OPARAH V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR HC AK CIV 2006-404-002348

OPARAH V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR HC AK CIV 2006-404- 002348 4 May 2006IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2006-404-002348UNDER the Habeas Corpus Act 2001 IN THE MATTER OF s 60 of the Immigration Act 1987 AND IN THE MATTER OF ss 22, 23 and 27 of the New Zealand Bill of Rights Act 1990 BETWEEN EZE ISAAC OPARAH Applicant AND THE CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR Respondent Hearing: 4 May 2006 Appearances: Mr C S Henry for Applicant Ms K Cato for Respondent Judgment: 4 May 2006ORAL JUDGMENT OF VENNING JSolicitors: Witten-Hannah Howard, Takapuna, Auckland Crown Solicitor, Auckland Copy to: Mr C Henry, AucklandIntroduction[1] This is an application for habeas corpus. At present the applicant is in custody under s 60 of the Immigration Act 1987.Background[2] The applicant is a Nigerian National who arrived in New Zealand on a work visa on 5 July 2003. He was granted a work permit which was valid until 25 August 2004. The applicant applied for further permits, the last of which expired on 9 November 2005. Since 10 November 2005 the applicant has been unlawfully in New Zealand. According to the records of the Department of Labour administering the Immigration Act he has not renewed his permit and has no outstanding applications, appeals or reviews. I interpolate here that during the course of hearing Mr Henry submitted that his client in fact had applied for a review which had not been determined but I note there is no reference to that in the applicant's affidavit. [3] On the evidence before the Court the applicant is unlawfully in New Zealand. On 21 April 2006 the applicant attended the premises of the Immigration Service, Queen Street. He was served with a removal order. He was also taken into custody on the same day pursuant to s 59 of the Immigration Act 1987 for the purposes of executing the removal order. [4] At the time that the applicant was taken into custody by the police pursuant to s 59 of the Act he was advised of his rights to consult and instruct a lawyer without delay in accordance with the New Zealand Bill of Rights Act 1990 (NZBOR). [5] In order for the applicant to be removed from New Zealand to Nigeria the Immigration Service has to obtain a risk assessment from the police, obtain airline clearances and must also obtain a South African transit visa from the South African High Commission in Canberra. That is because the applicant's return to Nigeria isvia South Africa. The names of the police escorts are required to be provided to the South African High Commission in support of the visa application. [6] Section 59 of the Immigration Act permits the detention for up to 72 hours without further authority of a person arrested under the section pending placement on a craft leaving New Zealand. Because of the visa requirements it was not possible for the applicant to be removed within that 72 hour period. Section 60 therefore applied, particularly s 60(1)(d). The Immigration Service did not release the applicant so he was required to be brought before a District Court Judge for the purpose of obtaining a warrant of commitment. [7] On 24 April the applicant was brought before the District Court at Auckland. The Immigration Service applied for a warrant of commitment under s 60. The application for warrant was supported by an affidavit by Mr Ludlam, an immigration officer familiar with the applicant's file. [8] In addition to the general background set out above Mr Ludlam confirmed there was no issue as to identity, and that the applicant had confirmed he was neither a New Zealand citizen nor permanent resident and did not have a permit to be in New Zealand. Mr Ludlum then set out the practical difficulties the Service faced in removing the applicant from New Zealand due to the requirement for the South African transit visa. He expected that may take two weeks. A warrant of commitment was issued on 24 April 2006 for a period of seven days until 1 May 2006. [9] The applicant was brought back before the District Court at Auckland on 1 May 2006. At that time the Service sought an extension of the warrant of commitment. The application was supported by a further affidavit, this time by Mr Fennell, another immigration officer. Mr Fennell also deposed as to the practical difficulties facing the Service in removing the applicant. He noted the applicant had refused to sign the transit visa request on 21 April 2006 so the Service had to obtain further information. He deposed this usually takes 10 working days to be processed and sent back to the Immigration Service and advised the Court that a provisional flight had been booked for the respondent to depart New Zealand on 20 May 2006subject to travel documents and appropriate clearances. A warrant of commitment was sought for a further seven days. [10] The applicant was not represented by counsel in Court on the first occasion on 24 April but he was represented by his current counsel when he appeared before the Court on 1 May 2006. When it was indicated his continued detention was to be opposed the matter was stood down and the Judge returned to the application later. There is a slight difference in the evidence before this Court as to what took place at that hearing when the Judge confirmed the warrant of commitment and extended the warrant for a further seven days until 8 May 2006. [11] Mr Alphaeus Onyeke who attended to support the applicant said (at para 9 of his affidavit) that counsel, Mr Henry, had submitted that an extended period of detention to 20 May 2006 when previously 8 May 2006 had been the suggested date, was unreasonable. Mr Onyeke deposes that at that point the Judge interjected to say that a four week detention is not unreasonable in immigration matters. Mr Henry began to say to the Judge that he would present the grounds on which Mr Oparah's detention was unreasonable, but the Judge intervened and said he was going to reissue the warrant of commitment and that Mr Henry could appeal. Mr Onyeke said the Judge did not permit Mr Henry to make any submissions as to why Mr Oparah's detention was unreasonable. [12] The solicitor attending for the Service that day Ms Cotton has also deposed what took place. She said that she indicated the applicant could seek release on conditions at the next application for extention of the warrant in response to counsel Mr Henry's submission for the dismissal of the warrant. The Judge indicated that that was the appropriate course. Mr Henry then asked to further address the Court. He began making the submissions referred to in para 9 of the affidavit of Alphaeus Onyeke Onyeke. He argued that detention until 20 May 2006 was unreasonable. His Honoured ruled that detention to 20 May 2006 was not an unreasonable period for these types of matters. At that point there was some debate between Mr Henry and the learned Judge as to what was unreasonable. The Judge observed it was actually a quite short period of time. Judge Noble granted an extention to the warrant for seven days. Mr Henry was still attempting to argue the matter at which point HisHonour said that that was his ruling and Mr Henry would have to review the decision if he disagreed.The Habeas Corpus Act[13] It is against that background that this application for habeas corpus comes before this Court. The application is pursuant to s 14 of the Habeas Corpus Act:14 Determination of applications(1) If the defendant fails to establish that the detention of the detained person is lawful, the High Court must grant as a matter of right a writ of habeas corpus ordering the release of the detained person from detention. (2) A Judge dealing with an application must enquire into the matters of fact and law claimed to justify the detention and is not confined in that enquiry to the correction of jurisdictional errors; but this subsection does not entitle a Judge to call into question— (a) a conviction of an offence by a court of competent jurisdiction, a duly constituted court-martial, or an officer exercising summary powers under Part 5 of the Armed Forces Discipline Act 1971; or (b) a ruling as to bail by a court of competent jurisdiction. (3) A Judge must determine an application by— (a) refusing the application for the issue of the writ; or (b) issuing the writ ordering the release from detention of the detained person. (4) All matters relating to the costs of and incidental to an application are in the discretion of the Court and the Court may refuse costs to a successful party or order a successful party to pay costs to an unsuccessful party. (5) A writ of habeas corpus may be in the form set out in the Schedule.[14] That section and the principles to apply have recently been considered by the Court of Appeal in the decision of Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161. [15] In response to the application for habeas corpus the respondents have produced copies of the warrant of commitment issued by the District Court on both24 April 2006 and 1 May 2006 under s 60 of the Immigration Act 1987. Prima facie in light of the warrants of commitment the detention is lawful. However, Mr Henry for the applicant challenged the lawfulness of the warrant on the basis the grounds were not made out for the Judge to have issued the warrant.The applicant's submissions[16] In essence, Mr Henry's submissions were that under s 60(2) of the Immigration Act the Judge had to find that the applicant's detention was necessary and there was no evidence before the Court on which the Judge could have found the continued detention was necessary and second, that in breach of the applicant's rights under the New Zealand Bill of Rights Act the applicant was not given the opportunity to address evidence to the Court or to challenge the reasonableness or the necessity for his continued detention. [17] Mr Henry referred to statements of principle from the case of Mohebbi v Minister of Immigration [2003] NZAR 685, para [25] in particular, and a number of passages in the decision of Lord Browne-Wilkinson delivering the advice of the Privy Council in Tan Te Lam v Superintendent of Tai A Chau Detention Centre & Anor [1997] AC 97. The statements of principle from those cases are not, and cannot be in issue. I observe, however, that Mohebbi was a quite different case. While under the Immigration Act it was under quite different provisions of the Immigration Act. The facts of that case cannot assist resolution of the present application. I also observe that in the case of Tan Te Lam the applicants have been detained for four years under the statutory powers authorising detention pending removal from Hong Kong. The strong statements of Lord Browne-Wilkinson as to the unreasonableness of the detention in that case were no doubt informed by that factual background.The issue – section 60[18] The issue for the Court is whether the detention of the applicant is lawful. As noted the challenge to the lawfulness is the adequacy of the information and whether the Judge could have properly found the further detention on 1 May was necessaryand reasonable. Consideration of that matter must be against the background of s 60 and the scheme of the Immigration Act itself. [19] I interpret the relevant provisions of the Immigration Act in the following way. Section 59 permits the arrest, without warrant, of a person on whom a removal order has been served and their detention for the purposes of execution of the removal order. In a number of cases, that removal will be achieved within a 72 hour period. Practically, one can understand why it may be necessary and appropriate for a person to be detained during that 72 hour period to ensure their effective removal within that short time period. However, in some instances, for the reasons set out in s 60(1) it will not be possible to remove a person within the 72 hour period. At that stage either the person must be released or brought before a District Court Judge for the purpose of obtaining a warrant of commitment. [20] Section 60(3) provides that a Judge may issue a warrant of commitment if satisfied on the balance of probabilities that the person in custody is the person named in the removal order, (which is not in issue in this case), and that any one of the conditions in (a) to (d) applies. In this case the Immigration Service rely on s 60(c):The other reasons the person was not able to leave New Zealand within the 72-hour period are still in existence and are likely to remain in existence, but not for an unreasonable period.[21] If the Judge is satisfied under that subsection that the reasons the person could not be removed within 72 hours remain, and are likely to do so, but not for an unreasonable period, the Judge may issue a warrant of commitment. [22] The warrant of commitment a Judge may issue if satisfied as to s 60(3)(c) is to be:for a period of 7 days or such shorter period as the Judge thinks necessary to enable the execution of the removal order. Section 60(2)[23] The scheme of the Act is that if the person that is illegally in New Zealand cannot be removed within 72 hours it is anticipated they will be removed within afurther seven day period. If that is not the case then the protection for the person in custody is that they are brought back before the Court at the most every seven days and have the opportunity for their continued custody to be reviewed by the District Court Judge. The Judge must be satisfied on each occasion that the reasons he was not able to leave remain and that the continued custody is not for an unreasonable period. [24] Putting the provisions of s 6 aside, (which are not relied on in the present case), I note that s 60(7) provides that: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.[25] Parliament has determined that at the outside, three months would be unreasonable. There may well be shorter periods that in certain circumstances are unreasonable. [26] I also note that under s 60(5) if the Judge can be satisfied that the person is unlikely to abscond, otherwise than by leaving New Zealand, then the person may be released subject to conditions. [27] On my reading of ss 59 and 60 the issue for the Judge on an application for warrant of commitment under s 60(3)(c), is whether the other reasons that the applicant was not able to leave New Zealand within the 72 hour period still exist and are likely to remain in existence, (which on the evidence before the Judge was the case), and whether those reasons were not likely to continue for an unreasonable period. In the present case the issue is the reasonableness or otherwise of the extended period. That to a degree must be informed by the three month cut-off which Parliament has determined is unreasonable . [28] On the information before the Court the applicant had been arrested on 21 April 2006. He was before the Court first on 24 April and again on 1 May 2006. At the most recent appearance the Court was informed it was likely he would be removed on 20 May. The Judge had that information before him and concluded thatthat time period was not an unreasonable time period on the information before him. That is a decision the Judge was entitled to make. [29] Mr Henry highlighted the use of the word "necessary" in s 60(2). As I read s 60(2) the reference to necessary is a reference to the length of the detention, in other words, it is a reference to the period of seven days or such shorter period as is necessary to enable execution of the removal order, rather than being directed at the issue of whether the continued detention per se is necessary. In other words if the Judge thought that a period of three days was necessary to enable execution of the removal order then that would be the period for which the warrant of commitment would issue. [30] I also accept the submission by Ms Cato that to a degree whether or not the delay and the further time in custody was unreasonable and the issues that might inform that would also affect whether or not it was necessary. Put another way, if it was not necessary for the warrant to be issued for an extended period to enable execution of the removal order then undoubtedly it would be unreasonable. However, on the information before the Judge in this case he determined that the continued detention given the anticipated flight of 20 May 2006, was not for an unreasonable time period. [31] I am not able to accept the second submission Mr Henry advanced, namely that the applicant was denied the opportunity to put evidence before the Court. Firstly as a matter of fact the applicant has not been denied any rights under the NZBOR such as to in any way impinge on the validity of the warrant of commitment issued by the Judge. When arrested initially the applicant was given his rights under the NZBOR. While held in custody by the police he was visited by Mr Onyeke. I would expect that when he was first before the Court on 24 April the duty solicitor was available. Mr Onyeke himself intended to instruct Mr Henry from an early stage on the applicant's behalf. Mr Henry certainly attended on behalf of the applicant when he was last before the Court on 1 May which was when the warrant was last reviewed.[32] Even accepting the slightly differing versions of what took place on 1 May before the Court it is apparent that submissions were addressed to the Court on the issue now raised by Mr Henry, namely the reasonableness or otherwise of the continued detention. The matter was squarely before the Judge and the Judge ruled on the matter. I do not accept that there has been any denial of rights to the applicant such as to invalidate the warrant of commitment issued or to otherwise undermine the decision of the Judge. [33] In summary the issue for the Judge was whether he should confirm the warrant of commitment for a further period of seven days. On the information before him the Judge had the authority and jurisdiction to issue a warrant of commitment for a further seven days. The Judge was directed to the issue of reasonableness. He ruled against the present applicant on that point and issued the warrant. There is nothing in the submissions advanced to this Court which lead me to the view that the detention of the applicant is otherwise than lawful. It follows that the application for the writ of habeas corpus must be dismissed. It is dismissed accordingly. [34] I do, however, draw counsel's attention again to s 60(5). It seems to me that if Mr Henry wishes to pursue this matter further for the applicant then the focus ought to be on whether, at the next appearance before the District Court, the applicant can satisfy the Court as to the matters set out in s 60(5) and appropriate conditions could be fixed to ensure the release of the applicant pending removal. __________________________ Venning J