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High Court Cases
Zayr v Chief Executive,
Department
of Labour
High Court Auckland CIV 2008-404-008312
19 December 2008; 19 December 2008
Harrison J
Detention - removal
from New Zealand under police escort - whether obligation on
Immigration New Zealand to offer
election whether to leave voluntarily or by force - whether refusal to
leave voluntarily and consequential increased attention on arrival in
home country relevant - Immigration Act 1987, s 59
Immigration Act 1987
- removal
from New
Zealand under police escort - whether obligation on Immigration New
Zealand to offer
election whether to leave voluntarily or by force - whether refusal to
leave voluntarily and consequential increased attention on arrival in
home country relevant - Immigration Act 1987, s 59
The plaintiff, a
citizen of Syria, unsuccessfully sought recognition in New Zealand as a
refugee. Following
revocation of his work permit and an unsuccessful humanitarian
application he was served with a removal order and taken into custody.
While it was the preference of Immigration
New Zealand to effect his departure from New Zealand without the need
for police escorts, the plaintiff, in emphatic terms, communicated his
intention to cause problems if placed on an aircraft bound for
Damascus. Immigration New Zealand accordingly arranged to remove the
plaintiff with three police escorts who would accompany him as far as
Dubai. The intention was that he would then be placed on a flight to
Damascus. On that leg of the journey he would be accompanied by airline
security personnel.
On an application for
judicial review and for interim orders preventing his removal from New
Zealand the plaintiff argued that the decision to remove him from New
Zealand under escort was flawed as Immigration New Zealand had the
option of serving the removal order and monitoring his
voluntary departure to Syria without taking him into custody. It was
said that he could have left New Zealand voluntarily and returned to
Syria without attracting particular attention from the domestic
authorities in that country. But by invoking the mandatory mechanism
for removal, Immigration New Zealand had removed this option, exposing
the plaintiff to much greater risk than he would otherwise have faced
because the attention of the Syrian authorities would
inevitably be drawn to the nature of his arrival either
under the escort of New Zealand police officers or in the custody of
the captain of the aircraft.
Held:
1. The
argument was not seriously tenable. Section 59 of the Immigration Act
1987 authorises a police officer (under the direction of Immigration
New Zealand) to arrest a person such as the plaintiff without warrant
and to then detain him. The nature of this power is unconditional,
providing it is exercised for the purpose of executing the removal
order by placing the person on an aircraft leaving New Zealand. The
Court was not satisfied that the police officer or Immigration New
Zealand was under any additional obligation to provide the plaintiff
with an election at that juncture on whether or not to leave
voluntarily or by force (see para [14]).
2. Even
were this provisional conclusion wrong there was no doubt whatsoever
that any error was of a purely technical or academic effect. The
plaintiff had rejected the offered opportunity to leave New Zealand
voluntarily. The submission that he was unable to consider the offer
rationally given the circumstances of his custody could not be
accepted. The option was undeniably open and the plaintiff had had the
benefit of his lawyer's advice throughout. It mattered not whether the
environment was in a police cell or elsewhere; the character of the
right of election remained unchanged. The plaintiff held the key to his
treatment following return to Syria. He could still, if he chose,
travel voluntarily on connecting flights to Dubai and Damascus. He
could if he wished, upon giving an appropriate undertaking, remain
under the custody of the captain of the aircraft. If he took that step
he would not physically return to Syria under the overt supervision of
a third party (see para [16]).
3. The
Court did not necessarily accept the submission that the plaintiff
would somehow be exposed to a risk even if under supervision. The New
Zealand authorities were satisfied that he was not at danger of
persecution if he returned to Syria. The situation would not change
even if he was accompanied by a supervisor. In addition, the power to
rectify what he regarded as a situation of risk lay in his hands
alone. He could not set up his refusal to leave voluntarily, even
though he was in New Zealand unlawfully and Immigration New Zealand was
authorised to order his removal, to invoke a discretionary remedy (see
para [17]).
Application for
interim relief dismissed
Counsel
Simon Laurent
for
the
plaintiff
Mark Woolford for
defendant
HARRISON J
Introduction
[1] Mr Malek Zayr filed an
application in this Court yesterday for interim orders restraining
Immigration New Zealand from executing a removal order at 2.15 pm
tomorrow, 20 December 2008, pursuant to s 54 Immigration Act 1987.
[2] The circumstances demand
an urgent judgment. I have heard succinct argument from Mr Simon
Laurent for Mr Zayr and Mr Mark Woolford for Immigration New Zealand
supplemented by written synopses. I have formed a view on the
application and it is essential that I communicate it immediately.
Background
[3] Mr Zayr is a Syrian
national. He is aged 47 years. He arrived in New Zealand in August 2004
on a limited purpose visa issued by the Dubai office of NZIS. NZIS
alleges that the visa was obtained fraudulently. In any event, during
the currency of his limited purpose permit Mr Zayr applied for refugee
status. His application was declined by the Refugee Status Branch of
NZIS on 28 April 2005. At that time the RSB was aware that Mr Zayr had
earlier applied for but had been refused refugee status in Australia in
2001.
[4] Mr Zayr appealed to the
Refugee Status Appeals Authority. His appeal was filed on 3 May 2005
and dismissed in a reasoned decision delivered on 28 July 2006. It is
relevant to note that the RSAA rejected categorically Mr Zayr’s
explanation of the circumstances giving rise to his claim that he was
at risk if he returned to Syria. It found his story implausible and did
not accept Mr Zayr’s credibility. The Authority was satisfied there was
no real chance that he would be persecuted upon his return to Syria.
[5] Mr Zayr did not, however,
give up. He appealed to the Removal Review Authority following
revocation of his work permit with effect from 31 August 2006. That
appeal was dismissed on 24 May 2007. Ms Irene Atia, an immigration
officer employed by Immigration New Zealand, has deposed to Mr Zayr’s
failure to regularise his status or to depart New Zealand voluntarily
following the RRA decision. She located him working illegally in a
butcher shop in Sandringham on 10 December 2008. She served a removal
order on him. At her request, accompanying police officers took Mr Zayr
into custody pending removal. Nevertheless, Ms Atia did not make a
final decision to proceed with Mr Zayr’s removal until completion of a
humanitarian questionnaire on 12 December.
[6] Ms Atia deposes to her
preference that Mr Zayr effect his departure from New Zealand without
the need for police escorts. She envisaged transporting him to the
airport in custody before placing him on a plane with his passport and
ticket to Damascus, Syria. Ms Atia was able to speak to Mr Zayr in
Arabic. She offered Mr Zayr this option. He responded emphatically of
his intention to cause problems if placed on a plane bound for
Damascus. He communicated this intention in aggressive and emotional
terms while in the cells at Auckland District Court. He confirmed that
he would cause security problems on the plane.
[7] Immigration New Zealand
then arranged to remove Mr Zayr with police escorts. This process took
time. It has now booked him to depart Auckland International Airport
tomorrow by Malaysia Airlines. He will be accompanied by three New
Zealand police officers. They will travel with him as far as Dubai. The
intention is that he will then be placed on an Emirates Airways flight
to Damascus. On that leg of the journey he will be accompanied by
airline security personnel.
[8] Significantly Ms Atia, who
swore her affidavit yesterday, deposes that the offer of a supervised
departure remains open subject to approval by the police and by
Malaysia Airlines. Understandably Immigration New Zealand does not wish
to incur the expense of three police escorts. But Mr Laurent confirms
this morning Mr Zayr’s continuing rejection of Immigration New
Zealand’s offer.
Statutory Provisions
[9] I am indebted to Mr
Woolford for providing at short notice a concise summary of the
relevant statutory scheme. In essence a non New Zealand citizen who
remains in New Zealand without having a permit faces these statutory
consequences: (1) he is deemed to be in New Zealand unlawfully: s 4(2);
(2) he has no right to apply for any further permit, which may only be
granted in the exercise of the Minister’s special discretion: ss 35A
and 130; (3) he is under a statutory obligation to leave whether or not
he is aware of the obligation or its implications: s 45; and (4) he is
encouraged to depart voluntarily from New Zealand or face the
alternative of a coercive removal procedure and a five year ban from
returning to New Zealand. I add what is undisputed. Mr Zayr has
emphatically refused Immigration New Zealand’s offer of the opportunity
to depart voluntarily. He must live with the statutory consequences
given the common ground that he is presently in New Zealand unlawfully.
[10] It is relevant also to
note that Mr Zayr had carefully prescribed rights of review and
challenge to the RSB’s original decision. He exercised those rights and
the process inevitably generated a delay of some three years after his
arrival before a final decision was made. However, from 24 May 2007 his
unlawful status was beyond challenge. He failed to comply with his
legal obligations and depart New Zealand voluntarily. Instead he
remained illegally for 18 months until his arrest.
[11] Mr Laurent challenges the
validity of Immigration New Zealand’s decision to remove Mr Zayr
forcibly and under escort. He submits that Mr Zayr has a prima facie or
arguable case of unlawfulness such as to justify an interim order
pending determination of his substantive challenge. Mr Laurent’s
submission is that there is a real contest between the parties and that
it is necessary to preserve Mr Zayr’s position pending the result of a
substantive application for review by granting interim relief.
Otherwise, he submits, a final determination in Mr Zayr’s favour would
be rendered nugatory.
[12] The threshold question is
whether or not there is a real contest between the parties as Mr
Laurent submits. He has focused his argument commendably to a narrow
point. He identifies the flawed aspect of the decision as Immigration
New Zealand’s direction that Mr Zayr be removed forcibly. Mr Laurent
submits that Immigration New Zealand had the option to serve the
removal order and monitor Mr Zayr’s voluntarily departure to Syria
without taking him into custody; that Mr Zayr could have left New
Zealand voluntarily and returned to Syria without attracting particular
attention from the domestic authorities; but that by invoking the
mandatory mechanism Immigration New Zealand removed this option,
exposing Mr Zayr to much greater risk than he would otherwise have
faced. This is because the attention of the Syrian authorities will
inevitably be drawn to the nature of Mr Zayr’s arrival either under the
escort of New Zealand police officers or in the custody of the captain
of the aircraft.
[13] I agree with Mr Woolford
that this argument is not seriously tenable. Section 59 provides as
follows:
(1) Any member of the Police may arrest without warrant a
person on whom
a removal order has been served and detain that person in accordance with this section.
(2) The purpose of arrest and detention under this section is to
execute the
removal order by placing the person on a craft that is leaving New Zealand.
…
[14] Mr Laurent accepts the
empowering nature of this provision. It authorises a police officer
(under the direction of Immigration New Zealand) to arrest a person
such as Mr Zayr without warrant and then detain him. The nature of this
power is unconditional, providing of course it is exercised for the
purpose of executing the removal order by placing the person on an
aircraft leaving New Zealand. I am not satisfied that the police
officer or Immigration New Zealand is under any additional obligation
to provide Mr Zayr with an election at that juncture on whether or not
to leave voluntarily or by force.
[15] However, even if I was
wrong in that provisional conclusion, I am in no doubt whatsoever that
any error is of a purely technical or academic effect. Ms Atia’s
uncontested evidence is that on 12 December and thereafter continually
through to 18 December she offered Mr Zayr the opportunity to leave New
Zealand voluntarily. He has rejected that offer. Mr Laurent submits
that he is unable to consider it rationally given the circumstances of
his custody. I do not, however, accept that proposition. The option is
undeniably open and he has had the benefit of Mr Laurent’s advice
throughout. It matters not whether the environment is in a police cell
or elsewhere; the character of the right of election remains unchanged.
[16] Mr Zayr holds the key to
his treatment following return to Syria. He can still if he chooses
travel voluntarily on connecting flights to Dubai and Damascus. He can
if he wishes, upon giving an appropriate undertaking, remain under the
custody of the captain of the aircraft. If he takes that step he will
not physically return to Syria under the overt supervision of a third
party.
[17] In making that
observation I do not necessarily accept the submission that he will
somehow be exposed to a risk even if under supervision. As noted, the
New Zealand authorities were satisfied he was not at danger of
persecution if he returned to Syria. In my judgment that situation will
not change even if Mr Zayr is accompanied by a supervisor. And I repeat
that the power to rectify what he regards as a situation of risk lies
in his hands alone. Mr Zayr cannot set up his own refusal to leave
voluntarily, even though he is here unlawfully and Immigration New
Zealand is authorised to order his removal, to invoke a discretionary
remedy.
[18] Mr Zayr’s application for
an order for interim relief is dismissed with the consequence that
Immigration New Zealand’s decision to deport him remains valid and in
full force and effect. I wish to record my appreciation for the skilled
assistance given today at short notice by both Mr Laurent and Mr
Woolford. There will be no order for costs.
Solicitor for the
plaintiff: Laurent Law (Auckland)
Solicitor for the
defendant: Meredith Connell (Auckland)