PATERNOSTRO V CHIEF EXECUTIVE OF DEPARTMENT OF LABOUR CA76/2011

PATERNOSTRO V CHIEF EXECUTIVE OF DEPARTMENT OF LABOUR CA76/2011 24 February 2011IN THE COURT OF APPEAL OF NEW ZEALANDCA76/2011[2011] NZCA 26BETWEEN JULIO A. QUINTEROS PATERNOSTROAppellantAND CHIEF EXECUTIVE OF DEPARTMENTOF LABOURRespondentHearing: 17 February 2011Court: Stevens, Potter and Miller JJCounsel: Appellant in PersonA R Longdill for RespondentJudgment: 24 February 2011 14:30:00JUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)Introduction[1] This appeal is brought against the High Court's refusal to issue the writ of habeas corpus. The appellant's application came before Asher J in January 2011when it was considered on an urgent basis.1 The appeal challenges the correctness of the refusal to issue the writ.1 Paternostro v Chief Executive of the Department of Corrections HC Auckland CIV-2011-404-248, 26 January 2011.Factual background[2] Mr Paternostro is an overstayer. His immigration status having been confirmed after he came to police attention on other matters, he was served with a removal order on 8 October 2010 and taken into police custody under s 59 of the Immigration Act 1987. He failed to challenge the removal order in the Immigration Protection Tribunal, and is now out of time to do so. However, after service of the removal order he did apply promptly for refugee status, meaning that he could not be deported while his claim was processed.[3] He was brought before a District Court Judge, who first issued a warrant of commitment under s 60 of the Immigration Act 1987 (the 1987 Act) on 11 October 2010. There have been nine further extensions of the warrant of commitment, the most recent of which occurred on 9 February 2011.[4] Section 60 of the 1987 Act authorises detention and, where it seems likely that detention may need to be extended a number of times, release on residence and reporting conditions. Warrants of commitment might be extended for up to three months, unless s 60(6) applied. It relevantly provides that:(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 ...In such a case, the warrant might be extended repeatedly for up to 30 days at a time.2[5] There are corresponding provisions in the Immigration Act 2009, which came into force on 29 November 2010 and pursuant to which Mr Paternostro is now detained.3 The effect of these provisions is that absent exceptional circumstances the District Court may not release Mr Paternostro on conditions while his belated refugee status claim is determined.2 Immigration Act 1987, s 60(6A).3 Immigration Act 2009, ss 443, 316, 317.[6] The most recent warrant of commitment was issued by Judge Johns on 9 February 2011. That the Judge issued a warrant is not in doubt, but the document contains an irregularity in that the Judge actually directed that it be issued for 14 days. Through an oversight, the warrant specified 28 days. We are not persuadedthat the error points to any present unlawfulness in Mr Paternostro's detention,although it would be a different matter if the warrant were not further renewed within the 14 day period specified by the Judge. We are assured by counsel for the respondent that an application for further extension will be made within that time.[7] On 30 November 2010, following his detention, Mr Paternostro married his long-term partner, a New Zealand citizen. There are two children of theirrelationship, and he has adopted a third child of his wife's. The marriage was thefocus of his argument before Asher J in the High Court.The High Court decision[8] The Judge correctly held that habeas corpus applications are concerned with the lawfulness of detention, and the Court will inquire into decisions upstream of a lawful detention order only where the issues are properly susceptible to fair and sensible summary determination.4[9] Dealing with the marriage, the Judge held:5His recent marriage cannot be seen as in any way casting doubt on the lawfulness of the Court order and the lawfulness of the detention based on that order. The fact that his children are New Zealand citizens does not affect the lawfulness of the warrant or his detention that follows. These factors do not constitute any basis for the issue of a writ of habeas corpus. Mr Paternostro refers to the fact that he has no criminal record in New Zealand. But his deportation is not based on any alleged criminal record.We respectfully agree.4 Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA).5 At [10].[10] Further, the Judge concluded that Mr Paternostro's detention was based on aduly signed warrant that he was satisfied was lawful.6 Accordingly the Judge concluded that no writ of habeas corpus should issue.Procedural Point[11] Mr Paternostro brought his application against the Chief Executive of the Department of Labour, which Department includes the Immigration Service. Asher J effectively struck out the Chief Executive and substituted the Chief Executive of the Department of Corrections, Crown counsel having advised him that the latter was the correct defendant. Mr Paternostro complains about that, saying that his grievance is with the Department of Labour and that the Chief Executive of that Department is the correct defendant under the Habeas Corpus Act 2001.[12] Section 8 of the Habeas Corpus Act does provide that a defendant may be described only by reference to office where the defendant is the Chief Executive of the Department of Labour, if the person is detained in police custody under powers conferred by the Immigration Act 1987 or is detained in custody under powers conferred by the Immigration Act 2009. As noted, he is now detained under the latter Act. That being so, s 8 of the Habeas Corpus Act contemplates that the Chief Executive may be cited as a defendant whether the plaintiff is held pursuant to police or immigration officer powers or under a warrant of commitment.[13] We accept that the Chief Executive need not have been struck out. However, nothing turns on the point. Mr Paternostro is actually in the custody of the Chief Executive of the Corrections Department, who is properly named as a defendant for that reason.7 A writ directed to the Chief Executive of the Corrections Department would secure his release if there existed proper grounds to do so. That being so, the presence of the Chief Executive of the Department of Labour was unnecessary.6 At [13].7 Corrections Act 2004, s 38(1).Evaluation[14] The appellant is currently held under a lawful warrant of commitment that is due to expire on 23 February 2011. It seems likely that that it will be renewed on or before that date. This Court has recently confirmed that the relevant date to consider the lawfulness of a warrant of commitment is the date of the hearing.8 We are satisfied that habeas corpus was correctly refused in the High Court.Result[15] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent8 Misiuk v The Chief Executive of Department of Corrections [2010] NZCA 480. Note: The Supreme Court confirmed this in their judgment declining leave to appeal: Misiuk v The Chief Executive of the Department of Corrections [2010] NZSC 140.