SINGH V THE MANAGER OF CUSTODIAL SERVICES WAIKERIA PRISON HC AK CIV 2008-404-7677

SINGH V THE MANAGER OF CUSTODIAL SERVICES WAIKERIA PRISON HC AK CIV 2008-404-7677 19 November 2008IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2008-404-7677BETWEEN MAHINDER SINGH Applicant AND THE MANAGER OF CUSTODIAL SERVICES WAIKERIA PRISON Respondent Hearing: 19 November 2008 Counsel: FC Deliu for Applicant AR Longdill for Respondent Judgment: 19 November 2008ORAL JUDGMENT OF JOHN HANSEN JSolicitors: Equity Law, P O Box 8333, Auckland 1001 Meredith Connell, P O Box 2213, Auckland 1010 for Crown[1] The applicant, Mr Singh is presently detained pursuant to a warrant for committal made pursuant to s 60 of the Immigration Act on 13 November. The matter is next before the District Court tomorrow. He has issued judicial review proceedings seeking interim relief. Given that the matter was not served until 4.22 p.m. yesterday, the Crown is not in a position to deal with that and I adjourn that file to this list next week. [2] Mr Singh has also made application for a writ of habeas corpus. It is accepted, on behalf of Mr Singh, that he is an overstayer. He has in fact been an overstayer for many years. An unsuccessful appeal against the refusal of him being deemed a refugee is the last actions he took. He has married a New Zealand Maori woman. He has three children. He is divorced. He now has filed an affidavit saying that they are in the process of getting back together and that he was seeing his children on a daily basis. [3] The respondent is, of course, correctly the manager of the Waikeria Prison. It is also accepted that the warrant on its face is in the correct form. However, the argument is that habeas corpus should be granted from various factors leading to the grant of the warrant. In that regard, an affidavit has been filed by a Ms Orazbekova, who is a barrister's clerk but also a barrister and solicitor. The affidavit of the applicant was in fact sworn in front of her. Because this matter is urgent and because I have other hearings today, I am, of necessity, dealing with this orally. I cannot place my hands at this exact moment on the exact requirements but my understanding has always been that the person who takes the affidavit can not then be a witness in the cause. [4] There is also a difficulty in relation to the translation of Mr Singh's document and whether or not the Rules from 510 onwards have been complied with but I set that to one side. For present purposes, I also set to one side the fact that Ms Orazbekova took the affidavit of Mr Singh. Of more moment is that the affidavit contains hearsay which, in my view, would clearly be inadmissible because the persons concerned are available and could have given evidence themselves.Notwithstanding that, Mr Deliu points to various annexures to support the submissions that he has made. [5] The complaints can be summarised briefly as these. Firstly, Mr Orlov, who was then acting for Mr Singh, wrote to the District Court saying he represented Mr Singh and noting it was imperative he represent Mr Singh in opposition to the warrant. He requested urgently the hearing date and noted a half-day fixture would be required. He also advised that judicial review proceedings were being issued and that the hearing of the opposition was a matter of urgency. For completeness, he requested the Registrar to advise the trial Judge that Mr Singh had three children and a de facto spouse who are of Maori blood. Whether she has regained the status of spouse is unclear on the affidavits because it does not appear they are yet living together again. [6] What occurred was that initially it appeared the matter was set down for Wednesday, 12 November and a fax was sent confirming that. It is alleged that on 11 November the Court faxed Mr Orlov saying that the hearing was actually set for 13 November between 9.15 a.m. and 10.00 a.m. [7] The position stated in the affidavit is that, essentially, exhibit B (incorrectly referred to in the affidavit as annexure C) was not received, a list of faxes sent was requested from the Court and counsel's number was not on that. Counsel says he called the plaintiff's cousin (again through Ms Orazbekova) and was advised that the hearing was not as per the Court notice but on Friday. It is also said that counsel checked with his secretary and she advised that no other faxes were received, including the one at annexure B. So it is said that the right to be represented at the hearing was denied because of these errors. [8] Next it is said that Mr Singh was not given the advantage of an interpreter. Mr Singh has deposed that he speaks no English at all. There is a note on the warrant, issued on 6 November, that the matter was stood down for the wife and cousin to explain and clarify the details to Mr Singh and that they confirmed adequate communication. The note on the 13 th makes no mention of an interpreterbeing present but it is submitted that the note on the 6 th should have alerted the Judge on the 13 th to the need for an interpreter. [9] There is also a complaint that there is a note that the Duty Solicitor appeared. The complaint is, firstly, that Mr Orlov had written saying that he was acting and wanted, indeed, insisted on appearing, as was his right. Secondly, Ms Orazbekova said that counsel checked with the Duty Solicitor and that she had not represented the plaintiff. [10] There is also a complaint that, in terms of the Immigration Department policy, the wife had not been interviewed before this order was made. I am told from the bar by the Crown that many attempts were made to contact her. Eventually an appointment was made for 12 November when she failed to attend and she was eventually interviewed yesterday. Before a final order is made to execute the removal order, such an interview must take place but it is not a prerequisite for making an order under s 60. [11] Mr Deliu's essential complaint is that because these matters are dealt with on a 7-day basis, it is impossible to appeal or judicially review them in the timeframe allowed. He said, apart from habeas corpus, there is no other remedy available and he said what is happening in the District Court is that Judges are simply rubber- stamping these orders and people are disappearing into what I think he described as "a black hole". That is not strictly correct. As already noted, this man is to appear tomorrow and counsel can appear and make submissions in opposition to the warrant sought. [12] The problem I do have, however, is not just the problem that Ms Orazbekova was the solicitor in front of whom Mr Singh swore his affidavit. She states she was personally present during the events described in the affidavit. In my view, the exigencies of the situation are not such that would allow an applicant to ride rough- shod over the rules of admissibility of hearsay evidence. [13] In this case there is evidence that could have been given directly by the persons involved and even allowing for the exigencies of the situation, that wasclearly the appropriate course. As an example, in the time involved a large number of affidavits had been filed in the judicial review proceedings. There is a passage inMcGechan dealing exactly with this that I have had before but now set aside but I can indicate to counsel, I will include in the final judgment. [14] In the decision of Manuel v Superintendent of the Hawkes Bay Regional Prison [reference], the Court of Appeal stated:A 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 confinement, 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 cannot 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 enquire into challenges of administrative law grounds to decisions which lie upstream with apparently regular warrants. This is particularly likely to be the case where the decisionmaker is not the detaining party. There may not be a bright line which distinguishes between those arguments which are available on habeas corpus application 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 fear and sensible summary determination. If they are they can be addressed in habeas corpus proceedings. If not they must be held over for evaluation and 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.The question is, is this one of those rare cases. [15] Mrs Longdill, on behalf of the Crown, has said that the Crown takes issue factually with a number of the allegations made against the administration and Judges of the Tauranga District Court. She submits it is not appropriate to deal with them in the summary manner sought today. I agree. They are not the detaining party but it is their actions that are challenged in this application for habeas corpus. They can be dealt with properly in urgent judicial review proceedings. They are entitled to challenge them and this matter is not susceptible for proper summary determination, particularly in view of the state of the evidence that has been placed before the Court and the way it has been done. [16] Accordingly, the application for the writ of habeas corpus is dismissed...........................................John Hansen J Addendum[17] At [3] of my oral decision I referred to the rule that a solicitor taking an affidavit cannot be a witness in the cause. In this case Ms Orazbekova is described as a barrister and clerk working for Equity Law. She also states that she is a barrister and solicitor and in that role took the affidavit. The matter is governed by r 521(b) which means the Court could have declined completely to read Ms Orazbekova's affidavit. The same extends to a barrister. McGechan at HR521.04:Unless non-contentious, a solicitor who is personally involved, or whose firm is involved, or whose firm acts as agent for any party, is not authorised to take an affidavit. By analogy, a barrister with any connection with the proceedings is not authorised.[18] At [13] I indicated a passage of McGechan that I would include in this decision. [19] Rule 249 deals with provisions as to affidavits filed in support of interlocutory applications. It is clear that Parliament has to establish "solid grounds for belief" Chandris Lines Limited v Wilson & Horton Limited [1981] 2 NZLR 600. [20] At HR249.04 on McGechan the learned author stated:In practice, r 249 is interpreted liberally, perhaps particularly on the Commercial List. The Court will receive affidavits containing hearsay matter where the cost, delay and inconvenience involved in obtaining the evidence from a witness with personal knowledge would be disproportionate to the reasonable necessities of the case: Marac Financial Services Limited v Stewart [1993] 1 NZLR 86; Bell v John Holland Properties (NZ) Limited(1990) 3 PRNZ 536. However, that does not invite a rough-shod and slack attitude towards evidence normally inadmissible. Solid grounds for belief must be asserted. If they are not, reduced weight (as in Q v Q [1976] 2 NZLR 639 at 641) or no weight at all (as in Chandris Lines Limited v Wilson & Horton Limited[1981] 2 NZLR 600, at p 606) may be accorded to the evidence.