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Yadegary v Manager,
Custodial
Services, Auckland Central Remand Prison
High Court Auckland
CIV2006-404-7620; [2007] NZAR 436
18 December 2006; 4 April
2007
Courtney J
Detention -
detention for unreasonable period - whether detention in custody
pending removal may become illegal if it continues for unreasonable
period - whether the principles in Hardial Singh apply - Immigration
Act 1987, ss 59 & 60
The plaintiff, a citizen
of Iran, arrived in New Zealand in 1993 and made three unsuccessful
applications for refugee status. By September 2004 he had exhausted all
avenues of appeal and judicial review and had failed to persuade the
Minister of Immigration to intervene. He had been detained pursuant to
s 59
of the Immigration Act 1987 for the purpose of removing him to Iran.
However, having destroyed his passport, the plaintiff could not be
removed within the 72-hour period provided for in s 59(3) of the Act.
Immigration New Zealand obtained a warrant of commitment under s 60,
authorising his detention for seven days to enable the removal order to
be executed. The purpose of this extended period was to arrange travel
documentation. This proved impossible because the plaintiff refused
(and continued to refuse) to sign an application for a passport and the
Iranian government required applications for Iranian passports to be
signed by the applicant. Over the following two years there had been
ongoing diplomatic efforts to secure arrangements with the Iranian
authorities for the involuntary repatriation of the plaintiff.
Throughout this period Immigration New Zealand had regularly obtained
extensions to the warrant of commitment. Prior to applying for such
extensions it offered the plaintiff the opportunity to change his
position and apply voluntarily for an Iranian passport. He invariably
declined the application. In November 2006 Immigration New Zealand made
application for a further extension of the warrant and the plaintiff
cross-applied for conditional release. In extending the warrant a judge
of the District Court found that there were no exceptional
circumstances justifying the release of the plaintiff. That decision
was challenged on judicial review, it being argued that the plaintiff's
detention, although initially lawful, had become unlawful because its
original purpose had been overtaken by the inconclusive attempts to
reach agreement with the Iranian authorities for involuntary
repatriation. For Immigration New Zealand it was argued that meaningful
diplomatic contact was continuing with Iranian authorities and there
was reason to hope that progress would be made in 2007 to effect
suitable arrangements for involuntary repatriation.
Section 60 of the Act recognises that there will be cases where the
removal order cannot be executed within the seven day period provided
by s 60(2) and allows for the warrant of commitment to be extended,
although s 60(7) limits detention to three months. Where several
extensions are likely to be required s 60(5) gives the District Court
judge the option of releasing the detainee on conditions. The only
prerequisite is that the judge must be satisfied that the person is
unlikely to abscond otherwise than by leaving New Zealand. However,
under s 60(6) there are two categories of persons whose detention is
not limited by s 60(7) and whose eligibility for conditional release
under s 60(5) is restricted. 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 if:
(a) the person is current a refugee status claimant who claimed refugee
status only after the removal order was served; or
(b) a direct or indirect reason for the person being unable to leave
New Zealand is or was some action or inaction by the person occurring
after the removal order was served.
Section 60(6)(6A) and (7) in their current form were introduced by the
Immigration Amendment Act (No. 2) 2003 in response to the decision in Mohebbi v Minister of Immigration
[2003] NZAR 685 in which a detainee who refused to sign a passport
application was released because the three month limitation under s
60(7) expired.
For the Crown it was asserted that by virtue of s 60(6)(b) detention
served the broader purposes of applying a more stringent standard to
those who obstruct removal; provided an incentive to the detainee to
cooperate with removal measures and a sanction for not doing so; and
prevented persons who obstructed removal from obtaining the benefit of
de facto residence.
Held:
1.
Sanctioning obstructive conduct and giving an incentive for cooperation
are obvious reasons for denying conditional release under s 60(5) of
the Immigration Act 1987. But they do not represent the purpose for
which detention is authorised. The statutory purpose appeared clearly
from s 60(2), namely to enable a removal order to be executed. Further,
the warrant of commitment itself specifies execution of the removal
order as the purpose of detention. It would be a surprising result if
this clearly stated purpose was enlarged by implication, with a wider
purpose being inferred solely from the provisions that circumscribe
conditional release (see para [15]).
2. While
the practical effect of the purpose stated in s 60(2) and the
objectives identified by the Crown may well be the same (continued
detention) the lawfulness of the continued detention required
fulfilment only of the purpose identified in s 60(2). If ongoing
detention no longer served the purpose of enabling the removal order to
be executed, then the purposes asserted by the Crown could not, in
themselves, justify continued detention (see para [16]).
3. The
detention of those to whom s 60(6) of the Immigration Act 1987 applies
is subject to the Hardial Singh
principles, namely detention can only be for the purpose authorised by
s 60; the length of detention must be limited to the period reasonably
necessary for the statutory purpose; what is a reasonable period
depends on the circumstances of the particular case; the State must
take the steps necessary to achieve removal within a reasonable time;
if it becomes apparent that removal cannot be achieved within a
reasonable period the detainee must be released (see paras [39] &
[67]).
R v Governor of Durham Prison; Ex parte
Hardial Singh [1984] 1 WLR 704 (QBD) applied; Tan Te Lam v Superintendent of Tai A Chau
Detention Centre [1997] AC 97 (PC) and Al-Kateb v Godwin (2004) 219 CLR
562 (HCA) referred to.
4. If
detention would be unreasonable in
terms of those principles then exceptional circumstances would exist
for the purposes of s 60(6). In determining whether detention would be
unreasonable, the conduct of the detainee is to be accorded significant
weight (see para [39]).
5. The words
"exceptional circumstances" in s 60(6) require circumstances that are
special and not usually encountered. Because the phrase is not
qualified so as to be limited to humanitarian factors whereas it is so
qualified elsewhere in the Act, it does not need to be strictly limited
to humanitarian factors in the sense of physical or mental well-being.
It must include detention that would be regarded as unreasonable within
those principles (see para [34]).
6. The
Court was satisfied that Immigration New Zealand had been actively
addressing the issue of involuntary repatriation and that progress was
being made. It could not be said that negotiations had broken down or
reached a stalemate such that a concluded arrangement was unlikely to
be agreed upon some time in the future. However, nor was there any
certainty as to when the negotiations might actually produce an
agreement that could be implemented. It seemed quite possible that the
plaintiff could be detained for at least three years and quite possibly
longer. The diplomatic negotiations were unquestionably slow and might
in the end be unsuccessful. But it seemed clear that they were being
undertaken specifically to find a means by which the plaintiff and
others in his situation could be removed from New Zealand. It was the
purpose that was the issue at this stage of the enquiry, not the
certainty of the outcome. The statutory purpose required by s 60(2) was
still being served by ongoing detention (see paras [53] to [55]).
7. While
the District Court Judge specifically considered whether the
plaintiff's circumstances were "exceptional" within the meaning of s
60(6) he failed to realise that if detention of a person to whom s
60(6) applies would be unreasonable then exceptional circumstances
would exist for the purposes of s 60(6). As a result he effectively
limited the facts that should have been taken into account in deciding
whether exceptional circumstances existed and wrongly failed to take
into account the length of detention to date, the likely length of
future detention and the plaintiff's conduct in obstructing the removal
process (see paras [56], [57] & [67]).
8. Against
the background of his good character and the likely effect of ongoing
detention on his mental condition, in the absence of any other factor,
the Court would consider that ongoing detention would be unreasonable.
Against those factors, however, was the plaintiff's obstructiveness and
that he could, if he wished, effect his removal from New Zealand within
a very short time by applying for a passport. This factor was to be
accorded significant weight but it could not have the status of a trump
card. There was a point at which the unreasonableness of ongoing
detention outweighed the need to sanction obstructive conduct. This
gave rise to the unpalatable possibility that a detainee may be able to
secure release simply by enduring detention long enough for a Court to
declare further detention unreasonable. However, had Parliament
intended the sanctioning of obstructive conduct to prevail over other
factors it could have stated its intention in unmistakable terms when s
60 was amended in 2003. It had not done so. Even taking into account
the plaintiff's obstructiveness, the circumstances of his detention
were such as to make further detention unreasonable. Exceptional
circumstances existed for the purposes of s 60(6) and the plaintiff was
entitled to conditional release under s 60(5) (see paras [63] to [67]).
Application granted
Other cases
mentioned
in judgment:
Abu v Superintendent Mt
Eden Womens’ Prison [2000] NZAR 260 (Potter J)
Auckland
District Court v Attorney-General [1993] 2 NZLR 129 (CA)
Fiordland Venison v
Minister of Agriculture &
Fisheries [1978] 2 NZLR 341 (CA)
Minister for Immigration and
Multicultural and Indigenous Affairs v Al Masri (2003) 197 ALR 241 (FC:FC)
Mohebbi v Minister of Immigration
[2003] NZAR 685 (Chambers J)
Oparah v Chief Executive of the
Department of Labour (HC Auckland, CIV 2006-404-002348, 4 May
2006,
Venning J)
Patel v Removal Review Authority [2000]
NZAR 200 (CA)
R v Kelly [1999] 2 All ER 13 (CA)
R v Secretary of State for the Home
Department, ex parte I [2002] EWCA Civ 888 (CA)
Counsel
D J Ryken and I M
Charao for the
plaintiff
B Keith and A Longdill
for
the
defendants
[Editorial Note: The Chief Executive
of the Department of Labour appealed against the decision of Courtney
J. The appeal was unsuccessful. See Chief
Executive of the Department of Labour v Yadegary [2008] NZCA 295
(13 August 2008) (William Young P (dissenting), O'Regan &
Baragwanath JJ). The decision of the Court of Appeal is available on
the Case Search page of this website.]
COURTNEY J
Introduction
[1] This case raises the
very
difficult question of how long a person who deliberately obstructs his
removal under the Immigration Act 1987 can lawfully be detained under s
60 of that Act.
[2] Mr Yadegary is an Iranian
national who is subject to a removal order. He has been detained since
November 2004 under a warrant of commitment issued pursuant to s 60. He
cannot be removed because he has destroyed his passport and refuses to
apply for a new one. There are no arrangements in place with the
Iranian government for involuntary repatriation.
[3] When Immigration New
Zealand (INZ) applied in November 2006 to have the warrant of
commitment extended Mr Yadegary filed a cross-application seeking
conditional release pursuant to s 60(5), which was refused. He now
applies for judicial review of that decision.
[4] Judicial review of
decisions by the District Court can be undertaken as part of the
supervisory function of this Court. However, the power is exercised
sparingly. It is appropriate where, by reason of the nature of the
error of jurisdictional law in the District Court, the intervention of
this Court is necessary: Auckland
District Court v Attorney-General [1993] 2 NZLR 129 at 133-136.
[5] Mr Yadegary asserts several
errors by the Judge; however, they can be viewed as two general
complaints. First, that the Judge did not consider whether ongoing
detention would be lawful. Secondly, that the Judge misdirected himself
as to the meaning of the phrase “exceptional circumstances” in s 60(6).
Statutory scheme
[6] Sections 59 and 60
make provision for the arrest and detention of persons who are subject
to removal orders. The two sections are complementary. Section 59
permits the arrest without warrant and detention for up to 72 hours of
any person on whom a removal order has been served. The purpose of
detention under s 59 is specified in s 59(2):
(2) the purpose of arrest and detention under this section
is to execute the removal order by placing the person on a craft that
is leaving New Zealand.
[7] Section 60 applies when it
becomes apparent that the detainee is unable to leave New Zealand
within 72 hours. Section 60(2) authorises a District Court Judge to
issue a warrant of commitment for up to seven days “to enable the
execution of the removal order”. The circumstances in which a warrant
of commitment may be issued are very wide, including, at s 60(1)(d), if
“for some other reason the person is unable to leave New Zealand within
the 72 hour period”.
[8] Section 60 recognises that
there will be cases where the removal order cannot be executed within
the seven day period provided by s 60(2) and allows for the warrant of
commitment to be extended, although s 60(7) limits detention to three
months. Where several extensions are likely to be required s 60(5)
gives the Judge the option of releasing the detainee on conditions. The
only prerequisite is that the Judge must be satisfied that the person
is unlikely to abscond otherwise than by leaving New Zealand:
(5) If a person is brought before a Judge under subsection (4) for a
second or subsequent time the Judge may, where it seems likely that the
detention may need to be extended a number of times, and where
satisfied that the person is unlikely to abscond otherwise than by
leaving New Zealand, instead of extending the warrant of commitment for
a further period of up to 7 days, order that the person be released
subject to—
(a)
Such conditions as to the person's place of residence or as to
reporting at specified intervals to an office of the Department of
Labour or a Police station as the Judge thinks fit; and
(b)
Such other conditions as the Judge may think fit to impose for the
purpose of ensuring compliance with the residence and reporting
conditions.
[9] However, under s 60(6),
there are two categories of persons whose detention is not limited by s
60(7) and whose eligibility for conditional release under s 60(5) is
restricted. Mr Yadegary is a person to whom s 60(6) applies.
[10] Sections 60(6), (6A) and
(7) provide:
(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; or
(b)
A direct or indirect reason for the person being unable to leave New
Zealand is or was some action or inaction by the person occurring after
the removal order was served.
(6A) Where a Judge determines not to order the release of a
person to whom subsection (6) applies, the Judge may—
(a)
extend the warrant of commitment for a further period of up to 30 days,
in which case—
(i) the warrant authorises the detention
of the person named in it for the period specified in the extension of
the warrant; and
(ii)
subsections (3) to (6) and this subsection apply at the expiry of the
extension of the warrant; and
(b)
make any orders and give any directions that the Judge thinks fit.
(7) No
person may be detained under 1 or more warrants of commitment under
this Part for a consecutive period of more than 3 months, unless the
person is a person to whom subsection (6) applies.
[11] Sections 60(6), (6A) and
(7) in their current form were introduced through the Immigration
Amendment Act (No 2) 2003 in response to the decision in Mohebbi v Minister of Immigration [2003]
NZAR 685 in which a detainee who refused to sign a passport application
was released because the three month limitation under s 60(7) had
expired. The record of parliamentary debate at the time shows
that such behaviour had not been contemplated when s 60 was introduced
in 1999 and that Parliament regarded it as unacceptable that a person
should secure release through deliberately obstructing the removal
process.
Limits on detention under s 60
[12] Mr Ryken submitted
that the power to detain under s 60 is subject to certain implied
limitations, including, particularly, that:
a) Detention must be necessary for the
purpose for which it is authorised; and
b)
The period of detention cannot exceed what is reasonable in the
circumstances, even where the person is one to whom s 60(6) applies.
Purpose
of detention
[13] The Crown does not
dispute that, to be lawful, Mr Yadegary’s detention must be for the
purpose authorised by s 60. There is, however, dispute between
the parties as to what the purpose of detention under s 60 actually is.
Mr Ryken submitted that the purpose was the same as under s 59 i.e. to
execute the removal order by placing the person on a craft that is
leaving New Zealand. I do not accept that argument; it is apparent from
the circumstances in which detention may be authorised under s 60 that
it serves a much wider purpose than detention under s 59.
[14] In comparison, the Crown
asserts a wider purpose than that specified under s 60(2). Mr Keith
submitted that, by virtue of s 60(6)(b), detention serves the following
broader purposes:
- applies a more
stringent standard to those who obstruct removal;
- provides an
incentive to the detainee to co-operate with removal measures and a
sanction for not doing so; and
- prevents persons
who obstructs removal from obtaining the benefit of de facto residence.
[15] Sanctioning obstructive conduct
and giving an incentive for co-operation are obvious reasons for
denying conditional release under s 60(5). But I do not accept
that they represent the purpose for which detention is authorised. The
statutory purpose appears clearly from s 60(2), namely to enable a
removal order to be executed. Further, the warrant of commitment itself
specifies execution of the removal order as the purpose of detention.
It would be a surprising result if this clearly stated purpose was
enlarged by implication, with a wider purpose being inferred solely
from the provisions that circumscribe conditional release.
[16] While the practical
effect of the purpose stated in s 60(2) and the objectives identified
by Mr Keith may well be the same (continued detention) I consider that
the lawfulness of the continued detention requires fulfilment only of
the purpose identified in s 60(2). Put shortly, if ongoing detention no
longer serves the purpose of enabling the removal order to be executed,
then the purposes asserted by the Crown could not, in themselves,
justify continued detention.
Length
of detention - the Hardial Singh principles
[17] The circumstances
in which persons who obstruct the removal process can be detained for
prolonged periods have been extensively considered by the Privy Council
in Tan Te Lam v Superintendent of
Tai A Chau Detention Centre [1997] AC 97 and the High Court of
Australia in Al-Kateb v Godwin
[2004] HCA 37. Mr Ryken relied heavily on the decision in Tan Te Lam, which concerned, in
part, Vietnamese detainees subject to removal orders under the Hong
Kong Immigration Ordinance who could apply for voluntary repatriation
but refused to do so. They complained that their ongoing detention was
unlawful because the period for which they had been detained was
unreasonable.
[18] The Privy Council applied
the principles enunciated by Woolfe J in R v Governor of Durham Prison, ex parte
Hardial Singh [1984] 1 WLR 704:
Although the power which is given to the Secretary of State…to detain
individuals is not subject to any express limitation of time, I am
quite satisfied that it is subject to limitations. First of all, it can
only authorise detention if the individual is being detained…pending
his removal. It cannot be used for any other purpose. Secondly, as the
power is given in order to enable the machinery of deportation to be
carried out, I regard the power of detention as being impliedly limited
to a period which is reasonably necessary for that purpose. The period
which is reasonable will depend upon the circumstances of the
particular case. What is more, if there is a situation where it is
apparent to the Secretary of State that he is not removing persons who
are intended to be deported within a reasonable period, it seems to me
that it would be wrong for the Secretary of State to seek to exercise
his power of detention. In addition, I would regard it as implicit that
the Secretary of State should exercise all reasonable expedition to
ensure that the steps are taken which will be necessary to ensure the
removal of the individual within a reasonable time.
[19] While affirming those
principles, the Privy Council recognised that they could be excluded by
express provisions. Delivering the judgment in Tan Te Lam, Lord Browne-Wilkinson
said at p 111:
Section 13D(1) confers a power to detain a Vietnamese
migrant “pending his removal from Hong Kong”. Their Lordships have no
doubt that in conferring such a power to interfere with individual
liberty, the legislature intended that such power could only be
exercised reasonably and that accordingly it was implicitly so limited.
The principles enunciated by Woolfe J in the Hardial Singh case [1984] 1 WLR 704
are statements of limitations on a statutory power of detention pending
removal. In the absence of contrary
indications in the statute which confers the power to detain “pending
removal” their Lordships agree with the principle stated by Woolfe J.
First, the power can only be exercised during the period necessary, in
all the circumstances of the particular case, to effect removal.
Secondly, if it becomes clear that removal is not going to be possible
within a reasonable time, further detention is not authorised. Thirdly,
the person seeking to exercise the power of detention must take all
reasonable steps within his power to ensure the removal within a
reasonable time.
Although
these restrictions are to be applied where a statute confers simply a
power to detain “pending removal” without more, it is plainly possible
for the legislature by express provision in the statute to exclude such
implied restrictions. Subject to a constitutional challenge (which does
not arise in this case) the legislature can vary or possibly exclude
the Hardial Singh principle.
But in their Lordships’ view the courts should construe strictly any
statutory provision purporting to allow the deprivation of individual
liberty by administrative detention and should be slow to hold that
statutory provisions authorise administrative detention for
unreasonable periods or in unreasonable circumstances. (emphasis added)
[20] In the present case, although
the Crown accepts that s 60 does not authorise indefinite detention
(which quite apart from anything else would be a breach of the Bill of
Rights Act 1990), it does not accept that there should be a limitation
of the kind imposed in Tan Te Lam.
It asserts that s 60(6) shows an intention that there be a different
approach to the detention of persons who obstruct the removal process
i.e. (although not expressed this way in submissions) that there is a
contrary indication of the kind referred to by Lord Browne-Wilkinson in
Tan Te Lam.
[21] In Tan Te Lam the Privy Council held
that there was no conflict between the Hardial Singh principles and the
relevant part of the Ordinance, which required expressly what Hardial Singh would otherwise
imply. In addition, the Ordinance specified that, in considering
whether the detention was reasonable, the fact that the detainee could
put an end to his detention was a factor to take into account in
determining the reasonableness of the detention:
Section 13D(1A), which was inserted in 1991, expressly envisages that
the exercise of the power of detention conferred by s 13D(1) will be
unlawful if the period of detention is unreasonable. It expressly
provides that “the detention…” shall not be unlawful by reason of the
period of the detention if that period is reasonable having regard
to…What s 13D(1A) does is to provide expressly that, in deciding
whether or not the period is reasonable, regard shall be had to all the
circumstances including (in the case of a person detained pending his
removal from Hong Kong) “the extent to which it is possible to make
arrangements to effect his removal” and “whether or not the person has
declined arrangements made or proposed for his removal”. Therefore the
sub-section is expressly based on the requirement that detention must
be reasonable in all the circumstances (the Hardial Singh principle) but
imposes specific requirements that in judging such reasonableness those
two factors are to be taken into account…
In
their Lordships’ view the fact that the detention is self-induced by
reason of the failure to apply for voluntary repatriation is a factor
of fundamental importance in considering whether, in all the
circumstances, the detention is reasonable.
[22] The application of the Hardial Singh principles was
considered by the High Court of Australia in Al-Kateb v Godwin [2004] HCA 37;
(2004) 219 CLR 562, which concerned a stateless person detained under
the Migration Act 1958 (Cth), s 196 of which requires that an unlawful
non-citizen “must be kept in immigration detention until he or she
is.….removed from Australia….. deported….. or granted a visa”. Section
196(3) provides:
To avoid doubt, subsection (1) prevents the release, even by
a court, of an unlawful non-citizen from detention (otherwise than for
removal or detention) unless the non-citizen has been granted a visa.
[23] The majority of that Court
rejected the earlier decision by the Federal Court of Australia in Minister for Immigration &
Multi-cultural & Indigenous Affairs v Al Masri [2003] FCAFC 70 (also dealing
with s 196), which had endorsed the Hardial
Singh principles and held that the language of s 196 was not
sufficiently clear and unambiguous as to show a conscious decision to
curtail personal liberty for a potentially unlimited period.
[24] However, the ratio of the decision in Al-Kateb was that s 196 was
sufficiently clear to override any implied limitation of the kind
implied by the Hardial Singh
principles. Implicit in the judgment is the acknowledgement that such
principles would apply in the absence of such clear legislative
intention. In his dissenting judgment Kirby J, reviewing the decisions
in Zadvydas v Davis 533
US 678 (2001), Hardial Singh
and Tan Te Lam, said of the
approach to construction of relevant legislation:
Likewise, in Tan Te Lam
the approach to the judicial function of statutory interpretation
adopted by the Privy Council in a Hong Kong appeal can only be
explained by reference to the same judicial resistance to unlimited
executive detention. In different courts the resistance leads to
different techniques of decision-making and to different powers and
outcomes. But the common thread that runs through all these cases is
that judges of our tradition incline to treat unlimited executive
detention as incompatible with contemporary notions of the rule of law.
Hence, judges regard such unlimited detention with vigilance and
suspicion. They do what they can within their constitutional functions
to limit it and to subject it to express or implied restrictions
defensive of individual liberty.
[25] Hayne J, while reaching a
different conclusion as to the effect of the language used in s 196
expressed the same view as to the construction of legislation
conferring a power to detain:
There is a relevant general principle to which effect must
be given in construing the provisions now in question: legislation is
not to be construed as interfering with fundamental rights and freedoms
unless the intention to do so is unmistakably clear. General words will
not suffice. Reading the three sections together, however, what is
clear is that detention is mandatory and must continue until removal,
or deportation, or the grant of a visa. The relevant time limitation
introduced to the otherwise temporally unbounded detention is the time
limit fixed by s 198- removal as soon as reasonably practicable after
certain events. No other more stringent, time limit can be implied into
the legislation. (That is why the reasoning in Hardial Singh finds no application
here.) But more than that, the time limit imposed by the Act cannot be
transformed by resort to the general principle identified. The words
are, as I have said, intractable.
Application of
Hardial Singh principles in New Zealand
[26] There have been cases in this Court in which the Hardial Singh principles have been
accepted as applying, though without the point having been specifically
argued e.g. Abu v Superintendent Mt
Eden Womens’ Prison [2000] NZAR 260; Oparah v The Chief Executive of the
Department of Labour HC AK CIV 2006-404-002348 4 May 2006
Venning J. In particular, the question whether s 60(6) ousts the Hardial Singh limitations in
relation to persons to whom s 60(6) applies appears never to have been
argued.
[27] For the reasons expressed
by Lord Browne-Wilkinson in Tan Te
Lam and Hayne and Kirby JJ in Al-Kateb,
it must be the case that, absent clear legislative intent, the Hardial Singh principles apply in
New Zealand to the power to detain under s 60. Section 60(5) clearly
intends that, unless it is inappropriate because of the risk of
offending or absconding, persons should not be detained longer than
necessary. Aside from s 60(6) there is nothing that could possibly be
viewed as a clear intention to permit prolonged and possibly indefinite
detention.
[28] However, the Crown
contends that s 60(6), coupled with the removal of the limitation in s
60(7), should be interpreted as a clear intention to permit potentially
prolonged detention. One might view the removal of the limitation in s
60(7) in respect of those to whom s 60(6) applies as disclosing an
intention that there be no such limitation, express or implied, in
respect of such persons. This is especially so having regard to the
concerns recorded in the parliamentary debate that preceded this
change. On the other hand, there is nothing in the wording to indicate
that this change was specifically intended to permit prolonged
detention. The removal of the three month limitation period might
simply reflect the fact that, in respect of those to whom s 60(6)
applies, three months is unlikely to be sufficient to enable execution
of the detention order. I do not consider that the change to s 60(7)
conveys a sufficiently clear intention that the limitation as to
reasonableness implied into other detentions under s 60 should be
excluded in these particular cases.
[29] This leaves the question
whether, either alone or coupled with the change to s 60(7), the
wording of s 60(6) is sufficiently clear to oust the implied
requirement for detention to be reasonable in the circumstances.
Clearly, s 60(6) was intended to alter the way in which specified
categories of persons are dealt with by refusing them the benefit of
conditional release under s 60(5). Section 60(6) takes away the power
of conditional release in respect of them unless exceptional
circumstances exist. But for the opening words “Unless the Judge
considers that there are exceptional circumstances that justify the
person’s release”, s 60(6) would be couched in absolute terms that
would leave no room for doubt that Parliament intended to preclude
absolutely the release of the specified categories of persons.
[30] So the question comes down
to whether the opening words of s 60(6) detract from that meaning
sufficiently to conclude that, even in relation to those specified in s
60(6), detention must be still be limited to what is reasonable in the
circumstances. The construction of these words must be undertaken
against the obvious intention that the categories of persons specified
in s 60(6) are to be treated less favourably than others to whom s 60
applies. However, the decision to add the opening words to s 60(6)
when, without them, the intention to allow prolonged detention would
have been clear, can only have been intended to limit the effect that s
60(6) would otherwise have had.
[31] The opening words of s
60(6) specifically envisage that there will be people to whom s 60(6)
applies who should nevertheless be entitled to conditional release. In
adding these words Parliament has drawn back from the kind of
unmistakable language used by the Australian legislature. I find that
the opening words must have been intended by Parliament to ensure that
there was a safety net that would prevent the literal effect of s 60(6)
being implemented. The result is that the Hardial Singh principles apply to
those detained under s 60(6) as to any other person detained under s
60.
[32] Mr Ryken submitted that
the length of the detention should be regarded as an exceptional
circumstance. There is no express restriction on what is encompassed in
the expression “exceptional circumstances”. The phrase was
considered by the UK Court of Appeal in R v Kelly [1999] 2 All ER 13 in the
context of whether exceptional circumstances existed justifying not
imposing a life sentence under the Crime (Sentences) Act 1997. Lord
Bingham said that:
We must construe “exceptional” as an ordinary, familiar
English adjective, and not as a term of art. It describes a
circumstance which is such as to form an exception, which is out of the
ordinary course, or unusual, or special, or uncommon. To be
exceptional, a circumstance need not be unique, or unprecedented, or
very rare; but it cannot be one that is regularly or routinely, or
normally encountered.
[33] In Patel v Removal Review Authority and
Department of Labour [2000] NZAR 200 the Court of Appeal
considered the phrase “exceptional circumstances of a humanitarian
nature” in the context of s 63B Immigration Act 1987, observing that in
its natural usage “exceptional circumstances” sets a high threshold
necessarily involving questions of fact and degree.
[34] Clearly, the words
“exceptional circumstances” require circumstances that are special and
not usually encountered. But because the phrase is not qualified so as
to be limited to humanitarian factors whereas it is so qualified
elsewhere in the Act, I do not consider that it needs to be strictly
limited to humanitarian factors in the sense of physical or mental
well-being. I infer that a broader meaning was intended. Given my
conclusion that the Hardial Singh
principles are to be implied into s 60(6) I find that “exceptional
circumstances” must include detention that would be regarded as
unreasonable within those principles. Only in this way can the Hardial Singh principles be given
effect to.
[35] However, what is
reasonable depends on the particular circumstances of the case. The
factors that will usually be relevant were canvassed by Dyson LJ in R v Secretary of State for the Home
Department, ex parte I [2002] EWCA Civ 888 (CA):
It is not possible or desirable to produce an exhaustive
list of all the circumstances that are or may be relevant to the
question of how long it is reasonable for the Secretary of State to
detain a person pending deportation pursuant to paragraph 2(3) of
schedule 3 to the Immigration Act 1971. But in my view they include at
least: the length of the period of detention; the nature of the
obstacles which stand in the path of the Secretary of State preventing
a deportation; the diligence, speed and effectiveness of the steps
taken by the Secretary of State to surmount such obstacles; the
condition in which the detained person is being kept; the effect of
detention on him and his family; the risk that if he is released from
detention he will abscond; and the danger, if released, he will commit
criminal offences…
[36] In Tan Te Lam, the
Privy Council observed that the conduct of the detainee was of
fundamental importance. However, the relevant legislation
specifically required the Court to have regard to whether a detainee
had declined arrangements for removal, thereby giving a clear signal
that the detainee’s conduct was to be given significant weight.
[37] In comparison, in Ex parte I Dyson LJ viewed the
detainee’s
refusal to leave voluntarily as relevant, though of limited
significance, observing that:
…the mere fact (without more) that a detained person refuses the offer
of voluntary repatriation cannot make reasonable a period of detention
that would otherwise be unreasonable. If Mr Robb were right, the
refusal of an offer of voluntary repatriation would justify as
reasonable any period of detention, no matter how long, provided that
the Secretary of State was doing his best to effect deportation.
[38] There is some force in this
statement. If the detainee’s conduct
alone could determine the reasonableness of the detention then the
situation would become an unseemly test as to whether the detainee
could endure detention long enough for the Court to declare the period
unreasonable. However, it is impossible to ignore the obvious intention
behind s 60(6) that those who obstruct the removal process are to be
treated less favourably than those who do not. I consider that
this can only be achieved by according the detainee’s conduct
substantial weight in determining whether ongoing detention would be
unreasonable.
[39] I therefore conclude that
detention of those to whom s 60(6)
applies is subject to the Hardial
Singh principles. If detention would
be unreasonable in terms of those principles then exceptional
circumstances will exist for the purposes of s 60(6). In determining
whether detention would be unreasonable, the detainee’s conduct is to
be accorded significant weight.
The present case
Background
[40] Mr Yadegary arrived
in New Zealand in 1993. He made three
unsuccessful applications for refugee status. By September 2004
he had exhausted all avenues of appeal and judicial review and had
failed to persuade the Minister of Immigration to intervene. He was
detained pursuant to s 59 for the purpose of removing him to his
country of origin, Iran.
[41] However, having destroyed
his passport, Mr Yadegary could not be
removed within the 72-hour period provided for in s 59(3). INZ
obtained a warrant of commitment under s 60, authorising his detention
for seven days to enable the removal order to be executed. The
purpose of this extended period was to arrange travel documentation.
This proved impossible because Mr Yadegary refused (and continues to
refuse) to sign an application for a passport and the Iranian
government requires applications for Iranian passports to be signed by
the applicant.
[42] There have been ongoing
diplomatic efforts over the last two years
or so to secure arrangements with the Iranian authorities for the
involuntary repatriation of persons in Mr Yadegary’s position.
Throughout this period INZ has regularly obtained extensions to the
warrant of commitment. Prior to applying for such extensions it offers
Mr Yadegary the opportunity to change his position and apply
voluntarily for an Iranian passport. He invariably declines the
invitation.
The
District Court decision
[43] In November 2006
the Judge was confronted with INZ’s application
to extend the warrant and Mr Yadegary’s cross-application for
conditional release. It is clear from the decision that the Judge did
not give separate consideration to the application to extend the
warrant. Instead he appears to have assumed that grounds existed
on which to allow that application and moved immediately to consider
the cross-application for conditional release.
[44] After reviewing the
background to the applications and observing
the provisions in s 60(6) the Judge dealt with the question of whether
exceptional circumstances existed that would justify releasing Mr
Yadegary. The Judge considered the facts that Mr Yadegary had not
committed any criminal offence, was not a flight risk and may yet be
able to apply again for refugee status. He also noted the delay
before his situation could be resolved. He then reached his
conclusion that there were no exceptional circumstances that would
justify release:
[15] However, to come directly to the point, has the
respondent
satisfied me that there are exceptional circumstances here that would
justify his release?
[16] An
exceptional circumstance is a circumstance truly out of the
ordinary. It might include matters such as severe problems with
the physical and mental health of the respondent or there may be
extreme humanitarian grounds on which the Court could act. At the
moment what I have is an extensive support network; we have a
significant delay that seems likely not to persist indefinitely; we
have the fact that Mr Yadegary has been in custody for two years
without having committed any crimes; there is some psychological effect
on him to date - and I can well understand that.
[17]
However, I regret to say that these are not exceptional
circumstances. They are circumstances which would be common, I expect,
in many cases, to people who come before the Court and who have managed
to attract, deservedly, the concern of the community.
Grounds for judicial
review
[45] Mr Yadegary says
that the judge erred in:
a) Failing to consider the lawfulness of
ongoing
detention. He maintains that his ongoing detention no longer
serves the purpose for which detention is authorised under s 60 and is
therefore unlawful;
b)
Failing to consider whether the length of
detention to date would make further detention unreasonable and
therefore unlawful;
c)
Misinterpreting the meaning of “exceptional
circumstances” in s 60(6) by limiting it to humanitarian issues and not
taking into account the length of detention;
d)
Wrongly finding that the prospect of a meeting in
February between INZ and Iranian authorities gave definition to the
length of detention; and
e)
Refusing leave to cross-examine the Crown’s
deponent, Mr Baker in relation to the state of negotiations with the
Iranian authorities.
[46] I deal with the first, fourth
and fifth grounds together as all
being part of the enquiry into whether the detention is still necessary
for the purpose authorised by s 60. I consider the second and
third grounds together as they both depend on an assessment of the
reasonableness of ongoing detention.
Purpose
of detention
[47] Mr Ryken submitted
that Mr Yadegary’s detention, although
initially lawful, had become unlawful because its original purpose had
been overtaken by the inconclusive attempts to reach agreement with the
Iranian authorities for involuntary repatriation. Somewhat
inconsistently, he accepted that if repatriation was imminent then Mr
Yadegary could not maintain that he was being unlawfully
detained. So I took the general tenor of the argument to be that
progress towards arrangements for involuntary repatriation has become
so slow and inconclusive that further detention could not be said to be
for the statutory purpose of removing Mr Yadegary, rather than that his
detention until now had been unlawful.
[48] If Mr Ryken’s submission
were correct, it would follow that
further detention would be unlawful. If so, there would have been no
basis on which to extend the warrant. It was incumbent on the Judge in
this case to consider whether ongoing detention would be lawful so as
to support a further extension to the warrant. His failure to do
so was undoubtedly an error. However, for the reasons I am about to
come to, it is an error that would not have affected the decision.
[49] The Crown says that
meaningful diplomatic contact is continuing
with Iranian authorities and that there is reason to hope that progress
will be made this year to effect suitable arrangements for involuntary
repatriation.
[50] The District Court Judge
had before him an affidavit 16 November
2006 by the National Manager, Border Security and Compliance Operations
of Immigration New Zealand, Mr Baker. That affidavit very briefly
outlined the diplomatic contact and negotiations between New Zealand
and Iran. Mr Baker said that INZ, the Ministry of Foreign Affairs and
the Iranian Government were working towards an agreement that complies
with the Convention on International Civil Aviation as well as the
respective domestic legislation of both countries. He expressed
the view that conclusion of arrangements may be reached to coincide
with a planned meeting of the respective authorities in early 2007.
[51] The Judge refused Mr
Yadegary leave to cross-examine Mr
Baker on the ground that “…all he [Mr Baker] could say was that he had
these discussions and that was the result”.
[52] Mr Baker gave a further
affidavit 12 December 2006 for the
purposes of Mr Yadegary’s application for habeas corpus in which he
gave more detail about the ongoing negotiations between New Zealand and
Iran regarding both the provision of passports for those who are
co-operative and involuntary repatriation for those who are not. It is
reasonable to assume that if Mr Baker had been cross-examined it is
this further detail that would have emerged.
[53] I am satisfied from Mr
Baker’s evidence that INZ has been actively
addressing the issue of involuntary repatriation and that progress is
being made. It cannot be said that negotiations have broken down
or reached a stalemate such that a concluded arrangement is unlikely to
be agreed upon some time in the future. However, nor is there any
certainty as to when the negotiations might actually produce an
agreement that can be implemented. Mr Baker did not give any objective
basis for thinking that the meeting scheduled to take place in February
2007 would result in a firm agreement being reached.
[54] I was left with the strong
impression from Mr Baker’s evidence
that workable arrangements are unlikely to be achieved until some time
later this year, at the earliest. Indeed, as the time for the planned
meeting has now passed with no advice from INZ of a firm agreement
being reached, this impression would seem to be correct.
[55] Even on the Crown’s
evidence, it seems quite possible that Mr
Yadegary could be detained for at least three years and quite possibly
longer. In these circumstances, can it be said that continued
detention is still necessary for the purpose of enabling the removal
order to be executed? The diplomatic negotiations are
unquestionably slow. They may, in the end, be unsuccessful. But
it seems quite clear that they are being undertaken specifically to
find a means by which Mr Yadegary and others in his situation can be
removed from New Zealand. It is the purpose that is in issue at
this stage of the enquiry, not the certainty of the outcome. I consider
that the statutory purpose required by s 60(2) is still
being served by ongoing detention.
Would ongoing
detention be unreasonable under the Hardial Singh
principles?
[56] Mr Ryken’s second
main point was that the length of Mr Yadegary’s
detention to date coupled with the likely length of future detention
made ongoing detention unreasonable or alternatively constituted an
exceptional circumstance for the purposes of s 60(6). As I have
already concluded, if detention of a person to whom s 60(6) applies
would be unreasonable then exceptional circumstances will exist for the
purposes of s 60(6).
[57] While the Judge
specifically considered whether Mr Yadegary’s
circumstances were “exceptional” within the meaning of s 60(6), he
failed to realise that determining whether exceptional circumstances
existed in this case required determination of whether ongoing
detention would be reasonable. Although the Judge did not expressly
limit the circumstances that might be regarded as exceptional for the
purposes of s 60(6), those that he identified as relevant fell solely
within the realms of general humanitarian issues. He did not
consider the reasonableness of ongoing detention within the Hardial
Singh principles. As a result he effectively limited the facts
that should have been taken into account in deciding whether
exceptional circumstances existed and wrongly failed to take into
account the length of detention to date, the likely length of future
detention and Mr Yadegary’s conduct in obstructing the removal process.
[58] I therefore turn to
consider whether further detention would be
unreasonable. Mr Yadegary has now been in detention for more than two
years. He has no criminal convictions. Apart from immigration
issues he led a law-abiding existence in New Zealand before being
detained. He has considerable support from reputable members of
the community. There is substantial evidence as to his good
character. He has offers of support, including accommodation.
[59] Although it would be
unrealistic to exclude the risk of a person
in Mr Yadegary’s position absconding, in Mr Yadegary’s case the risk
does seem to be low. There seems little risk of him offending. If
these risks were high then one would regard a longer detention as
tolerable but the Crown does not suggest that there is a significant
risk in this case.
[60] I regard the unchallenged
evidence of Mr Yadegary’s good character
as significant. He appears to present little risk to the
community and, to the contrary, has something to contribute. I am
mindful of the fact that the concern sparked by the Mohebbi case seemed
to arise as much from the fact that Mr Mohebbi had convictions for
violence as from the fact that he was obstructing the removal process.
[61] Mr Yadegary is being held
at the Auckland Central Remand
Prison. A psychiatric report obtained in June 2005 describes a
number of physical and psychological symptoms which suggest that
ongoing detention will be detrimental to his mental health.
Psychiatrist Dr Colin Goodwin commented:
He presents with a mixture of both anxiety and depressive symptoms in
direct response to both his incarceration and his ongoing uncertainty
about the possible length of that incarceration. In my opinion Mr
Yadegary currently qualifies for the diagnosis of adjustment disorder
with depressed mood and anxiety as per the Diagnostic and
Statistical
Manual 4TR (DSM-IV TR)) of the American Psychiatric Association.
I am also of
the opinion that Mr Yadegary’s symptoms appear to be
worsening while incarcerated. It appears likely that his symptoms
will continue to develop to the point where he develops a Major
Depressive Episode in the future unless there is significant alteration
to his current circumstances. Continued incarceration without a release
date will result in deterioration of Mr Yadegary’s mental state.
[62] The next factor to consider
must be the probable length of
detention in view of the ongoing diplomatic negotiations. I
accept that INZ has been conscious of the need to advance the issue of
involuntary repatriation and has taken reasonable steps to do so. Those
steps have progressed slowly but this seems likely to be the nature of
negotiating with a foreign government. As I have found,
there is still the prospect of removal being achieved, albeit not
soon. It seems very likely that Mr Yadegary could be detained for
at least a further year until there are arrangements for his removal in
place. Given the time that he has already spent in custody, this is a
very long time by anyone’s standards. It exceeds the time
regarded as unreasonable in R v
Secretary of State for the Home
Department, ex parte I.
[63] The circumstances of the
detention and Mr Yadegary’s psychological
response to them are hardly unusual. Regrettably, many people
find themselves in the Auckland Central Remand Prison and find the
conditions difficult to bear. However, not many spend more than two
years there with the prospect of ongoing detention for an unknown
period (possibly years) without having committed or even being accused
of any crime. Against the background of his good character and
the likely effect of ongoing detention on his mental condition, in the
absence of any other factor, I consider that ongoing detention would be
unreasonable.
[64] Against those factors,
however, is Mr Yadegary’s
obstructiveness. He could secure his removal from New Zealand at
any time. He has a genuine belief that he will be in danger if he
does that. However, it was beyond the scope of either the
District Court considering the application for extension of the warrant
or of this Court in reviewing the District Court’s decision to enquire
into the foundation for that belief. While accepting that the
belief is genuine, I must proceed on the basis that Mr Yadegary’s
status has been properly determined and that he could, if he wished,
effect his removal from this country within a very short time by
applying for a passport.
[65] Given my earlier
conclusion as to the intention behind s 60(6)
that a person in Mr Yadegary’s position be treated less favourably, I
accord this factor significant weight. However, it cannot have
the status of a trump card. There is a point at which the
unreasonableness of ongoing detention outweighs the need to sanction
obstructive conduct. This does, of course, give rise to the unpalatable
possibility that a detainee may be able to secure release simply by
enduring detention long enough for a Court to declare further detention
unreasonable. However, had Parliament intended the sanctioning of
obstructive conduct to prevail over other factors it could have stated
its intention in unmistakable terms. It has not done so.
[66] I find that, even taking
into account Mr Yadegary’s
obstructiveness, the circumstances of his detention are such as to make
further detention unreasonable. Exceptional circumstances therefore
exist for the purposes of s 60(6) and Mr Yadegary is entitled to
conditional release under s 60(5).
Summary of conclusions and relief
[67] I have found that:
a) The purpose of detention under s 60 is
to enable
the execution of removal orders. The Judge should have considered
whether ongoing detention would serve this purpose. However, I am
satisfied that it would and, therefore, this error would not have
altered the outcome of the decision;
b)
The principles enunciated in Hardial
Singh apply generally to
detention under s 60, namely that:
i) Detention can only be for the purpose
authorised
by s 60;
ii)
The length of detention must be limited to the
period reasonably necessary for the statutory purpose;
iii)
What is a reasonable period depends on the
circumstances of the particular case;
iv)
The State must take the steps necessary to
achieve removal within a reasonable time;
v)
If it becomes apparent that removal cannot be
achieved within a reasonable period the detainee must be released;
c) There
is nothing in the language of s 60(6) that could operate to
exclude the Hardial Singh
principles. Accordingly, the phrase
“exceptional circumstances” in the opening words of s 60(6) is to be
construed so as to include detention that would be unreasonable under
those principles. However, in determining what a reasonable period is
the detainee’s own conduct in obstructing the removal process is to be
given significant;
d)
The Judge erred in not considering the
reasonableness of ongoing detention in light of all the relevant
circumstances and in limiting the meaning of “exceptional
circumstances” to purely humanitarian issues. Proper
consideration of all the relevant factors would have shown that
on-going detention would be unreasonable and therefore exceptional
circumstances existed, with the result that Mr Yadegary was eligible
for conditional release.
[68] It is open to this Court to
quash a decision of the District Court
where it has been reached on the basis of an error and substitute its
own decision: Fiordland Venison v
Minister of Agriculture &
Fisheries [1978] 2 NZLR 341. I consider that to be the
appropriate
course in this case. I therefore grant the application for
judicial review, quash the decision of the District Court and order
that Mr Yadegary be released on conditions. However, since I was
not addressed on appropriate conditions I remit the matter to the
District Court for conditions to be set, with that to be addressed as a
matter of urgency.
Solicitors for the
plaintiff: Ryken & Associates (Auckland)
Solicitors for the
defendants: Meredith Connell (Auckland)