RefNZ Case Search
High Court Cases
Mohebbi v Department of
Labour
High Court Auckland CIV
2007-404-3710
23 August 2007; 5 November
2007
Potter J
Detention -
detention for unreasonable period - whether detention in custody
pending removal may become illegal if it continues for unreasonable
period - Immigration Act s 60
New Zealand Bill of
Rights Act - arbitrary detention - whether detention which is initially
lawful could become arbitrary and unlawful if the purpose of detention
under the legislation cannot be fulfilled - New Zealand Bill of
Rights Act s 22
The appellant, a
citizen of Iran was unlawfully in New Zealand and had been detained in
custody since 20 January 2004 under a removal order and warrants of
commitment issued under the Immigration Act 1987. He refused to
co-operate by signing the papers necessary for a passport to be issued
to enable his return to Iran. New Zealand did not have an agreement
with the Iranian government for involuntary repatriation.
Section 60(6)(b) of the
Act provided that where a person was detained under a warrant of
commitment a Judge of the District Court could not
order the release of such person "Unless the Judge considers that there
are exceptional circumstances that justify the person's release". On an
application for conditional release the District Court Judge held
that there were no exceptional circumstances that justified release,
reasoning that the length of time for which the appellant had been
detained could not form exceptional circumstances justifying his
release because his own conduct was the cause of his detention. On
appeal to the High Court two submissions were made. First that the
District Court Judge had failed to consider whether ongoing detention
would be lawful and to apply or follow Yadegary v Manager Custodial Services,
Auckland Central Remand Prison [2007] NZAR 436; and that in
considering whether "exceptional circumstances" existed under s 60(6)
of the Act, the Judge had misdirected herself in focussing on the
appellant's non-compliant immigration behaviour with the result that
the decision was made for an incorrect or improper purpose. In parallel
judicial review proceedings the same grounds were advanced.
Held:
1. A
right of appeal to the High Court against decisions of a District Court
Judge under s 60 of the Immigration Act 1987 is available under s 72 of
the District Courts Act 1947 (see paras [26] & [84(a)]).
2. The
purpose of detention under s 60 of the Immigration Act 1987, including
under s 60(6) is to enable execution of the removal order (see paras
[45] & [84(b)]).
3. While
diplomatic efforts genuinely continue to secure an agreement with the
government of Iran that will enable removal orders for Iranian
nationals to be executed, even in the face of non-co-operation, there
is purpose served by the on-going detention of those who obstruct their
own removal (see para [46]).
4. It was
not possible to accept the submission that the simple effluxion of time
whilst a detainee consistently frustrates the removal regime cannot
constitute an exceptional circumstance justifying conditional release.
Section 60(6) does not authorise indefinite detention. Detention for a
purpose other than that authorised by the enactment is unlawful. Even
when the purpose of the enactment is being served by ongoing detention,
indefinite detention is impermissible because it constitutes inhuman
and degrading treatment. Section 60 cannot authorise indefinite
detention (see para [66]).
5. Had
Parliament intended to sanction non-co-operative or obstructive conduct
to prevail over all other factors, it could have stated its intention
in unmistakable terms. It has not done so. It has specifically in s
60(6) of the Act recognised that there may be exceptional circumstances
notwithstanding non-co-operative or obstructive conduct by the
detainee, where continuing detention is not justified. When human
liberty is at stake very clear words would be required to effect the
indeterminate curtailment of a person's liberty (see paras [67] &
[68]).
Yadegary v Manager Custodial Services,
Auckland Central Remand Prison [2007] NZAR 436; Tan Te Lam v Superintendent of Tai A Chau
Detention Centre [1997] AC97 (PC) and Al-Kateb v Godwin (2004) 219 CLR
562 (HCA) referred to.
6. Obstructive conduct
is in terms of s 60(6)(b) of the Act a significant factor for the Court
to weigh when determining whether a person should be conditionally
released pursuant to s 60(5). This is clear from the provisions of s
60. But it cannot trump all other factors. If it could, then
Immigration New Zealand could detain a person indefinitely so long as
the non-co-operation continued, regardless of the length of the period
of detention. Thus the inquiry into "exceptional circumstances" would
in such a situation, always resolve in favour of the Crown. Thus, the
length of detention, if unreasonable, can amount to an exceptional
circumstance, notwithstanding that the detainee deliberately obstructs
his removal (see paras [70], [71] & [84(d)]).
7.
Balancing the relevant factors of the length of the appellant's
detention, the uncertainty as to when an agreement with Iran for the
repatriation of involuntary nationals might be reached (which leaves
open the prospect of an indeterminate period of detention), the adverse
effects of continuing detention on the appellant and particularly on
his family - against the absence of any evidence that he is at risk of
absconding otherwise than by leaving New Zealand and that there is no
basis on the evidence of his criminal history to suggest that he will
re-offend, particularly violently, if released into the community, his
ongoing-detention would be unreasonable (see paras [73], [75] &
[84(e)]).
R (on the application of "I") v
Secretary of State for the Home Department [2002] EWCA Civ 888
(CA) referred to.
8. However,
that assessment must then be measured against the factor at which s
60(6)(b) is directed, his obstructiveness by refusing to sign papers
that would enable the removal order to be executed. This factor must be
accorded significant weight. But it cannot be allowed to become a trump
card which will necessarily be treated as outweighing the
unreasonableness of on-going detention, for Parliament has not so
provided (see para [76]).
9. The
appellant had been continuously in custody for approximately three
years nine months. He had not been convicted of any criminal offence;
he had not even been charged with an offence. Notwithstanding his
undoubted obstructiveness (and accepting that his obstructiveness had
been at the "high end"), in all the circumstances his on-going
detention was unreasonable. Accordingly there were exceptional
circumstances for the purposes of s 60(6) and the appellant was
entitled to be released on appropriate conditions under s 60(5) of the
Act (see paras [77] & [84(e)]).
10. The
District Court Judge erred in finding that time alone cannot equate to
exceptional circumstances to justify release. The factors she
considered in determining whether there were exceptional circumstances
were factors directed more to whether the appellant would be a good
citizen than whether his continued detention was unreasonable. They
were largely irrelevant to that question and led to a decision that was
ultimately unreasonable (see para [78]).
11.
Detention will be arbitrary if it is capricious, unreasoned, without
reasonable cause. Detention which is initially lawful, would become
arbitrary and unlawful if the purpose of detention under the Act could
not be fulfilled and the detention was therefore otherwise indefinite
or permanent. On the facts, the appellant's continuing detention had
become unreasonable and arbitrary (see paras [80], [81], [82], [83]
& [84(f)]).
Neilsen v Attorney-General [2001] 3
NZLR 433 (CA) and Zaoui v
Attorney-General [2005] 1 NZLR 577 (CA) referred to.
Appeal allowed.
Order that Mr Mohebbi be released on conditions.
Other cases
mentioned in
Judgment
R v
Governor of Durham Prison; Ex parte Hardial Singh [1984] 1 WLR
704 (QBD)
R v Secretary of State for the Home
Department; Ex parte Khawaja [1984] AC 74 (HL)
Zadvydas v Davis
533 US 678 (2001)
Counsel
D Ryken for
the appellant/plaintiff
AR Longdill for the
Crown
[Editorial note:
In earlier litigation reported at
Mohebbi v Minister of Immigration
[2003] NZAR 685 Mr Mohebbi successfully applied for a writ of habeas
corpus as the then legislative provisions did not allow the lawful
detention of a person for the purpose of forcing him or her to either
produce a passport or to assist the immigration authorities in the
application for a passport by signing all the necessary application
forms for a new passport. However, section 60 of the Immigration Act
1987 was amended by the Immigration Amendment Act (No. 2) 2003, s 16
which came into effect on 9 September 2003. On 30 January 2004 Mr
Mohebbi was served with a further removal order and taken into custody.
>From that point he remained in custody until his
conditional release was ordered by Potter J on 5 November 2007. For
further background see para [5] of the Judgment given by Potter J.]
POTTER J
TABLE
OF CONTENTS
Introduction
Issues
Background
Jurisdiction to appeal
Grounds of appeal/judicial
review
The judgement in Yadegary
The District Court decision
Purpose of detention under
s 60
Is the purpose served by
on-going detention?
Can the length of
detention amount to an exceptional circumstance when
the detainee deliberately obstructs his removal?
Are there exceptional
circumstances within the meaning of s 60(6) that
justify Mr Mohebbi’s release?
Has detention become
arbitrary?
Summary of conclusions
Relief
Non-publication order
Introduction
[1] Mr Mohebbi is
unlawfully in New Zealand and has been detained in custody since 20
January 2004 under a removal order and warrants of commitment issued
under the Immigration Act 1987 (“the Act”). He refuses to co-operate by
signing the papers necessary for a passport to be issued to enable his
return to Iran of which he is a national. New Zealand does not have an
agreement with the Iranian Government for involuntary repatriation.
[2] On 30 May 2007 Judge
Bouchier in the District Court granted an application by the New
Zealand Immigration Service (“INZ”), opposed by Mr Mohebbi, for further
extension of the warrant of commitment under s 60 of the Act and
dismissed Mr Mohebbi’s cross-application for conditional release under
s 60(5).
[3] Mr Mohebbi appeals against
the District Court judgment on the ground of error of law and also
seeks judicial review of the decision.
[4] Issues
a) Is there jurisdiction
to appeal?
b)
What is the purpose of detention under s 60?
c)
Is that purpose being served by on-going detention?
d)
Can the length of detention amount to an exceptional circumstance when the detainee
deliberately obstructs his removal?
e)
Are there exceptional circumstances
within the meaning of s 60(6) of the Act that justify Mr
Mohebbi’s release?
f)
Has detention become arbitrary and therefore in breach of s 22 of the
New Zealand Bill of Rights Act 1990 (“Bill of Rights”)?
[5] Background
• On 4 July 1997 Mr Mohebbi arrived in New Zealand without
documentation. He subsequently applied for refugee status.
• On 3 April 1998 the Refugee Status Branch declined his refugee
application. He appealed to the Refugee Status Appeals Authority.
• On 27 August 1998 his appeal was dismissed and his temporary permit
was subsequently revoked.
• On 5 February 1999 Mr Mohebbi was served with a removal order under
the Act. He subsequently appealed to the Removal Review Authority on
the basis of a marriage to Jaran Ahmadian a New Zealand resident.
• On 27 September 1999 his appeal was allowed and a temporary permit
was granted to him to enable him to apply for residence on the basis of
his marriage to a New Zealand resident. That application was
unsuccessful as Jaran Ahmadian withdrew her support and also obtained a
protection order against Mr Mohebbi.
• On 25 March 2001 his permit expired. In May 2001 he again appealed to
the Removal Review Authority against the requirement to leave New
Zealand, in the meantime having met his current partner Marion Banawa.
• On 31 January 2003 the appeal was dismissed by the Removal Review
Authority.
• On 11 March 2003 he was again served with a removal order and taken
into custody. He could not be removed from New Zealand as he did not
have a passport and refused to apply to the Iranian Embassy for a
travel document. INZ subsequently brought Mr Mohebbi before a District
Court Judge and obtained a warrant of commitment under s 60 of the Act.
The warrant was extended every week.
• On 7 April 2003 Mr Mohebbi applied for judicial review of the INZ
decision to serve a removal order on him. That application was
dismissed on 9 April 2003 by Harrison J who considered the substantive
challenge “doomed to failure”.
• In June 2003, with the time limit for detention under s 60 (3 months)
about to expire, INZ applied to the District Court to detain Mr Mohebbi
under s 138A of the Act.
• In June and July 2003 orders made by District Court Judges at two
subsequent hearings required Mr Mohebbi to produce a passport or sign
all the necessary application forms. He failed to comply.
• On 7 August 2003 this Court issued a writ of habeas corpus on the
application of Mr Mohebbi on the grounds that there was no just cause
for detention. Section 138A(1) could only be exercised for the stated
purpose of establishing identity. It could not be used to force a
person to either produce a passport or assist INZ in the application
for a new passport by signing all the necessary application forms so as
to justify continued detention when the person’s identity was
established.
• In early September 2003 Parliament moved urgently to amend s 60 of
the Act in reaction to Mr Mohebbi’s release. The Immigration Amendment
Act (No 2) 2003 came into force on 9 September 2003. It substituted
subsection (6) and inserted subsection (6A) in s 60.
• On 10 November 2003 Mr Mohebbi sought intervention from the Associate
Minister of Immigration. The Minister declined to intervene as he has
on four subsequent applications made to him by Mr Mohebbi.
• On 30 January 2004 Mr Mohebbi was served with a further removal order
and taken into custody. From this point Mr Mohebbi has been
continuously in custody.
• From February to September 2004 Mr Mohebbi was detained pursuant to
warrants of commitment issued by the District Court under s 60(6) of
the Act. He continually refused to co-operate with INZ in signing an
application form for a travel document.
• On 4 October 2004 Mr Mohebbi made a further application for refugee
status which was declined in April 2005. He appealed to the Refugee
Status Appeals Authority who declined the appeal in December 2005.
(During the period of this second application – a period of 14 months -
Mr Mohebbi could not have been removed from New Zealand because of the
provisions of s 129X of the Act).
• From January 2006 to May 2007 Mr Mohebbi was detained under s
60(6)(b), consistently refusing to co-operate in signing an application
form for a travel document.
• On 30 May 2007 Judge Bouchier in the District Court issued a judgment
extending the warrant of commitment and refusing application for
conditional release.
• In June 2007 the appeal and judicial review against the judgment of
Judge Bouchier were filed. The warrant of commitment has been further
extended pending determination of the appeal and the judicial review.
[6] The diplomatic situation
regarding the involuntary repatriation of Iranian nationals who are
unlawfully in New Zealand is also part of the background. The New
Zealand Government over a number of years has been taking steps to
secure arrangements with the Iranian authorities for involuntary
repatriation. The evidence before the District Court in an affidavit of
Gordon James MacRae, Immigration Officer, dated 29 May 2007, was that
although he was aware of talks between the New Zealand Government and
the Iranian authorities, he was unaware of any progress in removing
Iranians without their co-operation.
[7] The Crown sought leave to
adduce further evidence on appeal by way of an updating affidavit from
Mr Aaron Baker of INZ who is the National Manager, Border Security and
Compliance Operations which was admitted without opposition by counsel
for Mr Mohebbi. The Crown has requested suppression orders in relation
to Mr Baker’s affidavit on the ground that the information provided is
sensitive, which I make at the conclusion of this judgment. Suffice to
summarise that the New Zealand Government through INZ and the Ministry
of Foreign Affairs and Trade has actively engaged in diplomatic
negotiations with Iran on the issue of involuntary returns of Iranian
citizens who are unlawfully in New Zealand. Negotiations have been
ongoing since mid-2004. Progress has been slow but there has been
progress. However, there is no certainty as to whether or when any
agreement may be concluded. While Mr Baker refers to a recent “major
positive step in the diplomatic process” there appears to be no
certainty as to when an acceptable outcome may be reached.
Jurisdiction
to appeal
[8] Mr Mohebbi brings
his appeal under s 72 of the District Courts Act 1947 which provides:
(1) This subsection
applies to every decision made by a District Court other than a decision of
a kind of which an enactment other than this Act-
(a)
expressly confers a right of appeal; or
(b) provides
expressly that there is no right of appeal.
(2) A
party to proceedings in a District Court may appeal to the High Court against the whole
or any part of any decision to which subsection (1) applies
made by the District Court in or in relation to the proceedings.
[9] The Crown accepted that by her
judgment of 30 May 2007 Judge Bouchier made a decision within the definition in s
71 of the District Courts Act, but contended that s 72(1)(a) applies to
exclude that decision from the right of appeal conferred generally by s
72. When viewed in context, the s 60 decision to extend a warrant of
commitment is a decision of a kind
in respect of which the Act, being
an enactment other than the District Courts Act, expressly confers a right of appeal.
Therefore the Crown contended, s 72 which provides a general right of
appeal is not triggered.
[10] Part 2 of the Act which is
headed Persons in New Zealand
unlawfully was substituted by the Immigration Amendment Act
1999. The Crown contended that Part 2 of the Act provides a code
governing compulsory removal of persons unlawfully in New Zealand and
that Parliament only intended one right of appeal from the compulsory
removal regime, namely the right of appeal in s 47 to the Removal
Review Authority.
[11] The Crown argued that a
decision to extend a warrant of commitment under s 60 of the Act is an
integral step in that regime and therefore only the route of appeal
under s 47 is available.
[12] By s 45 persons unlawfully
in New Zealand have an obligation to leave New Zealand unless
subsequently granted a permit. Section 46 imposes a duty on the Chief
Executive of the Department of Labour to communicate the obligation to
leave and the consequences of failing to do so.
[13] Section 47 provides a
right of appeal to the Removal Review Authority against the requirement
to leave. It provides:
Appeal
against requirement to leave New Zealand
(1) A
person who is unlawfully in New Zealand may appeal to the Removal Review Authority
against the requirement for that person to leave New Zealand.
(2)
The appeal must be brought within 42 days after the later of –
(a) The day on which the
person became unlawfully within New Zealand;
Or
(b)
The day on which the person received notification under section 31 of the
confirmation of the decision to decline to issue a permit, in the
case of a person who, while still lawfully in New Zealand, had
lodged an application under section 31 for reconsideration of a
decision to decline another temporary permit.
(3) An appeal may be
brought only on the grounds that there are exceptional circumstances
of a humanitarian nature that would make it unjust or unduly harsh
for the person to be removed from New Zealand, and that it
would not in all the circumstances be contrary to the public interest to
allow the person to remain in New Zealand.
(4)
For the purposes of subsection (3), the mere fact that a person’s circumstances are such
that the person would meet any applicable Government residence
policy requirements for the grant of a residence permit does not
in itself constitute exceptional circumstances of a
humanitarian nature.
(5)
The following persons may not appeal under this section:
(a) A person who is
unlawfully in New Zealand by reason of having returned to New
Zealand while a removal order is in force in respect of the
person:
(b) A
person who is unlawfully in New Zealand by reason of the expiry of a limited
purpose permit:
(c) A
person who is unlawfully in New Zealand following the revocation of their
residence permit being confirmed by the Deportation Review
Tribunal:
(d) A
person unlawfully in New Zealand to whom section 63 applies (which section
relates to persons granted temporary permits for the purpose
of the Mutual Assistance in Criminal Matters Act 1992); or
(e) A
person unlawfully in New Zealand to whom section 114K(4)(b) applies (which
provision relates to a person in respect of whom a
security risk certificate has been confirmed).
[14] Sections 48-52 set out the
procedural provisions applying to appeals and the powers of the Removal
Review Authority when an appeal is allowed. Relevantly, s 49(2)
provides:
The function of the
Authority is solely to determine appeals brought under section 47 against the
requirement to leave New Zealand.
[15] The removal provisions follow
in ss 53-63. Under s 53 a person unlawfully in New Zealand may be the
subject of a removal order. Sections 54-58 relate to the making,
content and effect, service, currency and cancellation of removal
orders.
[16] Under s 59 the Police may
arrest without warrant and detain a person on whom a removal order has
been served, for the purpose of executing the removal order -
… by placing the person on craft that is leaving New Zealand.
Detention is limited
to 72 hours without further authority.
[17] Section 60 provides for
the situation where a craft is unavailable within the 72 hour period.
Section 60 provides:
Release
or extended detention if craft unavailable, etc, within 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
(b) A craft that was
available is no longer available; 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) 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) 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 think fits {sic ? 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) 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; 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) 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
(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.
[18] Mr Mohebbi was
brought before Judge Bouchier under s 60(4). The Judge extended the
warrant of commitment for a further 28 days.
[19] The Crown submitted that
Parliament has deliberately “streamlined”
the compulsory removal regime by providing one right of appeal only,
that
under s 47. The Crown referred to the long title of the Immigration
Amendment Act
1999 which introduced the new Part 2 into the Act:
An Act to –
(a)
Improve the effectiveness of the removal regime for persons unlawfully in New Zealand
by streamlining the procedures involved, so ensuring -
(i) A higher level of
compliance with immigration laws; and
(ii)
That persons who do not comply with immigration procedures and rules are
not advantaged in comparison with persons who do comply; and
(iii)
. . .
[20] It was submitted that s 60
provides in-built safeguards for those
detained - detention must be revisited by the District Court every 7
days, or in
the case of those who have acted to prevent removal occurring, at least
every 30 days and
more typically every 28 days. Also, continued detention can be
challenged by
way of habeas corpus if considered prima facie unlawful, or by judicial
review
(as has been done in this case in conjunction with the appeal).
[21] The Crown’s contention
cannot, in my view, be correct. The right
of appeal to the Removal Review Authority under s 47 is only against
the
requirement for the appellant to leave New Zealand. Section 49(2)
emphasises that
determination of such appeals is the sole function of the Removal
Review Authority.
[22] Thus, if the Crown were
correct, there would be no right of appeal
against a decision of a District Court Judge under s 60. Ms Longdill
accepted
this was so, but submitted that in the context of the streamlined
procedures to enhance
the effectiveness of the removal regime as stated by Parliament in the
long
title to the 1999 amending Act, the safeguards provided by s 60 for
detentions under
Part 2 to be revisited by the District Court at intervals of 7 or 30
days obviate
the need for appeal.
[23] Further, the limited right
of appeal to the Removal Review
Authority under s 47 against a substantive decision that a person be
required to leave
New Zealand, may be brought only on the grounds stated in s 47(3):
… exceptional
circumstances of a humanitarian nature that would make it unjust or unduly harsh
for the person to be removed from New Zealand,
and that
it would not in all the circumstances be contrary to the public
interest to allow
the person to remain in New Zealand.
[24] A decision under s 60 to extend
a period of committal and to
refuse a release on conditions, is a quite different kind of decision
and involves
consideration of factors not expressly including and not limited to,
circumstances of a
humanitarian nature. Broader considerations apply. Such a decision is
not a decision
of a kind in respect of which the Act expressly confers a right of
appeal as
contemplated by s 72 of the District Courts Act.
[25] The Crown’s acceptance
that the interpretation it advanced would
preclude a right of appeal from decisions under s 60, highlights the
flaw in its
argument. Section 72 of the District Courts Act provides a general
right of
appeal except where another enactment expressly confers a right of
appeal or provides
expressly that there is no right of appeal. The Act does neither. It
would require a very
clear contrary expression to exclude from the general right of appeal
conferred by s
72 of the District Courts Act, decisions of the District Court under s
60 which
impact directly on the liberty of the persons subject to such decisions.
[26] I conclude that a right of
appeal against decisions under s 60 of
the Act is available under s 72 of the District Courts Act.
Grounds of appeal/judicial
review
[27] The grounds of
appeal and judicial review were advanced in tandem
in submissions for Mr Mohebbi and I shall consider them together. The
various stated grounds overlap to some extent and may conveniently be
summarised under
two heads:
a) The Judge failed to
consider whether ongoing detention would be lawful and to apply or
follow Yadegary v Manager Custodial Services,
Auckland Central Remand Prison and Chief Executive of Labour [2007] NZAR 436.
b) In
considering whether exceptional circumstances existed under s 60(6) the Judge
misdirected herself in focusing on Mr Mohebbi’s non-compliant immigration
behaviour with the result that the decision was made for an incorrect
or improper purpose.
The
judgment in Yadegary
[28] In the recent
judgment in Yadegary Courtney
J addressed the same
difficult issue that arises in this case, namely how long a person who
deliberately obstructs his removal under the Act can lawfully be
detained under the Act.
[29] Mr Yadegary’s background
was in many respects similar to that of Mr Mohebbi. Mr Yadegary is an
Iranian national who was subject to a
removal order. At the time his application for judicial review of a
decision of the
District Court which extended a warrant of commitment and refused his
cross-application seeking conditional release pursuant to s 60(5) was
heard, he had been in
custody for just over two years. He had destroyed his passport and
refused to apply for
a new one.
[30] After considering the
relevant statutory provisions and
authorities, Courtney J concluded at [67]:
a) The purpose of
detention under s 60 of the Act is to enable the execution of removal
orders.
b)
The principles enunciated in R v
Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR
704 apply generally to detention under s 60, namely that:
i) detention can only be
for the purpose authorised by s 60;
ii)
the length of detention must be limited to the period reasonably necessary for
the statutory purpose;
iii)
what is a reasonable period depends on the circumstances of the particular case;
iv)
the State must take the steps necessary to achieve removal within a reasonable time;
v) if
it becomes apparent that removal cannot be achieved within a reasonable period the
detainee must be released.
c) There is nothing
in the language of s 60 that could operate to
exclude the
Hardial Singh principles.
Accordingly the phrase “exceptional circumstances” in the
opening words of s 60(6) is to be construed so as to include detention
that would be unreasonable under those principles.
d) In
determining what a reasonable period is, the detainee’s own conduct in obstructing
the removal process is to be given significant weight. However, it
cannot have the status of a trump card. Had Parliament intended the
sanctioning of obstructive conduct to prevail over other factors it
could have stated its intention in unmistakable terms but has not done so
(at [65]).
e)
The ongoing detention of Mr Yadegary in the light of all the relevant circumstances was
unreasonable and therefore “exceptional circumstances” existed.
[31] The decision of the District
Court was quashed and an order made
that Mr Yadegary be released on conditions to be fixed by the District
Court.
[32] Both counsel in this case
were also involved in Yadegary.
The Crown contends that Yadegary
is wrongly decided and has appealed that
judgment. (I am advised the appeal has a fixture in the Court of Appeal
in March 2008).
Mr Ryken for Mr Mohebbi maintains that Courtney J’s decision is right.
He says
that while Judge Bouchier quoted a relevant passage from the Yadegary judgment,
she failed properly to apply the principles determined by this Court to
the
circumstances of this case.
The
District Court decision
[33] Judge Bouchier
delivered an oral judgment on 30 May 2007. She
identified two issues upon which she said she must be satisfied:
a) Whether Mr Mohebbi
will not abscond otherwise than by leaving New Zealand (s 60(5)); and
b)
Whether there are exceptional circumstances that justify his release
– in
particular whether his detention had become unreasonable and therefore there were
exceptional circumstances to justify his release (s 60(6)).
[34] The Judge found on those
issues:
Certainly there is
presumptive evidence generally that in situations
like this people
often abscond but there is no specific evidence before this
Court that the
respondent will not abscond otherwise than by leaving New Zealand … (at [47]).
Time
alone cannot, in my view, equate to exceptional circumstances to justify release (at [48]).
[Mr
Mohebbi] has created his own family situation, he cannot work in
this country,
he is not of blameless character, he has for a substantial
length of time
obstructed the administration of the Immigration Act in this
country and cost
this country a significant amount of money in so doing, that does
not form
any exceptional circumstances that justify his release on
conditions (at [54]).
[35] At [12] the Judge referred to
the judgment in Yadegary. She
recorded advice that the Crown has appealed that decision but conceded
that it was
currently the law. The Judge did not consider in any detail the
judgment in Yadegary
although she quoted from it at [34] and [35], but essentially found on
the facts
that Mr Mohebbi’s case could be distinguished from Yadegary. She held there were no
exceptional circumstances that justified the release of Mr Mohebbi
under s 60(6).
[36] She said at [53]:
It seems to me that even
the length of time involved here cannot form exceptional circumstances
to justify Mr Mohebbi’s release because of his own conduct and his
unique immigration history, because in effect he
would then
be thumbing his nose at the laws and government of New Zealand in a way which I do not
consider the decision in Yadegary
could possibly have expected to sanction.
Purpose
of detention under s 60
[37] The purpose of
detention is important because, as the Crown
accepts, in accordance with the Hardial
Singh principles, to be lawful, detention
must be for the statutory purpose and the length of detention must be
limited to the
period reasonably necessary for the statutory purpose.
[38] In Yadegary Courtney J found the
purpose of detention under s 60
to be expressly stated in s 60(2), i.e. to enable the execution of the
removal order. She considered that was clearly a wider purpose than the
purpose under s
59(2) which is to execute the removal order by placing the person on a
craft that is
leaving New Zealand (within 72 hours).
[39] Courtney J rejected
arguments by the Crown that detention under s
60(6) (as distinct from under s 60 generally) serves even broader
purposes, in
that it:
• Applies a more stringent standard to those who obstruct removal;
• Provides an incentive to the detainee to co-operate with removal
measures and a sanction for not doing so; and
• Prevents persons who obstruct removal from obtaining the benefit of
de-facto residence.
[40] In this case, the Crown
invites the Court not to follow the
reasoning of Courtney J. It was submitted that in applying the much
more stringent
standard of exceptional circumstances to those who obstruct release,
compared with
non-obstructive detainees who may be considered for conditional release
under s 60(5), s 60(6) effectively reinforces the importance of state
sovereignty in
the immigration context; the state has a sovereign right to control its
borders, and
individual non-cooperation in removal cannot trump this. This is a
broader purpose for detention under s 60(6).
[41] The Crown referred to the
statements of the Minister of
Immigration at the introduction and third reading of the Immigration
Amendment Bill which
became the Immigration Amendment Act (No 2) 2003 and came into force on
9
September 2003, substituting s 60(6) and inserting s 60(6A), as
expressing the
legislative intent. (The amendment to s 60 was introduced as a direct
result of this
Court’s decision on 7 August 2003 to issue a writ of habeas corpus on
the application of Mr
Mohebbi brought in response to INZ’s attempt to detain him under s 138A
of the
Act):
… the New Zealand
Immigration Service has been unable to remove Mr Mohebbi. Why? Because it
cannot get a travel document from him. Why? Because he has refused to
request one from his own country’s embassy. …
I
cannot recall even discussing the possibility of such wilful
non-co-operation leaving New Zealand
exposed to the release from detention of such an individual. The
Supplementary Order Paper will enable a judge, not the Immigration Service, to
extend the warrant of commitment where the person’s own action or
inaction either directly or indirectly results
in the person
being unable to leave New Zealand (New Zealand Parliamentary Debates, first Session,
Forty-Seventh Parliament, 8255, 2 September
2003).
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.
…
[t]his amendment is [not] indefinite detention. … 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 through
the action or inaction of the individual concerned that means
he or she
cannot be removed. If the particular individuals concerned had
signed their
application, they would not be in detention – they would be gone … (New Zealand
Parliamentary Debates, first Session, Forty-Seventh Parliament, 8406, 4
September 2003).
[42] Section 60(6) as substituted by
the 2003 amendment provides a
significant constraint on the elegibility (sic) for conditional release
under s 60(5) of
those who obstruct their removal from New Zealand. Thereby, it provides
an
incentive to cooperate. But that does not change the purpose of
detention pursuant to a warrant
of commitment as expressed in s 60(2), namely to enable execution of
the
removal order. That expressly stated purpose remained unchanged by the
2003
amendment.
[43] The Crown suggested there
is a further argument in favour of the
broader purpose of detention under s 60(6) it advocates, which applies
in the
case of Mr Mohebbi but was not present in the case of Mr Yadegary. For
14 months
subsection (6)(a) as well as subsection 6(b) applied to Mr Mohebbi
because in
October 2004 he made a further application for refugee status which was
declined and
ultimately failed on appeal in December 2005. During that period s 129X
of the Act
prevented his removal. So, argued the Crown, it could not be said that
Mr
Mohebbi’s detention was for the purpose of executing a removal order,
when that could not
happen.
[44] I disagree. The purpose of detaining Mr Mohebbi
remained unchanged through this period. His second application for
refugee status simply
meant that during the 14 month period, under both limbs (a) and (b) of
subsection
(6) he was not eligible for conditional release under s 60(5) absent
exceptional
circumstances.
[45] I conclude, as did
Courtney J in Yadegary that
the purpose of
detention under s 60, including under s 60(6), is to enable execution
of the removal
order.
Is the purpose served by
on-going
detention?
[46] I accept that while
diplomatic efforts genuinely continue to
secure an agreement with the Government of Iran that will enable
removal orders
for Iranian nationals to be executed, even in the face of
non-co-operation, there
is purpose served by the on-going detention of those who obstruct their
own
removal.
Can length of
detention amount to an
exceptional circumstance when the detainee deliberately obstructs his
removal?
[47] In Yadegary Courtney J reviewed
relevant overseas authorities in
[17] to [25] of the judgment. She referred particularly to Tan Te Lam v
Superintendent of Tai A Chau Detention Centre [1997] AC 97. Tan Te Lam concerned
Vietnamese boat people who were refused refugee status and were subject
to removal
orders under the Hong Kong Immigration Ordinance. They could apply for
voluntary repatriation but refused to do so. They complained that their
ongoing
detention was unlawful because the period for which they had been
detained was
unreasonable.
[48] The Privy Council applied
the principles enunciated by Woolf J in
Hardial Singh (at 706):
Although the power which
is given to the Secretary of State … 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 … 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 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.
[49] Importantly, with relevance to
the interpretation of s 60(6) of
the Act, the Privy Council recognised that the Hardial Singh principles could be
excluded by express provisions. Lord Browne-Wilkinson said (at 111):
Section 13D(1) confers a
power to detain a Vietnamese migrant “pending
his removal
from Hong Kong”. Their Lordships have no doubt that in conferring such a power
to interfere with individual liberty, the
legislature intended
that such power could only be exercised reasonably and that accordingly it was
implicitly so limited. The principles enunciated by Woolf J in the Hardial Singh case [1984] 1 W.L.R.
704 are statements of
the limitations
on a statutory power of detention pending removal. In the absence of contrary
indications in the statute which confers the power
to detain
“pending removal” their Lordships agree with the principles
stated by Woolf
J. First, the power can only be exercised during the period
necessary, in
all the circumstances of the particular case, to effect removal.
Secondly, if
it becomes clear that removal is not going to be possible within a reasonable time, further
detention is not authorised. Thirdly, the
person seeking
to exercise the power of detention must take all reasonable
steps within
his power to ensure the removal within a reasonable time.
Although
these restrictions are to be implied where a statute confers
simply a power
to detain “pending removal” without more, it is plainly possible
for the
legislature by express provision in the statute to exclude such
implied restrictions.
Subject to any constitutional challenge (which does not
arise in this
case) the legislature can vary or possibly exclude the Hardial
Singh principles.
But in their Lordships’ view the courts should construe
strictly any
statutory provision purporting to allow the deprivation of
individual liberty
by administrative detention and should be slow to hold that
statutory provisions
authorise administrative detention for unreasonable periods
or in unreasonable
circumstances.
[50] The Hong Kong Immigration
Ordinance with which the Privy Council
was concerned in Tan Te Lam,
expressly envisaged by s 13D(1A), that the
exercise of the power of detention conferred by s 13D(1) will be
unlawful if the period
of detention is unreasonable:
… What section 13D(1A)
does is to provide expressly that, in deciding whether or not the period
is reasonable, regard shall be had to all the circumstances including
(in the case of a person detained pending his removal from Hong Kong)
“the extent to which it is possible to make arrangements to effect
his removal” and “whether or not the person has declined arrangements
made or proposed for his removal”. Therefore the subsection is expressly
based on the requirement that detention must be
reasonable in all
the circumstances (the Hardial Singh
principles) but imposes specific
requirements that in judging such reasonableness those
two factors
are to be taken into account.
The
two additional factors specifically mentioned in section 13D(1A)
reflect the
delays in arranging with the Vietnamese authorities to accept
repatriation and
the fact that detainees in refusing to be repatriated under the
voluntary scheme
are declining to take advantage of a scheme which could effect
their repatriation,
and therefore their release, much more speedily.
[51] Lord Browne-Wilkinson continued
(at 113):
Their Lordships do not
exclude the possibility that, by clear words, the legislature can confer
power on the executive to determine its own jurisdiction. Say, for
example, the power to detain were expressly made exercisable during such
period as in the opinion of the director
removal from Hong
Kong was pending. In such a case the court’s only power would be to review the director’s
decision on Wednesbury
principles. Where human liberty is at stake, very
clear words would be required to produce this
result. As
was emphasised by all their Lordships in the Khawaja case (Reg. v Secretary of State for the Home
Department, Ex parte Khawaja [1984] A.C. 74), in cases where the
executive is given power to restrict human
liberty, the
courts should always “regard with extreme jealousy any claim by the executive to imprison a
citizen without trial and allow it only if it
is clearly justified
by the statutory language relied on:” [1984] A.C. 74, 122,
Lord Bridge
of Harwich. Such an approach is equally applicable to everyone within the jurisdiction
of the court, whether or not he is a citizen of
the country:
see per Lord Scarman, at pp. 111-112.
[52] In addressing the issue of the
length of detention their Lordships
observed that if the Vietnamese boat people were to have applied for
voluntary
repatriation most of them would be repatriated in a comparatively short
time,
thereby regaining their freedom. Therefore they were only detained
because of their own
refusal to leave Hong Kong voluntarily, such refusal being based on a
desire to
obtain entry to Hong Kong to which they had no right. At 114 it is
stated:
In assessing the
reasonableness of the continuing detention of such
migrants, section
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.
[53] Courtney J also referred to the
case of Al-Kateb v Godwin
(2004)
208 ALR 124; (2004) 219 CLR 562, a decision of the High Court of
Australia. The
statutory provision in question was s 196 of the Migration Act 1958
which
required that an unlawful non-citizen:
… must be kept in
immigration detention until he or she is … removed
from Australia
… deported … or granted a visa.
[54] Section 196(3) provided:
To avoid doubt,
subsection (1) prevents the release, even by a court,
of an unlawful
non-citizen from detention (otherwise than for removal or detention) unless the
non-citizen has been granted a visa.
[55] The majority of the High Court
Bench of Australia held that the
language of s 196 was sufficiently clear to override any implied
limitation on
detention for a potentially unlimited period, as required by the Hardial Singh
principles.
[56] Kirby J in a dissenting
judgment referring to Hardial Singh,
Tan
Te Lam and Zadvydas v Davis
533 US 678 (2001) said at [161]:
Likewise, in Tan Te Lam the approach to the
judicial function of
statutory interpretation
adopted by the Privy Council in a Hong Kong appeal can
only be
explained by reference to the same judicial resistance to unlimited executive detention. In
different courts the resistance leads to
different techniques
of decision-making and to different powers and outcomes. But the common thread that
runs through all these cases is that judges of
our tradition
incline to treat unlimited executive detention as
incompatible with contemporary notions of
the rule of law. Hence, judges regard such unlimited detention with
vigilance and suspicion. They do what they can
within their
constitutional functions to limit it and to subject it to
express or implied
restrictions defensive of individual liberty.
[57] Gleeson CJ, also part of the
minority, said at [19]:
Courts do not impute to
the legislature an intention to abrogate or
curtail certain
human rights or freedoms (of which personal liberty is the most basic) unless such an
intention is clearly manifested by unambiguous language, which indicates
that the legislature has directed its
attention to the rights or freedoms in
question, and has consciously decided upon
abrogation or
curtailment.
[58] Hayne J, who was part of the
majority, said at [241]:
There is a relevant
general principle to which effect must be given in construing the provisions
now in question: legislation is not to be
construed as
interfering with fundamental rights and freedoms unless the
intention to do
so is unmistakably clear. General words will not suffice.
[59] Hayne J found, however, that
the statute made clear that detention
was mandatory and must continue until removal or deportation or the
grant
of a visa – the words of the statute were “intractable”.
[60] Courtney J then turned to
consider New Zealand authorities, noting
that the question whether s 60(6) ousts the Hardial Singh limitations in
relation to persons to whom s 60(6) applies, appeared never to have
been argued.
[61] The Judge started from the
fundamental position stated in Tan
Te
Lam and Al-Kateb that
absent clear legislative intent the Hardial
Singh
principles apply in New Zealand to the power to detain under s 60. She
observed that s
60(5) clearly intends that unless it is inappropriate because of the
risk of
offending or absconding, persons should not be detained longer than
necessary. Aside from s
60(6) there is nothing that could possibly be viewed as a clear
intention to permit
prolonged and possibly indefinite detention. She said:
[29] This leaves the
question whether, either alone or coupled with the change to s 60(7), the
wording of s 60(6) is sufficiently clear to oust the implied requirement
for detention to be reasonable in the circumstances. Clearly, s
60(6) was intended to alter the way in which specified
categories of persons are dealt with by refusing
them the benefit of
conditional release under s 60(5). Section 60(6) takes away the power of
conditional release in respect of them unless exceptional circumstances
exist. But for the opening words “Unless the Judge considers that
there are exceptional circumstances that justify the person’s
release”, s 60(6) would be couched in absolute terms that would leave no
room for doubt that Parliament intended to preclude absolutely the
release of the specified categories of persons.
[30]
So the question comes down to whether the opening words of s 60(6) detract from that
meaning sufficiently to conclude that, even in relation to those
specified in s 60(6), detention must be still be limited to what is
reasonable in the circumstances. The construction of these words must be
undertaken against the obvious intention that the categories of persons
specified in s 60(6) are to be treated less favourably than others to
whom s 60 applies. However, the decision to add the opening words
to s 60(6) when, without them, the intention to allow
prolonged detention would have been clear, can only have been intended
to limit the effect that s 60(6) would otherwise have had.
[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 has 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.
[62] The Crown submitted that the
approach of Courtney J was wrong
because it subsumed exceptional
circumstances into a broad reasonableness test:
a) It failed to
appreciate the significant differences between the
broad, unfettered
powers of detention in the overseas legislation with the structured, regulated
regime of s 60 generally;
b) It
failed to appreciate the importance of s 60(6)(b) as a specific legislative response to
the problem of obstructive detainees.
[63] The Crown differentiated s 60
from the legislative provisions in
cases such as Hardial Singh and
Tan Te Lam which empowered
detention “pending
removal”. In contrast s 60 contains legislative safeguards to protect
against
arbitrary detention; the maximum period of detention absent judicial
oversight is 72 hours (s
59); from that point on detention needs to be authorised by a District
Court Judge;
there is a three month time limit on detention where s 60(6) does not
apply.
[64] It was submitted that
because the New Zealand legislation has
provided statutory protections there was no need to supplement the
language of s
60 with principles from other jurisdictions which were developed to
protect
individuals in situations of broad open-ended and unregulated powers of
detention. The
Crown submitted that Courtney J read down exceptional circumstances in s
60(6) from a high threshold by introducing a test of reasonableness.
This
interpretation, it was said, has the effect of directly countering the
legislative intent as
identified in the long title to the Immigration Amendment Act 1999 in
enacting s 60(6) to
alter the detention regime for those who obstruct removal, and has the
effect of
incentivising prolonged non-compliance.
[65] In summary, the Crown
submitted that the simple effluxion of time
whilst a detainee consistently frustrates the removal regime cannot
constitute
an exceptional circumstance justifying conditional release, and the
District Court
Judge was correct so to hold. The reason for the length of detention to
date is Mr
Mohebbi’s own conduct. It would be contrary to the legislative scheme
for a detainee
to be in effect rewarded for exceptional obstinancy (sic) in
obstructing his removal.
[66] I am unable to accept the
Crown’s submissions. Section 60(6) does
not authorise indefinite detention. Detention for a purpose other than
that
authorised by the enactment is unlawful. The Crown accepts that (though
contending
for a broader purpose for detention under the Act than I have found).
Even when the
purpose of the enactment is being served by ongoing detention,
indefinite
detention is impermissible because it constitutes inhuman and degrading
treatment.
The Crown accepts that also, and that s 60 cannot authorise indefinite
detention.
The claim is, however, that Courtney J read down exceptional circumstances in s
60(6)
from the high threshold intended by Parliament by introducing the
concept of
reasonableness.
[67] However, as Courtney J
observed, had Parliament intended to
sanction non-co-operative or obstructive conduct to prevail over all
other factors, it
could have stated its intention in unmistakable terms (at [65]). It has
not done
so. It has specifically in s 60(6) recognised that there may be
exceptional
circumstances notwithstanding non-co-operative or obstructive conduct
by the
detainee, where continuing detention is not justified.
[68] As was stated by the Privy
Council in Tan Te Lam and by
the High
Court of Australia in Al-Kateb,
when human liberty is at stake very clear words
would be required to effect the indeterminate curtailment of a person’s
liberty.
[69] In my view, Courtney J did
not apply the principles she deduced
from the long line of authority to which she referred, to read down the
provisions of s 60(6). Rather, she called them in aid to establish the
principles that should
properly apply in interpreting the provisions of s 60(6) in determining
the difficult
question of how long a person who deliberately obstructs his removal
can be detained.
[70] Obstructive conduct is in
terms of s 60(6)(b) a significant factor
for the Court to weigh when determining whether a person should be
conditionally
released pursuant to s 60(5). That is clear from the provisions of s
60. But it
cannot trump all other factors. If it could, then INZ could detain a
person indefinitely
so long as the non-co-operation continued, regardless of the length of
the period of
detention. Thus the inquiry into exceptional
circumstances would in such a situation,
always resolve in favour of the Crown.
[71] I conclude that length of
detention, if unreasonable, can amount
to an exceptional circumstance, notwithstanding that the detainee
deliberately obstructs his removal.
Are there exceptional
circumstances
within the meaning of s 60(6) that
justify Mr Mohebbi’s release?
[72] Mr Ryken submitted
that the Judge entered upon an immigration
decision, namely whether Mr Mohebbi should be allowed to remain in New
Zealand,
which was not a question before the Court. The question before the
Court was
whether it was unreasonable for him to continue to be detained. It was
submitted
that the Judge has seen herself as a “gatekeeper”, whereas those
functions under the
Immigration Act remain with others, including immigration officers, the
Minister of
Immigration and statutory tribunals such as the Removal Review
Authority.
[73] In The Queen (on the application of “I”) v
Secretary of State for
the Home Department
[2002] EWCA Civ 888 Lord Justice Dyson said at [48] that it
was not possible or desirable to produce an exhaustive list of all the
circumstances that are or may be relevant to the question of how long
it is reasonable for the
Secretary of State to detain a person pending deportation under the
Immigration Act 1971
(UK). He provided a list of non-exhaustive factors which I now consider
in the
light of the circumstances of this case:
a) The length of the
period of detention - Mr Mohebbi has been detained for approximately three
years nine months since January 2004, unarguably a long period
of detention. (By comparison Mr Yadegary’s period of
detention was approximately two years seven months).
b)
The nature of the obstacles, which stand in the path of deportation – an obstacle is the
inability of the New Zealand Government to agree with the Iranian
authorities an arrangement for the involuntary repatriation of Iranian
nationals. However, the process has some current momentum, albeit
that an outcome has not been achieved since negotiations
commenced in 2004. It cannot be said that there is a real possibility for
early resolution on the basis of information presently available.
A
significant obstacle in the path of deportation is Mr Mohebbi’s obstructive conduct. This
is a factor that must be attributed significant weight in the
balancing of all relevant factors because of the provisions of s 60(6).
c)
The diligence, speed and effectiveness of steps taken by the
Secretary of
State - I accept that the New Zealand Government seems to be taking all reasonable
steps to negotiate an agreement with the authorities in Iran.
d)
The conditions of detention - Mr Mohebbi in his affidavit sworn 23 August 2006 filed in the
District Court proceedings, refers to his psychological condition
deteriorating consistently since he was detained and to having
been assaulted in prison on a number of occasions. A report
completed by Dr Greig McCormick, a
psychiatrist at the
Bexley Clinic dated 25 July 2006 says the situation has resulted in Mr
Mohebbi suffering from an Adjustment Disorder with associated
psychological morbidity. There is no more recent evidence before the
Court. While Dr McCormick’s report was made over a year ago, there is
no evidence which contradicts it.
e)
The effect of detention on the prisoner and his family – both Mr Mohebbi and his partner
Marion Banawa who made a declaration in the District Court
proceedings dated 30 June 2006, refer to the stress and difficulty occasioned
for Ms Banawa in caring for four children on her own, two of whom
are children of Mr Mohebbi. Dr McCormick describes
her as having developed a bona fide psychiatric disorder, Major
Depressive Episode and says that the current situation is causing serious
emotional harm for all the parties involved (although he had not
individually assessed the children). He describes the relationship between
Mr Mohebbi and Ms Banawa as “… a consistent stable and
loving relationship” and that they “… operated as a stable and
functional family unit”.
f)
The risk of absconding – the Judge considered this aspect because, as she noted in her
judgment, before a conditional release may be granted under s 60(5) the
Judge has to be satisfied that the person is unlikely to abscond
otherwise than by leaving New Zealand. She said there was “presumptive
evidence generally” that people in Mr Mohebbi’s situation often
abscond and there was no specific evidence that Mr Mohebbi would not
abscond.
The
Judge appears to have assumed an evidential burden on Mr Mohebbi to satisfy the
Court that he will not abscond. Mr Mohebbi has a loyal partner who
appears to have remained steadfast to him and to the family throughout
his lengthy period in custody. It would no doubt be a condition of
his release that Mr Mohebbi resides with his family at a specified
address. Since the stable family background is likely to be a
significant, if not his greatest asset in any further attempts to gain
permanent residency in New Zealand, it has to be considered unlikely that
he would attempt to abscond otherwise than by leaving New Zealand.
The
reasons stated in Mr MacRae’s affidavit of 24 April 2007 filed in support of the further
extension of warrant of commitment, included that Mr Mohebbi did not
voluntarily depart New Zealand when his appeal to the Removal
Review Authority was dismissed on 31 January 2003, that he has
admitted working unlawfully in New Zealand since the
expiry of his last permit on 25 March 2001, that he has made no attempt
whatsoever to leave New Zealand, that he has refused to co-operate to
obtain a travel document and that he had stated that he has no
intention of leaving New Zealand. None of those reasons seems to me to
provide evidence that Mr Mohebbi is likely to abscond otherwise than by
leaving New Zealand. They seem to be directed at his refusal
to leave New Zealand. I consider irrelevant to this inquiry the matter
apparently taken into account by the Judge that Mr Mohebbi’s “stable and
acknowledgedly firm relationship and two children”, is a situation
he cannot claim to his advantage because it is a situation he himself
created “in the shadow of immigration difficulties”.
g)
The danger of re-offending – it is relevant at this point to refer
to an observation
of Courtney J at [60] of the judgment in Yadegary:
I am mindful of the fact
that the concerns sparked by the Mohebbi case seem to
arise as much from the fact that Mr Mohebbi had convictions
for violence as from the fact that he was obstructing the
removal process.
The reference to
convictions for violence appears to be incorrect. I was advised that Courtney
J’s information on this aspect was limited to the judgment of this
Court on Mr Mohebbi’s application for a writ of habeas corpus.
As
recorded in the District Court judgment, Mr Mohebbi has convictions for bigamy
and for breach of a protection order. The conviction for bigamy
arose because he married his second wife in New Zealand without first
obtaining a dissolution of his first marriage which had taken place in
Iran. His evidence in an affidavit dated 23 August 2006 filed in
the District Court proceedings is that he believed a divorce had been
obtained in Iran but subsequently found out that the dissolution went
through the Courts in Iran in 1999, after his marriage to Jaran
Ahmadian in New Zealand. He was sentenced to three months periodic
detention for bigamy.
The
charges relating to the breach of protection order arose from events in 2001 when the
applicant and his wife were involved in a bitter custody dispute
over their daughter. He apparently left messages on his wife’s
telephone relating to his proposed contact with their daughter. She
complained and he was charged. Mr Mohebbi was convicted of
breaching the protection order and fined $300 and ordered to pay Court
costs of $130. There was no violence involved. The Judge recorded in her
judgment at [45] that the convictions did not involve violence. She
also referred to community support as evidenced in letters
received from the Catholic community and Catholic Priests. The
Judge expressed concern about the conviction for bigamy because it
involved a false declaration which showed that Mr Mohebbi was prepared
to falsify official documents to his own advantage (at [50]).
In
affidavit evidence filed by INZ in the District Court there was also reference to a complaint
of sexual harassment against Mr Mohebbi and a complaint by a
female passenger of assault by him as a taxi driver. Neither of these
allegations were substantiated. Mr Mohebbi says they were false.
The
Judge refers to these matters in [9] to [11] of her judgment and also to a charge of
taking a document for pecuniary advantage in the year 2000, which was
withdrawn by leave. Quite properly, she stated that she did not place
weight on them and that it was important to distinguish them from the
two charges of which he had been convicted.
It
cannot be said on the available evidence, that Mr Mohebbi’s criminal history gives
rise to concerns that there is a high risk of
reoffending, let
alone violent offending.
This
is in marked contrast to the circumstances in a case such as The Queen
(on the application of A) v Secretary of State for the Home Department [2007] EWCA Civ 804
where A from Somalia was unlawfully in the United
Kingdom having been declined asylum. In 1998 he had been
convicted of the rape and indecent assault of a 13 year old girl. He was
issued with a deportation order by the Home Office. He was detained
in custody because repatriation to Somalia was not possible. During
his time in prison he had received 14 adjudications, six of
which were for fighting. He was assessed as of high risk of sexual
offending on release because he was continuing to deny guilt and had not
been on a sex offender treatment programme.
I
refer to the case of A by way
of contrast with the circumstances in this case. The criminal
history of A presented the
Court with the necessity to factor into
the balancing exercise, both a high risk of serious re-offending and
of absconding, neither of which is present in the case of Mr Mohebbi. A was not being obstructive to his deportation; the
opportunity for voluntary return to Somalia had passed.
In
balancing the relevant factors the Court noted that the risk of
reoffending was
high and that given the nature of his previous offending this would have been a
very worrying prospect. Further, that the risk of A absconding if he
were at liberty was as high as it could be. The detention was found to
have been unlawful for nearly three years. But the Court held that A’s
detention, despite its length, was in the circumstances reasonably
necessary for the purposes of the deportation order and so,
lawful. While the risk to public safety were the detainee to be
released might not be the principal purpose of the power to detain, the
statutory power to deport was exercised because deportation was
determined to be conducive to the public good.
[74] I have already concluded that
if detention of a person to whom s
60(6) applies would be unreasonable then exceptional circumstances will
exist
for the purpose of s 60(6).
[75] Balancing the relevant
factors of the length of Mr Mohebbi’s
detention, the uncertainty as to when an agreement with Iran for the
repatriation of
involuntary nationals might be reached (which leaves open the prospect
of an
indeterminate period of detention), the adverse effects of continuing
detention on Mr
Mohebbi and particularly on his family - against the absence of any
evidence that
he is at risk of absconding otherwise than by leaving New Zealand and
that there is no
basis on the evidence of his criminal history to suggest that he will
re-offend,
particularly violently, if released into the community, I conclude that
his on-going
detention would be unreasonable.
[76] However, that assessment
must then be measured against the factor
at which s 60(6)(b) is directed, his obstructiveness by refusing to
sign papers
that would enable the removal order to be executed. This factor must be
accorded
significant weight. But it cannot be allowed to become a trump card
which will
necessarily be treated as outweighing the unreasonableness of on-going
detention, for
Parliament has not so provided.
[77] Mr Mohebbi has been
continuously in custody for approximately
three years nine months. He has not been convicted of any criminal
offence; he has
not even been charged with an offence. I find that, notwithstanding Mr
Mohebbi’s
undoubted obstructiveness (and accepting that his obstructiveness has
been at the
“high end” as submitted by the Crown, although it relates solely to his
refusal to
re-enter Iran), in all the circumstances, his on-going detention is
unreasonable.
Accordingly, I find there are exceptional circumstances for the
purposes of s 60(6). Mr
Mohebbi is entitled to be released on appropriate conditions under s
60(5) of the
Act.
[78] I hold that the Judge
erred in finding that time alone cannot
equate to exceptional circumstances to justify release. Further, I find
that the
factors she considered in determining whether there were exceptional
circumstances,
which are summarised at [34] above, were factors directed more to
whether Mr
Mohebbi would be a good citizen than whether his continued detention
was
unreasonable. They were largely irrelevant to that question, and led to
a decision that was
ultimately unreasonable.
[79] It is important to note
that this judgment is concerned with the
issue of Mr Mohebbi’s continued detention in custody. It is not
concerned with his
right to be or remain in New Zealand. I express no view on that. As
stated at the
start of this judgment, Mr Mohebbi is unlawfully in New Zealand.
Has detention become
arbitrary?
[80] Section 22 of the
Bill of Rights affirms that everyone has the
right not to be arbitrarily detained.
[81] Detention will be
arbitrary if it is “… capricious, unreasoned,
without reasonable cause”: Neilsen v
Attorney-General [2001] 3 NZLR 433 (CA) at
[34].
[82] Detention which is
initially lawful, would become arbitrary and
unlawful if the purpose of detention under the Act could not be
fulfilled and the
detention was therefore otherwise indefinite or permanent: Zaoui v Attorney-General
[2005] 1 NZLR 577 (CA) at [88].
[83] In this case, while the
purpose of the Act may still be served by
ongoing detention, I have found that Mr Mohebbi’s detention has become
unreasonable, which gives rise to exceptional circumstances under s
60(6). I consider
it also renders his detention arbitrary. Under either head, Mr Mohebbi
is
entitled to conditional release.
[84]
Summary of conclusions
a) A right of appeal to
the High Court against decisions of a District Court Judge under s 60 of
the Act is available under s 72 District Courts Act.
b)
The purpose of detention is that stated in s 60(2): to enable
execution of
the removal order.
c)
That purpose is being served by the on-going detention of Mr Mohebbi while the New
Zealand Government continues to advance the diplomatic process
towards an agreement for involuntary repatriation of Iranian
nationals. However, there is no certainty as to whether or when an
agreement may be concluded to enable the repatriation of persons
who obstruct their removal, such as Mr Mohebbi.
d)
The length of detention can amount to an exceptional circumstance under s 60(6) justifying
release, although the detainee deliberately obstructs his removal.
Deliberate obstruction is a factor to be accorded significant
weight, but it cannot override or trump all other relevant factors.
e) A
balancing of all relevant circumstances in the case of Mr Mohebbi, including particularly
the length of his detention – 3 years nine months continued
detention preceded by a previous five months detention under the Act –
leads to the conclusion that exceptional circumstances exist which
justify his conditional release under s 60(5).
f) Mr
Mohebbi’s continuing detention has become unreasonable and arbitrary.
Relief
[85] The appeal is
allowed. The decision of the District Court is
quashed. I order that Mr Mohebbi be released on conditions under s
60(5). I do not have
the information on which to establish the appropriate conditions. I
remit
the matter to the District Court for conditions to be set. The
conditional release of
Mr Mohebbi should now be implemented as a matter of urgency.
Non-publication
order
[86] The affidavit of
Arron Christian Baker sworn 15 August 2007 filed
in this proceeding is not to be published or available for search on
the Court
file without the leave of a Judge of this Court.
Solicitors for the
applicant: Ryken & Associates (Auckland)
Solicitors for the
defendants: Meredith Connell (Auckland)