [1974]
3 All ER 934 (CA). At 937, Lord Denning expressed the
view that, while an indefinite order for imprisonment may be
justifiable where
there is a reasonable prospect of the detainee complying with the court
order, it would not
be appropriate to do so where there is no prospect of compliance. In
the latter case, a fixed
term for the past disobedience is the appropriate sanction.
[186] In Enfield London Borough Council v Mahoney
[1983] 1 WLR 749 at
758, May LJ expressed the view that, once a contemnor has been
sufficiently
punished for disobeying a court order, he should not be punished
further for continuing to do the
same thing, even though in a sense this shows that he is continuing to
be contumacious.
He continued:
If … the Court takes the view he
has been punished enough for the
original contempt, then the only
remaining justification for continuing to keep
him in custody is that this may still
have a coercive effect and make him
comply with the original order. If it is quite
clear that he is not going to comply
however long he stays in custody, then provided,
as I say, that he has been punished
enough there is in my view no justification for
continuing to keep him in prison.
[187] I do not share the view
expressed by William Young P (at [254] of
his judgment) that it is still possible Mr Yadegary might eventually
cooperate in his
return. It seems to me that the present situation is more analogous
with the situations dealt
with at [251] of the judgment of William Young P. In cases of ongoing
flouting of court
orders amounting to contempt of court, the reality that entrenched
positions are unlikely
to change by the passing of time and detention is well recognised, as
the cases cited by William
Young P illustrate. I cannot see a strong case for a different approach
in the present
context. So, while I accept the point made by William Young P at [252]
that the contempt cases are
not on all fours with the present case, I consider them to have
sufficient similarity to
provide guidance in the present context.
Application of s 60(3)
[188] I disagree with
the analysis of Baragwanath J that a judge
determining whether an uncooperative detainee’s warrant for detention
should be renewed is
required to be satisfied that the reasons that the detainee cannot
leave New Zealand under s
60(3) continue and are likely to continue “but not for an unreasonable
period” or that it is
“in the public interest” that the detainee’s detention continue. In my
view, s 60(6A) provides
its own authority for a Judge to extend a warrant whether s 60(3)
applies or not – all that
is required is that the Judge had decided not to order the detainee’s
release under s 60(6).
While s 60(6A)(ii) says that s 60(3) applies, it also says that s 60(6)
and s 60(6A) itself
applies, and s 60(6) and 60(6A) effectively regulates the position of
an uncooperative detainee.
[189] The only circumstances in
which s 60(3) or (5) could apply would
be where the detainee has discontinued his or her non-cooperation so
that the reason
that his or her removal cannot occur promptly is something other than
his or her own
action or inaction or a Judge has determined that there are exceptional
circumstances for the
purposes of s 60(6). I do not consider that there is any need to add
words as suggested by
Baragwanath J at [76]. Nor do I consider it necessary to strain the
words to reach an
interpretation in favour of liberty of the person. My interpretation is
consistent with the
purposes identified at [172] above, and the exceptional circumstances
qualification to s 60(6)
provides protection for an uncooperative detainee against indefinite
detention.
[190] Even if I am wrong on
that, if s 60(3) did apply it would have to
be read in context. Both s 60(6) and s 60(8) are important elements of
that context.
Section 60(6) displaces the presumption of a three month maximum, and
contemplates that for
uncooperative detainees, detention will be in the public interest
unless exceptional
circumstances apply. Section 60(8), with its emphasis on ensuring
compliance with immigration laws,
is also important. It emphasises the subsidiary purpose of detention in
cases such as
this, namely incentivisation of compliance and rendering unattractive
non-compliance. So the standard to be applied by the Judge would still
be “exceptional circumstances”
because in the absence of such circumstances, detention is treated as
being in the
public interest.
[191] On the facts before us I
accept that the purpose of removing Mr
Yadegary remains achievable because the negotiations with Iran may
yield a result that
makes it possible to remove him without his signing anything. I also
accept that continued
detention of Mr Yadegary would serve the subsidiary purpose of
deterring
non-cooperation by others.
“Exceptional circumstances”
[192] The question then is
whether Mr Yadegary’s position amounted to
an exceptional circumstance, at the time Judge Field considered the
application for
the extension of the warrant of commitment. It is clear that the mere
fact of imprisonment
for more than the three month maximum period referred to in s 60(7)
does not constitute
exceptionality. Those who delay their removal by their own actions are
not entitled to
the protection of that time limit for the reasons accepted as valid in
cases such as Tan Te
Lam v Superintendent of Tai A Chan Detention Centre [1997] AC 97
at 114 – 115 (PC) and R (A) v
Secretary of State for the Home Department [2007] EWCA CIV 804
at [54].
[193] As noted earlier, the
time factor cannot be excluded from the
consideration of exceptional circumstances. If it were excluded, as the
Crown argued it
should be, indefinite imprisonment would have to be countenanced, and
the Crown rightly
conceded the section did not provide for that. I agree with Baragwanath
J that, if the time
factor was intended to be excluded from the analysis of exceptional
circumstances, s 60(6)
would have needed to say so.
[194] The circumstances would
be exceptional, in my view, if the only
method of removing Mr Yadegary was with his cooperation and the purpose
of
coercion could not be expected to succeed. If the coercion purpose
could not be expected to
succeed, neither could the overarching purpose of effecting Mr
Yadegary’s removal. The
point at which the purpose of coercion can be said to have failed is a
matter on which
views can reasonably differ, but I would be prepared to find on the
present facts that it
had been reached after 29 months of detention. Such a period is also
sufficient in my view to
disincentivise noncooperation (though I acknowledge that an even longer
period of detention would
provide an even greater disincentive). It has to be remembered that the
situation which led to the enactment of s 60(6) was that there was a
three month maximum. Mr
Yadegary was in detention for almost ten times as long as that.
[195] I am conscious of the
very strict interpretation of the term
“exceptional” in the recent decisions of the Supreme Court in Rajamani v R [2008] 1 NZLR 723
and Wong v R [2008] NZSC 29.
[196] In Rajamani, the Court determined what
“exceptional” meant by
reference to the sort of situations highlighted in the parliamentary
debates leading to
the enactment of the relevant provision. Parliament had legislated to
allow a trial court to
direct that a trial continue with fewer than 11 jurors without the
consent of all counsel
if the court considered that that was appropriate “because of
exceptional circumstances
relating to the trial (including, without limitation, the length or
expected length of the
trial), and having regard to the interests of justice”. The Supreme
Court noted that the
amendment had been made in anticipation of a trial of an alleged serial
rapist which involved 27
complainants and was expected to last five months. It said the phrase
“exceptional
circumstances” had to be construed against that background.
[197] In Wong it was decided that
exceptional circumstances did not
exist where the trial had entered its fourth week and the prosecutor
was part way through the
Crown closing address when the number of jurors fell below 11. There
were several
accused, interpreters and 41 witnesses of whom 30 were heard orally and
one of whom had come
from overseas to give evidence. The Court said that, to be exceptional,
the
circumstances “need not be rare but in combination they must be
distinctly out of the ordinary”
(at [9]).
[198] More recently, the
Supreme Court considered the meaning of the
phrase “exceptional circumstances” in ss 114 and 115 of the Employment
Relations Act 2000 in Creedy v
Commissioner of Police (2008) 8 NZELC 99,336 (Wilkins &
Field Ltd v Fortune [1998] 2 ERNZ 70 at 76 cited at [31]).
Section 114 requires that an
employee who wants to raise a personal grievance must do so within a 90
day period. This
period may be extended in certain circumstances including where the
delay “was occasioned by
exceptional circumstances”. The Supreme Court referred to a decision of
this Court
which treated “exceptional circumstances” in a similar context as
“unusual, outside
the common run, perhaps something more than special and less than
extraordinary”. The
Supreme Court said this formulation combined two different meanings,
the first being
unusual and the second being a more stringent interpretation of
somewhere between special and
extraordinary. It said that it preferred the first meaning. One of the
reasons it gave
for choosing that meaning was that equating “exceptional” with
“unusual” was desirable because it
did not limit unduly the power to extend the otherwise short timeframe.
[199] The contrast between Rajamani and Wong on the one hand, and
Creedy on the other, emphasises the importance of context in
determining the meaning of a
phrase such as “exceptional circumstances”. In the present case the
statutory history
(outlined in [166] – [168] above) provides important context. The
speech of the Minister at
the introduction of the Bill makes it clear that s 60(6) was not
intended to provide for
indefinite detention, and the court was able to consider exceptional
circumstances even though
the detention of the individual was effectively self-induced (see
([168] above). On the
other hand, it is clear that Parliament considered that unlawful
overstayers who refused to
cooperate in their removal from New Zealand should not be able to
obtain de facto
residence rights by simply enduring three months detention.
[200] There was, perhaps, an
anticipation that the prospect of a longer
period of detention would coerce the detainee to cooperate, but that
has not happened in
relation to the only two detainees who have become subject to s 60(6),
Mr Mohebbi and Mr
Yadegary. However Parliament chose to leave the decision to the
District Court as to
where on the spectrum between three months detention and indefinite
detention a halt should
be brought to the detention of an uncooperative detainee, requiring
that that assessment
be measured against the criterion of “exceptional circumstances”. The
Crown appears to have
accepted that, in the case where removal is not achievable except with
the detainee’s
consent, and it has become clear that that consent will not be
obtained, detention is no
longer permitted. I have come to the view that after the period of
detention endured by Mr
Yadegary, that point has been reached.
[201] In this case, however,
there is an alternative means of removal,
and the Crown argues that as long as that alternative remains as a
possibility,
detention should continue. I do not accept that proposition. Mr
Yadegary was in detention for 29
months, and his release as a result of the High Court judgment occurred
well over a
year ago. Yet the alternative method of removing him (through an
agreement with the
government of Iran) has still not eventuated.
[202] In my view a delay of
that magnitude would have been regarded as
constituting exceptional circumstances by Parliament when it enacted s
60(6) and the
provision should be interpreted accordingly given the context and its
statutory history.
In particular:
(a) Parliament did not intend that there be indefinite detention and
countenanced the release of an uncooperative detainee if a Judge found
exceptional circumstances existed;
(b) Time is not ruled out by the statutory language as a factor in
assessing exceptional circumstances;
(c) Imprisonment for those applying for refugee status (triggering s
60(6)(a)) would not be likely to exceed 12 months;
(d) The purpose of coercion should now be regarded as unlikely to be
achieved;
(e) The purpose of deterring non-cooperation has been furthered by a
long term of imprisonment (though I accept it would be better achieved
if even
longer imprisonment followed);
(f) An agreement with Iran remains only a possibility despite some
years of negotiation;
(g) Mr Yadegary’s detention for two years and five months is nearly ten
times as long as the maximum period for those to whom s 60(6) does not
apply. It constitutes a significant sanction for his failure to leave
New Zealand
when legally obliged to do so;
(h) It was the application of that three month maximum to Mr Mohebbi
which led to the enactment of s 60(6); and
(i) Detention for such a long period of an unlawful overstayer is
highly unusual.
Consequences of there being
exceptional circumstances
[203] Once it is
determined that exceptional circumstances exist, the
Judge considering the application for renewal of the warrant is
directed to s 60(3) – (5) and
must determine whether it is appropriate to release the detainee on
conditions in
terms of s 60(5). Once those provisions came into play, a release on
conditions was an
appropriate response in Mr Yadegary’s case, given the lack of flight
risk and of any risk of
offending while subject to release.
Arbitrary detention
[204] Having reached
this conclusion it is unnecessary for me to
determine whether Mr Yadegary’s detention was arbitrary.
Approach to relief
[205] I am satisfied
that it was appropriate in the unusual
circumstances of this case for Courtney J to substitute her own
decision for that of Judge Field. That
is reinforced by the fact that Mr Yadegary could have appealed to the
High Court rather than
seeking judicial review, and if he had done so the Judge would clearly
have been
entitled to do what she did.
Result
[206] For these reasons
I would dismiss the appeal. I agree with the
orders proposed by Baragwanath J.
WILLIAM
YOUNG P (Dissenting)
Overview
[207] I see this case as turning on three issues:
(a) Is the proposed removal of Mr Yadegary so unlikely or remote as to
no longer justify detention?
(b) Did Mr Yadegary’s detention become indefinite?
(c) Are there exceptional circumstances which justify Mr Yadegary’s
conditional release?
As will become apparent, these issues, although warranting individual
discussion, are closely interconnected. Before turning to that
discussion I will
address:
(a) The key facts;
(b) My interpretation of s 60(6);
(c) The way in which similar issues have been addressed in other
jurisdictions; and
(d) The possible application of the New Zealand Bill of Rights Act 1990.
The key facts
[208] It is common ground that:
(a) Mr Yadegary was able at all times to obtain release from
imprisonment by seeking appropriate travel documentation from the
Iranian authorities;
and
(b) Diplomatic efforts to obtain a change in the Iranian policy which
prevents compulsory repatriation are continuing. Whether they will be
successful
and, if so, when compulsory repatriation will be possible are uncertain.
There are, however, two factual issues on which I should comment.
[209] Mr Yadegary was first
detained on 2 November 2004. We do not have
much detail of the decisions to grant warrants of commitment which
preceded the
final decision of Judge Field on 17 November 2006. From the material we
have it appears
that there were opposed hearings as to the extension of the warrant of
commitment on 18
November 2004, 10 February 2005, 1 August 2005 and 18 December 2005. As
well, on 9
November 2005, Mr Yadegary sought humanitarian relief from the
Associate Minister of
Immigration which was not declined until 29 September 2006. Mr Yadegary
then sought the
written advice which the Minister had acted on and invited the Minister
to reconsider
his decision. On the material before us, there is no explanation for
the delay between Mr
Yadegary’s detention (on 2 November 2004) and his application to the
Minister (on 9 November
2005). What is clear, however, is that for the 12 months preceding the
hearing on 17
November 2006, Mr Yadegary was seeking legal permission to remain in
New Zealand and
there is no evidence to suggest that this was not his aim in the period
between
November 2004 and November 2005.
[210] In an affidavit of 1
December 2006 which Mr Yadegary filed in the
High Court proceedings he said:
I will rather die in prison than
live one moment in Iran.
Such an assertion,
by its nature, is not easy to controvert. But it
need not necessarily be accepted at face value. There is no finding of
fact in either the
District Court or the High Court as to the likelihood (one way of the
other) of Mr Yadegary
agreeing to return voluntarily to Iran rather than face continuing
detention.
[211] It is important to
recognise that throughout his period of
detention, Mr Yadegary had not given up hope of being permitted to
remain in New Zealand.
Given his continuing efforts in this regard, it is not surprising that
he has not been
prepared to return voluntarily to Iran even though the immediate
alternative was remaining in prison.
For this reason, I do not see his stance to date as necessarily
conclusive as to what he
would do upon foreclosure of all other options of remaining in New
Zealand or securing his
liberty.
[212] An associated factual
issue is whether there is a risk of
absconding. I say “associated” because the more adamant Mr Yadegary is
about not
returning to Iran, the
greater might be thought to be the risk of him absconding if that is
the only alternative to repatriation. I have no difficulty in accepting
that Mr Yadegary does
not pose a substantial flight risk providing there is no immediate
prospect of him being
returned to Iran. I rather suspect that the comments in the District
Court and High Court
judgments as to the absence (or only limited) risk of absconding were
directed to that situation.
If, however, there is eventually a diplomatic solution the current
impasse (so that Mr
Yadegary could be repatriated involuntarily), it is far from obvious to
me that he would
cooperate in his removal from New Zealand. If his history to date is
any guide, it is
quite possible that he would go to ground rather than surrender so as
to facilitate
repatriation.
[213] The associated risk of
absconding might arguably be at a level
which could preclude conditional release under s 60(5). I do not,
however, see it as a
controlling consideration in relation to this appeal. In large measure
this is because the findings
on this point in the District Court and High Court were in favour of Mr
Yadegary on this
issue and were not challenged by the Crown. As well, as will become
apparent, I am
sceptical about the likelihood of there being a diplomatic solution in
the foreseeable
future.
My interpretation of s 60(6)
The Hardial Singh principles
[214] The starting point
for an analysis of s 60 of the Immigration Act
is R v Governor of Durham Prison, ex
parte Hardial Singh [1984] 1 WLR 704 (QBD) which
addressed a power of detention pending removal. The case concerned not
an illegal
immigrant but rather one who was subject to deportation by reason of
criminal
offending who, by the time of the hearing in the High Court, was
prepared to return to his home
country. The principles which emerge from that case are that, in the
absence of a
contrary legislative direction:
(a) The power to detain can only be exercised during the period which
is reasonably necessary to effect removal;
(b) If removal is not possible within a reasonable period, no further
detention is permissible; and
(c) Those insisting on detention must take all reasonable steps to
ensure removal within a reasonable time.
[215] It is clear that as first
enacted s 60 was intended to be
consistent with the Hardial Singh
principles.
The origins s 60(6)
[216] Section 60(6) came
into effect on 9 September 2003 as a hurried
response to Mohebbi v Minister of
Immigration [2003] NZAR 685 (HC) in which
Chambers J held that s 138A(5) of the Immigration Act did not provide
for the continued
detention of an Iranian overstayer whose circumstances were similar to
those of Mr Yadegary.
Having regard to this context, and what was said in Parliament when the
bill was under
consideration, it is clear that s 60(6) was enacted to address the
particular problem that
can arise with Iranian overstayers: that the Iranian government will
not issue a passport for
an Iranian national without that person’s request. It is right to
recognise, however, that
problems with compulsory repatriation can arise with citizens of other
countries.
The policy underlying s 60(6)
[217] The policy
considerations which underlie s 60(6) are presumably
as follows:
(a) Although overstayers are under a legal obligation to leave New
Zealand under s 45, breach of this obligation does not entail criminal
responsibility. Unless s 60(6) can be invoked, there is no practical
sanction on
overstayers who block their removal.
(b) There is an underlying policy (expressed in s 60(8) in terms of the
obligations of Judges) to ensure a high level of compliance with the
law. In the cases addressed by s 60(6)(b), compliance with the law
involves the cooperation of the detainee (in seeking travel
documentation). The
prospects of obtaining such compliance are enhanced if the alternative
to
cooperation is imprisonment.
(c) To put the point just made in (b) another way, allowing those who
do not conform to their legal obligations to enjoy freedom and the de
facto
benefits of residency in New Zealand does not tend to “ensure” a high
level of compliance.
The fundamental purpose of s 60
[218] It is implicit in the
scheme of ss 59 and 60 that the detention
which is contemplated is for the purpose of facilitating removal. I am
therefore prepared to
accept that there may be cases where removal is so unlikely or remote
in time as not to
warrant detention.
The problems with s 60(6)
[219] There are two
problems with s 60(6), which have both come to the
fore in the judgments of Baragwanath and O’Regan JJ:
(a) The lack of clarity as to the inter-relationship between s 60(6)
and the rest of s 60; and
(b) The failure to address what is to happen if, despite imprisonment,
a detainee declines to cooperate with removal.
Lack of clarity as to the
inter-relationship between s 60(6) and the
rest of s 60
[220] Under s 60(1), (2)
and (3), the power to issue a warrant of
commitment involves the exercise of discretionary authority. A person
arrested under s 59 who
cannot be removed within 72 hours must be released unless an
immigration officer
exercises his or her discretion to seek (and obtains) a warrant of
commitment. And where a
warrant is sought, s 60(3) suggests that the Judge also has a
discretion to decide whether
to issue a warrant, even where one or more of the listed pre-conditions
is satisfied. The
power to order conditional release under s 60(5) arises only where a
second or
subsequent extension (under s 60(4)) is sought. But on such an
application, it will also be open to
a Judge simply to decline to extend the warrant (pursuant to the
general s 60(3)
discretion which is preserved under s 60(4)). Further, leaving aside s
60(6) for the moment, a Judge
will not get to the s 60(5) discretion unless satisfied that one or
more of the s 60(3)(b),
(c) or (d) preconditions are satisfied.
[221] Section 60(6) is
expressed so as to restrict the exercise of the
discretion to order conditional release under s 60(5). As well, it
provides an exception to
what would otherwise be the three months limit on detention provided
for by s
60(7). The subsection does not purport to control expressly the
underlying discretions of a
Judge not to issue or not to extend a warrant of commitment. Nor does
it expressly legislate
away the continuing operation of the s 60(3) preconditions. Indeed s
60(6A), which provides
for what happens when the Judge decides not to order release under s
60(6A), is itself
cast in discretionary terms (“the Judge may … extend the warrant …”).
[222] This clumsiness of
expression leaves scope for a literal
interpretation of the section under which a Judge who cannot find
exceptional circumstances in
relation to a particular detainee may avoid the effect of s 60(6) by:
(a) Exercising a general discretion not to extend a warrant.
(b) Or holding that none of the key s 60(3) preconditions have been
satisfied and therefore holding that there is no jurisdiction to extend
the warrant.
In a case such as Mr Yadegary’s, this would involve conclusions that
the period
likely to elapse before he can be removed is unreasonable (for the
purposes of s 60(3)(b) and (c) and that an extension of the warrant of
commitment
is not in the public interest (see s 60(3)(d)).
This is broadly the interpretation which is favoured by Baragwanath J.
[223] Although this
interpretation is in accord with the literal words
of the section, I do not see it as conceivably consistent with the
intention of the
legislature. It is clear that the parliamentary assumption was that a
detainee in the position of Mr
Yadegary would only be able to secure release if the exceptional
circumstances test is
satisfied. It sometimes happens that the legislature amends an act on
the basis of a
misunderstanding of the existing statutory position. Where this
happens, there is no requirement for the
courts to construe the existing statute so as to accord with the
legislature’s mistaken
assumption as to its effect, see for instance R v Andersen [2005] 1 NZLR 774 at
[48] and
[59] (CA). The situation here, however, is rather different. This is
because the
legislature did not really misconstrue s 60 as a whole. Rather it
introduced s 60(6) on a
particular assumption as to its effect. In this context I am reluctant
to construe the section on
the basis that the legislature missed its mark.
[224] In my view, when the
legislature enacted s 60(6), it did so on
the basis that a detainee who was thwarting removal (so as to be within
s 60(6)(b))
could not maintain that the resulting delay in arranging removal was
for an unreasonable period
for the purposes of s 60(3)(b) and (c). Likewise in such a case,
continuing detention would
be in the public interest in the absence of exceptional circumstances
under s 60(6). On
this basis, I construe s 60(6) and (6A) as occupying the ground when Mr
Yadegary came before
Judge Field on 17 November 2006. The options open were conditional
release under s
60(5) and (6) (providing the Judge considered that there were
exceptional
circumstances that justified release) or further detention under s
60(6A). In saying this, I have
not overlooked the fact that the s 60(6A) power to extend the warrant
is itself expressed in
discretionary terms but I confess to difficulty seeing how a Judge who
had got as far as s 60(6A)
could realistically decline to extend a warrant. I am inclined to treat
the discretion as
reflecting the range of options available (for instance extending the
warrant for a lesser
period than 30 days or as to other orders which might be appropriate
under s 60(6A)(b)). Although I
accept that the language of the section is awkward, I do not regard it
as inconsistent
with my preferred interpretation.
[225] There are two more
general considerations which I should mention:
(a) Baragwanath J adopts his interpretation on the basis of a
preference for construing the statute
in favorem libertatis. I prefer to apply s 5(1)
of the Interpretation Act 1999. The text of the section being
ambiguous, we
should resolve that ambiguity in light of the legislative purpose. That
purpose is reasonably discernible in light of the policies which
resulted in the
enactment of s 60(6). Section 60(8) is also material. There was no
point in the legislature seeking to constrict through s 60(6) the
circumstances in
which a detainee might obtain conditional release if the decision
whether to
extend the warrant is otherwise at large.
(b) For reasons which appear later in my judgment, I am of the view
that my preferred interpretation of s 60(6) does not involve any
conflict with
the New Zealand Bill of Rights Act 1990.
[226] The corollary of my
interpretation of s 60 is that I disagree
with the approach taken by Courtney J in terms of the continuing
application of the second of
the Hardial Singh principles.
In my view, in a situation which is covered by s 60(6), the
critical issue is whether there are “exceptional circumstances” and the
reasonableness or
otherwise of the period of detention which is brought about by the
recalcitrance of the
detainee is not a controlling consideration. In saying this, however, I
am not disputing
the relevance of length of detention. A period of detention which goes
beyond what could
have been contemplated by the legislature in enacting s 60(6) will, I
accept,
amount to an exceptional circumstance.
Failure to address what is to happen
if, despite imprisonment, a
detainee declines to cooperate with removal
[227] The legislature
did not address what should happen where a
detainee refuses to cooperate in removal despite detention and, in
particular, was not
specific as to how long a recalcitrant detainee should be held. One
possible view of the section
is that it contemplates detention for such period, no matter how long,
as is necessary to
coerce cooperation.
[228] O’Regan J has set out
what the Minister of Immigration said as to
the reasons for the amendment at [167]. She denied the proposition that
the “amendment is
indefinite detention” although quite what she meant by her denial is
unclear. In
some of the cases to which I will refer later, judges in other
jurisdictions have been
unwilling to treat as indefinite a detention which can be ended by the
detainee agreeing to
voluntary repatriation. I doubt, however, if this was what the Minister
had in mind. It is more
probable that she thought that detainees would submit to repatriation
or involuntary
repatriation would become possible before the detention provided for
had become
indefinite. I note as well that in argument before us, the Crown
accepted that s 60 was not
intended to provide for indefinite detention.
[229] In that context, I
proceed on the basis that the legislation
would not permit holding Mr Yadegary in prison until he either dies or
cooperates in his removal
(which is what I mean by indefinite detention). I see such a limitation
as able to be
achieved by either (or both):
(a) Construing or applying the exceptional circumstances test so as to
include detention which has – or threatens to – become indefinite; and
(b) Accepting that detention which has – or threatens to – become
indefinite is necessarily associated with any prospect of removal being
unacceptably unlikely or remote in time
I do not think it matters which approach is taken. For ease of
discussion I propose to treat indefiniteness of length of detention as
an independent basis
justifying release. I should make it clear, however, that I see a
difference between indefinite
detention (as I have defined it) and indeterminate detention which is
contemplated under s
60(6) in the sense that at the point detention begins, it is not
necessarily going to be
clear when it will end.
[230] This analysis does not
solve the fundamental problem of
identifying a point in time when detention must cease and exposes a
fundamental weakness in the
legislative scheme in the context of the sort of Iranian overstayers to
whom it was
addressed. Unless there is a diplomatic solution, there will
necessarily come a time when a detainee
who refuses cooperation will have to be released. Of course,
identifying the length
of time after which the courts will require release (which in reality
is what the judgment
Courtney J does) is an invitation to such overstayers to sit out the
government and in this
way obtain de facto residency (which, subject to the possibility of a
diplomatic solution,
is what Mr Yadegary has now managed to do).
[231] I am not particularly
enamoured of my own interpretation of the
section. It involves a degree of coercion which, as well as being a
little uncomfortable to
contemplate, will not necessarily be effective; this because even on my
approach, a detainee
in Mr Yadegary’s situation will know that, absent a diplomatic
solution, he or she will
eventually be released (albeit on my approach probably after a period
considerably longer than
two years). On the other hand, at least on my approach, the policy
under-pinning s 60(6),
imperfect though it may be, is given a chance to work. The section is
not given a chance to
work if the courts treat as an exceptional circumstance a period of
detention during which
Mr Yadegary was seeking to remain in New Zealand and thus could not
sensibly have been
expected to leave voluntarily.
The way in which similar issues have
been addressed in other
jurisdictions
England and Wales
[232] There are a number
of English cases which have addressed the
relevance of a refusal by the detainee to return voluntarily. The
relevant jurisprudence is
reviewed in R (ex parte A) v
Secretary of State for the Home Department [2007] EWCA Civ 804.
These cases have been decided in the context of a legislative scheme
which makes no
specific reference to the relevance of such a refusal. In A, the key
issues were (1) the
detainee’s risk of absconding, and (2) the substantial risk the
detainee posed to the public in terms
of his potential for seriously re-offending. His refusal to leave
voluntarily was regarded
as relevant to (1), as well as in its own right, and minimising (2) was
seen as a valid
purpose of detention pending removal. So refusal to return voluntarily
is a significant
factor in assessing the reasonableness of detention. It was put this
way by Toulson LJ (with
whom Longmore LJ concurred) at [54]:
The refusal of voluntary
repatriation is important not only as evidence
of the risk of absconding but also because
there is a big difference between
administrative detention on circumstances where
there is no immediate prospect of the
detainee being able to return to his
country of origin and detention in
circumstances where he could return there at once. In
the latter case the loss of liberty
involved in the individual’s continued detention
is a product of his own making.
The third Judge in
that case, Keene LJ, regarded refusal to return
voluntarily as being “relevant” but not as “some sort of trump card”
(at [79]). The
detention upheld in that case (admittedly in respect of a detainee who
was far less meritorious than
Mr Yadegary) was for a total of 35 months.
Australia
[233] The relevant
regime in Australia is about to change but up until
now it has been more harsh than that provided under our Immigration
Act. In Al-Kateb v
Goodwin (2004) 219 CLR 562 indeterminate detention of a
stateless person was upheld by
a majority of the High Court of Australia. The Court held that the
legislative scheme did
not limit detention to cases where removal from Australia was
reasonably practicable in the
foreseeable future. It accordingly overruled a contrary judgment of the
Full Court of the
Federal Court, Minister of
Immigration and Multicultural and Indigenous Affairs v Al
Masri (2003) 126 FCR 54. What is of some interest in the
present context is that the
Court in Al Masri was of the
view (expressed at [137]) that, “ordinarily at least”, the second
of the Hardial Singh principles
was not infringed by detention that could be terminated by
the detainee agreeing to repatriation. In such cases it would be
difficult to show that
removal was not reasonably likely.
Canada
[234] In Canada, the
detention of persons subject to deportation orders
is governed by Division 6 of Part 1 of the Immigration and Refugee
Protection Act 2001
SC, c 27. The scheme of the legislation is broadly as follows:
(a) A person may be arrested and detained without a warrant if there
are reasonable grounds for the officer to believe that the person is
inadmissible and a danger to the public or unlikely to appear for
removal (s 55(2));
(b) A review of this detention must take place within 48 hours (s
57(1)); and
(c) A further review of the reasons for continued detention must occur
at least once during the seven days following the first review and
thereafter at
least once within every subsequent 30-day period (s 57(2)).
There is no limit on the period for which a person may be detained,
subject to regular reviews. Nor does the statute specifically address
the significance of
a refusal to cooperate with removal.
[235] The leading Canadian
case is Sahin v Canada (Minister of
Citizenship & Immigration) [1995] 1 FC 214. Mr Sahin, a
Turkish national, had been
held in detention (14 months as at the date of the appeal) since his
arrival in Canada.
He had been granted refugee status, but this decision was under appeal.
The adjudicator’s
decision to continue to hold Mr Sahin in detention was appealed
to the Federal Court. Rothstein
J noted at 227 – 228 that detention under the then Immigration Act
could not be
indefinite:
Having regard to the fact that
detention under section 103 of the
Immigration Act is not for the purpose of
punishment after conviction, but rather, in
anticipation of an
individual’s likely
danger to the public or likely failure to appear
for inquiry, examination or removal, I do not
think such detention may be indefinite.
The Judge concluded
that the adjudicator had erred in law by not
taking, in particular, s 7 of the Canadian Charter of Rights and
Freedoms into consideration.
Indefinite detention could constitute a deprivation of liberty not in
accordance with the
principles of fundamental justice. In returning the decision whether to
continue Mr Sahin’s
detention, the Judge set down at 231 – 232 a non-exhaustive list of
factors to be considered in
such cases:
(1) Reasons for the detention,
i.e. is the applicant considered a
danger to the public or is there a concern that he
would not appear for removal. I would
think that there is a stronger case for continuing a
long detention when an individual is
considered a danger to the public.
(2)
Length of time in detention and length of time detention will
likely continue. If an individual has been held in
detention for some time as in the case
at bar, and a
further lengthy
detention is anticipated, or if future detention time
cannot be ascertained, I would think that
these facts would tend to favour
release.
(3)
Has the applicant or the respondent caused any delay or has either
not been as diligent as reasonably possible.
Unexplained delay and even unexplained
lack of diligence should
count against the offending party. (4) The availability,
effectiveness and appropriateness of alternatives
to detention such as outright release, bail
bond, periodic reporting, confinement to
a particular location or geographic area, the
requirement to report changes of
address or telephone numbers, detention in
a form that could be less restrictive
to the individual, etc.
A
consideration that I think deserves significant weight is the amount
of time that is anticipated until a final
decision, determining, one way or the other,
whether the
applicant may remain
in Canada or must leave.
[236] These factors have been
referred to in a number of subsequent
cases and are now largely incorporated into s 248 of the Immigration
and Refugee
Protection Regulations.
[237] Canada (Minister of Citizenship &
Immigration) v Kamail
[2002] FCT 381 involved a fact situation very similar to the present.
Mr Kamail was an Iranian
who by refusing to sign travel documents was frustrating attempts to
deport him. After
four months in detention, he was released on bail. This decision was
overturned on
appeal by O’Keefe J. It was held that on a proper application of the Sahin factors, Mr
Kamail should not have been released on bail. The sole reason for his
continued detention was
his refusal to sign travel documents. O’Keefe J (at [33]) regarded this
factor as weighing
heavily against his release:
[33] When the factors enunciated
by Rothstein J. (as he then was) in
Sahin, supra, are applied to the facts
of the present case, factors one and
three would favour
keeping the
respondent in custody. Under factor one, the respondent is
not likely to appear. With respect to factor
three, the respondent was the cause of
the delay in executing the removal order and
therefore, it should count against him.
In relation to factor three, I cannot accept
that the delay caused by the respondent's
refusal to sign travel documents can be used to
support a finding that his detention
time cannot be ascertained or to support a
finding that a further lengthy detention is
anticipated. The respondent himself is causing
the delay. In the circumstances, the
respondent's stay in detention of approximately
four months was not an unreasonable
length of time. Finally, since the respondent is
unlikely to report for removal, it is
unlikely that other options, such as outright
release, bail bond, periodic reporting
or reporting changes of address, would be
available so as to favour release.
And at [38] the Judge concluded that to allow Mr Kamail’s release at
this stage would be to undermine the Canadian immigration system:
It is my view that the decision
of the adjudicator was unreasonable. To
hold otherwise
would be to encourage deportees to be as uncooperative as
possible as a
means to circumvent
Canada’s refugee and immigration system. The
decision of the adjudicator cannot be allowed to
stand.
Hong Kong
[238] Tan Te Lam v Superintendent of Tai A Chau
Detention Centre [1997]
AC 97 (PC) concerned the position of large numbers of Vietnamese
asylum-seekers
who had arrived in Hong Kong following the fall of Saigon in 1975. The
Hong Kong
legislative scheme provided for the detention of these people pending
removal, but only
for a period that was “reasonable having regard to all the
circumstances affecting that
person’s detention”. One such circumstance was whether the detainee had
“declined arrangements
made or proposed for his removal”. The four appellants had experienced
detention for
periods ranging between 35 months and 68 months.
[239] The Privy Council
accepted that the Hardial Singh
principles
applied and was able to determine the appeals on the basis that:
(a) Removal of the appellants to Vietnam was not possible. The
Vietnamese authorities would not accept repatriation of those whom they
did not
regard as Vietnamese and all of the appellants were in this category.
(b) Accordingly, their cases were within the first of the Hardial Singh
principles.
This conclusion meant that there was no need to determine how the
second of the Hardial Singh principles
was to be applied in the context of the statutory
direction as to the relevance of the detainee having “declined
arrangements made or
proposed for his removal”. The Privy Council did, however, make the
following comments
(at 114 – 115):
However, since there are a large
number of Vietnamese boat people still
in Hong Kong who may only be able to
bring proceedings on the basis that the
inordinate
length of their
detention renders it unreasonable, it is desirable to
emphasise one point. The large majority of
those in detention do not wish to return
to Vietnam and
have declined to
apply for voluntary repatriation. The evidence shows
that, if they did so apply, most of them would
be repatriated in a comparatively
short time,
thereby regaining
their freedom. It follows that, in such cases, the
Vietnamese migrant is only detained because
of his own refusal to leave Hong Kong
voluntarily,
such refusal being
based on a desire to obtain entry to Hong Kong to
which he has no right. In assessing the
reasonableness of the continuing detention
of such
migrants, s 13D(1A)(b)(ii) requires the court to have
regard to
“whether or not the person has declined arrangements
made or proposed for his removal.” In
their
Lordships’ view the
fact that the detention is self-induced by reason
of the failure to apply for voluntary repatriation
is a factor of fundamental importance
in considering whether, in all the
circumstances, the detention is reasonable.
Given that these remarks were made in the context of periods of
detention which considerably exceeded that experienced by Mr Yadegary,
this case
favours the Crown’s
argument. It is also right to recognise, however, that the huge number
of Vietnamese migrants to Hong Kong created problems for the Hong Kong
authorities
which were of a completely different order of magnitude from those
faced by Immigration
New Zealand.
United States
[240] The United States Supreme
Court decisions cited by Baragwanath J
(Zadvydas v Davis 533 US 678
(2001) and Clark v Martinez
543 US 371 (2005)) were
decided in the context of the Immigration and Nationality Act. This
statute provides
for a default removal period of 90 days in which inadmissible aliens
must be detained while
deportation is arranged. Section 241(a)(6) contemplates detention
beyond the removal
period in certain circumstances, in particular if the alien is deemed
either a risk to
the community or unlikely to comply with an order of removal. In issue
in the two Supreme Court
cases was whether this provision contemplated indefinite detention.
Neither case
concerned detainees who were frustrating repatriation.
[241] The same legislative
scheme does, however, provide (see s
241(a)(1)(C)), that:
The removal period shall be
extended beyond a period of 90 days and the
alien may remain in detention during such
extended period if the alien fails or
refuses to make timely application in good faith
for travel or other documents
necessary to the alien's departure or conspires or acts
to prevent the alien's removal subject
to an order of removal.
Of more interest in
the present context, therefore, are two cases which
address this provision.
[242] In Pelich v INS 329 F 3d 1057 (2003)
(9th Cir) the detainee had
not been able to be removed because he had refused to fill out passport
applications and
had provided conflicting information regarding his name, birthplace and
residence
and his parents’ names, birthplaces and residences. At 1060 the Court
held:
The risk of indefinite detention
that motivated the Supreme Court’s
statutory interpretation in Zadvydas does not exist when an
alien is the cause of
his own detention. Unlike the aliens in Zadvydas, Pelich has the “keys [to
his
freedom] in his pocket” and could likely
effectuate his removal by providing the
information
requested by the INS
.…
… Zadvydas does not save an alien who
fails to provide requested
documentation to effectuate his removal. The
reason is self-evident: the detainee cannot convincingly argue that there is no
significant likelihood of removal in the
reasonably foreseeable future if the detainee controls
the clock.
Therefore, on the
basis that Mr Pelich’s conduct was the reason for his
continued detention, the Court concluded that his detention was not
indefinite. Indeed the
length of detention was held (at 1062) to be “in direct proportion to
the detainee’s
recalcitrant refusal to coperate in effectuating his removal”.
[243] Just over three months
after the Pelich decision the
Court of
Appeals for the Ninth Circuit reaffirmed its position in Lema v INS 341 F 3d 853 (2003). Mr
Lema was refusing to cooperate to facilitate his removal to Ethiopia
and, accordingly,
had been detained under s 241(a)(1)(C) for over two years. The Court
concluded (at 856 – 857)
that Mr Lema was unable to show that there was no significant
likelihood of him being
removed in the reasonably foreseeable future:
We cannot know whether an
alien’s removal is a “remote possibility,”
Zadvydas, 533 U.S. at 690, 121 S.Ct. 2491,
until the alien makes a full and
honest effort to
secure travel
documents. A particular alien may have a very good chance
of being removed, but if that alien is
refusing to cooperate fully with
officials to secure travel documents, neither
the INS nor a court can sensibly ascertain the
alien’s chance of removal.… We conclude that 8
U.S.C. § 1231(a)(1)(C), interpreted
mindful of the concerns underlying Zadvydas and Pelich, authorizes the INS’s
continued
detention of a removable alien so long as
the alien fails to cooperate fully and
honestly with officials to obtain
travel documents.
The application of the New Zealand Bill of
Rights Act 1990
[244] The most immediately relevant provisions of the New
Zealand Bill
of Rights Act (“NZBORA”) are ss 9 and 22, which provide:
9 Right not to be subjected to
torture or cruel treatment
Everyone
has the right not to be subjected to torture or to cruel,
degrading, or disproportionately severe
treatment or punishment.
22 Liberty of the person
Everyone
has the right not to be arbitrarily arrested or detained.
[245] Also relevant are ss 4 – 6:
4 Other enactments not affected
No
court shall, in relation to any enactment (whether passed or made
before or after the commencement of this Bill of
Rights),—
(a)
hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way
invalid or ineffective; or
(b)
decline to apply any provision of the enactment—
by
reason only that the provision is inconsistent with any provision of
this Bill of Rights.
5 Justified limitations
Subject
to section 4, the rights and freedoms contained in this Bill of
Rights may be subject only to such reasonable
limits prescribed by law as can be
demonstrably justified in a free and
democratic society.
6 Interpretation consistent with
Bill of Rights to be preferred
Wherever
an enactment can be given a meaning that is consistent with
the rights and freedoms contained in this Bill
of Rights, that meaning shall be
preferred to any other meaning.
[246] In the context of this case,
these provisions give rise to the
following questions:
(a) Does my interpretation involve “disproportionately severe
treatment” for the purposes of s 9 of the NZBORA or “arbitrary”
detention for the purposes
of s 22 of the NZBORA; and if so, is there a contrary but tenable
interpretation of s 60(6) which is to be preferred by reason of s 6?
(b) Does the application of s 60(6) contended for by the Crown result
in “disproportionately severe treatment” or “arbitrary detention”?
The first of these questions involves interpretation of the statute.
The second is one of application. A conclusion that the continued
detention of Mr Yadegary
involved
disproportionately severe treatment would suggest (and may be require)
his release under s 60(5) on the basis that “exceptional circumstances”
should be
construed or applied so as to prevent such treatment.
[247] I do not see my
interpretation of s 60 or a refusal of
conditional release as resulting in a detention which is arbitrary. It
is pursuant to a legal process
and, subject to the issues identified in [246] above being resolved in
favour of the Crown, serves
legitimate public ends.
[248] Likewise, I am of the
view that my interpretation of s 60 would
not lead, and the refusal of conditional release would not amount, to
“disproportionately
severe treatment”.
[249] The appropriate approach
to s 9 of the NZBORA was addressed by the Supreme Court in Taunoa v Attorney-General [2008] 1
NZLR 429, a case
which of course focused on the conditions of detention rather than
detention itself.
Section 9 is unusual, in the context of human rights instruments, in
specifically incorporating
the concept of disproportionality. The majority view in Taunoa was that the concept
involved “treatment or punishment which is grossly disproportionate to
the circumstances”,
see Blanchard J at [176] (with whom McGrath J agreed at [340]), or
“conduct which is so
severe as to shock the national conscience”, see Tipping J at [289]
with whom Henry J
agreed at [383] and [384].
[250] As I have noted, the
proportionality issue raised by this case is
rather different from that in Taunoa.
Here there are legitimate public purposes which are
being served:
Mr Yadegary is acting in defiance of his legal obligation to leave; if
he is allowed to remain in the community, this will tend to undermine
the effectiveness of the
immigration system and as well give Mr Yadegary in a de facto sense (at
least for the time
being) rights of residency to which he is not entitled.
[251] Similar issues can arise
where there has been a contempt of
court. It is open (at least theoretically) to a New Zealand court to
impose a sentence of
indeterminate imprisonment as a means of coercing a contemnor into
compliance. But resort is not
often had to this power. The sort of contemptuous conduct which might
merit such a
sanction is likely to be associated with high levels of obstinacy and
irrationality on the part
of the contemnor. Experience has shown that such contemnors are
sometimes willing to
spend lengthy periods of time in prison and then, in the end, are
released anyway (by way of
example, after 18 months in Re Davies
(1888) 21 QBD 236). The Courts have
understandably shied away from the concept that a person who remains in
disobedience of a court
order should never be released (see Re
Barrell Enterprises [1973] 1 WLR 19 (CA)). Once the
point has been reached that the period of imprisonment served is
appropriate by way of
punishment for the contempt and there is no longer any likelihood of
the contemnor
complying with the court order, release will be directed (see Re Barrell Enterprises where the
contemnor had served six months in prison).
[252] Although the analogy with
contempt of court cases has some
relevance to this case, there are differences. The first is that
detention of indeterminate
duration has been specifically provided for by the legislature.
Further, it cannot be
said that Mr Yadegary is acting irrationally. By sitting out the
government he has managed to
obtain de facto residency rights. As well, the periods of detention
which have troubled
courts in the contempt cases are distinctly different from those which
have been
found acceptable in immigration contexts in other jurisdictions, which
perhaps provide a
more sensible yardstick for assessing proportionality. And by that
yardstick, it
cannot fairly be said that imprisonment in the present circumstances of
Mr Yadegary involves
disproportionately severe treatment.
Is the proposed removal of Mr Yadegary
so unlikely or remote as to no
longer justify detention?
[253] A number of
Western countries have encountered difficulties in
repatriating Iranian overstayers and I am considerably less sanguine
than the Crown about
the prospects of an early diplomatic solution to the current impasse.
So I am inclined to
see the prospect of involuntary removal (standing by itself) as too
remote to justify
continuing (or resumed) detention. Given that nearly four years has
passed since s 60 was
amended (and three and half years since Mr Yadegary was first
detained), I think that it is
now too late to detain him against the off-chance that the Iranian
government may change its
policy. This means that I necessarily approach the case on a rather
different basis than that
primarily contended for by the Crown under which the appropriateness of
the detention depended
fundamentally on the continuing momentum of the current diplomatic
process. Counsel for the
Crown was reluctant to acknowledge that the purpose of the detention is
effectively one of coercion.
[254] On the other hand, as I
have indicated, I think it at least
possible that Mr Yadegary might eventually cooperate in his return and
I have explained why. The
overseas authorities suggest a general reluctance on the part of the
Courts to accept that
removal will not occur when such removal can be effected providing the
detainee cooperates.
[255] In this context, I do not
see the proposed removal of Mr Yadegary
as so unlikely or remote as to no longer justify detention.
Did Mr Yadegary’s detention become
indefinite?
[256] It is common
ground that Mr Yadegary was able secure his release
at any time by cooperating in his repatriation to Iran. I see this
consideration as
extremely important in assessing whether his detention has become
indefinite but not, as in
itself, resolving the question in favour of the Crown.
[257] The decisive
consideration in relation to this issue is that the
possibility of Mr Yadegary submitting to removal has yet to be excluded
(at least to
my way of thinking). Given that the underlying statutory purpose may
still be achieved, I do
not regard the detention as indefinite.
Are there exceptional circumstances
which warrant Mr Yadegary’s
conditional release?
[258] Section 60(6)
provides a default rule which is to apply to
particular (defined) situations and also power to depart from that
default rule in
“exceptional circumstances”. This is a fairly common legislative
technique. To give effect to the
underlying legislative intention, it is necessary to confine
“exceptional circumstances” to
situations that are outside the general run of cases that are prima
facie subject to the
default rule. As to this, see the recent Supreme Court decisions: Rajamani v R [2008] 1 NZLR 723,
Wong v R [2008] NZSC 29 and Creedy v Commissioner of Police
(2008) 8 NZELC
99,336.
[259] On this approach I think
it appropriate to identify the type of
case which the legislature had in mind in enacting s 60(6).
[260] Mohebbi highlighted what, from the
view point of Immigration New
Zealand, was a gap in the system. The three month limit provided for by
s 60(7) meant
that an Iranian national without a passport or travel documents could
sit out the
Immigration Service and secure his or her release by refusing, for
three months, to make the
necessary request of the Iranian embassy for the issue of a passport or
travel documents.
[261] In this context, it is
clear that:
(a) Section 60(6)(b) was enacted with the particular problem that can
arise with Iranian overstayers firmly in mind.
(b) More particularly, it was intended to apply in a situation where
the overstayer was prepared to sit in prison for three months rather
than seek travel documents from the Iranian authorities.
(c) Further, because s 60(6) applies to prevent the conditional release
under s 60(5), the legislature must have assumed that it would apply in
cases
in which conditional release under s 60(5) would otherwise have been
ordered. Since a Judge can only order conditional release under s 60(5)
if
“satisfied that the person is unlikely to abscond”, s 60(6) must
likewise have been intended to apply in such cases.
[262] The sort of circumstances
which are part and parcel of the
ordinary run of cases which must have been envisaged when the
legislative scheme was enacted
do not seem to me to be properly regarded as “exceptional”. So the
general
unpleasantness of imprisonment (which is a given in any debate about
imprisonment) and
predictable impacts of detention on the appellant seem to me to be of
no more than
contextual significance. Nor is the absence of flight risk (because
absence of flight risk is a
precondition to the discretion to release under s 60(5), which is
constrained by s 60(6)). I also do
not place the significance that Baragwanath J does on the rationality
and honesty of
Mr Yadegary’s reasons for not wishing to go back to Iran. No one would
rationally be
prepared to stay in prison rather than return home unless he or she had
good reasons (at
least when assessed from that person’s point of view).
[263] On that analysis, the
only factor associated with the case which
might be exceptional is the length of Mr Yadegary’s detention. As is
apparent from what I
have said already, I have no difficulty in accepting that length of
detention may be a
exceptional circumstance. I also agree that whether any particular
period of detention amounts to
an exceptional circumstance falls to be determined in the context of
the other time
limits stipulated in s 60 (72 hours, seven days and three months). But
it also falls to be
determined in the context of the sort of situation which the
legislature must have envisaged as
likely to arise involving an obdurate detainee who is not prepared to
cooperate in repatriation. In
this context, s 60(8) is of significance.
[264] If the judgment of
Courtney J is upheld, the next person in Mr
Yadegary’s situation will be reasonably confident that, absent a change
in policy by the
Iranian government, he or she will gain de facto residency rights if
prepared to spend say two
years in prison. Someone who prefers to live in New Zealand rather than
Iran may well be
prepared to undergo two years imprisonment on that basis. So the
reality is that
the result of this case will encourage non-compliance with immigration
laws, both by Mr
Yadegary (who will be encouraged to remain in resolute defiance of his
obligations under s 45
of the Act) and by anyone else similarly placed.
[265] As already indicated by
my approach to the issues associated with
remoteness of removal and whether Mr Yadegary’s detention had become
indefinite, I
think that the underlying legislative purpose had not been spent in his
case at the
time he was released.
[266] In short, I am of the
view that the circumstances of Mr Yadegary
were not exceptional.
Proposed disposition
[267] I have no desire
to see Mr Yadegary returned to prison and I am
prepared to accept the possibility that the apparent harshness of
returning him to prison
after his period of liberty as a result of the judgment Courtney J
might form a basis for a
defensible finding of exceptional circumstances. Given that mine is a
minority view, I need
not explore its implications in any detail. It is sufficient to say
that I would allow
the appeal but on the basis that the question whether there are now
exceptional circumstances
warranting conditional release be reconsidered in the District Court.
Solicitors for
appellant:
Crown Law Office
(Wellington)
Solicitors for
respondents:
Ryken and
Associates (Auckland)