High Court Cases 

High Court Auckland M1341-SW1999; [1999] NZAR 420
4 August 1999; 5 August 1999
Anderson J

Judicial review - Habeas corpus - Whether detention in custody pending determination of refugee status lawful - Immigration Act 1987, s 128(7) -

The plaintiff re-entered New Zealand within five years of his having been removed pursuant to a removal order and was refused a permit on the grounds that s 7(1)(c) of the Immigration Act 1987 made him statutorily ineligible for a permit.  He was taken into custody under s 128 of the Act.  At the airport he claimed to be a refugee.  Following an interview by a refugee status officer, his application for refugee status was declined.  An appeal was lodged to the Refugee Status Appeals Authority.  Prior to the hearing of that appeal the plaintiff sought a writ of habeas corpus, arguing that his detention under s 128 was unlawful as detention under that provision was permitted for one purpose only, namely to hold a person in custody pending that person's departure from New Zealand on the first available craft:  s 128(5).  As there was no intention to effect the plaintiff's departure from New Zealand on the first available craft, but rather to detain him pending resolution of his refugee claim, the detaining power could not be invoked.

Held:
 
1    The words "first available craft" must be interpreted and applied with regard to circumstantial reality. The ordinary dictionary meaning of "available" as it would apply to s 128(5) is "able to be used or turned to account".  The section does not envisage the first craft leaving New Zealand but the first craft which is able to be used having regard to the circumstances of the case.  The circumstances of the present case include New Zealand's obligations to examine and determine the plaintiff's claim to refugee status (see paras [18] & [19]).

2    No craft could be considered available to be used by the authorities to effect the departure of a person whom New Zealand, having regard to its obligations under the Refugee Convention, regards and treats as entitled to remain within New Zealand until those rights are examined and determined in accordance with established procedures.  In the present case the procedures for examining and determining whether or not the plaintiff should be accorded refugee status was invoked upon the very day he arrived in New Zealand, and no craft was or would be able to be used to effect the plaintiff's departure from New Zealand until the process should finally be completed, and then only if the result should be unfavourable to the plaintiff. Only following such disposition could some craft be the "first available craft" within the contemplation of s 128(5) (see para [20]).

Application for habeas corpus dismissed

Other cases mentioned in judgment
[No cases were mentioned in the judgment]

Counsel
D J Ryken and D Manning for the plaintiff
M A Woolford for second defendant

[Editorial note:  No doubt due to the urgency with which the application was brought and heard, there was little opportunity for counsel to engage in research.  However, useful reference could have been made to Benipal v Ministers of Foreign Affairs and Immigration (High Court Auckland, A Nos. 878/83, 993/83 and 1016/83, 16 December 1995, Chilwell J) being the judgment on the application brought by Benipal for a writ of habeas corpus following his detention under the then Immigration Act 1964, s 14(1)(A) which authorized detention "pending that persons deportation from New Zealand on the first available ship or aircraft".  English authority of assistance includes R v Governor of Durham Prison, Ex parte Hardial Singh [1984] 1 WLR 704; [1984] 1 All ER 983 (QBD) and In Re Wasfi Suleman Mahmod [1995] Imm AR 311 (QBD).  Under the 1951 Refugee Convention, New Zealand cannot expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion. This obligation does not, however, apply to a refugee in respect of whom there are reasonable grounds for regarding him or her a danger to the security of New Zealand, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of New Zealand. ⁽¹⁾ There is also a discreet non-refoulement obligation in the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984. Under this instrument New Zealand cannot expel, return or extradite a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture. New Zealand is a party to both Conventions and in addition, New Zealand recognizes the competence of the Committee Against Torture to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention against Torture. ⁽²⁾
 
While neither Convention has been wholly incorporated into New Zealand domestic law, Articles 32 and 33 of the Refugee Convention have been so incorporated by s 129X of the Immigration Act 1987. It is to be noted that this statutory provision applies not only to a person who is recognized as a refugee in New Zealand, but also to refugee status claimants. The latter is a result of the fact that the refugee status determination process is declaratory, not constitutive. This necessarily requires the presumptive application of certain provisions of the Convention to refugee claimants. ⁽³⁾

The significance of the non-refoulement obligation in the border expulsion situation does not require elaboration. Breaches of that obligation do, however, occur. ⁽⁴⁾
 
Since at least mid-1996 there have been reports that boats carrying PRC nationals have left China with the intention of arriving in New Zealand. ⁽⁵⁾ The arrival in New Zealand by sea or by air of a large number of persons, presumably without travel documents and seeking refugee status, would present the government with considerable logistical difficulties. Such problems have already been encountered by both Australia and the United States of America. ⁽⁶⁾ Yet until mid-1999, persons refused a permit at the New Zealand border could be detained for only 28 days pending summary expulsion from New Zealand. ⁽⁷⁾ If not removed within that period, they became subject to removal under Part II of the Immigration Act 1987. While this Part of the Act permits detention, the procedures are not amenable to rapid turnaround and there is a right of appeal to the Removal Review Authority. ⁽⁸⁾ The absence of an express power to detain applicants for refugee status while their status is being investigated was noted in D v Minister of Immigration [1991] 2 NZLR 673, 676 (CA), but no such power was conferred by the subsequently enacted Immigration Amendment Act 1991. The detention of asylum-seekers is a controversial issue. ⁽⁹⁾
 
Nor is such express power contained in the Immigration Amendment Act 1999. But in provisions originally scheduled to come into effect on 1 October 1999, the turnaround procedures were amended to allow for the 28 day period of detention permitted by s 128(7) and (14) to be extended by a District Court Judge either for seven days at a time or, where the person detained is a member of a group of people who arrived in New Zealand on the same ship or aircraft, 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". ⁽¹⁰⁾
 
On 15 June 1999 the Minister of Immigration announced that a vessel had left Honiara in the Solomon Islands on the previous Saturday evening with 102 Chinese nationals aboard, with the declared intention of landing in New Zealand. ⁽¹¹⁾ On the following day, 16 June 1999, Parliament enacted the Immigration Amendment Act (No. 2) 1999 which had the effect of bringing into force from 16 June 1999 the amendments to the turnaround provisions as well ancillary sections relating to custody and those provisions which make it an offence to wilfully aid or assist other persons to arrive in New Zealand otherwise than in compliance with the requirements of the Immigration Act 1987. ⁽¹²⁾ It subsequently transpired that the vessel concerned had landed in Papua New Guinea instead. ⁽¹³⁾   It also subsequently transpired that two days before the legislation was introduced, diplomats told the Government that the vessel was not heading toward New Zealand.⁽¹⁴⁾ ]

ANDERSON J [1] The plaintiff is being detained in custody at Mt Eden Prison pursuant to a warrant of commitment under s 128(7) of the Immigration Act 1987.  He claims a Writ of Habeas Corpus on the grounds that the warrant of commitment is invalid.

[2] Proceedings may have been brought by way of an application for judicial review pursuant to the Judicature Amendment Act 1972, but in a case of peremptory detention on entry into New Zealand the Habeas Corpus procedure may be the more feasible.  It compels immediate review by the High Court of what is essentially an administrative deprivation of liberty.

[3] The plaintiff entered New Zealand within five years of his having been removed from this country pursuant to a removal order.  By virtue of s 52(b) of the Immigration Act 1987 the removal order was still in force at the time of his return.  He was therefore refused a permit on his recent arrival in New Zealand.  At the airport he claimed to be a refugee.  In accordance with New Zealand's international obligations under the 1951 United Nations Convention Relating to the Status of Refugees, (which, including the 1967 New York protocol, is hereinafter referred to as "the Refugee Convention") he was entitled to have that claim tested on its merits.  It was subsequently examined by officers of the Refugee Status Branch of the New Zealand Immigration Service which, in a 17 page decision, declined refugee status.  That decision is under appeal to the Refugee Status Appeal Authority which will hear the appeal in the very near future.

[4] On the day of the plaintiff's entry into New Zealand an immigration officer wrote to the United Nations High Commissioner for Refugees at Auckland informing that the plaintiff had made a claim for refugee status at Auckland International Airport; that it had been determined that the plaintiff was prohibited pursuant to s 7 of the Immigration Act and was therefore not eligible for a permit; that the plaintiff had been placed in custody under s 128 of the Immigration Act 1987; that the processing of the claim for refugee status had been given priority; and that the Immigration Service gave an assurance that the plaintiff would not be removed from New Zealand until his claim and any appeal he might lodge with the Refugee Status Appeal Authority had been determined.

[5] The following day another immigration officer applied to the District Court at Otahuhu for a warrant of commitment under s 128(7) of the Act and deposed on oath that the first craft available to take the plaintiff from New Zealand would not leave New Zealand until at least 48 hours after the time of detention which had been effected by a member of the police on the day of entry and therefore within 72 hours of arrival in New Zealand.  A warrant of commitment was duly issued on the same day.

[6] The plaintiff is a person to whom s 128 applies by reason of subs (1) thereof. That matter is not in dispute. Of particular relevance to this proceeding are subss (5), (7) and (11), which are in the following terms:

(5) Subject to subsection (7) of this section, any person to whom this section applies may be detained by any member of the Police and placed in custody pending that person's departure from New Zealand on the first available craft.

(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.

(11) When a craft becomes available to take from New Zealand any person to whom this section applies who is in custody pursuant to a warrant of commitment issued under subsection (7) of this section, and it is practicable in all the circumstances for the person to leave on that craft, the superintendent of the prison or the person in charge of the other premises shall, on being required in writing by a member of the Police to do so, deliver the person into the custody of the member of the Police, who shall escort the person or arrange for the person to be escorted to the seaport or airport and ensure that the person is placed upon the craft and detained there until the craft leaves New Zealand.

[8] The passing of the Immigration Act 1987 pre-dates this country's present sensitivity and response to the Refugee Convention. At present the response is administratively based but on 1 October a statutory regime will take effect. Those responses were not specifically envisaged in 1987. Section 128 therefore makes no specific provision for the detention of persons claiming refugee status on entry into New Zealand.

[9] Section 128 implicitly recognises the right, which is an incident of sovereignty, to turn back at the border persons whose entry it not permitted. That right is now exercised with regard to New Zealand's international obligations, but its exercise imports an incidental necessity for some degree of detention for obvious practical reasons. In the event that this might take more than 48 hours, the section invokes a semblance of judicial intervention. In reality the process is not judicial but administrative, as a reading of s 128(7) and (8) shows. Provided the conditions stipulated by those subsections are met, a Registrar of a District Court, or in the Registrar's absence the Deputy Registrar, has no option but to issue a warrant of commitment, although some discretion may be exercised in connection with the place of detention. The conditions are:-

[i] The subject of the warrant must be a person to whom s 128 applies.

[ii] That person is to be detained for more than 48 hours after the time of a subs (5) detention.
 
[iii] The application is made by an immigration officer or a member of the police.

[iv] The application is made on oath and includes a statement of the reasons why the person is
a person to whom the section applies.

[v] The application is for a warrant of commitment in the prescribed form authorising detention in terms of the subsection.

[11] It is submitted on behalf of the plaintiff that the words "pending that person's departure from New Zealand on the first available craft” appearing in subs (5) define both the purpose and the limitations upon the power of detention vested in a member of the police. It is argued that where there is in reality no intention to effect a subject person's departure from New Zealand on the first available craft, the detaining power cannot be invoked. In other words, subs (5) is a mechanism to facilitate imminent expulsion at the border and not a mechanism for the expedient detention of persons who, by virtue of New Zealand's recognition of the Refugee Convention, are not amenable to summary expulsion.

[12] Mr Ryken further remarked that the peremptory detention provisions do not apply to any person, including a stowaway for example, who has been in New Zealand for 72 hours or more after the time when the craft on which that person was travelling arrived in New Zealand unless that person is sooner detained under s 128. Those who avoid peremptory detention become liable to the removal provisions under Part II of the Act which deals with removal orders and the review or appeal rights which apply to that process. Mr Ryken submitted that this indicates a legislative intention that detention under s 128 is for effectuating a quick turnaround of persons to whom the section applies.

[13] On behalf of the Minster of Immigration, Mr Woolford submitted that the relevant words in subs (5) do cover the plaintiffs situation, the operative word being "pending" and not "for the purpose of”. He referred to the practical difficulties of organising removal on a craft destined for a country where the person being removed will be admitted, having regard to travel services and documentation. He also refers to such practical difficulties as illness which might affect a person's ability to travel. This argument invokes a broad meaning for the words "first available craft".

[14] Mr Woolford submitted that a legislative intention that review proceedings, including Habeas Corpus, may be relevant to detention is plain from s 128A which excludes from the computation of detention time any period during which such review proceedings are in existence.

[15] He argued that this indicates a legislative recognition of detention during the period of a review process. I have difficulty in accepting this submission because the acts of detention are amenable to review by the High Court pursuant to the Judicature Amendment Act 1972 and prerogative writs without refugee status being an issue. There may, for example, be an issue as to whether a detained person is one to whom s 128 applies; or an application may be inherently defective.

[16] Mr Woolford further submitted that on 16 June this year Parliament enacted provisions for the extension of a warrant of commitment beyond 28 days in the face of an apprehended arrival in New Zealand of a ship carrying Chinese who might seek refugee status. He argued that the circumstances in which the legislation was enacted indicates a legislative awareness that detention might be needed for persons who might seek refugee status.

[17] Again I have difficulty with the argument. The legal meaning of existing legislation surely cannot be defined by reference to Parliamentary speeches, over a decade later, in respect of another aspect of the section in question.

[18] However, I am of the view that Mr Woolford is correct when he submits, in effect, that the words “first available craft” must be interpreted and applied with regard to circumstantial reality.

[19] The ordinary meaning of “available”, as it would apply to subs (5), is “able to be used or turned to account”- New Shorter Oxford English Dictionary. The section does not envisage the first craft leaving New Zealand but the first craft which is able to be used having regard to the circumstances of the case. The circumstances of the present case include New Zealand's obligation to examine and determine the plaintiff's claim to refugee status.

[20] I do not think any craft could be considered available to be used by the authorities to effect the departure of a person whom New Zealand, having regard to its obligations under the Refugee Convention, regards and treats as entitled to remain within New Zealand until those rights are examined and determined in accordance with established procedures.  In the present case the procedures for examining and determining whether or not the plaintiff should be accorded refugee status was invoked on the very day he arrived in New Zealand, and in my view no craft was or would be able to be used to effect the plaintiff's departure from New Zealand until the process should finally be completed, and then only if the result should be unfavourable to the plaintiff. Only following such disposition could some craft be the "first available craft" within the contemplation of s 128(5).

[21] Accordingly neither the detention pursuit to subs (5), nor the detention pursuant to subs (7) is unlawful, and the application for the issue of a Writ of Habeas Corpus is dismissed.

Solicitor for the plaintiff:  Richard Wood (Auckland)
Solicitors for the second defendant:  Crown Solicitor (Auckland)