High Court Cases 

High Court Auckland CIV 2003-404-4326; [2003] NZAR 685
7 August 2003 
Chambers J (oral judgment)

Immigration Act 1987 - detention - whether power to detain a person whose identity is known in order to force that person to produce a passport or to assist the Immigration Service in the application for a passport - Immigration Act 1987, ss 60 & 138A

Habeas corpus - detention - whether power to detain a person whose identity is known in order to force that person to produce a passport or to assist the Immigration Service in the application for a passport - Habeas Corpus Act 2001, ss 9(2) & 14(1)

Passport - detention in custody - whether power to detain a person whose identity is known in order to force that person to produce a passport or to assist the Immigration Service in the application for a passport  

Detention - identity - whether power to detain a person whose identity is known in order to force that person to produce a passport or to assist the Immigration Service in the application for a passport

The plaintiff, an Iranian national, arrived in New Zealand in July 1997 without any papers and sought refugee status.  After that application was unsuccessful, he tried in every conceivable way to remain in New Zealand.  His last permit expired on 25 March 2001.  On 11 March 2003 he was served with a removal order and was detained under s 59 of the Immigration Act 1987 in order to place him on an aircraft leaving New Zealand.  However, it was not possible to remove him immediately as he claimed not to have a passport and without a travel document, no airline would accept him.  After being brought before a District Court Judge a warrant of commitment was issued under s 60 of the Act.  That warrant was from time to time renewed.  The New Zealand Immigration Service attempted to persuade the Iranian Embassy in Wellington to issue a passport but it refused to do so unless Mr Mohebbi applied for it.  Mr Mohebbi refused to make such application.  Section 60(7) of the Act provides that no person may be detained under that section for a consecutive period of more than three months.  Having reached the statutory time limit and being no closer to arranging a passport, the Immigration Service applied under s 138A to have Mr Mohebbi detained.  On 20 June 2003 a District Court Judge issued a decision in which he purported to require Mr Mohebbi to produce his passport or to assist the Immigration Service in the application for a passport by signing all the necessary application forms for a new passport and further ordered that Mr Mohebbi be detained in custody for thirty days or until the order was complied with.  At the expiry of the thirty days Mr Mohebbi was brought back before the District Court and a further order was made for his continued detention for thirty days on the same terms.  

In proceedings brought under the Habeas Corpus Act 2001 the issue was whether s 138A(5) authorised the detention of a person whose identity was known.

Held:

1    It was not the purpose of s 138A nor was it the purpose of the inquiry prescribed by subs (4) that even if a person's identity was established, the section could be used as a means of forcing someone either to produce a passport or to assist the Immigration Service in the application for a passport by signing all the necessary application forms for a new passport, as requested by the Immigration Service (see para [22]).

2    Where a person's identity is clear s 138A(5) does not confer a power of continued detention until the person produces his or her passport.  Nor does the subsection empower a court to order that a person apply for a passport under pain of indefinite detention if he or she refuses to do so (see para [24]).

3    If Parliament had intended that a person could continue to be lawfully detained, even after his or her identity was established, Parliament would surely have expressly so provided.  It would not have sanctioned such a course in the oblique fashion suggested (see para [25]).

Other cases referred to: 
Harris v Mohebbi DC MAN MA22/03
Mohebbi v Minister of Immigration HC AK CIV 2003-404-000912

Application for habeas corpus granted

Counsel
H Ratcliffe for the plaintiff
M Woolford for the defendant

[Editorial note: Section 60 was amended by the Immigration Amendment Act (No. 2) 2003, s 16.  That Act came into effect on 9 September 2003.

CHAMBERS J

Habeas corpus

[1] Amir Hoshang Mohebbi, currently an inmate in Mt Eden Prison in Auckland, has applied under the Habeas Corpus Act 2001 for a writ of habeas corpus.  He says that he is being unlawfully detained.  The Crown opposes his release.  The Crown asserts that Mr Mohebbi is being lawfully detained under s 138A of the Immigration Act 1987.

[2] Mr Mohebbi, an Iranian national, arrived in New Zealand without any papers on 4 July 1997.  He claimed refugee status upon arrival.  In line with immigration policy at the time, he was issued with a work permit.  Over the next few years, Mr Mohebbi tried in every conceivable way to remain in New Zealand.

[3] On 31 January this year, the Removal Review Authority dismissed his latest appeal.  On 11 March, he appeared in court on a criminal charge.  At that time, the immigration authorities served him with a removal order and detained him under s 59 of the Immigration Act.  His last permit had expired on 25 March 2001 and he had been in New Zealand unlawfully since that time.

[4] On 7 April, Mr Mohebbi applied to this court under the Judicature Amendment Act 1972 for review of the New Zealand Immigration Service's decision to issue a removal order against him.  He sought interim relief under s 8 of the Judicature Amendment Act. Harrison J heard that application.  In an oral judgment delivered on 9 April, Harrison J dismissed the application for interim relief.  His Honour described Mr Mohebbi's case as 'hopeless' and said that his substantive application for judicial review was 'doomed to failure': see Mohebbi v Minister of Immigration HC AK CIV 2003-404-000912 at [19].  Notwithstanding that rebuff, Mr Mohebbi continues to pursue that application for review.  The substantive hearing is due to be heard on 1 October this year, if Mr Mohebbi is still in the country at the time.

[5] Following Mr Mohebbi's detention under s 59 of the Immigration Act, he was brought before a District Court Judge for the purpose of obtaining a warrant of commitment under s 60.  That was needed because it was not possible to remove him at that stage.  The reason was this: Mr Mohebbi claims not to have a passport; without a travel document,  no airline will accept him.  A warrant of commitment was issued under s 60 and was, from time to time, renewed.  In the meantime, the Immigration Service was attempting to persuade the Iranian Embassy to issue Mr Mohebbi with a passport.  According to Mr Woolford, counsel for the Crown, the embassy has refused to issue a passport unless Mr Mohebbi applies for it.  Mr Mohebbi refuses to apply for a passport.

[6] Section 60(7) of the Immigration Act provides that no person may be detained under that section for a consecutive period of more than 3 months.  Having reached the statutory limit, the Immigration Service had to change tack.  By June they were still no closer to arranging a passport for Mr Mohebbi so they decided to try a different section of the Immigration Act.  They applied under s 138A to have Mr Mohebbi detained.

[7] The application cam before Judge Blackie in the District Court at Manukau on 17 June.  On 20 June, he issued a decision in which he purported to require Mr Mohebbi to produce his passport or to assist the New Zealand Immigration Service in the application for a passport by signing all the necessary application forms for a new passport, as requested by the Immigration Service.  Judge Blackie further ordered that Mr Mohebbi be detained in custody for 30 days or until the order was complied with.  Mr Mohebbi has not complied with Judge Blackie's order.  On 16 July, he was brought back before the court. Judge Singh presided on that occasion.  He made an identical order to Judge Blackie's.  By that order, he purported to sanction Mr Mohebbi's continued detention for a further 30 days unless Mr Mohebbi sooner complied with the order to produce or the order to assist.

[8] Mr Mohebbi challenges the orders made by Judge Blackie and Judge Singh.  His counsel, Ms Ratcliffe, submits that s 138A does not confer a power on the District Court to detain in this way.  Counsel agree that there is no power to appeal against a District Court judgment under s 138A.  The only methods of challenge are an application for review under the Judicature Amendment Act 1972 or an application for a writ of habeas corpus under the Habeas Corpus Act.  Ms Ratcliffe has chosen the latter route.  Mr Woolford accepts that it is an appropriate procedural route to test the validity of the decisions of Judges Blackie and Singh.

[9] By s 9(2) of the Habeas Corpus Act, I am required to ensure that this application is disposed of as a matter of priority and urgency.  This has necessitated an oral judgment today.  This application in fact raises some difficult questions which I would have preferred to consider more fully.  That is simply not possible in the circumstances.

Issue

[10] Essentially, there is one issue to be determined on this application: did Judge Blackie have power under s 138A(5) to continue to detain Mr Mohebbi?  Mr Woolford submits that he did.  Ms Ratcliffe submits he did not.

[11] I focus on Judge Blackie as only he has given a considered judgment in the matter.  Judge Singh appears simply to have relied on Judge Blackie's reasoning when deciding to renew the detention order for a further 30 days

The District Court's powers under s 138A(5)

[12] Judge Blackie noted that Mr Mohebbi had refused to produce a passport despite being requested so to do.  Over the past 6 years, Mr Mohebbi has given a number of explanations as to where his passport is.  Most recently, he has asserted that he left his passport in Iran when he left there in the first half of 1997.  He says that he boarded a plane for New Zealand with a false passport which he destroyed before his plane landed in New Zealand.  There may be good cause to doubt the truth of this account.  In any event, he steadfastly refuses to produce a passport and all that can be said is it may be because he is simply unable to do so.

[13] Judge Blackie made the orders to which I have referred above.  He did not specify the authority for his order for detention in custody, but Mr Woolford accepts that the only possible basis for it can have been s 138A(5).  The question is whether that subsection does confer a power to detain.

[14] At the outset, let me say that I can well understand why Judge Blackie wanted to detain Mr Mohebbi.  He is deliberately flouting New Zealand's immigration law.  There is no doubt he is in the country unlawfully.  He has taken advantage of the Iranian Embassy's refusal to issue a passport for him without an application he has personally signed.  Mr Woolford tells me that this is an unusual stance for an embassy to take.  Normally, foreign embassies will issue, on the application of our Immigration Service, if not a passport, at least a travel document to permit their national to be removed from New Zealand and to return to their homeland.

[15] I now turn to the structure of s 138A.  The relevant part of subs (1) provides:

(1)    If an immigration officer has good cause to suspect that a person is in New Zealand unlawfully and is liable to be removed from New Zealand under this Part, the officer may, for the purpose of establishing whether or not that is the case, and after informing the person of that suspicion, request the person -

(a)    To give their full name (or names, where the person is known by more than 1 name), date of birth, country of birth, nationality, and residential address:

(b)    To provide to the officer -

(i)    Any passport or certificate of identity relating to the person, whether or not it also relates to any other person:

(ii)    Any documentary or other evidence of the person's identity:

...

[16] In this case, there is  no doubt that an immigration officer has good cause to suspect that Mr Mohebbi is in New Zealand unlawfully and is liable to be removed from New Zealand.  Indeed, Mr Mohebbi, subject to his application for review proceeding, accepts as much.

[17] The significant feature of subs (1) is that the officer's powers of request can be exercised only for the purpose stated, namely for establishing whether or not the immigration officer's good cause to suspect is right.  In this particular case, there is no dispute about who the applicant is.  The Immigration Service says that he is Amir Hoshang Mohebbi and that he is an Iranian national.  That is why the Immigration service has been requesting that the Iranian Embassy grant a passport so that Mr Mohebbi can leave the country.  Mr Mohebbi does not dispute that he is Amir Hoshang Mohebbi, an Iranian national.  The first question that therefore arises is whether in this case the officer was entitled to request this information, given that there was and is no dispute about who the person was and whence he came.  That in itself, I think, poses difficulties for the Immigration Service with the particular application they made.

[18] Let me assume, however, in the Immigration Service's favour that it had the entitlement to make a request under subs (1).  There is no dispute in terms of subs (2) that Mr Mohebbi has refused to provide a passport or certificate of identity relating to himself.  He says that he cannot produce either because he does not have them.  There may be some reason to doubt the truthfulness of that answer.  Judge Blackie referred to evidence available to him suggesting that Mr Mohebbi's word was not reliable.

[19] Let me assume again, however, in the Immigration Service's favour.  Let me assume that there was a refusal to comply with the request under subs (1) or that there was a failure without reasonable excuse to comply with it.  In that event, the next step in the procedure is a warning to the person that, if the refusal or failure persists, the person is liable to be detained under the Act.  Such a warning was given.  Subsection (3) then provides the next step in the procedure.  If the refusal or failure still persists, any member of the police may arrest the person without warrant and place the person in custody.  That step was taken.

[20] Subsection (4) then sets out the next step.  If a person has been arrested and placed in custody under this section, because the person failed to identify himself or herself or failed to produce relevant documents to confirm his or her identity, an immigration officer must ensure that, unless the person's identity has been confirmed, the person is brought before a district Court Judge as soon as practicable so that the person can establish his or her identity to the satisfaction of the judge.  In this case the Immigration Service did take steps to ensure that Mr Mohebbi was brought before a District Court Judge.  There may be a question mark as to whether or not that step was appropriately taken since the Immigration Service fully accepts that Mr Mohebbi is Mr Mohebbi, an Iranian national, a fact which he does not dispute.  What the Immigration service want to get, of course, is a passport so that he can be put on a plane.  But that is quite a different question.

[21] In any event, Mr Mohebbi was brought before the District Court.  What under the Act was the purpose, and the sole purpose, or bringing him there?  The answer is provided by subs (4).  The enquiry is an enquiry as to the identity of the person.  That, and that alone, is what the District Court can enquire into.

[22] In this particular case, Judge Blackie held that he was not satisfied as to the identity of Mr Mohebbi.  That appears to have been because 'there [was] no formal evidence' before him: see Harris v Mohebbi DC MAN MA22/03 20 June 2003 at [27].  In other words, there was not a passport before him.  To some extent, that is circular reasoning.  A person may establish his or her identity by an appropriate means.  The whole purpose of asking for the passport is to establish who the person is.  But it is not the only means by which a person's identity may be established.  In this particular case, there can be no doubt as to the person's identity as that is not truly in issue.  The fact that the judge really embarked on a different exercise is demonstrated by the next paragraph in his judgment. In that paragraph (para [28]), the judge admitted that he would have made the same orders as he did make even if he had been completely satisfied as to the identity of the respondent.  In other words, the judge considered that, even if the person's identity was established, he could nonetheless use s 138A as a means of forcing someone either to produce a passport or to assist the Immigration Service in the application for a passport by signing all the necessary application forms for a new passport, as requested by the Immigration Service.  I regret to say that I do not believe that that was the purpose of this section or the purpose of the enquiry prescribed by subs (4).

[23] Mr Woolford has referred me to subs (5).  That subsection reads as follows:

The Judge may determine who the person is, and both before and after doing so may make any orders and give any directions the Judge thinks fit.

[24] Mr Woolford submits that that subsection provides authority for the decisions that the judge made.  In particular, Mr Woolford stressed a judge's powers 'after' determining who the person was.  But there are difficulties with that argument.  The judge purported here not to be satisfied as to who Mr Mohebbi was, a finding which, in the circumstances, I find impossible to accept.  But regardless of whether the judge has determined who Mr Mohebbi is, I find it impossible to accept that subs (5) confers a power of continued detention until the person produces his or her passport or applies for one.  Subsection (5) merely empowers ancillary orders; that is to say, orders intended to assist in the fulfilment of the section's primary purpose or purposes.  Subsection (5) does not empower the court to continue a person's detention, at least in circumstances where the person's identity is clear.  The subsection does not empower a court to order that a person apply for a passport under pain of indefinite detention if he or she refuses so to do.

[25] The right not to be arbitrarily arrested or detained is such a fundamental right that it is expressly recognised in the New Zealand Bill of Rights Act 1990, s 22.  By s 6 of that Act, where an enactment can be given a meaning that is consistent with the rights and freedoms contained in the Bill of Rights, that meaning must be preferred to any other meaning.  If Parliament had intended that a person could continue to be lawfully detained, even after his or her identity was established, Parliament would surely have expressly so provided.  It would not have sanctioned such a course in such an oblique fashion as is now suggested.

[26] I think it inconceivable that Parliament intended subs (5) to justify continued detention even after a person's identity was established.  It is noteworthy, for instance, that under s 60 there is a strict control over how long a person may be detained under that section, including a maximum period of imprisonment.  Indeed, it was the reaching of that maximum period that led to the change of course on the Immigration Service's part.  If Mr Woolford's argument were correct, then Mr Mohebbi could be retained indefinitely under s 138A. When I taxed Mr Woolford with this, he accepted that detention could not continue beyond a 'reasonable' period.  But how long is reasonable?  Why would Parliament have so carefully prescribed the maximum period of imprisonment under s 60 if that could be immediately circumvented by a new s 138A application permitting continued detention for so long as some District Court Judge considered reasonable?  How likely is it that Parliament conferred such extraordinary powers in circumstances where it is acknowledged there is no formal right of appeal?

[27] In conclusion therefore, I do not consider that s 138A does authorise the continued detention of Mr Mohebbi.  I have looked at other sections in the Act, although not comprehensively, I fear.  Even with the assistance of counsel, I have not been able to find any other section in the Act which might authorise Mr Mohebbi's continued detention until such time as he can be removed.

[28] I have also considered whether or not Mr Mohebbi could be imprisoned for contempt of court.  The difficulty with that course, at least at present, is that that is not the basis upon which the District Court purported to detain him.  If there is anything in this point, which there may not be, it will need to be pursued in a separate application.

Result

[29] My conclusion therefore, albeit with some reluctance, is that a writ of habeas corpus must issue, the Crown not having established that the continued detention of Mr Mohebbi under s 138A is lawful.  Accordingly, I grant, in terms of s 14(1) of the Habeas Corpus Act, a writ of habeas corpus ordering the release of Mr Mohebbi from detention.

Solicitors for the plaintiff: Otene & Ellis (Auckland)
Solicitors for the defendants: Crown Solicitor (Auckland)