RefNZ Case Search

Court of Appeal Cases 

 
Paternostro v Chief Executive of Department of Labour
 

Court of Appeal, Wellington CA76/2011; [2011] NZCA 26
17 February 2011; 24 February 2011
Stevens, Potter and Miller JJ

Habeas corpus - detention - warrant of commitment issued for 14 days but incorrectly specifying 28 days - whether detention unlawful - relevant date for considering lawfulness of warrant - correct defendant - Habeas Corpus Act, s 8 - Immigration Act 2009, ss 316, 317 and 443

The appellant, an overstayer, was served with a removal order on 8 October 2010 and taken into police custody under s 59 of the Immigration Act 1987. He failed to challenge the removal order in the Immigration and Protection Tribunal but did apply promptly for recognition as a refugee, meaning that he could not be deported while his refugee claim was being processed.

He was brought before a District Court Judge who first issued a warrant of commitment under s 60 of the 1987 Act on 11 October 2010. Nine further extensions of the warrant followed, the most recent of which occurred on 9 February 2011. Section 60 of the 1987 Act stipulated that warrants of commitment might be extended for up to three months unless s 60(6) applied in which case the warrant might be extended repeatedly for up to 30 days at a time. The corresponding provisions in the Immigration Act 2009 came into force on 29 October 2010. The effect of the provisions was that absent exceptional circumstances the District Court could not release the appellant on conditions while his belated refugee status claim was being determined.

The most recent warrant of commitment was issued by a District Court Judge on 9 February 2011. While the Judge actually directed that that warrant be issued for 14 days, an oversight led to the warrant specifying 28 days.

Challenging the legality of his detention, the appellant made application to the High Court for a writ of habeas corpus. The defendant to those proceedings was cited as the Chief Executive of the Department of Labour. In the High Court that defendant was struck out and in place the Chief Executive of the Department of Corrections was substituted.

Held:

1    Habeas corpus applications are concerned with the lawfulness of detention and the Court will enquire into decisions upstream of a lawful detention order only where the issues are properly susceptible to fair and sensible summary determination (see para [8]).

Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA) applied.

2    The relevant date to consider the lawfulness of a warrant of commitment is the date of the hearing. As the appellant was currently held under a lawful warrant of commitment habeas corpus was correctly refused in the High Court (see paras [6] and [14]).

Misiuk v The Chief Executive of Department of Corrections [2010] NZCA 480; [2011] 2 NZLR 114 and Misiuk v Chief Executive, Department of Corrections [2010] NZSC 140; [2011] 2 NZLR 114 applied.

3   It would be a different matter if the warrant were not further renewed within the 14 day period specified by the District Court Judge (see para [6]).

4   Section 8 of the Habeas Corpus Act 2001 contemplates that the Chief Executive of the Department of Labour may be cited as a defendant whether the plaintiff is held pursuant to police or immigration officer powers or under a warrant of commitment. While the Chief Executive need not have been struck out, nothing turned on the point. The appellant was actually in the custody of the Chief Executive of the Corrections Department, who was properly named as a defendant for that reason. A writ directed to the Chief Executive of the Corrections Department would secure the appellant's release if there existed proper grounds to do so. That being so, the presence of the Chief Executive of the Department of Labour was unnecessary (see para [13]).

Appeal dismissed

Other cases mentioned in the judgment

Paternostro v Chief Executive of the Department of Corrections (High Court Auckland, CIV-2011-404-248, 26 January 2011, Asher J)

 Counsel
Appellant in person
A R Longdill for the respondent

Judgment of the Court:

The appeal is dismissed.
REASONS OF THE COURT

(Given by Miller J)


Introduction

[1] This appeal is brought against the High Court’s refusal to issue the writ of habeas corpus. The appellant’s application came before Asher J in January 2011 when it was considered on an urgent basis.1 The appeal challenges the correctness of the refusal to issue the writ.

Factual background

[2] Mr Paternostro is an overstayer. His immigration status having been confirmed after he came to police attention on other matters, he was served with a removal order on 8 October 2010 and taken into police custody under s 59 of the Immigration Act 1987. He failed to challenge the removal order in the Immigration Protection Tribunal, and is now out of time to do so. However, after service of the removal order he did apply promptly for refugee status, meaning that he could not be deported while his claim was processed.

[3] He was brought before a District Court Judge, who first issued a warrant of commitment under s 60 of the Immigration Act 1987 (the 1987 Act) on 11 October 2010. There have been nine further extensions of the warrant of commitment, the most recent of which occurred on 9 February 2011.

[4] Section 60 of the 1987 Act authorises detention and, where it seems likely that detention may need to be extended a number of times, release on residence and reporting conditions. Warrants of commitment might be extended for up to three months, unless s 60(6) applied. It relevantly provides that:
(6) Unless the Judge considers that there are exceptional circumstances that justify the person's release, 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 ...

In such a case, the warrant might be extended repeatedly for up to 30 days at a time.2

[5] There are corresponding provisions in the Immigration Act 2009, which came into force on 29 November 2010 and pursuant to which Mr Paternostro is now detained.3 The effect of these provisions is that absent exceptional circumstances the District Court may not release Mr Paternostro on conditions while his belated refugee status claim is determined.

[6] The most recent warrant of commitment was issued by Judge Johns on 9 February 2011. That the Judge issued a warrant is not in doubt, but the document contains an irregularity in that the Judge actually directed that it be issued for 14 days. Through an oversight, the warrant specified 28 days. We are not persuaded that the error points to any present unlawfulness in Mr Paternostro’s detention, although it would be a different matter if the warrant were not further renewed within the 14 day period specified by the Judge. We are assured by counsel for the respondent that an application for further extension will be made within that time.

[7] On 30 November 2010, following his detention, Mr Paternostro married his long-term partner, a New Zealand citizen. There are two children of their relationship, and he has adopted a third child of his wife’s. The marriage was the focus of his argument before Asher J in the High Court.

The High Court decision

[8] The Judge correctly held that habeas corpus applications are concerned with the lawfulness of detention, and the Court will inquire into decisions upstream of a lawful detention order only where the issues are properly susceptible to fair and sensible summary determination.4

[9] Dealing with the marriage, the Judge held:5
His recent marriage cannot be seen as in any way casting doubt on the lawfulness of the Court order and the lawfulness of the detention based on that order. The fact that his children are New Zealand citizens does not affect the lawfulness of the warrant or his detention that follows. These factors do not constitute any basis for the issue of a writ of habeas corpus. Mr Paternostro refers to the fact that he has no criminal record in New Zealand. But his deportation is not based on any alleged criminal record.

We respectfully agree.

[10] Further, the Judge concluded that Mr Paternostro’s detention was based on a duly signed warrant that he was satisfied was lawful.6 Accordingly the Judge concluded that no writ of habeas corpus should issue.

Procedural Point

[11] Mr Paternostro brought his application against the Chief Executive of the Department of Labour, which Department includes the Immigration Service. Asher J effectively struck out the Chief Executive and substituted the Chief Executive of the Department of Corrections, Crown counsel having advised him that the latter was the correct defendant. Mr Paternostro complains about that, saying that his grievance is with the Department of Labour and that the Chief Executive of that Department is the correct defendant under the Habeas Corpus Act 2001.

[12] Section 8 of the Habeas Corpus Act does provide that a defendant may be described only by reference to office where the defendant is the Chief Executive of the Department of Labour, if the person is detained in police custody under powers conferred by the Immigration Act 1987 or is detained in custody under powers conferred by the Immigration Act 2009. As noted, he is now detained under the latter Act. That being so, s 8 of the Habeas Corpus Act contemplates that the Chief Executive may be cited as a defendant whether the plaintiff is held pursuant to police or immigration officer powers or under a warrant of commitment.

[13] We accept that the Chief Executive need not have been struck out. However, nothing turns on the point. Mr Paternostro is actually in the custody of the Chief Executive of the Corrections Department, who is properly named as a defendant for that reason.7 A writ directed to the Chief Executive of the Corrections Department would secure his release if there existed proper grounds to do so. That being so, the presence of the Chief Executive of the Department of Labour was unnecessary.

Evaluation

[14] The appellant is currently held under a lawful warrant of commitment that is due to expire on 23 February 2011. It seems likely that that it will be renewed on or before that date. This Court has recently confirmed that the relevant date to consider the lawfulness of a warrant of commitment is the date of the hearing.8 We are satisfied that habeas corpus was correctly refused in the High Court.

Result

[15] The appeal is dismissed.

Solicitors for the respondent:  Crown Law Office (Wellington)

1 Paternostro v Chief Executive of the Department of Corrections HC Auckland CIV-2011-404-248, 26 January 2011.
2 Immigration Act 1987, s 60(6A).
3 Immigration Act 2009, ss 443, 316, 317.
4 Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA).
5 At [10].
6 At [13].
7 Corrections Act 2004, s 38(1).
8 Misiuk v The Chief Executive of Department of Corrections [2010] NZCA 480. Note: The Supreme Court confirmed this in their judgment declining leave to appeal: Misiuk v The Chief Executive of the Department of Corrections [2010] NZSC 140.