JOSE ROBERTO JIMENEZ PEREZ (AKA ALEXANDER CORZO LOAIZA) V CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS HC AK CIV-2012-404-004754

JOSE ROBERTO JIMENEZ PEREZ (AKA ALEXANDER CORZO LOAIZA) V CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS HC AK CIV-2012-404-004754 [16 August 2012]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2012-404-004754[2012] NZHC 2115IN THE MATTER OF the Habeas Corpus Act 2001BETWEEN JOSE ROBERTO JIMENEZ PEREZ (AKAALEXANDER CORZO LOAIZA)ApplicantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 16 August 2012Counsel: DA Ewen for ApplicantA Longdill for RespondentJudgment: 16 August 2012JUDGMENT OF ASHER JSolicitors/Counsel:DA Ewen, Woodward Chambers, PO Box 5744, Wellington 6145. Email: douglas@woodward.net.nzCrown Solicitor, DX CP24063, Auckland 1140. Email: anna.longdill@meredithconnell.co.nzIntroduction[1] The applicant Jose Roberto Jimenez Perez, also known as Alexander CorzoLoaiza ("Mr Corzo") applies for a writ of habeas corpus. Mr Corzo is a Columbiannational. He was arrested shortly after his arrival in New Zealand in 2011. He ispresently held in prison at Auckland under a warrant of commitment for sentence ofimprisonment dated 28 February 2012. The sentence was for three years and sixmonths' imprisonment following his conviction on two counts of aggravatedrobbery.[2] Mr Corzo became eligible for parole on 3 August 2012. On or about that date he sought parole and the hearing took place at Mt Eden Corrections Facility on6 August 2012. Mr Corzo through his lawyer, Mr Ewen, asked to be released byThursday, 9 August 2012. The panel had before it a letter sent on 4 April 2012 fromImmigration New Zealand. It advised that Mr Corzo was unlawfully in NewZealand and stated:Immigration New Zealand (INZ) intends to deport JOSE JIMENEZ PEREZ from New Zealand on completion of his prison sentence. Hewill be taken into custody by police pursuant to section 313 of theImmigration Act 2009 and removed on the first available flight.We would appreciate if possible, a minimum of 4 weeks notice prior to any release date in order that we can organise travel arrangements for him and any police escorts that may be required to travel with him.[3] The Parole Board briefly set out the background of Mr Corzo being in prison and noted that he had been a compliant prisoner and that his risk of re-offending wasassessed as low. It observed:He is subject to an order for deportation. In this Board's view, subject to hisdeportation, he no longer presents an undue risk to the safety of the community.Accordingly, Mr Jiminez-Perez [Mr Corzo] will be released from prison on 3 September 2012 subject to the two special conditions:(1) That he be released on 3 September 2012 into the custody of the New Zealand Immigration Service or the New Zealand Police for immediate deportation from New Zealand.(2) That he not re-enter New Zealand for the period of his special leaveconditions of parole which are through until his sentence end date of1 December 2014.Standard release conditions were imposed.[4] I record that by consent the name of the respondent which was originallystated to be the manager of Mt Eden Corrections Facility has, by consent, beenchanged to "Chief Executive of the Department of Corrections".The application[5] The application for a writ of habeas corpus states:The New Zealand Parole Board has wrongly and unlawfully deferred the release date until 3 September 2012, by acting under the dictation of another,namely an immigration officer, Nicole Willson.[6] Mr Ewen accepted that Mr Corzo was held under a valid warrant of committal. However, he submitted that his ongoing detention was illegal and thatthe Parole Board had acted contrary to the guiding principles of s 7 of the Parole Act2002 and that he was being detained longer than was consistent with the safety of thecommunity. He submitted that the Parole Board, having determined that Mr Corzowas no longer a danger to the community, was obliged to release him with allpossible speed, which in the circumstances would have been no longer than sevendays after the date of the decision, rather than the one month that was directed.[7] Mr Ewen submitted that in the end the Parole Board was dictated to by the Immigration Service and simply carried out its instruction to defer parole for fourweeks without any proper consideration of whether this was necessary for the safetyof the community. The Parole Board, he submitted, disregarded its own paramountgoverning principles and also acted inconsistently with the purposes of theImmigration Act 2009 which contains specific provision for parolees liable fordeportation.1 He submitted that the immigration officer's request was an irrelevantconsideration that the Parole Board took into account when it should not have.1 Immigration Act 2009, ss 335–336.Approach to habeas corpus[8] The Habeas Corpus Act 2001 provides for the quick and summarydetermination of an application. In such a short notice application as this (the paperswere filed yesterday) it is difficult for a court to, in any satisfactory way, determinesubstantive contested issues that do not relate to the face of the record under whichthe applicant is held. Nevertheless, under s 14(2) the Judge must inquire into mattersof fact and law claiming to justify the detention. It was stated in Manuel vSuperintendent of Hawkes Bay Regional Prison:2A person who detains another can fairly be expected to establish, effectively on demand, the legal justification for the detention. In cases involving imprisonment or other statutory confinements, this will involve the production of a relevant warrant or warrants or other documents which provide the basis for the detention. We accept that apparently regular warrants (or other similar documents) will not always be a decisive answer to a habeas corpus application. But it will be a rare case, we think, where the habeas corpus procedures will permit the Court to inquire, into challenges on administrative law grounds to decisions which lie upstream of apparently regular warrants. This is particularly likely to be the case where the decision maker is not the detaining party. There may not be a bright line which distinguishes between those arguments which are available on habeas corpus applications and those which can only be deployed (if deployed at all) in judicial review proceedings. Nonetheless we see the test as coming down to whether the arguments in issue are properly susceptible to fair and sensible summary determination. If they are, they can be addressed in habeas corpus proceedings. If not, they must be held over for evaluation in judicial review proceedings. In such proceedings, an application for interim relief (including release from custody) would be dealt with urgently and the Judge dealing with such an application would be in a position to give directions as to the future conduct of the litigation to ensure prompt substantive determination.(emphasis added)[9] As I have indicated there is no contest about the prima facie position. Mr Corzo is held under a valid warrant. As Mr Ewen accepts, the question iswhether this is one of those rare cases where the habeas corpus procedures willpermit the Court to inquire into challenges on administrative law grounds todecisions that lie upstream of the regular warrant. As part of the exercise I mustassess whether the arguments are properly susceptible to fair and sensible summarydetermination.2 Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA) at [49].[10] It was observed in Manuel that it was particularlyunlikely to be the case thatan upstream consideration would be warranted where the decision-maker was not thedetaining party. Here the decision-maker, the Parole Board, is not the detainingparty. This indicates an inherent difficulty in dealing with this application by way ofhabeas corpus. The Parole Board exercises a discretionary power whereby it maydirect the early release of a prisoner. The prisoner is not held under the warrant ofthe Parole Board. The Parole Board procedure is, in comparison to Court processes,informal. There is no orthodox right of appeal but there is a right of review to thechairperson of the Parole Board or a single panel convener. While there are guidingprinciples set out, the Parole Board in exercising a broad discretion, looks at manyconsiderations. This abbreviated and formal habeas corpus courtroom processprovides at best a very awkward forum for the determination of a challenge to such adiscretionary decision. It is with these principles in mind that I go on to consider themerits of the arguments for Mr Corzo.Statutory context[11] Sections 7(1) and (2)(a) of the Parole Act 2002 provide:7 Guiding principles(1) When making decisions about, or in any way relating to, the release of an offender, the paramount consideration for the Board in every case isthe safety of the community.(2) Other principles that must guide the Board's decisions are—(a) that offenders must not be detained any longer than is consistent with the safety of the community, and that they must not be subject to release conditions that are more onerous, or last longer, than is consistent with the safety of the community...(emphasis added)[12] There are provisions in the Parole Act that are also relevant. It is provided ats 28(1AA):28 Direction for release on parole(1AA) In deciding whether or not to release an offender on parole, the Board must bear in mind that the offender has no entitlement to be released on parole and, in particular, that neither the offender's eligibility for release on parole nor anything else in this Act or any other enactment confers such an entitlement.(emphasis added)[13] Section 28(2) requires the Parole Board, when considering undue risk to thesafety of the community, to have regard to the support and supervision available tothe offender following release and the public interest in the reintegration of theoffender into society as a law abiding citizen. Section 28(3) requires the ParoleBoard to specify the date on which an offender is to be released which must be a datethat is not later than six months after the hearing.[14] Three observations can be made arising from these provisions:(a) safety of the community is the paramount consideration;(b) an offender has no entitlement to be released on parole and nothing in the Parole Act confers such an entitlement; and(c) it is contemplated that despite the fact that any release date is on the basis that the safety of the community will not be imperilled by the release, a date of up to six months out from the hearing can bespecified.This application[15] In considering Mr Ewen's submissions I must now consider these factors andrelate them to what the Parole Board did. It had before it an offender who was goingto be deported. Under s 28(3) of the Parole Act it had up to six months in which tofix the date for his deportation. Provided he remained in custody up to the time ofhis deportation, there was no danger to the safety of the community. However, thatsafety was entirely dependent on Mr Corzo remaining in immigration custody fromthe moment of his release from prison. The details of what would happen followinghis release from prison into the hands of Immigration New Zealand was not a matter within the knowledge of the Parole Board. The only reason it could give a certain and quick release was the certainty that Immigration New Zealand would take control of Mr Corzo and that the community would be protected as a consequence.Therefore, it is not surprising that it should be guided by Immigration New Zealand'sown assessment of the time it needed from the moment of release to when Mr Corzowas flown out of the country.[16] Ms Longdill for the respondent pointed out that once released to animmigration officer, Mr Corzo could only be held for up to 96 hours without awarrant under s 313 of the Immigration Act. This is a significant consideration. Forhim to be detained after 96 hours, an application would have to be made to theDistrict Court. It would be open to Mr Corzo to seek a release on conditions. Fromthat point there would be a risk to the community that the Parole Board would haveno control over, and not be able to assess.[17] Mr Ewen stated that he, and indeed his client directly to the Court, would beprepared to undertake not to challenge his continued detention. He made the pointthat his client only wanted to go home to Columbia as soon as possible. Thedifficulty with an undertaking is that while the Court would accept any undertakingfrom Mr Ewen that was in respect to a matter that was under his control, there is nocertainty as to what might happen and what action might be taken at a later point intime by Mr Corzo. I cannot assume that any undertaking is certain to be respected.[18] There can be occasions when, in an immigration context, there is a proven and material upstream error that can warrant intervention under a writ of habeas corpus,3 but this is not one of those cases. I am not persuaded that any error on the part of the Parole Board has been demonstrated. I do not accept that there was anyclear inconsistency with the guiding principles in s 7(2) of the Parole Act in theParole Board's decision to accept the request of the immigration department thatthere should be a time period of four weeks to enable them to arrange and ensureMr Corzo's departure. Rather, consistent with s 7(1), the safety of the community3 For example, see Garnie v Chief Executive of Department of Labour [2011] NZAR 300 (HC).has led the Parole Board to adopt the timing put forward by Immigration New Zealand as the practical way forward.[19] Further, the arguments presented by Mr Ewen are not properly susceptible tofair and sensible summary determination. To assess fully the community safetyissues of immediate release before a departure date had been arranged byimmigration officers, the Court would be required to go beyond what could besensibly determined on the information before it. Mr Ewen has referred todiscussions he has had with immigration officers and various perspectives he has onthe conduct or mechanics of the departure. He has referred to the structure of theimmigration regime in the Immigration Act. But it is quite impossible for this Courtto form with confidence an assessment of the reasonableness or unreasonableness ofthe four week period provided for. The Parole Board was not being dictated to byImmigration New Zealand. But if it was minded to release Mr Corzo, it could acceptthe timeframe put forward as a safe and practicable way to release him.[20] It is relevant to note that in the case of Misiuk v New Zealand Parole Board4the Parole Board had on 24 January 2012 directed that Mr Misiuk be released onparole on 23 March 2012, some two months later. Ultimately, that time wasextended even further to 7 April 2012. The case in the High Court5 and Court ofAppeal6 did not turn on whether this delay reflected an adequate regard for s 7(2) ofthe Parole Act, but there was no suggestion in those decisions that the periodbetween the decision and release of two and a half months was excessive. It is alsoto be noted that the Parole Board there had considered that if Mr Misiuk was not tobe deported in the time period, that would require a fresh consideration of the issues.So in this case if Mr Corzo was not to be deported on 3 September 2012 theimmediate result would be a fresh consideration of when the appropriate deportationwould be, rather than any immediate release. This demonstrates the difficultyinvolved in the immediate release that would result if this application for a writ ofhabeas corpus were granted.4 Misiuk v New Zealand Parole Board [2012] NZCA 116.5 Misiuk v Department of Corrections [2012] NZHC 527.6 Misiuk v New Zealand Parole Board, above n 4.[21] The fact immediate release is not a remedy obviously available in this Courtin the habeas corpus jurisdiction is a further indication that this application cannotsucceed.Conclusion[22] The detention of Mr Corzo under the warrant of commitment is lawful. This is not one of the rare cases where there is an upstream error capable of fair and sensible summary determination that warrants the consideration of upstream matters.Result[23] The application for a writ of habeas corpus is declined...Asher J