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Court of Appeal Cases
Paternostro v Chief
Executive of Department of Labour
Court of Appeal,
Wellington CA76/2011;
[2011] NZCA 26
17 February 2011; 24 February 2011
Stevens, Potter and Miller
JJ
Habeas corpus -
detention - warrant of commitment issued for 14 days but incorrectly
specifying 28 days - whether detention unlawful - relevant
date for considering lawfulness of warrant - correct defendant - Habeas
Corpus Act, s 8 - Immigration Act 2009, ss 316, 317 and 443
The appellant, an
overstayer, was served with a removal order on 8 October 2010 and taken
into police custody under s 59 of the Immigration Act 1987. He failed
to challenge the removal order in the Immigration and Protection
Tribunal but did apply promptly for recognition as a refugee, meaning
that he could not be deported while his refugee claim was being
processed.
He was brought before a
District Court Judge who first issued a warrant of commitment under s
60 of the 1987 Act on 11 October 2010. Nine further extensions of the
warrant followed, the most recent of which occurred on 9
February 2011. Section 60 of the 1987 Act stipulated that warrants of
commitment might be extended for up to three months unless s 60(6)
applied in which case the warrant might be extended repeatedly for up
to 30 days at a time. The corresponding provisions in the
Immigration Act 2009 came into force on 29 October 2010. The effect of
the
provisions was that absent exceptional circumstances the District Court
could not release the appellant on conditions while his belated refugee
status claim was being determined.
The most recent warrant
of commitment was issued by a District Court Judge on 9 February 2011.
While the Judge actually directed that that warrant be issued for 14
days, an oversight led to the warrant specifying 28 days.
Challenging the
legality of his detention, the appellant made application to the High
Court for a writ of habeas corpus. The defendant to those proceedings
was cited as the Chief Executive of the Department of Labour. In the
High Court that defendant was struck out and in place the Chief
Executive of the Department of Corrections was substituted.
Held:
1
Habeas corpus applications are concerned with the lawfulness of
detention and the Court will enquire into decisions upstream of a
lawful detention order only where the issues are properly susceptible
to fair and sensible summary determination (see para [8]).
Manuel v
Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161
(CA) applied.
2 The
relevant date to consider the lawfulness of a warrant of commitment is
the date of the hearing. As the appellant was currently held under a
lawful warrant of commitment habeas corpus was correctly refused in the
High Court (see paras [6] and [14]).
Misiuk v The Chief
Executive of Department of Corrections [2010] NZCA 480; [2011] 2
NZLR 114 and Misiuk v Chief
Executive, Department of
Corrections
[2010] NZSC 140; [2011] 2 NZLR 114 applied.
3 It would
be a different matter if the warrant were not further renewed within
the 14 day period specified by the District Court Judge (see para [6]).
4 Section 8
of the Habeas Corpus Act 2001 contemplates that the Chief Executive of
the Department of Labour may be cited as a defendant whether the
plaintiff is held pursuant to police or immigration officer powers or
under a warrant of commitment. While the Chief Executive need not have
been struck out, nothing turned on the point. The appellant was
actually
in the custody of the Chief Executive of the Corrections Department,
who was properly named as a defendant for that reason. A writ directed
to the Chief Executive of the Corrections Department would secure the
appellant's release if there existed proper grounds to do so. That
being so, the presence of the Chief Executive of the Department of
Labour was unnecessary (see para [13]).
Appeal dismissed
Other cases
mentioned
in the judgment
Paternostro v Chief Executive of the
Department of Corrections (High Court Auckland,
CIV-2011-404-248, 26
January 2011, Asher J)
Counsel
Appellant in person
A R Longdill for
the respondent
Judgment of the Court:
The appeal is
dismissed.
REASONS OF THE COURT
(Given
by Miller J)
Introduction
[1] This appeal is brought against
the High Court’s refusal to issue the writ of habeas corpus. The
appellant’s application came before Asher J in January 2011 when it was
considered on an urgent basis.1 The appeal challenges
the correctness
of the refusal to issue the writ.
Factual background
[2] Mr Paternostro is an
overstayer. His immigration status having been confirmed after he came
to police attention on other matters, he was served with a removal
order on 8 October 2010 and taken into police custody under s 59 of the
Immigration Act 1987. He failed to challenge the removal order in the
Immigration Protection Tribunal, and is now out of time to do so.
However, after service of the removal order he did apply promptly for
refugee status, meaning that he could not be deported while his claim
was processed.
[3] He was brought before a
District Court Judge, who first issued a warrant of commitment under s
60 of the Immigration Act 1987 (the 1987 Act) on 11 October 2010. There
have been nine further extensions of the warrant of commitment, the
most recent of which occurred on 9 February 2011.
[4] Section 60 of the 1987 Act
authorises detention and, where it seems likely that detention may need
to be extended a number of times, release on residence and reporting
conditions. Warrants of commitment might be extended for up to three
months, unless s 60(6) applied. It relevantly provides that:
(6) Unless the Judge considers that there are exceptional
circumstances that justify the person's release, a Judge may not order
the release of a person under subsection (5) if—
(a) the person is currently a refugee status claimant who
claimed refugee status only after the removal order was served ...
In such a case, the
warrant might be extended repeatedly for up to 30 days at a time.2
[5] There are corresponding
provisions in the Immigration Act 2009,
which came into force on 29 November 2010 and pursuant to which Mr
Paternostro is now detained.3 The effect of these
provisions is that
absent exceptional circumstances the District Court may not release Mr
Paternostro on conditions while his belated refugee status claim is
determined.
[6] The most recent warrant of
commitment was issued by Judge Johns on
9 February 2011. That the Judge issued a warrant is not in doubt, but
the document contains an irregularity in that the Judge actually
directed that it be issued for 14 days. Through an oversight, the
warrant specified 28 days. We are not persuaded that the error points
to any present unlawfulness in Mr Paternostro’s detention, although it
would be a different matter if the warrant were not further renewed
within the 14 day period specified by the Judge. We are assured by
counsel for the respondent that an application for further extension
will be made within that time.
[7] On 30 November 2010,
following his detention, Mr Paternostro
married his long-term partner, a New Zealand citizen. There are two
children of their relationship, and he has adopted a third child of his
wife’s. The marriage was the focus of his argument before Asher J in
the High Court.
The High Court decision
[8] The Judge correctly
held that habeas corpus applications are
concerned with the lawfulness of detention, and the Court will inquire
into decisions upstream of a lawful detention order only where the
issues are properly susceptible to fair and sensible summary
determination.4
[9] Dealing with the marriage,
the Judge held:5
His recent marriage cannot be seen as in any way casting
doubt on the
lawfulness of the Court order and the lawfulness of the detention based
on that order. The fact that his children are New Zealand citizens does
not affect the lawfulness of the warrant or his detention that follows.
These factors do not constitute any basis for the issue of a writ of
habeas corpus. Mr Paternostro refers to the fact that he has no
criminal record in New Zealand. But his deportation is not based on any
alleged criminal record.
We respectfully agree.
[10] Further, the Judge
concluded that Mr Paternostro’s detention was
based on a duly signed warrant that he was satisfied was lawful.6
Accordingly the Judge concluded that no writ of habeas corpus should
issue.
Procedural Point
[11] Mr Paternostro
brought his application against the Chief Executive
of the Department of Labour, which Department includes the Immigration
Service. Asher J effectively struck out the Chief Executive and
substituted the Chief Executive of the Department of Corrections, Crown
counsel having advised him that the latter was the correct defendant.
Mr Paternostro complains about that, saying that his grievance is with
the Department of Labour and that the Chief Executive of that
Department is the correct defendant under the Habeas Corpus Act 2001.
[12] Section 8 of the Habeas
Corpus Act does provide that a defendant
may be described only by reference to office where the defendant is the
Chief Executive of the Department of Labour, if the person is detained
in police custody under powers conferred by the Immigration Act 1987 or
is detained in custody under powers conferred by the Immigration Act
2009. As noted, he is now detained under the latter Act. That being so,
s 8 of the Habeas Corpus Act contemplates that the Chief Executive may
be cited as a defendant whether the plaintiff is held pursuant to
police or immigration officer powers or under a warrant of commitment.
[13] We accept that the Chief
Executive need not have been struck out.
However, nothing turns on the point. Mr Paternostro is actually in the
custody of the Chief Executive of the Corrections Department, who is
properly named as a defendant for that reason.7 A writ
directed to the
Chief Executive of the Corrections Department would secure his release
if there existed proper grounds to do so. That being so, the presence
of the Chief Executive of the Department of Labour was unnecessary.
Evaluation
[14] The appellant is
currently held under a lawful warrant of
commitment that is due to expire on 23 February 2011. It seems likely
that that it will be renewed on or before that date. This Court has
recently confirmed that the relevant date to consider the lawfulness of
a warrant of commitment is the date of the hearing.8
We are satisfied
that habeas corpus was correctly refused in the High Court.
Result
[15] The appeal is dismissed.
Solicitors for the
respondent:
Crown Law Office (Wellington)
1 Paternostro
v Chief Executive of the
Department of Corrections HC Auckland CIV-2011-404-248, 26
January 2011.
2 Immigration Act 1987, s 60(6A).
3 Immigration
Act 2009, ss 443, 316, 317.
4 Manuel
v
Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161
(CA).
5 At [10].
6 At [13].
7 Corrections
Act 2004, s 38(1).
8 Misiuk v The Chief
Executive of Department of Corrections [2010] NZCA 480. Note:
The
Supreme Court confirmed this in their judgment declining leave to
appeal: Misiuk v The Chief Executive
of the Department of Corrections
[2010] NZSC 140.