THE DETENTION OF
REFUGEE CLAIMANTS:
LAW, PROCEDURE AND
PRACTICALITIES
Presenter: Deborah Manning, Associate, Ryken and Associates*
Auckland - 25 November 2002
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
APPENDICES
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
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
* The author would like to
thank Jeanne Donald for her assistance in preparing this paper.
THE DETENTION OF REFUGEE
CLAIMANTS:
LAW, PROCEDURE AND
PRACTICALITIES
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.This paper is concerned with detention pursuant to section 128 and the conditional release regime set out in sections 128AA to 128AD of the Act. Most refugee claimants who claim refugee status upon arrival at the border in New Zealand are subject to these provisions.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.
To summarise: a person presents herself to an immigration officer, who, if he refuses to grant a permit, may detain her for 48 hours pending removal. If removal within 48 hours is not possible, the immigration officer must apply to a Registrar of the District Court for a warrant of commitment for a period of up to 28 days. If removal cannot take place within the period of the warrant, the immigration officer may apply for a warrant of commitment for further periods of 7 days. At any point, an immigration officer may decide to grant a permit and release a person from detention (in our experience, detained refugee claimants are rarely granted permits), or may apply to the District Court for the person’s conditional release pursuant to sections 128AA to 128AD of the Act. |
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.
To summarise: either an immigration officer or the detainee may apply on oath to a District Court Judge for conditional release. The order must specify a date or event when it will expire, that the person attend an RSB interview or RSAA hearing, that the person reside at a specified address and report to the police at regular intervals. The conditions of the order may be varied by agreement between the NZIS and the person or by consent of the District Court Judge. An immigration officer may apply to the District Court to cancel the order. If the detainee is released and breaches any of the conditions, or fails to deliver herself up upon expiry of the order, she may be arrested and taken into custody. |
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:
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.
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.
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:
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:
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 Hostel4.4 The importance of full and frank disclosure of identity and travel details
17 James Laurie Street
Glendene
Tel. 09 8351470 or 09 835 1471House 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:
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.
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 mattersEssentially, there is no legal aid to challenge a decision made under the Immigration Act with the exception of proceedings before the Refugee Status Appeals Authority, the processing of a claim to refugee status and judicial review of the refugee determination process. Sections 7(1)(j), (k) and (l) of the Legal Services Act 2000 state:(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 mattersIn my view, it is clear that the decision to detain a refugee claimant under section 128 of the Act and the decision to conditionally release made under section 128AA are matters for which legal aid may not be granted. Specific reference is made to Part VIA of the Immigration Act 1987 in s 7(1)(k) of the Legal Services Act 2000. Decisions to detain are taken under Part VI of the Immigration Act and the conditional release regime is found under Part IVA of the Immigration Act.(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.
6. SEEKING YOUR CLIENT'S CONDITIONAL RELEASE - AN APPLICATION MADE BY THE NZIS
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.
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.
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.
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.
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. SEEKING YOUR CLIENT'S RELEASE - AN APPLICATION OPPOSED BY NZIS
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)).
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.
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.
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:
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(2) For the purposes of this section, a stowaway shall be deemed to arrive in New Zealand at the time when the craft on which the stowaway is travelling crosses into the territorial limits of New Zealand, and, subject to subsections (3), (13) and (14) of this section, this section shall apply to the stowaway while the stowaway remains within those limits.
(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 -(7) Where a person to whom this section applies is to be detained for more than 48 hours after the time of that person's detention by a member of the Police under subsection (5) of this section, an immigration officer or a member of the Police shall apply to the Registrar (or, in the Registrar's absence, the Deputy Registrar) of a District Court for a warrant of commitment in the prescribed form authorising the detention for a period not exceeding 28 days of that person in a penal institution or some other premises approved for the purpose by the Registrar (or Deputy Registrar), and the Registrar (or Deputy Registrar) shall issue such a warrant accordingly.(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(b) In any other case, in -
(ii) Any other premises agreed to by the parent or guardian of that person and an immigration officer; or(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(10) Every person detained in a penal institution pursuant to a warrant of commitment issued under subsection (7) of this section shall be treated for the purposes of the Penal Institutions Act 1954 as if that person were an inmate awaiting trial.
[(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); andwhichever first occurs.
(ii) subsections (2)(a) and (12) of section 128A), - ]]
(12) If, for any reason, the craft ceases to be available to take the person from New Zealand or is, or is likely to be, delayed in New Zealand for more than 24 hours, or if for any other reason the person is unable to leave New Zealand at the expected time, the person shall be returned to the custody from which the person was taken, and for that purpose the warrant of commitment shall be deemed still to be of full force and effect.
(a) Apply to a District Court Judge for an extension, or further extension, of the warrant; or(13A) An application for extension or further extension of a warrant under subsection (13)(a) must -
(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(13B) On an application for the extension or further extension of a warrant of commitment under subsection (13)(a), the Judge may, if satisfied that the person is still a person to whom this section applies, extend or further extend the warrant -
(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(14) The Superintendent of the prison or person in charge of the other premises in which a person is detained under a warrant of commitment must release the person from custody -
(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(14A) On the release of a person under subsection (14), -
(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[(15) A person who is detained under this section must not be granted bail, but may be released under section 128AA or section 128A.
(b) This section ceases to apply in respect of the person.]
New Zealand Statutes - Update
10 November 2002
Annotated to 2002 No.
31 - 8 October 2002
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(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).
(ii) is the subject 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(ii) for a further period not exceeding 7 days if the person detained under the warrant is not a member of such a group.
(B) all or most of whom are people to whom section 128 applies; and
(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(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.
(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):
(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
[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(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:
(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:
(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
[128AC Breach of condition or failure to deliver oneself up to immigration officer(a) after the person breaches a condition imposed under section 128AB:(2) If subsection (1) applies, the person is liable to be arrested by any member of the police, without warrant, and placed in custody.
(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:(4) If a person brought before a District Court Judge under subsection (3) has breached a condition imposed under paragraph (a) or paragraph (b) of section 128AB(1), the Judge must (as the case may be) issue a warrant of commitment or make an order that the person must again be taken into custody, unless the Judge is satisfied that the person had a reasonable excuse for breaching the condition.
(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; andStatus Compendium
(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
[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(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.]
(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):
New Zealand Statutes - Update
10 November 2002
Annotated to 2002 No.
31 - 8 October 2002
25 July 2002
REVISED INTERIM OPERATIONAL
INSTRUCTION IN RESPONSE TO THE
JUDGMENT OF BARAGWANATH
JJ IN THE CASE OF REFUGEE COUNCIL OF
NEW ZEALAND INC. &
ORS v ATTORNEY-GENERAL 27 JUNE 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 Refuge3. Reasons why detention may be necessary include where there is a real risk of offending or absconding or where the identity of the person is unknown and therefore the risks of offending or absconding cannot be ascertained at the time.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
RELEVANT CASE LAW
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:
IMMIGRATION OFFICERS FINAL ASSESSMENT
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:
C/N:__________________
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:
STATEMENT OF JOE BLOGGS
AS TO IDENTITY AND
TRAVEL TO NEW ZEALAND
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:
REFUGEE STATUS BRANCH
IDENTITY AND SECURITY UPDATE*
Full name of claimant: | |
Date / Place of Birth: | |
Client number: | |
Claim number: | |
Representative / Legal Firm | |
Representative's Telephone: | |
Update prepared by: | |
Date of update: |
IDENTITY
Are there any residual concerns about the claimant's: | |
|
Yes / No |
|
Yes / No |
|
Yes / No |
|
Yes / No |
|
Yes / No |
|
Yes / No |
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:
* Important Note: This form is to assist the Border and Investigations Branch with its processing of individual cases. The information provided on this form reflects the preliminary findings of the Refugee Status Officer in regard to security and identity issues, and does not constitute a final determination of the refugee status claim.
New Zealand Immigration
Service
Te Ratonga Manene
Auckland Border & Investigations
450 Queen Street
PO Box 5342
Wellesley Street
Auckland
New Zealand
Telephone 64-9-914 4140
Facsimile 64-9-914 4120
www.immigration.govt.nz
A service of the Department
of Labour
[deleted] October 2002
Ryken and Associates
PO Box 501
Auckland
Attention Jeanne Donald
Dear Ms Donald
Re:
Thank you for your letter dated [deleted] October 2002. I apologise for the delay in replying and I assure you no discourtesy was intended.
I have considered your request that [name deleted] be conditionally released from Mangere Accommodation Centre in your letter dated [deleted] October 2002. I am not prepared to release [name deleted] for the following reasons:
He claims to be [deleted] years and cannot remember his birth date, he states he single.
He arrived in New Zealand on [deleted] September 2002. He states he left [deleted] over [deleted] years ago and has been living in [deleted]. He was unable or unwilling to provide details of his journey to New Zealand.
Interpreter stated there is a doubt as to his claim to be [deleted].
He has no passport or other official documents to verify his identity.
He has stated an unwillingness to return to his home country.
If you require any further
assistance do not hesitate to contact the writer on telephone numbers
914 5735 or 0274 854 123.
"John D Pingram"
Service Leader
Border and Investigations
IN THE DISTRICT COURT
HELD AT MANUKAU
IN THE MATTER of a Conditional Release Application under Section 128AA(4) of the Immigration Act 1987
BETWEEN [Name of Applicant]
Applicant
AND NEW ZEALAND IMMIGRATION SERVICE
Respondent
CONDITIONAL RELEASE APPLICATION
CONDITIONAL RELEASE APPLICATION
TAKE NOTICE that on the day of 2002, at 10:00am or as soon thereafter as counsel may be heard [Client’s name] WILL MOVE the District Court at Manukau FOR AN ORDER pursuant to section 128AA(4) of the Immigration Act 1987 UPON THE GROUNDS:
1. The applicant is the subject of a warrant of commitment issued under s128(7).
2. The applicant is a refugee status claimant.
3. The applicant is not likely to abscond or to breach any condition imposed under subsection 128AB.
AND UPON THE FURTHER GROUNDS
appearing in the affidavit filed herein.
Dated this day of
2002
………………………………………………
Counsel for the Applicant
TO: The Registrar of the District Court at Manukau
AND TO: The Crown Solicitor
(Mark Woolford)
This application is filed by [name of solicitor] Solicitor for the Applicant whose address for service is at [firm’s name and address].
Documents for service on the above named Applicant may be left at that address or may be:
a) Posted to [address].
b) Left for [firm’s name] at a document exchange for direction to DX [DX number].
c) Transmitted to [firm’s
name] by facsimile to [fax number]
AFFIDAVIT OF [applicant’s name]
I, [applicant’s name], formerly of [applicant’s country of origin], resident at [name and address of place of detention], swear:
1. My name is
and I was born in on .
2. I arrived in New Zealand
on .
3. [marital status, place
of residence in home country, employment in home country].
4. [If appropriate introduce
and append certified copy of any ID documents].
5. I have never been
involved in any criminal or terrorist activities.
6. [If detained at Mangere
Camp specify that has taken day leave and returned to Camp].
7. [short summary of
basis of refugee claim – if appropriate append certified copy of statement
in support of refugee claim].
8. [reasons for seeking
conditional release – including any specific difficulties experienced by
applicant as a result of her detention].
9. I do not want to be
in detention. I request to be given conditional release so that I may
leave. I will abide by and follow any conditions made by the District
Court Judge.
SWORN at
)
on this
day of )
2002 at )
before me: ) ………………………………………
_________________________________
A Barrister & Solicitor
of the High Court of New Zealand – Justice of the Peace
LEGAL SERVICES AGENCY
Pokapu Ratonga Ture
Head Office
Level 10
BDS House
86-90 Lambton Quay
PO Box 5333
Wellington
DX SP22526
Tel: 04 495 5910
Fax: 04 495 5911
Website: www.lsa.govt.nz
19 November 2002
Ryken and Associates
PO Box 501
Auckland
Dear Ms
Refugee Steps
This letter sets out the Agency's approach to granting aid with regard to warrant of commitment and refugee matters for families. The Agency's Provider Manual will be updated in due course.
Warrant of Commitment
The Agency recognises that the courts generally require legal representation at warrant of commitment hearings. Providers' attendance at court involves travel, preparation and hearing time. The "steps" do not currently provide a guideline as to the appropriate maximum payment in such matters.
There appears to have been an increase in the number of persons detained under warrants, since the events of 11 September 2001. In view of these changes, it is appropriate that the Agency provide for the payment of legal representation at these hearings.
Client with Family
The legal aid steps are designed on the assumption that legal aid is granted to individuals, each with their own distinct legal cases. However, in refugee matters a status claim can often be based on the case of one person (hereafter the "principal applicant") within a family. The status claims of the other family members are often linked to that of the principal applicant. Providers are therefore normally assigned the principal applicant's file together with the files of all family members. As a consequence, the amount of time a provider spends on each applicant decreases; most of the time being spent on the principal applicant.
To ensure transparency, consistency and cost-effectiveness of the Agency's policy, guidelines as to how clients with family are to be granted aid are outlined below. These guidelines will only apply where it is clear that the principal applicant's status claim is linked to that of other family members. Where a family member has a separate unrelated basis of claim, the individual maximum GHRs should be applied to that individual in accordance with current practice.
Warrant of Commitment - Guideline
Grants Officers can grant a maximum of 1 hr @ GHR for Refugee Steps 1 & 2 per appearance in Warrant of Commitment matters under the Immigration Act 1987. However, providers must submit proof for each attendance.
Client with Family - Guidelines
Refugee Status Board Level
Step 1: Refugee Application - Investigate and make application
Principal Applicant
Maximum 8 hrs @ GHR
Principal Applicant's
spouse/partner Maximum 6 hrs @ GHR
Dependant 12 - 18 years
Maximum 3 hrs @ GHR
Dependant under 12 years
Maximum 2 hrs @ GHR
Step 2: Refugee Application - Interview
Principal Applicant
Maximum 8 hrs @ GHR
Principal Applicant's
spouse/partner Maximum 6 hrs @ GHR
Dependant 12 - 18 years
Maximum 3 hrs @ GHR
Dependant under 12 years
Maximum 2 hrs @ GHR
Refugee Status Appeal Authority (RSAA) Level
Where the same lawyer represents a client at RSAA level the same hours for steps 1 & 2 apply for steps 3 & 4 are as follows:
Refugee Statues Board Level
Step 3: Appeal when refugee application refused
Principal Applicant
Maximum 8 hrs @ GHR
Principal Applicant's
spouse/partner Maximum 6 hrs @ GHR
Dependant 12 - 18 years
Maximum 3 hrs @ GHR
Dependant under 12 years
Maximum 2 hrs @ GHR
Step 4: Attend Appeal
Principal Applicant
Maximum 8 hrs @ GHR
Principal Applicant's
spouse/partner Maximum 6 hrs @ GHR
Dependant 12 - 18 years
Maximum 3 hrs @ GHR
Dependant under 12 years
Maximum 2 hrs @ GHR
Where a new lawyer represents the client at RSAA level the following steps apply:
Step 3: Appeal when refugee application refused
Principal Applicant
Maximum 10 hrs @ GHR
Principal Applicant's
spouse/partner Maximum 8 hrs @ GHR
Dependant 12 - 18 years
Maximum 4 hrs @ GHR
Dependant under 12 years
Maximum 3 hrs @ GHR
Step 4: Attend Appeal
Principal Applicant
Maximum 10 hrs @ GHR
Principal Applicant's
spouse/partner Maximum 8 hrs @ GHR
Dependant 12 - 18 years
Maximum 4 hrs @ GHR
Dependant under 12 years
Maximum 3 hrs @ GHR
4.3 Removal Review Authority (RRA) and Deportation Review Tribunal
The Agency does not have a policy on RRA matters as it is precluded from granting legal aid for "any appeal to the Removal Review Authority under Part II of the Immigration Act 1987" (s7(4)(g), Legal Services Act 2000).
No such restriction applies to appeals to the Deportation Review Tribunal made under section 104 of the Immigration Act 1987. However, a deportation order can be for a number of reasons and is not a matter exclusive to persons who have been unsuccessful in establishing refugee status. As these matters concern issues of wider policy they require further investigation. At this stage, each application will be treated on a case-by-case basis.
Please note that the variations to current provisions are effective immediately and retrospectively for ongoing open cases. However, these changes will be monitored and should be considered provisional until they are confirmed with an update to the Agency's Provider Manual.
Yours sincerely
"Frances Blyth"
Manager Strategic Development
IN THE DISTRICT COURT
AT MANUKAU
IN THE MATTER
of an Application for further extension to the Warrant of Commitment under
Section 128(13B) of the Immigration
Act 1987
BETWEEN
PATRICK FRANCIS McALPINE of Auckland,
Immigration Officer
Applicant
AND
AKBAR MOUSAVI
Respondent
Hearing: 19
July 2002
Appearances:
The Crown, Mr Mount, counsel for the Applicant
Mr Moses, counsel for the Respondent
Judgment:
19 July 2002
NZ Immigration Service
v Mousavi Akbar DC MAN MA 238/02 [19 July 2002]
[1]
This is an application by the Crown to extend the current warrant for detention
for a further seven days upon the refugee status of the applicant, Mr Mousavi.
[2]
The application has been opposed with a counter application filed on behalf
of Mr Mousavi by his counsel, Mr Moses, asking for conditional release.
[3]
Upon the application for conditional release, both counsel and I have agreed
that the way to conduct this hearing is to hear first from the Crown, Mr
Simon Mount of the concerns as to why they oppose the application for conditional
release.
[4]
Mr Mount has filed with me in Court today a document which indicated the
grounds of concern and it is contained in a document headed "Review of Detention"
dated today and signed by the Immigration Officer.
[5]
The reasons are noted in that document from (a) to (g) and they are as follows:
(a) He claims to be single and a machinist.
(b) He arrived in New Zealand on 5 June 2002 having spent three months travelling through Malaysia and Indonesia - two months in Malaysia and then Indonesia - and he transited Australia.
(c) He has not provided any passport or other applied document to verify his identity;
(d) He has no declared contacts;
(e) He has expressed an unwillingness to return to Iran;
(f) His application for refugee status was declined on 11 July 2002 by the review RSB. He has lodged an appeal to the RSAA; and
(g) He has stated in a conversation that he has an Asian girlfriend living somewhere in Asia. He stated she had lots of money and a connection with drugs.
[6]
For the purposes of my decision, the only two grounds which are important
at this stage are the last two, (f) and (g). Sufficient it be that
I indicate the other grounds have largely been overtaken by events and satisfied
as of today.
[7]
Mr Moses on behalf of the applicant Mr Mousavi, did not challenge the ground
(f). To a large extent that is a matter of fact and it lies on that
basis.
[8]
The purpose of the hearing for today and the calling of viva voce evidence
is to assist me in deciding what weight be attached to ground (g). The
basis of that has been the subject of evidence from the guard who conducted
the conversation stated in that ground with the applicant, and he is adamant
that the conversation occurred, that it occurred in a mixture of broken
English and some body language, and that the conversation had mentioned an
Asian girlfriend living somewhere and more particularly, that the girlfriend
has money and a connection with drugs, and finally that the applicant indicated
to him that he also participate in drugs such as ecstasy, cannabis and peas.
[9]
In evidence the applicant spoke through an interpreter and gave evidence
that there was such conversation and that he spoke, at least in evidence
today, he indicated that he spoke nothing but Fardsi, but more particularly
that he never spoke English in that conversation to the guard.
[10]
Of some concern to me was that an earlier affidavit filed this morning,
the applicant indicated in para 4 of that affidavit as follows:- "The
security guard was talking with me about music, women and parties. We
were pointing at pictures in the magazines, and I tried to tell him in the
few words of English that I know, that I am in love with an Asian woman I
met when I was in Malaysia. I also tried to tell him I like disco music
and parties." The concern that I have is the conflict between his
evidence today under affirmation that he never used any words of English,
and the indication in the paragraph in the affidavit I have just read out
that he did not use English, albeit a few words.
[11]
My concern went to the extent that I felt it fair that I should have at
least pointed that out to him and although I have tried a couple of times,
the answer was not forthcoming. I asked another question indirectly
as to what word in Fardsi did he use for the word "Asian woman" and on the
stand, the applicant used English as the words that he spoke to the guard
against.
[12]
I say at the outset that this is only to ascertain to me the credibility
aspect as opposed to anything else.
[13]
I find therefore that the guard is more believable to me than the applicant.
Consequently I find that the conversation took place in the way the
guard had given evidence and reported, that the conversation was in a mixture
of body language, pointing and some English. Having found that I also therefore
believe the guard, that "music, women and parties" were mentioned and more
particularly that the girlfriend referred to had the connection with money
and drugs, and also fundamentally that there was an indication that the
applicant used drugs himself, namely ecstasy, cannabis and peas.
[14]
I now turn to consider the legal matters pertaining to resolving the applications
now before me. I am grateful to counsel who have indicated to me in
the recent judgment of Baragwanath, J, in the case of the Refugee Council
of New Zealand Inc and the Human Rights Foundation of Aotearoa New Zealand
v D and the Attorney-General. The decision is dated 27th of June
this year. Specifically in para 125, p 4, the Learned Justice had indicated
that:
"In matters of this nature there are three criteria, as it were, to determine, namely:
(i) To allow the Refugee Status Branch to be able to perform their functions;
(ii) To avoid real risk of criminal offending; and
(iii) To avoid real risk of absconding."
[15]
With regard to the first ground or criteria namely "To allow the Refugees
Status Branch to be able to perform their functions" I am mindful of the
status of the applicant at the present moment. On this basis I referred
to ground (f) in the document that I have indicated earlier, namely the "Review
of Detention". Ground (f) is: the application for refugee status
was declined on the 11th of July by the RSB and he has lodged an appeal
to the RSAA.
[16]
The significance of this is also contained in the application by the Immigration
Department in so far as the difficulties that the Department would have
in locating any applicant whose application for refugee status is eventually
resolved and declined. The difficulty is to try and find them in the
event of absconding. The significance that I find in this is that,
while there may not have been any reason for thinking of absconding, there
may well be now at the present time.
[17]
I consider under (i) that the RSB would be able to perform their functions
in the event of the appeal being declined as well, if the status of the
applicant is to remain as is.
[18]
Furthermore, in number (ii) to avoid the real risk of criminal offending,
the evidence has established to my satisfaction that the applicant either
has connection or he himself participates in drug-taking. I take the
point from counsel for Mr Mousavi that I must be satisfied of real risk.
I am so satisfied in that I do not need to refer to any prior offending
of that nature, sufficient it be that I have found that he does participate
in taking of drugs which is an offending in itself.
[19]
As to ground (iii) to avoid the real risk of absconding, such is the way
I have dealt with in the former ground (ii). All I need to find is
whether there is a risk. I have referred to the reasons in dealing
with ground number (i) because his status is now only of awaiting an appeal
against the declining of his refugee status, it is grounds for me to find
that there may be and will be a risk of him absconding at the present moment.
[20]
I further would need to note that his present status is that, although
he is detained he is still entitled to day passes. It is not a full
detention in the sense of his liberty. I am satisfied that the status
as indicated by Mr Mount will remain and will remain unaffected because
of the circumstances, and it is therefore my decision that that status
shall remain for the next seven days, until we hear from the Appeal Authority.
[21]
On that basis, I refuse the application for conditional release and I grant
the application for extension of warrant for a further seven days and I
do so now.
[22]
And the warrant is extended for a further seven days until the 26th of
July of this year.
[23]
It remains then for me to thank both counsel for the way in which they
have conducted this hearing. I am absolutely sure that when counsel
can find further grounds that might affect the ruling I have made today,
that the matter is free to be brought on as soon as possible.
[24]
Thank you very much.
________________________
A S EPATI
District Court Judge
IN THE DISTRICT COURT
AT MANUKAU
MA 244/02
BETWEEN
LESTER ISARA
Applicant
AND
NEW ZEALAND IMMIGRATION
SERVICE
Respondent
Hearing:
9 August 2002
Appearances:
Colin Lloyd Amery, counsel for applicant
Mr Mark Woolford, Meredith Connell,
Counsel for the Respondent
Judgment:
15 August 2002
DECISION
OF JUDGE A S EPATI
(ON APPLICATION FOR CONDITIONAL RELEASE UNDER SECTION 128AA OF THE IMMIGRATION
ACT 1987 AS AMENDED)
Solicitors:
Colin Lloyd Amery, 19 Bill Philip Place, Manurewa for applicant
Meredith Connell, Office of the Crown Solicitor, DX CP 24063 Auckland
for respondent
Lester Isara v New Zealand Immigration Service DC Man MA 244/02
[1] I heard this application on Friday, 9 August 2002. I reserved the decision so that Mr Amery, counsel for the applicant, can obtain for me copies of certain American cases he cited in the course of his oral submissions. I was informed yesterday by a telephone call from Mr Amery that he could not locate those decisions.
BACKGROUND FACTS
[2]
The following facts were put before me in the written submissions of Mr
Woolford. They were not contested by the Mr Amery.
[3]
The applicant Mr Isara left Macedonia (where he fears prosecution) for
Albania with his family on 21 December 2000. Although he has no citizenship
rights in Albania, Mr Isara is able to live there as an ethnic Albanian.
On 15 January 2001, he illegally entered Greece. After he was
settled and had obtained a Greek identity card, Mr Isara brought his family
from Albania to Greece to join him. He worked as a tiler. Mr Isara
and his family did not apply for asylum in Greece. Eighteen months
later, in mid 2002, Mr Isara paid a people smuggler in Athens US$8,000.00
to travel to New Zealand. With Mr Isara about to leave Greece, his
family returned to reside in Albania. On 7 June 2002, Mr Isara departed
from Greece and travelled to New Zealand via Dubai, Bangkok and Singapore
arriving in New Zealand on 10 June 2002.
[4]
Upon arrival in New Zealand Mr Isara presented a false Greek passport tot
New Zealand Customs Officials as part of an application for the Crown to
offer his three months visitors permit. He was then profiled by customs
and searched. Mr Isara was then referred to the New Zealand Immigration
Service. He was questioned with the assistance of a Greek interpreter
and it was not until he was speaking to the Greek Embassy that he admitted
the passport was false. He only made an application for refugee status
when the passport fraud was detected.
[5]
Mr Isara's application for refugee status has been declined by the refugee
status branch of the New Zealand Immigration Service and he now has the
right of appeal to the Refugee Status Appeals Authority. From the
financial year 1996 to 1997, the approval rate for appeals to the Refugee
Status Appeals Authority has averaged approximately 10% (paragraph [36]
Refugee Appeal No. 72688/01).
[6]
Country information indicates that the violent conflict which began following
Mr Isara's departure from Macedonia has abated and political solutions
are being sought. The United Nations High Commissioner for Refugees
has overseen the return and re-establishment of most displaced persons.
[7]
Mr Isara knows no-one in New Zealand. During his arrival interview,
he said he knew a friend of a friend but didn't know his name or address.
He therefore does not have anyone with whom he can stay although
it is accepted that the Auckland Refugee Counsel have offered him a place
at their hostel in Glendene. Mr Isara is currently detained at the
Mangere Accommodation Centre from which he is able to obtain leave if he
applies for it.
THE APPLICATION
[8]
The applicant applies for conditional release from the Mangere Accommodation
Centre pursuant to s 128AA Immigration Act 1987 (inserted by s 10 Immigration
Amendment Act 2002). Section 128AA provides:
"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 by conditionally released from custody.
(4) 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.
(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 ot 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 II applies to the person; and
(c) section 128 and this section cease to apply to the person."
[9] The application fundamentally argues that following
the decision of Baragwanath J in the case of Refugee Council of New Zealand
Inc & The Human Rights Foundation of Aotearoa New Zealand Incorporated
v "D" and The Attorney General (Interim Judgement dated 31 May 2002,
Revised Oral Judgement on Application to Stay dated 4 June 2002 and the Supplementary
Judgement dated 27 June 2002), this Court should allow conditional release
of the applicant under s 128AA of the Immigration Act 1987.
[10]
The application is opposed.
THE ARGUMENTS
[11] The Mr Amery's arguments in support in his oral
and written submissions can be summarised as follows:
(a) Paragraph [5] of Baragwanath J's Interim Decision of 31 May 2002 gave a clear pronouncement that "the balance of convenience supports bail as an interim measure."
(b) The burden of proof, if it falls on the applicant, is on the balance of probabilities.
(c) Because Mr Isara stated at the airport to the Immigration authorities that he was "unwilling to leave New Zealand if his claim was declined", and the fact that he has no friends here, he would be unlikely to "abscond".
(d) The use of a false passport to enter New Zealand is a well-known modus operandi for all refugee claimants.
(e) Article 31.2 of the 1951 UN Refugee Convention allows only "such restrictions to the movements of refugees as are necessary".
Furthermore, Thomas J in the case of Attorney-General v F 200 3 NZLR, p 269 quoted from the UNHCR Executive Committee's opinion in 1986 on Article 2 to the effect that "alternative non-custodial measures such as reporting should always be considered before resorting to detention."
[12]
Mr Woolford submitted in opposition:
(a) The Refugee Council case did not discuss s 128AA directly.
(b) Article 31.2 of the Refugee Convention constrains the discretionary powers of detention of refugees to situations where it is "necessary".
(i) To allow the Refugee Status branch to be able to perform their functions;
(ii) To avoid real risk of criminal offending;
(iii) To avoid real risk of absconding.
(c) However, Article 31.2 does not apply to Mr Isara because he did not come "directly ... from a territory where [his] life or freedom was threatened" as required by the Article 31.1.
(d) In any event, there is a real risk of Mr Isara absconding because:
(i) He only made a refugee status claim when the passport fraud was detected.
(ii) He is unwilling to leave New Zealand in the event his refugee status claim is declined.
(iii) Mr Isara's application for refugee status has been declined and is unlikely to succeed on appeal.
(iv) Present indications are that the danger in Macedonia has abated and Mr Isara can now return there.
(v) Mr Isara knows no one in New Zealand where he can stay.
THE LAW
[13]
In the Refugee Council of New Zealand Inc. v "D", Baragwanath J gave
three judgments. Interim judgment was given on 31 May 2002. Revised
oral judgment on application for stay was given on 4 June 2002. Finally
a supplementary judgment was given on 27 June 2002. All three judgments
do not discuss s 128AA. Only the Supplementary Judgement mentions s
128AA. At paragraph [138] of the supplementary judgment, Baragwanath
J states:-
"[138] On 17 June 2002 the Governor General gave the Royal Assent to the Immigration Act 2002, the material parts of which came into force the next day. Section 9 amending s 128 and s 10 inserting new sections 128AA to 128D are attached as appendix 7. Since all counsel agreed that they do not affect the three main issues requiring determination I say little more about them than that they now provide for conditional release from detention of a person detained under section 128."
[14]
In his judgment, however, Baragwanath J found that the Crowns discretionary
powers of detention of refugees was contained by Article 31.2 of the Refugee
Convention. In page 4 of the Supplementary Judgement paragraph [125]
states:-
"[125] Thirdly, I am persuaded by the argument proposed by Ms Manning and adopted by Mr Harrison QC that paragraph [30] of the interim judgment, expressing a necessity test by which the Crowns discretionary powers of detention of refugees are to be constrained, requires expansion. I remain of the view that 'necessary' in Article 31.2 means the minimum required, on the facts as they appear to the immigration officer:-
(1) to allow the Refugee Status Branch to be able to perform their functions
(2) to avoid real risk of criminal offending
(3) to avoid real risk of absconding"
[15]
Article 31 provides:-
"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 regularized or they obtain admission to another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country."
[16]
Section 128AA does not specify any criteria to be applied by a District Court
Judge in assessing such an application. Guidance however can be obtained
from the provisions of s 128A which also provides for release from detention
under s 128 of the Immigration Act 1987 in the event of review proceedings
being brought in respect of the detention of any decision made under s128.
Section 128A provides:
"[128A Procedure under section 128 if review proceedings, etc, brought-
(1) For the purposes of this section, the term "review proceedings" includes any proceedings on an application for a writ of habeas corpus.
(2) If review proceedings are brought by a person detained under section 128 of this Act in respect of that detention or any decision made under that section,-
[[(a) The period for which detention is authorised under the warrant (as extended or further extended under section 128(13B), where appropriate) is to be reckoned exclusive of-
(i) Any period during which the review proceedings are in existence (which period includes both the date of commencement and the date of completion of the proceedings); and
(ii) Any period for which the person, having failed to deliver himself or herself up in accordance with subsection (5) of this section, is at large following the completion of the review proceedings; and]]
(b) [[Where the person is neither delivered up to a member of the Police under section 128(11) nor released under section 128(13)(a) before the expiry of the period for which detention is authorised by the warrant of commitment (as extended or further extended under section 128(13B), where appropriate),-]]
(i) The person shall be brought before a District Court Judge by an immigration officer or a member of the Police, and the Judge shall consider the question of that person's continued custody under the warrant and
(ii) Thereafter, while the person remains in custody, the person shall be brought before a District Court Judge at intervals of not more than 7 days for further consideration of that question.
(3) Where the person is brought before a District Court Judge under subsection (2)(b) of this section, the Judge shall, subject to subsection (4) of this section, extend the warrant of commitment for-
(a) A period of 7 days; or
[[(b) Where the final duration of the review proceedings is known, such shorter period as will ensure that the person is not detained under the warrant for a period which exceeds in total the sum of-
(i) 28 days; and
(ii) Any further number of days for which the warrant was extended or further extended under section 128(13B); and
(iii) The period of duration of the review proceedings.]]
(4) Notwithstanding subsection (3) of this section, the District Court Judge may, if-
(a) The review proceedings have not been completed at the time the person is brought before the Judge; and
(b) The Judge is satisfied that the review proceedings are not likely to be completed within the next 7 days; and
(c) The person detained under the warrant satisfies the Judge that he or she is not likely to abscond, or to breach any condition imposed under subsection (6) of this section,-
order the release of the person upon the conditions specified in subsection (6) of this section,-
(5) Any such order for release shall expire on the date on which the review proceedings are completed, and the person shall on that date deliver himself or herself up to an immigration officer at such location as is specified for that purpose in the order, whereupon, depending on the result of the review proceedings, either-
(a) The person shall again be taken into custody and may be retained in custody under section 128(5) of this Act pending the person's departure from New Zealand on the first available craft; or
(b) The person shall be released.
(6) Any order for release made under subsection (4) of this section shall be subject ot the following terms and conditions:
(a) The person shall reside at such address as is specified in the order, or such other address as may be agreed between an immigration officer and the person under subsection (7) of this section:
(b) The person shall report daily to an office of the Department of Labour or a Police station at such time and in such manner as the Judge may specify, or at such other intervals or times or in such other manner as may be agreed between an immigration officer and the person under subsection (7) of this section:
(c) The person shall comply with such other conditions as the Judge thinks fit to impose.
(7) Any condition imposed-
(a) By paragraph (a) or paragraph (b) of subsection (6) of this section; or
(b) By the Judge under paragraph (c) of that subsection, if the Judge authorises the variation of any such condition by consent between an immigration officer and the person released,-
may be varied by consent between an immigration officer and the person released, and the condition shall take effect as so varied.
(8) Any conditions imposed on a person released under subsection (4) of this section shall be notified in writing to the person upon the person's release and shall take effect immediately.
(9) Any variation of a condition pursuant ot subsection (7) of this section shall take effect when the variation is agreed between the immigration officer and the person, and shall be reduced to writing and notified to the person as soon as practicable thereafter.
(10) A breach of any condition imposed or varied under this section nullifies the order for release, and thereafter-
(a) The person is liable to be arrested by any member of the Police without warrant and placed in custody; and
(b) Where the person is so arrested and placed in custody the person shall as soon as possible be brought again before a District Court Judge under subsection (2)(b) of this section; and
(c) Where the condition breached was a condition imposed by or under paragraph (a) or paragraph (b) of subsection (6) of this section, subsection (4) or this section shall no longer apply to allow the release of the person unless the District Court Judge is satisfied that the person had a reasonable excuse for breaching the condition.
[[(10A) If a person fails to deliver himself up in accordance with subsection (5) on the date of completion of the review proceedings,-
(a) The person is liable to be arrested by any member of the Police without warrant and placed in custody; and
(b) If so arrested and placed in custody, the person must as soon as possible be brought again before a District Court Judge under subsection (2)(b) so that the Judge may determine whether the person should be detained pursuant to the warrant issued under section 128, or released.]]
(11) Where a person is released under subsection (4) of this section, and whether or not the person complies with the conditions of the release or absconds during the currency of the order for release or fails to deliver himself or herself up on the expiry of the order,-
(a) The person shall be deemed for the purposes of the provisions of this Act still to be a person to whom section 128 of this Act applies, and to be detained under that section; and
(b) Nothing in Part II of this Act shall apply in respect of the person.
(12) Where a person released under subsection (4) of this section fails to deliver himself or herself up to an immigration officer on the expiry of the order for release, [[the period for which detention is authorised by the warrant of commitment issued under section 128(7) (as extended or further extended under section 128(13B), where appropriate)]] shall be reckoned exclusive of-
(a) Any period referred to in subsection (2)(a) of this section during which review proceedings are in existence; and
(b) Any period commencing on the date of expiry of the order for release and ending on the date on which the person is again taken into custody under this Act."
[17]
Subsection (4) imposes a burden on the person detained under the warrant
to satisfy a District Court Judge that he or she is not likely to abscond
or to breach any condition imposed under subsection (6).
RESOLUTION OF THE ISSUES
[18]
I satisfied that the onus of proof is on the applicant in this application.
The standard is on the balance of probabilities.
[19]
I am not satisfied that the applicant comes within the ambit of Article 31.2
of the Refugee Convention. As the applicant did not come "directly
from a territory where [his] life or freedom was threatened", Article 31 does
not apply. He spent one month in Albania where he was able to live.
He then settled with his family in Greece (where he obtained a Greek
identity card) for 18 months before he entered New Zealand. Furthermore,
Article 31.1 required the applicant to "present themselves without delay
to the authorities and show good cause for their illegal entry or presence."
The applicant only made a refugee claim after the passport fraud was
discovered.
[20]
Even assuming that Article 31 applies, I am not satisfied that there is no
real risk of the applicant absconding. The applicant's claim for refugee
status has been declined and minimal chances of success on appeal. The
decision of the Refugee Status Branch dated 2 August 2002 declining the
application records that Mr Isara does not have a well-founded fear of persecution
in Macedonia and that, in any event, the insurgencies he reported have abated
to the extent that he can return. Given the applicant's stated intention
not to leave New Zealand he is now likely to abscond to avoid being returned.
[21]
In the circumstances I am also satisfied it is necessary for the authorities
to keep the applicant where he is to enable them to process him for his likely
return.
CONCLUSION
[22]
For the reasons above, the application for Release on Conditions under s
128AA is declined.
[23]
I conclude by thanking both counsels for their detailed submissions.
______________________________
JUDGE A S EPATI
DISTRICT COURT JUDGE