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Abu v Superintendent of Mt Eden Women's Prison

High Court Auckland M No. 2086/99; [2000] NZAR 260
20 December 1999; 24 December 1999
Potter J

Judicial review - Habeas corpus - Detention in custody - Whether detention in custody pending determination of refugee status lawful - Immigration Act 1987, s 128(7) - Relevance of UNHCR Guidelines on Detention of Asylum-Seekers

Judicial review - Habeas corpus - Whether application for a writ of habeas corpus may be treated as a means of appealing from a decision of the District Court to extend warrant of commitment

Judicial review - Habeas corpus - Whether application for a writ of habeas corpus may be treated as an application for judicial review of the decision of the New Zealand Immigration Service to deny a temporary permit

The applicant, a 29 year old citizen of Ghana, arrived in New Zealand on 16 September 1999 travelling on a false passport.  At the airport she sought refugee status on the grounds that she feared female circumcision.  She was refused a temporary permit and taken into custody under s 128 of the Immigration Act 1987.  Following the decline of her refugee application she appealed to the Refugee Status Appeals Authority (RSAA).  The appeal was heard on 5 November 1999.  The RSAA indicated  that a decision could be expected in mid to late February 2000.  Habeas corpus was sought on the grounds that the UNHCR Guidelines on Detention of Asylum-Seekers did not envisage the detention of asylum-seekers.

Held:

1.    The applicant was detained pursuant to the statutory authority of s 128 of the Immigration Act 1987.  Her detention was not unlawful (see para [35]).

Police v Travis [1989] 2 NZLR 122, 135 referred to.

2.    There is authority that an otherwise lawful detention may convert and become unlawful if it extends beyond a period of time which is reasonable in all the circumstances of the case such that the detention becomes arbitrary (see para [36]).

R v Governor of Durham Prison: Ex parte Hardial Singh [1984] 1 WLR 704; R v Secretary of State for the Home Department, Ex parte Khan [1995] 2 All ER 540 (CA); Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97; A v Australia (1997) 4 EHRC 210 (UNHRC) referred to.

3.    Such a situation did not arise in the present case.  It was not unreasonable that the applicant, having been lawfully detained under the Immigration Act 1987, should continue to be detained while her case before the RSAA was duly heard and determined.  That the RSAA had reserved its decision did not render the detention unreasonable or arbitrary, nor did the anticipated time lapse until February 2000, or possibly March 2000 when the final determination of the Authority was expected (see para [37]).

4.    An application for a writ of habeas corpus may not be treated as a means of appeal from the decision of the District Court to extend the term of the applicant's warrant of commitment.  If the applicant considered that the decision was wrong, appeal rights were available to her (see para [38]).

5.    Similarly, an application for a writ of habeas corpus may not be treated as an application for judicial review. If the applicant considered that the immigration authorities were wrong to deny her a temporary permit to remain lawfully in New Zealand while her application to the RSAA was processed, then she could seek judicial review of that decision.  The High Court would then be required to review the processes leading to, and the circumstances in which the decision was taken to refuse a permit.  That was likely to involve a wide ranging inquiry, including consideration of the applicability in the circumstances of the case of the Refugee Convention and the Guidelines applied by s 129D of the Act.  It was relevant to observe that while the Guidelines state there is a strong presumption against the detention of asylum seekers, they also contemplate that situations will exist where detention is permissible.  Each case will turn on its own circumstances.  Pursuant to s 129D of the Immigration Act 1987, administrative action must be consistent with the Refugee Convention.  The Guidelines are important and relevant.  They are not a binding international instrument and form no more than part of the environment in which other more direct sources of law may be better understood and administered.  In situations where due account is not taken of the Convention and the Guidelines as they apply in the particular case, then the relevant decision will be amenable to judicial review (see para [39]).

E v Attorney-General [2000] NZAR 354 (Fisher J) referred to.

Application for habeas corpus dismissed.

Other cases mentioned in judgment:
R v Home Secretary: Ex parte Bugdaycay [1987] AC 514 (HL)
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 (HCA)
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (HCA)
F v Superintendent of Mt Eden Prison [1999] NZAR 420 (Anderson J)
Surinder Kumar v Gardiner (High Court Auckland, M 958/97, 11 July 1997, Robertson J)

Counsel

C Amery for the applicant
M A Woolford for the respondent

[Editorial note:  The applicant was released on bail following the intervention of the new Minister of Immigration.  See "Christmas freedom", NZ Herald, Friday, December 24, 1999 p A3; Tony Wall, "She's out and laughing", Weekend Herald, Sunday, December 26, 1999 p A4.  The decision of E v Attorney-General [2000] NZAR 354 (Fisher J) was reversed in Attorney-General v E [2000] 3 NZLR 257 (CA).]

POTTER J [1] The applicant is detained in custody at Mt Eden Women's Prison pursuant to a warrant of commitment under s 128(7) of the Immigration Act 1987. She seeks a writ of habeas corpus on the grounds that her detention is unlawful.

[2] The specific purpose of the habeas corpus procedure is to secure, by way of immediate review by the High Court, the release of a person who is unlawfully detained. However, the application may not be treated as a means of appeal from, or review of, a previous decision of a Court -

[3] Section 22 New Zealand Bill of Rights Act 1990 provides - [4] Section 23 provides - Factual Background

[5] No evidence was presented at the hearing before me. I substantially adopt the factual background set out in the decision of District Court Judge Moore of 13 October 1999 in which he considered an application for the extension of the warrant of commitment. The facts there stated were not disputed by counsel for the applicant and in material respects were confirmed in his submissions.

[6] The applicant aged 29 arrived in New Zealand on a false passport on 16 September 1999. She made a claim for refugee status on the basis that in Northern Ghana, whence she is said to originate, there is, although illegal, still the practice of female circumcision which is against the law in New Zealand. It is said that for family reasons, because her mother and father were of different cultural backgrounds, she was spared that practice while her father was alive. Now he is not and so she is a refugee.

[7] From Ghana the plaintiff fled to Swaziland where she spent two weeks. From Swaziland she went to South Africa where she remained for 10 months before travelling via Singapore to Auckland. In Singapore she used a South African passport in a different name to take a flight to New Zealand. The airline retained the passport rather than giving it back to her and in due course handed that passport to a New Zealand Immigration staff member. When the applicant arrived in New Zealand, she was not in possession of any travel or other documentation enabling her lawfully to enter New Zealand, nor any proof of her identity. She was therefore refused entry into New Zealand. She claimed to be a refugee. In accordance with New Zealand's international obligations under the 1951 United Nations Convention Relating to the Status of Refugees, (which, including the 1967 New York protocol, is referred to as "the Refugee Convention") she was entitled to have the claim tested on its merits.

[8] Her application was heard by the Refugee Status Appeal Authority ("the Authority") on 5 November 1999. Counsel for the second respondent has been advised that the Authority's decision can be expected in mid to late February 2000.

Statutory Provisions

[9] The following provisions of the Immigration Act 1987 ("the Act") are relevant -

[10] The Act was amended by the Immigration Amendment Act 1999 (“the Amendment Act”) and the Immigration (No. 2) Act 1999. Pursuant to the No 2 Amendment Act certain provisions including ss 37 to 39 relating to the detention and departure of persons refused permits or whose eligibility for a permit is not immediately ascertainable, came into force on 16 June 1999. The rest of the Amendment Act came into force on 1 October 1999.

[11] Sections 37-39 which inserted in s 128, subsections (13), (13A), (13B), (14) and (14A) as set forth above, enable a warrant of commitment to be extended by a District Court Judge for successive periods of 7 days while review proceedings are completed. Under the Act before amendment, a warrant of commitment was limited to a period of 28 days.

[12] Section 60 of the Amendment Act inserted a Sixth Schedule which sets out the Refugee Convention signed in Geneva 28 July 1951.

[13] Section 129D (inserted by the Amendment Act), requires refugee status officers and the Refugee Status Appeals Authority to act in a manner consistent with the Refugee Convention.

Applicant's grounds

[14] The applicant seeks a writ of habeas corpus on the grounds that -

Respondent's submissions

[15] For the Crown, Mr Woolford submitted in relation to the first and third grounds which refer to the Refugee Convention and the UNHCR Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers (“ the Guidelines"), that New Zealand is a party to the Convention, but it says nothing about the detention of asylum seekers. He submitted that article 31 which is most often claimed in support of the principle that asylum seekers cannot be detained, does not apply to the applicant. Article 31 only applies to asylum seekers coming directly from a territory where there life or freedom are threatened, such as those asylum seekers who spill over a border because of civil unrest in Kosovo. In the present case, the applicant spent two weeks in Swaziland on leaving her country of origin in Ghana. From Swaziland she went to South Africa where she remained for 10 months.

[16] Mr Woolford further submitted that many countries which are parties to the Refugee Convention detain asylum seekers. He referred specifically to regimes in Australia and the United Kingdom.

[17] He submitted in respect of the UNHCR guidelines they are just guidelines used to assist in the interpretation of the Convention. The Handbook merely provides a form of guidance to the application of the Refugee Convention and does not in and of itself constitute a binding international instrument or other type of binding obligation. (R v Home Secretary, ex Parte Bugdaycay [1987] AC 514 at 524 (per Lord Bridge of Harwich); Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331 at 389 (per Kirby J)); Alsawaf v Secretary of State for the Home Department [1988] Imm AR 410 at 419 (CA); Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 392.

[18] As to the second ground of the application, Mr Woolford pointed out that Parliament passed the Immigration Amendment (No.2) 1999 Act on 16 June 1999 which brought the provisions relating to the detention and departures of persons refused permits into force on that date and not 1 October as originally planned.

[19] As to the fourth ground of the application, Mr Woolford advised that recent advice from the Authority was that the decision of the Authority is likely in mid to late February 2000. In any event, he submitted, the length of time for which the judgment is reserved, does not provide any legal basis for a writ of habeas corpus to issue.

The Guidelines

[20] Mr Woolford referred the Court to the Guidelines. The Guidelines were issued by the Office of the United Nations High Commissioner for Refugees in Geneva on 10 February 1999, and replace guidelines issued in January 1996. The Guidelines are an amalgamation of important international law principles relating to detention and existing UNHCR doctrine. They represent the minimum standards for what might be considered acceptable State practice and have been revised and updated to reflect recent developments in human rights law clarifying what practices may constitute arbitrary detention. They include new recommendations on alternatives to detention.

[21] Relevant passages from the Guidelines include the following -

The Authorities

[22] The recent case of E & Others v AG (Sued on behalf of the Minister of Immigration) (High Court Auckland, M. 1884-SW/99, 29 November 1999), involved not an application for a writ of habeas corpus but an application for judicial review of decisions by the New Zealand Immigration Service denying the thirteen plaintiffs temporary permits pending resolution of their claims to refugee status. They had been detained in Mt Eden Prison since their arrival in New Zealand. The plaintiffs were successful in obtaining an order setting aside the decisions not to grant them temporary permits. The Court directed that reconsideration of their applications was to be undertaken on the basis that refugee claimants are to be granted temporary permits in the absence of special factors making detention necessary.

[23] Fisher J considered article 31 of the Convention and noted at para [36] that in general terms the UNHCR's guidelines support a strong presumption against detention pending refugee status determination, albeit recognising that it will be unavoidable in some cases.

On the legal status of the guidelines he considered -

[24] In F v Superintendent of Mt Eden Prison, [1999] NZAR 420; (High Court, Auckland, M. 1341-SW99, 5 August 1999) Anderson J considered an application for habeas corpus by F who was detained on arrival in New Zealand while his claim for refugee status was determined. He was refused a permit to enter the country as it was within five years of his having been removed from this country pursuant to a removal order. Anderson J noted - [25] Anderson J held that the words "first available craft" within the contemplation of s 128(5) must be interpreted and applied with regard to circumstantial reality - [26] The application for habeas corpus was refused.
 
[27] A writ of habeas corpus was refused in Surinder Kumar v Murray Hector Gardiner (High Court, Auckland, M.958/97, 11 July 1997, Robertson J) where it was argued that the words "if for any other reason the person is unable to leave New Zealand" in s 67(3) of the Act were restricted to situations where the person becomes sick, there is no place available on the craft or something occurs which is unrelated to the person himself or over which he has no control. Robertson J did not accept this argument holding that K was lawfully held while his appeal against refusal of refugee status was heard.

Length of Detention

[28] Mr Woolford referred the Court to overseas authorities which have considered whether or not the length of time for which the judgment is reserved provides a legal basis for habeas corpus.

[29] In R v Secretary of State for the Home Department, Ex Parte Khan [1995] 2 All ER 540, the English Court of Appeal ruled that a person who sought political asylum in the United Kingdom after having entered the country illegally could be lawfully detained by the Immigration Officer under paragraph 16 of Schedule 2 of the 1971 Act pending the determination of his application for asylum. In that case it was not necessary to determine whether or not the period of detention was excessive or not because the applications were for habeas corpus and the period of detention was not substantial.

[30] The issue of length of detention was considered in the case of R v Governor of Durham Prison, Ex Parte Singh [1984] 1 WLR 704 which concerned the analogous power to detain under paragraph 2(3) of Schedule Three to the 1971 Act. In that case Woolf J (as he then was) stated (at 706) -

[31] The principles laid down in the Singh (supra) case as regards the inherent limitations on a period of administrative detention pending removal were approved of by the Privy Council in Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1996] 4 All ER 256 at 265 (a case involving illegal entrants, not refugees).

[32] Mr Woolford also referred to decision of the United Nations Human Rights Committee. In A v Australia (1997) 4 BHRC 210, a Cambodian national had entered the country illegally and without documentation. He applied for refugee status. While his application was being determined, the Migration Amendment Act 1992 came into force which prevented persons such as the applicant being released  from custody by a court. By the time of initiating his communication, the applicant had been detained in custody by the Australian authorities in excess of four years. The applicant complained that his detention was "arbitrary" within the meaning of Article 9(1) of the International Covenant of Civil and Political Rights. The Human Rights Committee held that the remand and custody of an individual requesting asylum was not arbitrary for the purposes of Article 9(1) where there was appropriate justification for such detention and where the detention to detain was open to review periodically, the grounds constituting appropriate justification were subject to reassessment and where the detention did not extend beyond the period for which the authorities could provide appropriate justification. The HRC held that while there may have been some justification for the applicant's initial detention in view of his illegal entry into Australia, the authorities had failed to advance any grounds which could justify his continued detention for a period of four years. The HRC therefore concluded that the applicant's detention was arbitrary and had violated his rights under Article 9(1).

Application of the principles to the facts of this case

[33] New Zealand's right to turn back at the border persons whose entry is not permitted under s 128 is now exercised with regard to New Zealand's international obligations. Fulfilment of those obligations often necessitates some degree of detention to enable the case of an asylum seeker to be properly assessed.

[34] When the applicant arrived in New Zealand, the undisputed facts appear to be that she was not in possession of any travel or other documentation enabling her lawfully to enter New Zealand, nor any proof of her identity. She was therefore refused entry into New Zealand. She claimed to be a refugee. Presumably that status was denied her by the Immigration authorities and the matter was referred to the Refugee Status Appeals Authority, a specialist tribunal for determining such matters. It can be deduced that she was not granted a temporary permit by the immigration authorities which would have enabled her to remain in New Zealand while her application to the authority was heard and determined. Having been refused a permit she was a person to whom s 128 of the Act applied, pursuant to subsection (1). She was therefore, pursuant to subsection (4) -

Pursuant to subsection (5) she could be detained by a member of the Police and placed in custody subject to a warrant of commitment being appropriately obtained under subsection (7).

[35] No issue was taken by counsel for the applicant with the processes that led to the detention in custody of the applicant. Thus when she was detained it was pursuant to the statutory authority of s 128 of the Act. Her detention was not unlawful, or as described in the quotation from Halsbury in para [2], "incapable of legal jurisdiction".

The detention was pursuant to statutory authority (refer Police v Travis [1989] 2 NZLR 122, 125).

[36] There is authority that an otherwise lawful detention may convert and become unlawful if it extends beyond a period of time which is reasonable in all the circumstances of the case such that the detention becomes arbitrary (refer R v Governor of Durham Prison Ex parte Singh (supra), R v Secretary of State for the Home Department, Ex Parte Khan (supra), Tan Te Lam v Superintendent of Tai Chan Detention Centre (supra), A v Australia (supra)).

[37] Such a situation does not arise in the present case. It is not unreasonable that the applicant having been lawfully detained under the Act should continue to be detained while her case before the Authority is duly heard and determined. That the Authority has reserved its decision does not render the detention unreasonable or arbitrary, nor does the anticipated time lapse until February 2000, or possibly March 2000, when the final determination of the Authority is expected.

[38] Ground 2 of the applicant's grounds is ill founded, as counsel accepted. However, if counsel had not been in error, this ground could not have assisted the applicant. It seeks that this Court overturn the decision of District Court Judge Moore of 13 October 1999. It is in effect an appeal from that decision. As stated at the outset of this judgment, application for a writ of habeas corpus may not be treated as a means of appeal from the decision of a Court. If the applicant considers that the decision of District Court Judge Moore in extending the term of the warrant of commitment, was wrong, then the applicant has appeal rights available to her.

[39] Similarly, this application for a writ of habeas corpus may not be treated as an application for judicial review. If the applicant considers that the immigration authorities were wrong to deny her a temporary permit to remain lawfully in New Zealand while her application to the Authority was processed, then she may seek judicial review of that decision. This Court would then be required to review the processes leading to, and the circumstances in which the decision was taken to refuse a permit. That is likely to involve a wide ranging inquiry as was conducted by the Court in E & Ors v Attorney-General (supra) including consideration of the applicability in the circumstances of the case, the Refugee Convention and the Guidelines applied by s 129D of the Act. It is relevant to observe that while the Guidelines state there is a strong presumption against the detention of asylum seekers (as was confirmed by Fisher J in E & Ors v Attorney-General), the Guidelines also contemplate that situations will exist where detention is permissible. Each case will turn on its own circumstances. Pursuant to s 129D of the Act, administrative action must be consistent with the Convention. The Guidelines are important and relevant. Their status was aptly described by Fisher J in E & Ors v Attorney-General as set out in paragraph [23] above. In situations where due account is not taken of the Convention and the Guidelines as they apply in the particular case, then the relevant decision will be amenable to judicial review.

[40] The issue for determination by this Court is whether the applicant has been illegally detained. For the reasons given, I find the detention of the applicant was and is lawful.

Result

[41] The application for writ of habeas corpus is dismissed.

Solicitor for the respondents: Crown Solicitor (Auckland)