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Tishkovets v Minister of Immigration

High Court Auckland M 632-SW00; [2000] NZAR 505
1 May 2000
Salmon J
 
Judicial review - habeas corpus - detention - whether detention in custody pending removal may become illegal if it continues for unreasonable period - circumstances why detention not unreasonable
 
Travelling on a false Irish passport, the applicant first arrived in New Zealand on 9 February 1999 and claimed refugee status on the basis that as an ethnic Russian from Tajikistan, he had been persecuted in that country by the predominantly Muslim majority.  After his refugee application had been declined on 18 February 1999, he appealed to the Refugee Status Appeals Authority (RSAA).  That appeal was dismissed on 8 July 1999.

The first application for the writ of Habeas Corpus was made on 19 February 1999 but that application did not proceed.  On 13 December 1999 application was made for a stay of the deportation scheduled to take place on 14 December 1999.  That application was dismissed by Morris J and the deportation proceeded.

The applicant got as far as Germany where he again claimed refugee status and the authorities there decided to return him to New Zealand.  He was intercepted in Singapore by the New Zealand Police and taken to Moscow.  At this stage he had documents permitting him to enter Tajikistan, those documents having been issued before he left New Zealand.  The documents in question included a certificate of repatriation issued by the Russian Embassy, apparently on behalf of Tajikistan and a certificate of return, dated 14 December 1999, issued by the Embassy of the Republic of Tajikistan, that certificate being valid until 3 January 2000.  The applicant told the authorities in Moscow that he did not wish to go to Tajikistan.  He apparently told them that his name was not Tishkovets, and that it was a name he had made up.  He gave a different date of birth to that given to the New Zealand authorities.  It seems that he claimed that an application for refugee status made in Ireland was still being considered.  In the event, Tajikistan refused to allow him to enter and he was returned to New Zealand, arriving on 23 December 1999.

When re-interviewed, the applicant said that he would deny that he came from Tajikistan, that he would say he was a Czechoslovak or a gypsy, that he would refuse to co-operate with anyone and he claimed to be a stateless person.

A second application for habeas corpus was made on 24 December 1999.  In an oral judgment delivered on the same day, Potter J refused to issue the writ, concluding that because he was legally detained, there was no basis upon which the Court could consider or grant an application for a writ of habeas corpus.

The applicant was interviewed again by the Immigration Service on 20 January 2000 in the presence of his counsel.  During the course of that interview the applicant said that he did not wish to make any further application for refugee status and he again claimed to be a stateless person.

In the meantime the Immigration Service made attempts to settle the question whether the applicant was a citizen of Tajikistan.  On 20 April 2000 information was received from the Republic of Tajikistan, Ministry of Foreign Affairs, to the effect that the Republic had no records relating to the applicant or to the applicant under the name he gave when he arrived in Moscow, and said further that there was no evidence of his being registered or de-registered in the territory of the Tajik Republic under either name.  The Immigration Service continues to make enquiries and the New Zealand Ambassador in Russia recently met with the Tajik Ambassador and other Tajik officials to see what information they would require in order to attempt to ascertain whether the applicant was a resident of Tajikistan.

The applicant was in detention pursuant to the provisions of the Immigration Act 1987, s 128.  The original twenty-eight day period having expired, applications by the New Zealand Immigration Service for seven day extensions had been granted and no challenge had been made to the exercise by the District Court Judges of their discretion under s 128(13)B of the Act.

On a third application for habeas corpus it was submitted that the applicant having been in custody for four months and appearing to be stateless because Tajikistan refused to take him, it was unreasonable to hold him in custody any longer.

Held:

1.    Detention otherwise legal may become illegal if its continuation ceases to be reasonable (see para [17]).

Abu v Superintendent of Mt Eden Women's Prison (High Court Auckland, M2086/99, 24 December 1999, Potter J); R v Governor of Durham Prison; Ex parte Hardial Singh [1984] 1 WLR 704 (QBD) and Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 (PC) referred to.

2.    It was not unreasonable in the circumstances for the detention of the applicant to continue in the meantime and the application for the writ must be refused for the following reasons:

(a)    The immigration authorities in New Zealand had done everything they could do to achieve the applicant's deportation and they were continuing with their investigations to bring that about.  There had been no delays on the part of the New Zealand immigration authorities which could be described as unreasonable;

(b)    There was undoubtedly a lack of co-operation and indeed, conscious obstruction by the applicant, of the attempts by the immigration authorities to deport him and it seemed reasonably certain that these efforts on the part of the applicant were the reason why he was not admitted to Tajikistan;

(c)    The applicant's determination to avoid being returned did not give the Court any confidence that if he were released from prison he would be available when, and if, the Immigration Service attempted to obtain the information which would lead to deportation were successful (see para [23]).

Application for Habeas Corpus dismissed

Other cases mentioned in judgment

R v Travis [1989] 2 NZLR 122

Counsel

C L Amery & J E A Glyn for the applicant
M A Woolford for the respondent

[Editorial note: Contrast the decision in In re Rajinder Singh [2000] Imm AR 170 (QBD) where application for habeas corpus was made by a citizen of India detained under the provisions of the Immigration Act 1971 (UK) pending his deportation.  The applicant had gone to ground in November 1997.  He was arrested in February 1999 and had been in detention since that date while the Secretary of State sought travel documents for him from the Indian High Commission.  The Secretary of State had been pressing for a resolution of the case.  Counsel argued that the period of detention of eight months was excessive.  It was held by Turner J that in light of the efforts made by the Secretary of State to resolve the issue of travel documents, the period in detention was not excessive.  The Court gave no indication of what it considered would be a reasonable period.  The decision in R v Governor of Durham Prison; Ex Parte Hardial Singh [1984] 1 WLR 704 was distinguished.  For a general discussion of the duration of detention, see David Clark & Gerard McCoy, The Most Fundamental Legal Right: Habeas Corpus in the Commonwealth (Oxford, 2000) 123-144 and David Clark & Gerard McCoy, Habeas Corpus - Australia, New Zealand, The South Pacific (Federation Press, 2000) 103-112.

Note also F v Superintendent of Mt Eden Prison [1999] NZAR 420 (Anderson J).

For a subsequent challenge (unsuccessful) to the decision of the RSAA delivered on 8 July 1999, see Tishkovets v Refugee Status Appeals Authority (High Court Auckland, M1131-SW00, 17 August 2000, Salmon J).  The subsequent proceedings in the District Court are reported as McAlpine v Tishkovets [2000] NZAR 638 (Harvey DCJ).]
 
SALMON J [1] This is an application for a writ of Habeas Corpus.  A writ of Habeas Corpus may be issued only where there is an unlawful detention, that is to say a wrongful deprivation of personal liberty.  The detention or imprisonment itself must be impugned as lacking legal justification: R v Travis [1989] 2 NZLR 122, 125.

[2] The availability of the writ is provided for by s.54C of the Judicature Act and by the New Zealand Bill of Rights Act 1990.  Section 22 of that Act provides:

And s.23(c) provides: Background

[3] The applicant arrived in New Zealand on 9 February 1999.  He claimed refugee status.  He said that he was from Tajikistan and that he had been born on 2 October 1972.  His claim for refugee status was based on the assertion that Russians, and particularly those such as he, of the orthodox religion, were persecuted by the predominantly Muslim majority.  He had arrived in New Zealand on an Irish passport under the name of Anthony Kieran Goodwin.  The applicant was interviewed at length by the New Zealand Immigration Service on 15 February 1999 and on 18 February his application for refugee status was declined.

[4] He appealed from that determination.  The appeal was heard on 23 March 1999 and in a lengthy and careful decision which traversed the relevant facts and law, the appeal was dismissed.  In the course of the decision the Appeals Authority quoted at length from reports relating to Tajikistan and concluded on the basis of those reports and the evidence it heard, that there was no evidence that Russian citizens in that country were persecuted by reason of their race or religion.

[5] The applicant made the first of a total of three applications for the issue of a writ of Habeas Corpus on 19 February last year.  That application did not proceed.  On about 13 December an application was made for a stay of the deportation order.  The proposed deportation was to take place on 14 December.  In a brief judgment, Morris J. concluded that there was nothing put in front of him on which he could possibly reach an interim or tentative conclusion that the Authority was wrong in its decision to dismiss the appeal and the application was refused.  The deportation proceeded.

[6] The applicant got as far as Germany where he again claimed refugee status and the authorities there decided to return him to New Zealand.  He was intercepted in Singapore by the New Zealand Police and taken to Moscow.  At this stage he had documents permitting him to enter Tajikistan, those documents having been issued before he left New Zealand.  The documents in question included a certificate of repatriation issued by the Russian Embassy, apparently on behalf of Tajikistan and a certificate of return, dated 14 December, issued by the Embassy of the Republic of Tajikistan, that certificate being valid until 3 January 2000.

[7] The applicant told the authorities in Moscow that he did not wish to go to Tajikistan.  He apparently told them that his name was not Tishkovets, but that was a name that he had made up.  He gave a different date of birth to that given to the New Zealand Authorities.  It seems that he claimed that an application for refugee status made in Ireland was still being considered.  In the event, Tajikistan refused to allow him to enter and he was returned to New Zealand, arriving here on 23 December 1999.

[8] He was interviewed on his return.  In the course of that interview he said that he would deny that he came from Tajikistan, that he would say he was a Czechoslovakian or a gypsy, that he would refuse to co-operate with anyone and he claimed to be a stateless person.  He said:

[9] On 24 December 1999 a second application for Habeas Corpus was made.  In an oral judgment, delivered on the same day, Potter J. refused to issue the writ, concluding that because he was legally detained there was no basis upon which the Court could consider or grant an application for a writ of Habeas Corpus.

[10] The applicant was interviewed again by the Immigration Service on 20 January this year in the presence of his counsel.  During the course of that interview the applicant said that he did not wish to make any further application for refugee status and he again claimed to be a stateless person.

[11] In the meantime the Immigration Service was making attempts to settle the question as to whether the applicant was a citizen of Tajikistan.  As recently as 20 April information was received from the Republic of Tajikistan, Ministry of Foreign Affairs, to the effect that the Republic had no records relating to the applicant or to the applicant under the name that he gave when he arrived in Moscow, and said further that there was no evidence of his being registered or de-registered in the territory of the Tajik Republic under either name.  The department continues to make inquiries.  The New Zealand Ambassador in Russia recently met with Tajiki Ambassador and other Tajiki officials to see what information they would require in order to attempt to ascertain whether the applicant was a resident of Tajikistan.

[12] I am advised that the Department intends to obtain this information, and indeed, a first step in that regard was attempted on 28 April when the applicant was again interviewed in the presence of his solicitor.  Unfortunately, that interview was interrupted by an escape from the prison on that day.

[13] For the sake of completeness, I mention that the applicant has also written to the United Nations High Commissioner for Refugees.  In a reply of 2 February the High Commissioner noted that it was possible for the applicant to apply as a stateless person for a grant of citizenship.  No such application has yet been made.

The Law

[14] The applicant has been detained in custody pursuant to the provisions of s.128 Immigration Act 1987.  He is held under a Warrant of Commitment issued pursuant to subs.(7) which provides:

[15] Subsections (13), (13A) and (13B) are relevant. They provide: [16] In this case the original 28 day period has expired and the appropriate applications for seven day extensions have been made and granted.  There has been no challenge to the exercise of the District Court Judge's discretion under subs.(13B).  It would, of course, be possible to challenge the exercise of that discretion by way of an application for review, although because the grounds for granting such an application would almost certainly be similar to those which would justify the issue of a writ of Habeas Corpus the latter is no doubt the more convenient procedure.

[17] It does seem clear that a detention otherwise legal may become illegal if its continuation ceases to be reasonable.  The law in this regard was recently considered by Potter J. in Abu v The Superintendent Mt Eden Women's Prison and The Minister of Immigration (unreported, High Court, Auckland Registry, M.2086/99, 24 December 1999).  Potter J. considered the law in detail including the provisions of international conventions.  Two decisions referred to by her are of relevance in this case.  They are R v Governor of Durham Prison, Ex Parte Singh [1984] 1 WLR 704 which considered an analogous power to detain under English legislation.  In that case the Court said at 706:

[18] Of particular relevance to these proceedings is the decision of the Privy Council in Tan Te Lam and others v Superintendent of Tai A Chau Detention Centre and another [1996] 4 All ER 256.  That concerned applicants of Chinese ethnic origin who arrived in Hong Kong by boat as unauthorised migrants from Vietnam.

They were detained under powers which allowed detention "pending ... removal".  At page 265 Lord Browne-Wilkinson, delivering the judgment of the Board said:

[19] At page 269 this comment, relevant to the present proceedings appears: [20] Mr Amery submits that the applicant having been in custody for four months and appearing to be stateless because Tajikistan refuses to take him, it is unreasonable to hold him in custody any longer.

[21] In response, Mr Woolford whilst acknowledging the need for the continued detention to be reasonable, submits that the length of time spent by the applicant in custody does not yet provide a proper legal basis for an application for a writ of Habeas Corpus and that all avenues have yet to be exhausted in an attempt to secure a travel document for him.  He submits that the point has not been reached where his continued detention has become arbitrary or unreasonable.

[22] He also points to what he describes as the lack of co-operation by the applicant in relation to his deportation.  He points to the interview on his return to New Zealand in December and his statements in Frankfurt and Moscow, which resulted in the first instance, in an attempt to return him to New Zealand and in the second, to the refusal by Tajikistan to admit him.

[23] I have concluded that the writ sought must be refused for the following reasons:

[24] In summary, therefore, I have concluded that it is not unreasonable in the circumstances that exist in this case for the applicant's detention to continue in the meantime.

Solicitor for the applicant: CL Amery (Auckland)
Solicitor for the respondent: Crown Solicitor (Auckland)