High Court Cases
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 -
(c) Shall have the right to have the validity of the arrest or detention determined without delay by way of habeas corpus and to be released if the arrest or detention is not lawful.
[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 -
(1) This section applies
to every person (other than a person to whom section 128B or section 129
of this Act applies) who -
(b) Is not exempt under this Act from the requirement to hold a permit; and
(c) Either -
(ii) Is refused a permit; or ...
(3) This section shall cease to apply to any person (including any stowaway), on the expiration of 72 hours after the time when the craft on which that person was travelling berths, lands, or otherwise arrives in New Zealand, unless that person is sooner detained under this section.
(4) Any person to whom this section applies shall be deemed for the purposes of this Act to be in New Zealand unlawfully, but, for so long as this section applies to that person, that person shall not be liable to be dealt with under any of the provisions of Part II of this Act.
(5) Subject to subsection (7) of this section, any person to whom this section applies may be detained by any member of the Police and placed in custody pending that person's departure from New Zealand on the first available craft.
(6) ...
(7) Where a person to whom this section applies is to be detained for more than 48 hours after the time of that person's detention by a member of the Police under subsection (5) of this section, an immigration officer or a member of the Police shall apply to the Registrar (or, in the Registrar's absence, the Deputy Registrar) of a District Court for a warrant of commitment in the prescribed form authorising the detention for a period not exceeding 28 days of that person in a penal institution or some other premises approved for the purpose by the Registrar (or Deputy Registrar), and the Registrar (or Deputy Registrar) shall issue such a warrant accordingly.
(8) Every application under subsection (7) of this section shall be made on oath, and shall include a statement of the reasons why the person is a person to whom this section applies.
(9) Every such warrant of
commitment shall authorise the superintendent of the prison or the person
in charge of the other premises to detain the person named in it until
-
(b) The release of the person in accordance with subsection (14)(a); or
(c) The expiry of the period
for which detention is authorised by the warrant (as determined having
regard to section 128A(2)(a) and (12), where appropriate, and to any extension
or further extension of the warrant granted under subsection 13B -
(10) Every person detained in a penal institution pursuant to a warrant of commitment issued under subsection (7) of this section shall be treated for the purposes of the Penal Institutions Act 1954 as if that person were an inmate awaiting trial.
(11) When a craft becomes available to take from New Zealand any person to whom this section applies who is in custody pursuant to a warrant of commitment issued under subsection (7) of this section, and it is practicable in all the circumstances for the person to leave on that craft, the superintendent of the prison or the person in charge of the other premises shall, on being required in writing by a member of the Police to do so, deliver the person into the custody of the member of the Police, who shall escort the person or arrange for the person to be escorted to the seaport or airport and ensure that the person is placed upon the craft and detained there until the craft leaves New Zealand.
(12) ...
(13) Where it becomes apparent
to an immigration officer that a person detained in custody under a warrant
of commitment issued under subsection (7) is, or is likely to be, unable
to leave New Zealand before the expiry of the period for which detention
is authorised by the warrant under subsection (9)(c), the immigration officer
may either
(b) Notify in writing the
Superintendent of the prison or person in charge of the other premises
in which the person is detained that the person should be released.
(b) Include a statement of
the reasons why the extension or further extension is requested.
(b) For such longer period
as the Judge thinks necessary in the circumstances to allow all the persons
in the group concerned to be properly dealt with, in any case where the
person detained under the warrant is a member of a group of people -
(ii) All or most of whom
are persons to whom this section applies.
(b) If not earlier released,
on the expiry of the period for which detention is authorised under the
warrant (as determined having regard to section 128A(2)(a) and (12), where
appropriate, and to any extension or further extension of the warrant granted
under subsection (13B).
(b) This section ceases to
apply in respect of that person.
[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.
Refugees unlawfully in the country of refuge
1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularised or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.
Applicant's grounds
[14] The applicant seeks a writ of habeas corpus on the grounds that -
[b] The applicant arrived in New Zealand on 16 September 1999 and has been unlawfully detained. Judge Moore is his decision of 13 October 1999 treated the applicant as subject to the new regime. (Following submissions by counsel for the Crown Mr Amery accepted he was in error as to the date of commencement of the new regime as it applies to the applicant.) It came into force on 16 June 1999.
[c] The Refugee Convention is incorporated into the Act under s 129D and the guidelines under this treaty are enforceable under our local law.
[d] It is fair and just that the applicant be released into the community pending the decision of the Refugee Status Appeals Authority, she having already spent 3 months in custody.
[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 detention of Asylum-seekers is, in the view of UNHCR inherently undesirable ...
Consistent with this Article [Art 31], detention should only be resorted to in cases of necessity...
The term "coming directly" in Article 31(1) covers the situation of a person who enters the country in which asylum is sought directly from the country of origin, or from another country where his protection, safety and security could not be assured. It is understood that this term also covers a person who transits an intermediate country for a short period of time without having applied for, or received asylum there. No strict time limit can be applied to the concept "coming directly".
Guideline 2: General Principle
As a general principle asylum-seekers should not be detained.
...
Guideline 3: Exceptional Grounds for detention.
Detention of asylum-seekers may exceptionally be resorted to for the reasons set out below as long as this is clearly prescribed by a national law which is in conformity with general norms and principles of human rights law. These are contained in the main human rights instruments.
There should be a presumption against detention. Where there are monitoring mechanisms which can be employed as viable alternatives to detention, (such as reporting obligations or guarantor requirements [see guideline 4]), these should be applied first unless there is evidence to suggest that such an alternative will not be effective in the individual case. Detention should therefore only take place after a full consideration of all possible alternatives, or when monitoring mechanisms have been demonstrated not to have achieved the lawful and legitimate purpose.
(iii) in cases where asylum-seekers
have ... used fraudulent documents in order to mislead the authorities
of the State, in which they intend to claim asylum.
... As regards asylum-seekers
using fraudulent documents ... detention is only permissible when there
is an intention to mislead, or a refusal to co-operate with the
authorities. Asylum seekers who arrive without documentation because they
are unable to obtain any in their country of origin should not be detained
solely for that reason.
Guideline 4: Alternative to Detention.
Alternatives to the detention of an asylum-seeker until status is determined should be considered. The choice of an alternative would be influenced by an individual assessment of the personal circumstances of the asylum-seeker concerned and prevailing local conditions.
[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 -
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) -
[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) -
[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)