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A v New Zealand Police

High Court Auckland R90/02
26 July 2002
Baragwanath J (oral judgment)

Article 31 - necessary - meaning of necessary

Application of Refugee Convention prior to determination of Refugee Status - illegal entry to New Zealand - use of false passport - Article 31

Detention - access to bail - detention on passport charges under the Crimes Act 1961, s 229A - detention for period in excess of likely penalty

Offences - bail - detention on passport charges under the Crimes Act 1961, s 229A - detention for period in excess of likely penalty

The appellant, a citizen of the People's Republic of China, arrived in New Zealand on 19 April 2002.  At the airport, in support of an application for a visitor's permit, she produced a Portuguese passport in a name other than her own.  She was granted the permit and was in New Zealand for nine days.  On 28 April 2002 she presented herself, the passport and an airline ticket at a check-in counter at the airport, purporting to be the person named in the passport and ticketing in order to obtain a boarding pass on a flight to Los Angeles.  At the Customs departure hall she presented the passport and boarding pass to Customs officials and was stopped as she moved towards the Aviation Security line.  The Portuguese Embassy had in the meantime determined that the passport had had a false photograph and person details substituted for the original so as to be fraudulent.  The appellant was uncooperative and asserted that she was the person named in the passport.  Subsequently, however, she made a claim for refugee status, claiming to be a member of Falun Gong.  Her account was that she left China illegally as a stowaway in the company of an "agent" or people-smuggler who provided her with the ticket and the forged passport in exchange for money raised by her family.  She did not announce herself as a refugee promptly on arrival in New Zealand because she was using that country as a staging post en route to her ultimate intended destination, the United States of America, where she would have made such a declaration.

The appellant was arrested and prosecuted under the Crimes Act 1961, s 229A(b), the essence of the charge being that with intend to defraud she used a document, namely the Portuguese passport, for the purpose of obtaining a benefit both on 19 and on 28 April 2002 and on the latter date also using a false airline ticket.  Following her arrest the appellant was detained in Mt Eden Prison where she remained on remand following her appearance in the District Court at Manukau on the charges under the Crimes Act 1961.

On 25 June 2002 an application for bail was declined by the District Court at Manukau.  The appellant appealed to the High Court under the Bail Act 2000.

In the High Court counsel were agreed that if the appellant's conduct was to be classified as that of a fraudster the appropriate penalty may well be no more than the three months term of imprisonment already served by her on remand.  If, on the other hand, the appellant were to be accepted as a refugee, there would be powerful grounds for the Crown to consider whether the criminal charges should be pursued.

Held:

1    Were the appellant to be viewed simply in terms of criminal offending her term of imprisonment should conceivably now terminate.  It  might indeed be said that the continued detention is a result not of her criminal conduct but of her election to claim refugee status.  In that event, if there were no issue as to the appellant's immigration status it would be the duty of the Court simply to set aside her detention.  But it was apparent that the appellant's position should now be considered not only under the Bail Act 2000 but also in terms of the Immigration Act 1987, recently amended to deal more specifically with the question of detention of refugee status claimants (see para 18).

2    If the appellant ought to be detained under the Immigration Act 1987, as a refugee status claimant she was entitled to rely on the necessity test of Article 31(2) of the Refugee Convention (see para 21).

3    While the appellant did not present herself without delay to the New Zealand authorities, if it was in truth her intention to present herself without delay to the United States authorities, it would be in keeping with the policy of Article 31 to give the appellant the benefit of the necessity test (see para 23).

Refugee Council of New Zealand Inc. v Attorney-General (No. 1) [2002] NZAR 717 and Refugee Council of New Zealand Inc. v Attorney-General (No. 2) [2002] NZAR 769 referred to.

4    Given the sophisticated nature of the false documentation, the risk of absconding relied upon by the Crown and the matters discussed in Refugee Council of New Zealand Inc. v Attorney-General (No. 2) [2002] NZAR 769 at [124] on the premise that the criminal charges are still live; and alternatively that there are good grounds for detention of the appellant  under the Immigration Act 1987, the appropriate interim exercise of discretion was the release of the appellant from Mt Eden prison on terms that she reside at the Mangere Detention Centre pending further evidence as to her identity and other relevant factors and determination of her refugee status claim.  It would be necessary for enquiries to be made whether that course is practicable and if so what precise conditions of bail should be imposed.  The convenient course would be to invite counsel to seek agreement with the Mangere authorities and with each other upon these matters which would allow the Court to make a consent order or to resolve any remand issues at short notice (see para 24).

5    The real possibility that the appellant had already completed serving whatever sentence might have been appropriate in the event of conviction would mean that there could be no continuing justification for any form of inhibition of her freedom for the purpose of her prosecution under the Crimes Act 1961 (see para 26).

Observations:

1    Whether it was appropriate for the appellant to be detained pursuant to the Immigration Act 1987 was a very different matter.  While the point was not mentioned in argument on behalf of the appellant whose counsel had been briefed belatedly, it seemed likely that s 128(3) of the Immigration Act 1987 may prevent use of s 128 as a basis for her detention.  The point warranted careful consideration on her behalf (see para 27).

2    Similar consideration was warranted both on behalf of the appellant and also on behalf of the Crown in both its capacities - as responsible for administering both the criminal law and the immigration legislation, of the question whether an application for discharge of the criminal charges was warranted: in Uxbridge the ground on which judicial review was ordered was that these matters had not been considered as a whole (see para 28).

R v Uxbridge Magistrates' Court Ex parte Adimi [2001] QB 667 referred to.

Application for bail granted.

Other cases mentioned in judgment

Refugee Appeal No. 72668/01 [2002] NZAR 649

Counsel
J Cheng for the appellant
K Raftery for the respondent

BARAGWANATH J

The potentially competing jurisdictions: the criminal law and the Refugee Convention

[1] On the appellant's case this bail appeal presents the issue which I discussed in Refugee Council of New Zealand Inc. v Attorney-General HC Auckland 31 May 2002 paragraph [39] [Ed see now Refugee Council of New Zealand Inc. v Attorney-General (No. 1) [2002] NZAR 717], citing Simon Brown LJ in R v Uxbridge Magistrates' Court Ex p Adimi [2001] QB 667:

The problems facing refugees in their quest for asylum need little emphasis.  Prominent amongst them is the difficulty of gaining access to a friendly shore.  Escapes from persecution have long been characterised by subterfuge and false papers.  As was stated in a memorandum from the Secretary-General of the United Nations in 1950:
"A refugee whose departure from his country of origin is usually a flight, is rarely in a position to comply with the requirements for legal entry (possession of national passport and visa) into the country of refuge."
Thus it was that article 31.1 found its way into the Convention and Protocol relating to the Status of Refugees (1951) and (1967) ("the Convention")

...

The need for article 31 has not diminished.  Quite the contrary.  Although under the Convention subscribing states must give sanctuary to any refugee who seeks asylum (subject only to removal to a safe third country), they are by no means bound to facilitate his arrival.  Rather they strive increasingly to prevent it.  The combined effect of visa requirements and carrier's liability has made it well nigh impossible for refugees to travel to countries of refuge without false documents.  Just when, in these circumstances, will article 31 protect them?  The precise ambit of the impunity lies at the heart of these challenges.  Each of these three applicants has fled from persecution in his home country.  Each has been prosecuted for travelling to, or attempting to travel from, the United Kingdom on false papers.  Each now claims to have been wrongly denied the protection conferred by article 31.
Having cited Lord Lloyd's dictum in Adan v Home Secretary Simon Brown LJ continued:
What, then, was the broad purpose sought to be achieved by article 31?  Self-evidently it was to provide immunity for genuine refugees whose quest for asylum reasonably involved them in breaching the law.
...
That article 31 extends not merely to those ultimately accorded refugee status but also to those claiming asylum in good faith (presumptive refugees) is not in doubt.  Nor is it disputed that article 31’s protection can apply equally to those using false documents as to those (characteristically the refugees of earlier times) who enter a country clandestinely.
[40] Simon Brown LJ further observed:
…The almost inevitable outcome of any asylum claim will be either (a) the grant of refugee status (or, if there are compelling reasons other than fear of Convention persecution for not removing the applicant, exceptional leave to remain), or (b) a rejection of the claim, whether substantively or by a refusal to entertain it on safe third country grounds… followed routinely by removal.  If sanctuary is to be granted, it seems somewhat unwelcoming first to imprison the refugee.  If, however, it is to be refused, is it not best simply to remove them without delay…
[41] In that case the Court of Appeal allowed applications for judicial review of decisions to prosecute such persons for breach of the criminal law for possessing and using false documents, refraining from granting express relief but inviting the Home Secretary to initiate appropriate Government action to deal with the problem.
The facts

[2] The appellant is 21 years of age and a national of China.  On 19 April 2002 she arrived at the Auckland International Airport upon a flight from Bangkok.  She presented herself to the customs passport control and made an application to obtain a visitors permit pursuant ot Part II of the Immigration Act 1987.  In support of her application she produced a Portuguese passport in a name other than her own, claiming to be a Portuguese national.  She was granted the permit and was in New Zealand for nine days.

[3] On 28 April 2002 she presented herself, her passport and an airline ticket at a check-in counter at the airport, purporting to be the person named in the passport and ticketing in order to obtain a boarding pass on a flight to Los Angeles.  At the customs departure hall she presented her passport and boarding pass to customs officials and was stopped as she moved towards the aviation security line.  The Portuguese Embassy had in the meantime determined that the passport had had a false photograph and person details substituted for the original so as to be fraudulent.  The appellant was uncooperative and asserted that she was the person named in the passport.  Subsequently however, no doubt recognising that her account was not accepted, she made a claim for refugee status.

[4] Notwithstanding her claim for refugee status, her three alleged breaches of s 229A(b) of the Crimes Act 1981 - with intent to defraud using a document namely a Portuguese passport for the purpose of obtaining a benefit both on 19 and on 28 April 2002 and on the latter date using a false ticket - resulted in her being arrested and detailed in Mt Eden Prison where she has been held on remand ever since.  Her claim to refugee status is being processed by the New Zealand Immigration Service, a process which is likely to take a further period of several months.

The application to the District Court for bail

[5] On 25 June 2002 an application to the District Court at Manukau for bail was declined.  The Judge gave the following reasons:

[2] Of course sadly, dealing as one does in this Court with so many people who come through the airport and deal with passports in this way, the risk of them disappearing into the community is, in my view, high.  Whilst there are no particular special factors in respect of this defendant which perhaps would indicate that, there have been a number of people who have of course when granted bail, disappeared into the community, and my view is that there ought not to be bail, that there is still a flight risk which is high, and also the risk of how this person would support herself without resorting to crime, in my view, is also high, and therefore I decline bail.
[6] The grounds on which bail is opposed, which were renewed before me, were expressed as follows:
The DEFENDANT has been charged with 3 counts of Using a Document pursuant to the Crimes Act 1961 Section 229A(b).  This carries a term of seven years on each charge.

She is a Chinese national with no form of identification other than a Portuguese Passport which has been photo and name substituted fraudulently.

The Portuguese Embassy confirm that the passport is fraudulent.

The substitution of the photo showing the DEFENDANT is of a high quality and would have cost the DEFENDANT in the vicinity of $20,000-00.

The Quality of the forgery allowed the DEFENDANT to pass by Customs upon her entry in New Zealand and she was granted a New Zealand visitors visa.

The DEFENDANT's true identity has yet to be established and she is believed to be an extreme flight risk failing to appear in court if released.

She has no fixed abode and would not reveal any relatives or associates in New Zealand who could vouch for her identity.

If she is released Police believe (from numerous previous experiences with fraudulent passports), that she will obtain false documentation and leave this country by similar means.  It is likely that the DEFENDANT has access to forged documentation or associates who (sic) could supply these items.  She has no reason to appear in court and apprehending her would be near impossible.

The DEFENDANT originated her journey from China through Bangkok to New Zealand, attempting to gain illegal entry to the United States of America.  Her motives for doing this are unknown.  Her original reasons for going to America for a holiday are unlikely due to the cost of obtaining the passport.

Through an interpreter she has admitted only that the passport is not hers and the identification card is false.

The initial point: a refugee or a criminal?

[7] The case presents a practical example of the problems which were discussed in general terms in the Refugee Council case.

[8] As the appeal was opened, the first point was the dilemma encountered by the authorities.  If the appellant is in truth a refugee she is entitled under the 1951 Convention, now substantially incorporated in New Zealand statute law by Part VIA of the Immigration Act, to recognition as such.  If on the other hand she is a fraudster her proper classification and treatment is that of a criminal.  The question was how she is now to be treated.

[9] There is often a conflict of competing interests that must be dealt with by a Court considering an application for bail: the applicant may be guilty and may be innocent.  In the present class of case the additional factor of uncertainty as to refugee status must also be taken into account.  The broad question is what this case requires in terms of the current appraisal and balance of conflicting public interests - of dealing with crime; of controlling immigration; and of giving due effect to any valid claim to refugee status.

[10] The Uxbridge decision showed the need to avoid simply a narrow perspective upon what appears plainly to constitute criminal offending but also to consider the reasons for it, and in particular the fact that without subterfuge, and indeed breach of the law, refugees may be unable to exercise their rights of asylum.  Yet the problem of immigration fraud is on a large scale, as is described in the informed and erudite judgment of the Refugee Status Appeal Authority Refugee Appeal No. 72668/01 [Ed Refugee Appeal No. 72668/01 [2002] NZAR 649] referred to at paragraph [134] of the Supplementary Judgment of 27 June 2002 of the Refugee Council case [Ed see now Refugee Council of New Zealand Inc. v Attorney-General (No. 2) [2002] NZAR 769].  I there accepted that the statistics demonstrate the need for robust systems to deal with fraudulent claims to refugee status.

[11] There was force in the submissions on each side.  On the Crown argument opposing bail the appellant was in the possession of a forged passport of high quality obtained at considerable cost, which was used first to secure entry in New Zealand and, but for the subsequent apprehension, would have provided the appellant with the opportunity to present herself to United States immigration authorities whom it seems plain she intended to deceive.  The previous experience of the police establishes the possibility that if granted bail the appellant will secure further false documentation and leave New Zealand by similar means.

[12] The appellant's argument was that she is a member of Falungong, a group whose members conduct themselves according to high moral tenets in accordance with the leadership of Master Lee who has received asylum in the United States, and who fall squarely within the criteria of the Refugee Convention in terms of the treatment likely to be accorded to them in the event of their return to their home.

[13] Her account was that she departed her homeland illegally as a stowaway in the company of an "agent" or people smuggler who provided her with the ticket and the forged passport in exchange for money raised by the family in her homeland.  She did not announce herself as a refugee promptly on arrival in New Zealand because she was using this country as a staging post en route to her ultimate intended destination, the United States, where would have made such a declaration.

[14] It is impossible on the appeal before me to assess the strength of the appellant's claim to refugee status.  To protect her position I have ordered suppression of her name and identity.

[15] As observed at paragraphs [132] - [134] of the Refugee Council decision the legal onus of establishing refugee status entitlement lies upon the claimant.  She has so far adduced no independent confirmation of her identity, which is a prime consideration in terms both of her refugee status claim and her bona fides in terms of the application of the Bail Act 2000 which is the code immediately to be applied albeit in the light of the guidance provided by the Uxbridge decision.

[16] For the reasons initially advanced by the Crown I was satisfied that there was sufficient flight risk to require me to consider in terms of s 8(1)(a) of the Bail Act 2000 whether if granted bail there is a risk that the appellant might fail to appear in court on a remand date.  In considering the criteria of subs (2) as to whether there was just cause for continued detention I took into account the following considerations:

The case may have crossed a watershed

[17] Discussion of that last topic elicited the fact that in this case the length of time is likely to be a function not of the programming of the criminal courts but of the refugee status processes which are necessarily substantially longer.  That is because, after reflection, counsel are agreed that if the conduct is to be classified as that of a fraudster the appropriate penalty may well be no more than the three month term of imprisonment already served on remand.  If the appellant were to be accepted as a refugee there would be powerful grounds for the Crown to consider whether the criminal charges should be pursued.

[18] In these circumstances I am of the view that the case may have crossed a watershed.  Were the appellant to be viewed simply in terms of criminal offending her term of imprisonment should conceivably now terminate.  It might indeed be said that the continued detention is a result not of her criminal conduct but of her election to claim refugee status.  In that event, if there were no issue as to the appellant's immigration status it would be my duty simply to set aside her detention.  But it is apparent that the appellant's position should now be considered not only under the Bail Act but also in terms of the Immigration Act 1987, recently amended to deal more specifically with the question of detention of refugee status claimants.  Counsel for the appellant was not however briefed on that basis; nor was the New Zealand Immigration Service represented before me.

What order should now be made?

[19] Were the matter being considered in that light by the Immigration Service it seems to me likely that under the Operational Instruction of 19 September 2001 (Refugee Council decision of 31 May 2002 Appendix 3) she would have been lodged not in Mt Eden Prison but at the Mangere Centre, albeit in detention.

[20] The result of the Refugee Council judgments of 31 May and 27 June was to declare that the Operational Instruction was unlawful.  It is however to be emphasised that the unlawfulness consisted not in the provision of the Mangere facility, which is to be applauded, but in the policy of virtually inevitable detention without due consideration of whether a less constrained option was available.

[21] If the appellant ought to be detained under the Immigration Act, as a refugee status claimant she is in my view entitled to rely on the necessity test of Article 31.2 of the Refugee Convention.

[22] It may be noted that the appellant does not fall squarely within the language of Article 31:

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 authorization, 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 into another country.  The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.

[23] The appellant did not present herself without delay to the New Zealand authorities.  I am however of the view that if it was in truth her intention to present herself without delay to the United States authorities it would be in keeping with the policy of Article 31 to give the appellant the benefit of the necessity test in the underlined passage of Article 31.2 which is discussed at paragraph [6] - [7] of the Refugee Council judgment of 31 May and paragraph [125] of the judgment of 27 June 2002.

[24] Given the sophisticated nature of the false documentation, the risk of absconding relied upon by the Crown and matters discussed at paragraph [124] of the judgment of 27 June 2002, on the premise that the criminal charges are still live; and alternatively that there are good grounds for detention of the appellant under the Immigration Act, I consider the appropriate interim exercise of discretion by this Court to be the release of the appellant from Mt Eden Prison on terms that she reside at the Mangere Centre pending further evidence as to her identity and other relevant factors and determination of her refugee status claim.  It will be necessary for enquiries to be made whether that course is practicable and if so what precise conditions of bail should be imposed.  The convenient course will be to invite counsel to seek agreement with the Mangere authorities and with each other upon these matters which will allow me to make a consent order or to resolve any remand issues at short notice early next week.

[25] The hearing will be adjourned to a date to be agreed by counsel with the Registrar.

[26] But the real possibility that the appellant has already completed serving whatever sentence might have been appropriate in the event of conviction would mean that there can be no continuing justification for any form of inhibition of her freedom for the purposes of the prosecution.

[27] And whether it is appropriate for her to be detained pursuant to the immigration legislation is a very different matter.  While the point was not mentioned in argument on behalf of the appellant whose counsel had been briefed belatedly, it seem likely that s 128(3) of the Immigration Act 1987 may prevent use of s 128 as a basis for her detention.  The point warrants careful consideration on her behalf.

[28] Similar consideration is warranted both on behalf of the appellant and also on behalf of the Crown in both its capacities - as responsible for administering both the criminal law and the immigration legislation, of the question whether an application for discharge of the criminal charges is warranted: in Uxbridge the ground on which judicial  review was ordered was that these matters had not been considered as a whole.

[29] For these reasons the present conditions of bail, and thus partial constraint on the appellant's liberty, should be seen as of an interim nature; until the parties have considered what should be the next step and the matter has come back before the Court.

Solicitor for the appellant: J Cheng (Auckland)
Solicitors for the respondent: Crown Solicitor (Auckland)