1. BACKGROUND

2. THE LAW
    2.1 Section 128 of the Immigration Act 1987 (Appendix 1)
    2.2 Sections 128AA – 128AD of the Immigration Act (Appendix 2)
    2.3 The current NZIS operational instruction (Appendix 3)
    2.4 The case law (Appendix 4 – list of citations)

3. THE DECISION TO DETAIN
    3.1 Template decision-making (example at Appendix 5)
    3.2 In practice, who is detained and who is granted a permit on arrival?

4. THE DETAINED CLIENT
    4.1 Explaining detention to your client
    4.2 Identity documents
    4.3 Residential requirements of conditional release
    4.4 The importance of full and frank disclosure of identity and travel details (example of statement at Appendix 6)
    4.5 Detention at Mangere – musters, day release and medical care
    4.6 Clients detained at ACRP and Mt Eden
    4.7 Availability of legal aid (see LSA policy at Appendix 12)

5. JUDICIAL SUPERVISION
    5.1 Should I attend 7-day applications for an extension of my client’s warrant of commitment at the Manukau District Court?

6. SEEKING YOUR CLIENT'S RELEASE – AN APPLICATION MADE BY THE NZIS
    6.1 When should I seek my client’s release?
    6.2 Who do I have to persuade?
    6.3 What is important?
    6.3.1 Identity
   6.3.2 Security
   6.3.3 Criminal offending
   6.3.4 Risk of absconding
   6.3.5 Strength of refugee claim
    6.4 The role of the RSB officer (Appendix 7 – ID and security update form)
    6.5 Quality of reasons given by NZIS (Appendix 8 – example)

7. SEEKING YOUR CLIENT'S RELEASE – AN APPLICATION OPPOSED BY NZIS
    7.1 Application for Conditional Release (Example at Appendix 9)
    7.2 Evidence
    7.2.1 Applicant’s affidavit
   7.2.2 Affidavit of person in control of proposed place of residence
   7.2.3 Other evidence, eg medical
    7.3 Suppression of name and identifying details
    7.4 Submissions

8. CONCLUSION

1. Statutory Provisions – Section128A of the Immigration Act 1987

2. Statutory Provisions - Sections 128AA - 128AD of the Immigration Act 1987

3. Current NZIS Operational Instruction dated 25 July 2002

4. List of relevant case law

5. Example of Airport decision template

6. Example of identity and travel statement

7. RSB Identity and Security Update form

8. Example of NZIS reasons for continued detention

9. Conditional release application

10. Affidavit in support of conditional release application

11. Letter from the Legal Services Agency dated 19 November 2002 setting out new policy concerning payment for legal representation at warrant of commitment hearings

12. Francis Patrick McAlpine v Akbar Mousavi, Manukau District Court, MA238/02, 19 July 2002. Epati J.

13. Lefter Isara v New Zealand Immigration Service, Manukau District Court, MA 244/02, 15 August 2002, Epati J.
 

* The author would like to thank Jeanne Donald for her assistance in preparing this paper.
 

Before 19 September 2001 only about 5% of refugee claimants were detained.  However, on 19 September 2001, the New Zealand Immigration Service (“NZIS”) issued an Operational Instruction to immigration officers concerning the detention of refugee claimants under section 128(5) of the Act.  Subsequent to that operational instruction, approximately 94% of border refugee claimants have been detained.

The detention of refugee claimants was subject to a High Court challenge by the Refugee Council of New Zealand (“RCNZ”), the Human Rights Foundation and an unnamed individual plaintiff.  The decision in that case, (RCNZ v Attorney-General (No.1) [2002] NZAR 717 and RCNZ v Attorney-General (No.2) [2002] NZAR 769) is currently the subject of an appeal by the Crown, and cross appeal by RCNZ, to the Court of Appeal.  [Editorial Note: The Appeal by the Crown was successful and the cross-Appeal dismissed: Attorney-General v Refugee Council of New Zealand Inc (CA107/02, 16 April 2003).]

In June 2002, before the High Court decision was given, the Transnational Organized Crime Bill was passed, amending the Immigration Act 1987 and providing for the conditional release of persons detained under section 128 of the Act.

The aim of this paper is to give those counsel less familiar with the current detention and conditional release regime a very practical guide to navigating the law, procedure and practice.  This paper does not critique the lawfulness of the detention of refugee claimants under section 128 or the lawfulness of the NZIS’s current practice in detaining refugee claimants.  Counsel who are interested in these issues may choose to read the RCNZ decision, or await the decision of the Court of Appeal.

There are a number of powers of detention to be found in the Act.  These include:

Section 128 – to be discussed later.

Section 128B – this provides for the detention of persons whose eligibility for a permit is not immediately ascertainable because their status under section 7(1) of the Act cannot immediately be ascertained.  Section 7(1) excludes various classes of persons from New Zealand.  These classes relate primarily to matters such as criminality, terrorism, security, misuse of drugs and breach of immigration laws.  This section in practice is not used by the New Zealand Immigration Service.

Sections 75 & 79 – which provide for the arrest and detention of persons threatening national security and suspected terrorists pending deportation.

Sections 97 & 99 – which provide for the arrest and detention of residence permit holders following conviction.

Sections 59 & 60 – which provide for arrest and detention of persons unlawfully present in New Zealand pending their removal.

2.1 Section 128 of the Immigration Act 1987

Section 128 of the Act is set out at Tab 1 in the Appendix.  The highlights of section 128 are:

Section 128(5) – the power to detain exists where inter alia a person is refused a permit to be in New Zealand.

Section 128(3) – the power to detain ceases to exist on the expiration of 72 hours after the time an individual first reports or presents herself to an immigration officer after her arrival in New Zealand.

Section 128(7) – where a person is to be detained for more than 48 hours (as is the case for all refugee claimants) an immigration officer or member of the police shall apply to the Registrar of a District Court for a warrant of commitment, authorising detention for a period not exceeding 28 days.

Sections 128(13), 128(13A) &128(13B) – where a detained person is likely to be unable to leave New Zealand within the period of the warrant of commitment application may be made to the District Court for an extension of the warrant for a period not exceeding 7 days, or for group arrivals, such longer period as the Judge deems necessary.

Section 128(4) - any person to whom section 128 applies is deemed to be in New Zealand unlawfully, but does not does not have access to Part II of the Act, and as such, has no right of appeal against removal from New Zealand.

2.2 Sections 128AA to 128AD of the Act

The scheme by which refugee claimants are released from detention is set out in sections 128AA to AD of the Act (see Tab 2 of the Appendix).  A basic overview of the sections concerned is set out below (but is no substitute for reading the statute):

Section 128AA(2)(a) – this provision applies to persons who are in detained under ss 128(5) or 128(7).

Section 128AA(4) – an immigration officer or the person concerned may apply to a District Court Judge for an order that the person be conditionally released from custody.

Section 128AA(5) – the application for conditional release must be made on oath and must specify why section 128 applies to the person the subject of the application.

Section 128AA(7) – the order must state: when (either a date or event) it expires and where the person to whom it applies must give herself up upon the expiry of the order.

Section 128AA(8) - provides for further detention where the Judge declines to make an order for conditional release.

Section 128AB(1)(a) – a conditional release order must be made subject to the conditions that the person reside at a specified address and report to the police at specified times and intervals.

Section 128AB(1)(b) – if the person is a refugee status claimant, the order must be subject to the condition that the person attend any interview by a refugee status officer or the Refugee Status Appeals Authority.

Section 128AB(1)(c) – the order may be subject to such other conditions as the Judge sees fit.

Section 128AB(3)&(4) – the conditions specified in subsections (1)(a) and (1)(b) may be varied by agreement between an immigration officer and the person conditionally released.  A condition imposed under subsection 1(c) may be varied by agreement if the order imposing it so provides and otherwise by consent of a District Court Judge.

Section 128AC – where a person breaches a condition or fails to deliver herself up to an immigration officer, she may be arrested without warrant and placed in custody.

Section 128AD – an immigration officer may apply for a conditional release order to be cancelled.

2.3 The Current NZIS Operational Instruction

The current Operational Instruction (“the OI”) can be found at Tab 3 of the Appendix.  The OI is an instruction to immigration officers regarding the exercise of their statutory discretion to detain persons pursuant to s 128(5).  It is not a substitute for the discretion set out in the Act.

The current OI was put in place subsequent to Justice Baragwanath’s decision in RCNZ v Attorney-General.  It suspends earlier OIs pending the outcome of the Crown’s appeal to the Court of Appeal (see para 1 of the OI).  It refers to article 31 of the 1951 Refugee Convention which specifically states that no person to whom article 31 applies may be detained unless detention is necessary (para 2).  According to paragraph 3 of the OI, detention may be necessary where:

• there is a real risk of offending;
• there is a real risk of absconding; or
• the person’s identity is unknown and therefore the risks of offending and absconding cannot be ascertained at the time.

The OI provides for NZIS internal review of decisions to detain and review of the continued appropriateness of an individual’s conditional release, as soon as practicable after the receipt of new evidence, and in any event, 14 days after detention or conditional release (see paras 6, 7 & 8).

In my view, it is highly debatable whether the OI complies with Justice Baragwanath’s decision, nevertheless, it is a useful tool when negotiating an individual’s conditional release with the NZIS.

2.4 The Case Law

The leading case remains RCNZ v Attorney General. However it is important to keep in mind that the matter is before the Court of Appeal and that subsequent to the High Court challenge in RCNZ the conditional release regime was put in place.  Nevertheless RCNZ is useful because it focuses on the “necessity test” for assessing detention and the trio of considerations: identity, risk of criminal offending and risk of absconding.

In the Appendix are two decisions of the Manukau District Court dealing with conditional release applications opposed by the NZIS, Isara and Mousavi.  We are also aware of a recent decision of Judge Simpson which has not yet been typed.  Brett Cunningham, Barrister, appeared and advises that in that case it was the support of a senior community leader that appeared to tip the balance resulting in release being granted.

The initial decision to detain a person refused a permit is made by an immigration officer at the border.

3.1 Template decision-making

The written record of the immigration officer’s decision is clearly a template (see Tab 5 in the Appendix).  When the template was first used, it was not unusual to find that your client’s gender was wrong in parts of the written decision; this occurs less often now.  It is also not unusual to find the assertion that your client has no identity documents when in fact these have been provided to the police/immigration officer.

There is reliance in the template on the refugee claimant’s alleged reluctance to depart New Zealand voluntarily if her claim is declined as evidence that she presents a risk of absconding.  Claimants will often acknowledge that if their refugee claim is declined they will have no choice or no control and will have to leave New Zealand.  Consequently, it is not unusual to find that immigration officers have had to work very hard to encourage the claimant to articulate her reluctance to depart voluntarily.

3.2 In practice, who is detained and who is granted a permit

The single most important factor in determining whether a refugee status claimant will be granted a permit at the airport is possession of a genuine passport.  It is rare for a claimant who does not hold a passport to be granted a permit.  Indeed, one could conclude that it is extremely rare that an immigration officer will exercise his or her discretion to issue a permit where a claimant does not have a passport.  Pregnant women, families with small children, mentally ill persons, older persons and unaccompanied minors have all been detained in the past.

4.1 Explaining detention to your client

It is important that you clearly explain to your client:

•   the likelihood that she will be conditionally released and/or granted a permit;
•   how long she will be detained for;
•   the living situation of persons conditionally released; and
•   that if she still detained after 3 weeks she will appear in the District Court.

4.2 Identity documents

Because proof of identity is integral to the NZIS decision to detain, when you first accept instructions from a client it is essential to ask her the following:

•   Does she have any identity documents (originals or copies) in her possession?
•   Did the police or NZIS take any identity documents from her at the airport of police station?
•   Can she obtain identity documents from her home country?
•   Does she have any family in New Zealand who can confirm her identity?

If your client intends to seek identity documents from her home country, ask that copies are faxed directly to you and the originals are couriered directly to your physical address.

It is wise to never provide a copy of a document to the RSB or NZIS without first showing the document to your client and confirming that it is both genuine and correct in every detail.  Well-meaning family members have been known to obtain false documents with a view to assisting their loved one.

4.3 Residential requirements of conditional release

When you first take instructions from a client, it is essential to ask whether she has any family, friends or contacts in New Zealand who may be willing to provide her with accommodation.  This is because, both as a matter of practicality, and as a legal requirement of any conditional release application, your client must have an address at which to reside.  Places in the Auckland Refugee Council hostel in Glendene and the Latin American Community House of Friends hostel in Mangere are scarce and refugee claimants are often not conditionally released simply because they have nowhere to stay.  The contact details of the two hostels are as follows:

Auckland Refugee Council Hostel
17 James Laurie Street
Glendene
Tel. 09 8351470 or 09 835 1471

House of Friends Hostel
76 Buckland Road
Mangere
Tel. 09 279 4107

An example of the kind of statement of identity and travel that will assist your client to obtain conditional release may be found at Tab 6 of the Appendix.  Refugee claimants are often unwilling to disclose the details of their travel to New Zealand.  It is important that your client is advised in the strongest terms that:

• she has an absolute obligation to tell the truth;
• disclosing her travel details will not make it easier to remove her;
• how she got to New Zealand is not relevant to whether she is a refugee but lying about her travel may prejudicially affect her credibility and therefore refugee claim; and
• her obligation is first and foremost to herself and her family, not to any agent she paid to assist her to travel to New Zealand.

The Mangere Refugee Detention Centre (“the Camp”) generally explains to detainees the rules which apply at the Camp.  These include compulsory attendance at daily musters and meetings and the availability of “day leave”, (ie the ability, on application, to leave camp unsupervised).  Attendance at musters and general compliance with Camp rules is relevant to any future application for conditional release.  Clients should also be encouraged to avail themselves of day release (and return to Camp by the specified time) as this may be relevant to any risk of absconding which must be assessed in the course of a conditional release application.
Spontaneous refugee claimants at the Camp have access to onsite medical facilities and to the Refugees As Survivors Centre for mental health/counseling needs.  Where an offsite assessment or a forensic medical report is required, you may wish to book an appointment for your client with Dr Tony Wansbrough at Public Health (tel. 09 262 1855) and ask the hostel office staff at the Camp to arrange transport to the appointment.

4.6 Clients detained at Auckland Central Remand Prison and Mt Eden

Occasionally, refugee claimants will be detained at Auckland Central Remand Prison (ACRP) or Mt Eden Prison.  Sometimes, this detention is, in fact, remand in relation to a criminal charge (ie use of a document/false passport) and not detention pursuant to section 128 of the Act.  This an extremely important distinction.  Where your client is remanded rather than detained pursuant to section 128, she may have access to Part II of the Act and an appeal against removal from New Zealand.

From counsel’s perspective, the biggest frustration in dealing with clients detained at ACRP or Mt Eden is the strict control on when and where you can meet with your client.  In addition to the much greater restrictions on freedom of movement endured by refugee claimants detained at ACRP or Mt Eden, they also do not have the same access to medical assistance and counseling as persons detained at the Camp.

4.7 Availability of legal aid

There appears to be a conflict between the practice of the Legal Service Agency (“LSA”), (see Tab 11 of the Appendix) and the statutory provisions of the Legal Services Act 2000.  The LSA has recently indicated that it will provide payment for legal representation at warrant of commitment hearings (7-day hearings in the District Court).  Grants officers can grant a maximum of 1 hour per appearance.  Providers must submit proof of each attendance.

Note that the LSA policy is to pay for warrant of commitment hearings rather than applications for conditional release.  This is unfortunate, given that the warrant of commitment hearings are, as described in section 5.1 below, pro forma exercises, while an opposed application for conditional release is a substantial undertaking involving much more than one hour of time.

However, there is a more substantive concern, namely whether the LSA’s new policy is consistent with sections 7 and 10 of the Legal Services Act 2000.

Section 10(1)(a) of the Legal Services Act 2000 provides:

“10. Other matters where legal aid refused or limited: civil matters

(1) Subject to subsection (2), the Agency may not grant legal aid in respect of proceedings involving a decision under the Immigration Act 1987 to a person who –

(a) is unlawfully in New Zealand in terms of the Immigration Act 1987; …”

“7. Proceedings for which legal aid may be granted: civil matters

(1) Legal aid may be granted in respect of the following civil matters:
[…]

(j) proceedings before the Refugee Status Appeals Authority (whether as established by the government of New Zealand or as continued under section 129N of the Immigration Act 1987) in respect of any claim for refugee status made before 1 April 1999 (being the date on which the Immigration Amendment Act 1999 received the Royal assent), or any other matter relating to refugee status that arose before the at date:

(k) the processing, under Part VIA of the Immigration Act 1987, of any claim for refugee status first made on or after 1 April 1999 (including proceedings on any appeal in relation to such a claim), and the processing of any other matters arising under section 129L or section 129R of the Immigration Act 1987 that first arose on or after that date (including proceedings on any appeal in relation to such a matter):

(l) any judicial review proceedings (as defined in section 2 of the Immigration Act 1987) in respect of proceedings or matters to which paragraph (j) or paragraph (k) applies:

Given the large volume of non-remunerated work counsel who practice in this field are doing, any suggestions of an interpretation of the Legal Services Act which provided for legal aid to actively challenge the detention of refugee claimants would be welcome.  However, the merits of providing legal aid in the amount of a maximum of one hour to counsel for the purpose of attending warrant of commitment hearings is questionable at best.

There is much legal debate about the scope of the discretion exercised by a District Court Judge when dealing with applications for extension of a persons warrant of commitment pursuant to s128(13B) of the Act.  The section provides inter alia that: the Judge may, if satisfied that the person is still a person to whom section 128 applies, extend or further extend the warrant.  In reality, District Court Judges do extend the warrant unless and until an application for conditional release is made.  The process by which the warrant is extended usually takes no more than a few minutes for each detainee and does not usually involve any consideration of the person’s individual circumstances.

5.1 Should I attend 7-day applications for an extension of my client’s warrant of commitment at the Manukau District Court?

The District Court appreciates the courtesy of counsel appearing on his or her client’s behalf at the 7-day applications for an extension of the client’s warrant of commitment.  However, as discussed above, on one interpretation of the law, there is no legal aid available for such appearances.  Also, given that the 7-day extensions are, except where there is an application for conditional release, essentially a pro forma exercise, one must question the value of counsel appearing.  At the end of the day, individual counsel must choose for themselves whether to appear.  Regardless of whether you choose to appear, it is courteous to advise the NZIS/Crown Solicitor whether you will be appearing and what your client’s position is in relation to the application for an extension of the warrant of commitment.

Where you advise the NZIS that your client wishes to be conditionally released and the NZIS agrees to conditional release, the NZIS, via the Crown Solicitor, will make the application for conditional release to the District Court and generally, there is no need for you to appear or draft any of the documentation required.  It is also virtually a given that the District Court will grant the order if the NZIS makes or supports the application.

The NZIS rarely grants permits to detainees unless and until they are granted refugee status.  Any request for a permit needs to be based on special circumstances and/or needs which cannot be met by conditional release.  Arguably, the NZIS’s reluctance to grant a permit to detained refugee claimants relates to access to Part II of the Act (an appeal against removal) and financial responsibility for removal, not identity, security, risk of criminal offending or risk of absconding.

6.1 When should I seek my client’s release?

In dealing with your client’s detention, the first principle is of course that you must act on her instructions.  This is tempered to a large extent, however, by the fact that legal aid is not available to challenge detention and it is unlikely that your client has the resources to pay your fees.

Where your client has identity documents and/or special needs or characteristics which make prompt release particularly important it is appropriate to request release as soon as possible, although, in practice it is difficult to formulate a request for conditional release unless and until you have received a copy of your client’s NZIS file.  Therefore, it is important that you request the file as soon as possible after accepting instructions.

Where your client does not have an identity document, and you believe she will perform well at her RSB interview, it may be appropriate to delay requesting conditional release until she has been interviewed.  After interview, the NZIS officer will have the RSB officer’s assessment to assist him or her in deciding whether to apply for conditional release.

6.2 Who do I have to persuade?

The short answer at present is that you must persuade the appropriate officer at the Auckland Border and Investigations Branch (“B&I”) of the NZIS.  At the moment, this is John Pingram.  It is worth telephoning the B&I officer before putting your request for conditional release in writing.

6.3 What is important?

6.3.1 Identity

Identity documents are discussed above.  If your client has identity documents, provide a certified copy of them to B&I, or if the documents are already held by B&I, draw the officer’s attention to their existence.  If your client does not have any identity documents and cannot obtain them, explain why this is the case to B&I.

If your client is interviewed by the RSB, it is important that all steps are taken to confirm your client’s identity and nationality at interview.  If the RSB officer does not ask the appropriate questions you should do so when given the opportunity to examine your client.

6.3.2 Security

Security is not an issue in relation to most detainees.  If you are concerned that security is an issue in your client’s case, ask B&I whether a New Zealand police check and an Interpol check have been completed.

6.3.3 Criminal offending

Risk of criminal offending is rarely an issue.  It is helpful to articulate, the political nature of any charges, convictions, or periods of imprisonment, your client may have faced, where appropriate.  It is also useful to point to periods of (uneventful) day release your client has enjoyed.

6.3.4 Risk of absconding

Once again, day release is important in advocating that your client does not present a risk of absconding.  Arguably, the strength of your client’s refugee claim, discussed below, is also relevant.

6.3.5 Strength of refugee claim

It is helpful to very briefly summarize the basis of your client’s refugee claim when communicating with B&I, to comment on the strength of your client’s case and make reference to similar successful cases or country information which supports your client’s claim.

6.4 The role of the RSB officer

After an RSB officer has interviewed your client, the officer will complete a Identity and Security Update form (see Tab 7 in the Appendix).  Therefore, it is important to keep in mind that the RSB interview is not just an opportunity for your client to put her case, but also for her to confirm her identity, nationality and the details of her travel to New Zealand.

6.5 Quality of reasons given by NZIS

It is rare for the NZIS to give substantive reasons for refusing to make an application for conditional release.  The written reasons tend to be superficial and include irrelevant factors such as age, marital status and occupation.  An example is found at Tab 8 of the Appendix.  The inadequacy of NZIS written reasons is frustrating, particularly where counsel wishes to assess the likelihood of a conditional release that is opposed by the NZIS succeeding.

7.1 Application for Conditional Release

An application for a conditional release order is very straightforward.  An example of the application may be found at Tab 9 of the Appendix.  The order must comply with section 128AA(5), ie it must specify either that the applicant is in custody pursuant to section 128(5) of the Act or the subject of a warrant of commitment issued pursuant to section 128(7) of the Act.  It should also specify that the applicant is a refugee status claimant because the order will be subject to special conditions if the applicant is a refugee status claimant (see section 128AB(1)(b)).

7.2 Evidence

All evidence should be in affidavit form.  Ensure that the Court has before it any documentation relevant to your client’s identity and travel to New Zealand.

7.2.1 Applicant’s affidavit

An example of the matters which should be covered in your client’s affidavit can be found at Tab 10 of the Appendix.

7.2.2 Affidavit of person in control of proposed place of residence

If the applicant wishes to reside with a family member, friend or community member, it is important that that person provides an affidavit confirming her identity, her relationship to the applicant, her address, and that the applicant may reside with her.  It may also be helpful for her to provide, for example a copy of a rental agreement, title or rates demand in relation to the place of residence.

7.2.3 Other evidence, eg medical

If there are special medical or mental health reasons detention is not appropriate for the applicant evidence of the same should be placed before the court in affidavit form.

7.3 Suppression of name and identifying details

Because the applicant is a refugee claimant it is important that her name and any identifying details be suppressed.  This is both for the benefit of the applicant whose refugee claim may eventually fail, and who may be returned to her home country, and for the benefit of any family members who may still be at risk in the applicant’s home country.

7.4 Submissions

The Act provides no instructions to District Court Judges as to how they should exercise their discretion to conditionally release.  Submissions in support of a conditional release application should where appropriate address:

• The applicant’s basic biographical details
• Identity (including reference to documentation or explanation of inability to obtain documentation)
• Security issues
• Risk of criminal offending
• Risk of absconding (including whether applicant has taken day leave if detained at Mangere)
• The basis of, and strength of, the applicant’s refugee claim
• The impact of detention on applicant
• The likelihood that the applicant will comply with conditions if released (the support of family, friends and community members may be relevant to this issue)

Because there have been very few opposed conditional release applications decided by the District Court to date, there has been no clear indication as to how Judges are exercising their discretion.  It is important that counsel do their utmost to assist the Court in making “good law” in response to the conditional release regime.  The District Court decisions that we receive in this early period of the operation of the conditional release regime will set the tone regarding how the regime is to operate.

Because it is unlikely that the District Court’s decisions concerning conditional release applications will be published, it is also important that counsel assist each other to ensure that all members of the immigration and refugee bar are aware of the decisions the District Court is making.  On that note, I would like to end this paper by calling on the immigration and refugee bar to recognize the value of cooperation among members of the bar in responding to the challenges we face practicing in this field of the law, including the particular challenges presented by the new detention regime.
 

PUBLIC ACTS - IN FORCE - 10 November 2002 / I / Immigration Act 1987 / Part 6 - Arrivals and departures / 128 Detention and departure of persons refused permits, etc.

128    Detention and departure of persons refused permits, etc.

(1)    This section applies to every person (other than a person to whom [section 128B or] section 129 of this Act applies) who -

(a)    Arrives in New Zealand from another country; and
(b)    Is not exempt under this Act from the requirement to hold a permit; and
(c)    Either -

(i)    Fails to apply in the prescribed manner for a permit; or
(ii)    Is refused a permit; or
[(iii)    Is a stowaway; or
(iv)    Is a person whose pre-cleared permit has been revoked by an immigration officer pursuant to section 35F of this Act.]

(3)    This section shall cease to apply to any person (including any stowaway), on the expiration of 72 hours after the time when [that person first reports or presents to an immigration officer after arriving in New Zealand from another country], unless that person is sooner detained under this section.

(4)    Any person to whom this section applies shall be deemed for the purposes of this Act to be in New Zealand unlawfully, but, for so long as this section applies to that person, that person shall not be liable to be dealt with under any of the provisions of Part 2 of this Act.

[(5)    Subject to subsection (7), on the request of an immigration officer to a member of the police, any person to whom this section applies must be detained by a member of the police and placed in custody pending that person's departure from New Zealand on the first available craft.]

(6)    Every person who is placed in custody under subsection (5) of this section and is to be detained overnight shall be detained, -

(a)    In the case of an unmarried person who is under 17 years of age, in -

(i)    Any residence (within the meaning of section 2 of the [Children, Young Persons and Their Families Act 1989]) or other premises under the control of, or approved by, the [chief executive of the department for the time being responsible for the administration of the Children, Young Persons, and Their Families Act 1989]; or
(ii)    Any other premises agreed to by the parent or guardian of that person and an immigration officer; or

(b)    In any other case, in -

(i)    Any premises approved by the [chief executive of the Department of Labour]; or
(ii)    A Police station.

(8)    Every application under subsection (7) of this section shall be made on oath, and shall include a statement of the reasons why the person is a person to whom this section applies.

(9)    Every such warrant of commitment shall authorise the superintendent of the prison or the person in charge of the other premises to detain the person named in it until -

(a)    Required by a member of the Police to deliver up that person in accordance with subsection (11) of this section; or
[(b)    The release of the person in accordance with subsection 14(a); or
[(c)    the expiry of the period for which detention is then authorised by the warrant (as determined having regard to any extension or further extension of the warrant granted under subsection (13B) of this section, and to subsection (16) of this section, and, where appropriate, to -

(i)    section 128AA(12); and
(ii)    subsections (2)(a) and (12) of section 128A), - ]]

whichever first occurs.

(a)    Apply to a District Court Judge for an extension, or further extension, of the warrant; or
(b)    Notify in writing the Superintendent of the prison or person in charge of the other premises in which the person is detained that the person should be released.

(a)    Be made on oath; and
(b)    Include a statement of the reasons why the extension or further extension is requested.

(a)    For a further period not exceeding 7 days; or
(b)    For such longer period as the Judge thinks necessary in the circumstances to allow all the persons in the group concerned to be properly dealt with, in any case where the person detained under the warrant is a member of a group of people -

(i)    Who arrived in New Zealand on the same ship or aircraft; and
(ii)    All or most of whom are persons to whom this section applies.
{Editorial Note: For form of warrant see Form 10 in Schedule 2 of SR 1999/284.}

(a)    On receiving written notification from an immigration officer under subsection (13)(b) that the person should be released; or
(b)    If not earlier released, on the expiry of the period for which detention is authorised under the warrant (as determined having regard to section 128A(2)(a) and (12), where appropriate, and to any extension or further extension of the warrant granted under subsection (13B)).

(a)    Part 2 applies in respect of the person; and
(b)    This section ceases to apply in respect of the person.]

PUBLIC ACTS - IN FORCE - 10 November 2002 / I / Immigration Act 1987 / Part 6 - Arrivals and departures / [128AA    Detained person may be conditionally released from detention in certain cases

[128AA    Detained person may be conditionally released from detention in certain cases 

(1)    This subsection applies to a person who is not a refugee status claimant (within the meaning of section 129B(1)) and -

(a)    is placed in custody under section 128(5); or
(b)    is the subject of a warrant of commitment issued under section 128(7).

(2)    This subsection applies to -

(a)    a refugee status claimant (within the meaning of section 129B(1)) who -

(i)    is placed in custody under section 128(5); or
(ii)    is the subject of a warrant of commitment issued under section 128(7):

(b)    a person who is the subject of an application under section 128(13)(a) for the extension or further extension of a warrant of commitment issued under section 128(7).

(3)    An immigration officer may apply to a District Court Judge for an order that a person to whom subsection (1) applies be conditionally released from custody.

(4)    An immigration officer or the person concerned may apply to a District Court Judge for an order that a person to whom subsection (2) applies be conditionally released from custody.

(5)    An application under subsection (3) or subsection (4) must be made on oath, and state why section 128 applies to the person to whom it relates.

(6)    On an application under subsection (3) or subsection (4), the Judge may make an order for the person's conditional release.

(7)    The order must state -

(a)    either a day on which it expires or an event upon the occurrence of which it expires; and
(b)    a location at which the person to whom it relates must give himself or herself up when it expires.

(8)    If the Judge does not make an order for the person's conditional release, -

(a)    in the case of an application made in respect of a person who is not already subject to a warrant of commitment issued under section 128(7), the Judge must issue a warrant of commitment authorising the person's detention for a period not exceeding 28 days in a penal institution or some other premises approved for the purpose by the Judge:
(b)    in the case of an application made in respect of a person who is the subject of an application under section 128(13)(a) for the extension or further extension of a warrant of commitment issued under section 128(7), the Judge may extend or further extend the warrant of commitment concerned -

(i)    for any period the Judge thinks necessary in the circumstances to allow all the persons in the group concerned to be properly dealt with, if the person detained under the warrant is a member of a group of people - 

(A)    all of whom arrived in New Zealand on the same ship or aircraft; and
(B)    all or most of whom are people to whom section 128 applies; and

(ii)    for a further period not exceeding 7 days if the person detained under the warrant is not a member of such a group.

(9)    A warrant of commitment issued under subsection (8)(a) must be treated as a warrant of commitment issued under section 128(7).

(10)    On the day or (as the case may be) the occurrence of the event stated in it, an order under subsection (6) for a person's conditional release expires, and the person must deliver himself or herself up to an immigration officer at the location stated in it.

(11)    If a person delivers himself or herself up to an immigration officer under subsection (10), -

(a)    in the case of a person to whom subsection (1) or subsection (2) applied by virtue of his or her being placed in custody under section 128(5), if not released, -

(i)    the person must be treated as a person to whom section 128(5) continues to apply; and
(ii)    if the person is to be detained for more than 48 hours after delivering himself or herself up, an application must be made in accordance with section 128(7):

(b)    in any other case, if  not released, the person must again be taken into custody, and may be detained in custody under section 128 pending the person's departure from New Zealand on the first available craft.

(12)    The period for which detention is authorised by a warrant of commitment issued under section 128(7) must be reckoned exclusive of any period commencing on the date on which the person to whom the warrant relates is released pursuant to an order under subsection (6), and ending on the earlier of the following:

(a)    the expiration of 72 hours after the date on which the person is again taken into custody under this Act:
(b)    the extension or further extension of the warrant under section 128(13B).

(13)    If a permit is granted under this Act to a person to whom an order under subsection (6) relates, -

(a)    the order is cancelled; and
(b)    Part 2 applies to the person; and
(c)    section 128 and this section cease to apply to the person.]

Status Compendium
Hist. s 128AA - s 128AD: Inserted on 18 June 2002 by 2002 No 22, s 10.

PUBLIC ACTS - IN FORCE - 10 November 2002 / I / Immigration Act 1987 / Part 6 - Arrivals and departures / [128AB Conditions

(1)    An order under section 128AA(6) -

(a)    must be made subject to the condition that the released person -

(i)    must reside at a specified address; and
(ii)   must report to an office of the Department of Labour or to a police station at specified times and intervals, and in a specified manner:

(b)    if the released person is a refugee status claimant under Part 6A, must be made subject to a condition relating to attendance at any interview under that Part by a refugee status officer or the Refugee Status Appeal Authority:
(c)    may be made subject to any other conditions the Judge thinks fit to impose in the circumstances.

(2)    The conditions imposed on a released person under subsection (1) -

(a)    must be notified in writing to the person before his or her release; and
(b)    take effect on his or her release.

(3)    An immigration officer and the released person - 

(a)    may agree to vary a condition imposed under paragraph (a) or paragraph (b) of subsection (1); and
(b)    if the order containing it so provides, or with the consent of a District Court Judge, may agree to vary a condition imposed under subsection (1)(c).

(4)    A variation of a condition -

(a)    takes effect immediately; but
(b)    must be reduced to writing, and notified to the released person, as soon as practicable.]

Status Compendium
Hist.    s 128AA - s 128AD: Inserted on 18 June 2002 by 2002 No 22, s 10.

PUBLIC ACTS - IN FORCE - 10 November 2002 / I / Immigration Act 1987 / Part 6 - Arrivals and departures / [128AC Breach of condition or failure to deliver oneself up to immigration officer

(a)    after the person breaches a condition imposed under section 128AB:
(b)    at any time between the time the person fails to deliver himself or herself up to any immigration officer as required by section 128AA(10) and the time (if any) when the person is granted a permit under this Act.

(a)    in the case of a person to whom subsection (1) or subsection (2) of section 128AA applied by virtue of his or her being placed in custody under section 128(5), the Judge must decide whether to issue a warrant of commitment authorising his or her detention for a period not exceeding 28 days in a penal institution or some other premises approved for the purpose by the Judge, or again make an order for the person's conditional release under section 128AA:
(b)    in any other case, the Judge must decide whether to order that the person must again be taken into custody, or again make an order for the person's conditional release under section 128AA.

(a)    the person must continue to be treated as a person to whom section 128 applies who is being detained under that section; and
(b)    nothing in part 2 applies to the person.]

PUBLIC ACTS - IN FORCE - 10 November 2002 / I / Immigration Act 1987 / Part 6 - Arrivals and departures / [128AD Cancellation of order for conditional release

(a)    the person is liable to be arrested by any member of the police, without warrant, and placed in custody; and
(b)    if the person is arrested and placed in custody, -

(i)    in the case of a person to whom subsection (1) or subsection (2) of section 128AA applied by virtue of his or her being placed in custody under section 128(5), -

(A)    the person must be treated as a person to whom section 128(5) continues to apply; and
(B)    if that person is to be detained for more than 48 hours after delivering himself or herself up, an application must be made in accordance with section 128(7):

(ii)    in any other case, the person must again be taken into custody, and may be detained in custody under section 128 pending the person's departure from New Zealand on the first available craft.]

25 July 2002

1.    The operational instructions of 19 September 2001, 24 September 2001, and 19 December 2001 (dated 19 November 2001 in error) concerning the exercise of the discretion pursuant to section 128(5) of the Immigration Act 1987 to detain persons (including children and young persons under 18 years of age) claiming refugee status at the border and who are refused a permit are suspended pending an appeal.

2.    No person who claims refugee status upon arrival in New Zealand may be detained if that person is a person to whom Article 31.1 applies unless that person's detention is "necessary" in terms of Article 31.2 of the Refugee Convention.  Article 31 states:

Article 31: Refugees Unlawfully In The Country Of Refuge

1.    The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

2.    The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularised or they obtain admission into another country.  The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.

4.    If detention is necessary, that detention should occur pursuant to s 128(5) in a facility, (either the Mangere Accommodation Centre or a penal institution), that effects the least restriction on freedom of movement having regard to the risk being managed.

5.    Where, however, an immigration officer has refused to grant a refugee status claimant a permit but does not consider that the detention of that person in a secure facility is "necessary", the immigration officer may immediately apply for that person's release on conditions in accordance with section 128AA of the Immigration Act, and may necessarily detain a claimant under section 128(5) to enable such an application to be made.

6.    If an immigration officer determines that detention of a refugee status claimant is "necessary", or where a refugee status claimant is released on conditions under section 128AA, those decisions must be kept under review in accordance with paras 7 and 8 below.

7.    For a claimant in detention, the review of the "necessity" test should occur as soon as practicable after any new evidence or information emerges about the claimant or in any event at least after 14 days of detention.  If continued detention is then determined to be no longer "necessary" then the immigration officer must decide whether to apply for the claimant's release on conditions under section 128AA or whether to release them with a permit granted under section 35A.

8.    For a claimant already released on conditions, the review of that situation should occur as soon as practicable after any new evidence or information emerges about the claimant, or in any event at least after 14 days of release on conditions.

9.    No immigration officer other than each of those immigration officers listed in appendix A, (as may be amended by the Chief Operating Officer from time to time), are authorised to determine whether detention under section 128 of the Immigration Act of a person who is a refugee status claimant is "necessary" or to apply for or give consent to the release on conditions of a refugee status claimant under section 128AA of the Immigration Act or to grant a permit under section 35A of the Immigration Act to claimant who has been detained and/or released on conditions.

10.    The interim operational instruction of 8 July 2002 is rescinded.
 
 

"Chris Hampton"
General Manager
New Zealand Immigration Service
 

APPENDIX A

Part 1: Immigration Officers who are authorised to determine whether detention in a penal institution of a person who is a refugee status claimant is "necessary", or to apply for or consent to the release on conditions of a refugee status claimant from a penal institution, or to grant a permit under section 35A to a refugee status claimant detained in a penal institution:

Bernard Maritz
Terri Bentley
John Pingram

Part 2: Immigration Officers who are authorised to determine whether detention at the Mangere Accommodation Centre of a person who is a refugee status claimant is "necessary", or to apply for or consent to the release on conditions of a refugee status claimant from the Mangere Accommodation Centre, or to grant a permit under section 35A to a refugee status claimant detained at the Mangere Accommodation Centre:

Those immigration officers listed in Part 1

Part 3: Immigration Officers who are authorised to grant a permit under section 35A to a refugee status claimant who is released on conditions:

Those immigration officers listed in Part 1

High Court Judgments

1. RCNZ v Attorney-General (No.1) [2002] NZAR 717.

2. RCNZ v Attorney-General (No.2) [2002] NZAR 769.

3. A v New Zealand Police, High Court Auckland, R90/02, 26 July 2002, Baragwanath J.

4. Sylva v Minister of Immigration, High Court Auckland, M764-SW02, 1 July 2002, Paterson J.
 

District Court Judgments

5. Francis Patrick McAlpine v Akbar Mousavi, Manukau District Court, MA238/02, 19 July 2002. Epati J.

6. Lefter Isara v New Zealand Immigration Service, Manukau District Court, MA 244/02, 15 August 2002, Epati J.

My preliminary assessment of the situation is:
1.    The claimant does not have any travel or identity documents.
2.    There is an identified risk of the claimant absconding otherwise than by leaving New Zealand in the event that his claim to refugee status is declined.

The reasons for this assessment are:
1.    The claimant has been searched by Customs and no travel or identity documents were found.  The claimant has also been asked if he has any genuine travel / identity documents and he has said that he does not.
2.    The claimant has expressed an unwillingness to  leave New Zealand in the event that his claim to refugee status is declined.  There is therefore a risk of the claimant absconding otherwise than by leaving New Zealand in this event.

Do you wish to comment on my preliminary assessment?
 
 

Claimant's Signature:                            Date:
 
 

Claim for Refugee Status made:                              Yes / No

Part of a group arrival:                                             Yes / No

Size of group:                                                           Yes / No

I have decided to grant this person a permit:            Yes / No
 

Immigration Officer's final assessment:

1.    Following an initial interview it has been determined that the applicant has no appropriate documentation for immigration purposes, nor does he have identity documents.  This person's identity has not been ascertained to my satisfaction.
2.    The claimant has expressed an unwillingness to  leave New Zealand in the event that his claim to refugee status is declined.  There is therefore a risk of the claimant absconding otherwise than by leaving New Zealand in this event.
3.    I am aware of the possibility that this person may be detained in the event that they are to be refused a permit.  I am aware that Article 31 of the Refugee Convention provides that any restriction on the movement of persons claiming refugee status is to be no more than necessary to avoid a real risk of criminal offending or absconding.
4.    I have considered the circumstances that are currently known of this person and I consider that restriction of this person's movement is necessary to manage the risk of their criminal offending or absconding.
5.    The humanitarian aspects of the applicant's case have been considered and in all the circumstances, I do not consider that there are circumstances of such an exceptional humanitarian nature that warrant the grant of a permit in this instance.
6.    In making a decision, I have considered the claimant's individual circumstances and New Zealand's international obligations.  In all the circumstances however, I do not consider that the grant of a permit is warranted in this instance.
 

Immigration Officer's signature:                                              Date:

Dialect spoken:

Was an interpreter used?             Yes / No

Interpreters name:

Interpreters signature:

AMS client number:
 

I have contacted my Supervisor ......................................
and I have bee instructed that ........................................ who has authority in terms of the General Manager's revised interim operating instruction dated 25 July 2002, has now authorised that this person be detained at:

(a)    A penal institution:                                                        Yes / No

(b)    Mangere Accommodation Centre:                                   Yes / No

I have advised the claimant of the decision:                      Yes / No

**If permit refused, time taken into Police Custody:

Immigration Officer's signature:

Immigration Officer's Name:

Date:

1. My full name is Joe Bloggs.  I was born on 1 January 1980 in [town], [province], [country].  I am an [nationality] national.  I am a bricklayer by occupation.

2. My father’s name is John Bloggs.  He was born on 2 January 1960.  He is a carpenter and lives in [city].  My mother’s name is Joanne Bloggs.  She was born on 3 January 1960.  She is an accountant and lives in [city].  I am single and have never been married.  I have no children.

3. I speak, read and write [languages].  I also speak, read and write some English.  I wish to be interviewed in [language].

4. I left [home country] in January 2000 using my genuine [country] passport.  I entered Tunisia.  I remained there until December 2000.  I then travelled to Thailand once again using my genuine passport.  On the way to Thailand, I transited in Turkey for two days.  I arrived in Thailand at the beginning of 2001.

5. In Thailand, I purchased a false [country] passport in the name Tom Jones from an agent.  The agent used the name Cilla.  I paid US$2,000.00 for the passport.

6. I left Thailand on 1 February 2001 and travelled by land to Laos where I stayed for one week.  >From Laos I travelled to Vietnam.  All of this travel was by bus.  I arrived in Vietnam on 9 February 2001.  I entered Vietnam using the false [country] passport in the name Tom Jones.  On 10 February 2001, I flew from Vietnam to Hong Kong.  I attach a certified copy of the tax receipt for a charge I paid at the airport in Vietnam prior to my departure.

7. I transited for about 4 hours in Hong Kong and then continued on to Auckland.

8. I entered New Zealand at Auckland Airport on 11 February 2001.  I used the false passport in the name Tom Jones.  I arrived on Cathay Pacific flight CX107 at approximately 9.00pm.  I attach a certified copy of my boarding pass for travel from Hong Kong to Auckland.

9. After arriving in New Zealand I destroyed the false [country] passport.  I attach a certified copy of my genuine [country] birth certificate.  My genuine [country] passport is with the agent, Cilla, from whom I purchased the false passport.

10. I have asked my family to send my original [country] ID to me, however, this is likely to take some time.

11. I am a refugee claimant in New Zealand.  It is not safe for me to return to [country].
 

______________________________
Joe Bloggs

Dated:

                    If 'yes' to any of the above, please provide details:
 

                    Has any documentation or evidence been submitted relating to the person's identity?

                    Yes / No

                    If 'yes', please provide details: