PAWEL MARIAN MISIUK V NEW ZEALAND PAROLE BOARD COA CA164/2012

PAWEL MARIAN MISIUK V NEW ZEALAND PAROLE BOARD COA CA164/2012 [27 March 2012]IN THE COURT OF APPEAL OF NEW ZEALANDCA164/2012[2012] NZCA 116BETWEEN PAWEL MARIAN MISIUKAppellantAND NEW ZEALAND PAROLE BOARDFirst RespondentAND DEPARTMENT OF CORRECTIONSSecond RespondentAND NEW ZEALAND IMMIGRATIONThird RespondentHearing: 27 March 2012Court: O'Regan P, Ellen France and White JJCounsel: Appellant in personL M Fong for RespondentsJudgment: 27 March 2012 at 4 45pmJUDGMENT OF THE COURTThe appeal is dismissed_______________________________________________________________REASONS OF THE COURT(Given by O'Regan P)Introduction[1] This is an appeal against a decision of Woodhouse J declining the appellant'sapplication for a writ of habeas corpus.1[2] Mr Misiuk is a serving prisoner, having been sentenced to imprisonment by a District Court Judge. He has challenged the legality of his imprisonment on numerous occasions, without success.Background[3] The background to the present application was summarised as follows by the High Court Judge:[3] On 24 January 2012 the Parole Board directed that Mr Misiuk bereleased on parole today (23 March 2012) "into the custody of the NewZealand Police or the New Zealand Immigration Service for immediatedeportation from New Zealand to Poland". There was also an order that Mr Misiuk not return to New Zealand.[4] There is no challenge before me to that decision. At paragraph 22 of that decision the Parole Board said:For all the reasons we have mentioned, therefore, Mr Misiuk will be released on parole for deportation. We expressly state that we are only considering his removal for deportation. If he were not to be deported that would require a fresh consideration by this Board because there are complications involving his ex-wife in New Zealand which need to be taken into account in considering release in this country.[5] On 21 March 2012, without hearing from Mr Misiuk, the Board made another decision. It refers to the decision of 24 January. It records as follows:2. We have now been told that because of difficulties in the deportation process, the deportation cannot proceed on 23 March 2012. He has been rebooked to depart New Zealand on Saturday 7 April 2012.3. The 7th April is not a usual release day but in the unusual circumstances of this case, it is appropriate for Mr Misiuk to be deported on that day and pursuant to Section 28(5) the direction for release is amended so that the release date will now be 7 April 2012.1 Misiuk v Department of Corrections [2012] NZHC 527.4. Under that Section, if the Board amends any direction, the Board is required to hold another hearing as soon as practicable. Such a hearing will be heard by video conference at 4.15pm on 28 March 2012.5. The decision is amended accordingly.High Court decision[4] Mr Misiuk argued that his continued detention was unlawful, given the Board's decision of 24 January because there had not been a hearing to vary the date of his release, there were no grounds for varying that date and the decision to vary the date was arbitrary. All of these grounds were rejected by Woodhouse J. We are satisfied that the Judge's reasoning is sound and we uphold his decision.Additional matters[5] Before us Mr Misiuk made two further arguments that had not been considered by the High Court Judge.[6] The first of these was that the Board was required to hold a hearing before varying the release date, because the Board was conducting hearings at the prison in which Mr Misiuk is held on the day on which the variation decision was issued, and there was therefore no practical impediment to such a hearing being held.[7] The second was that the Board ought not to have made the grant of paroleconditional on Mr Misiuk's release into the custody of the police or the New Zealand Immigration Service for immediate deportation because the appropriate procedure for dealing with the immediate deportation of a serving prisoner is that set out in s 55 of the Parole Act 2002, and the s 55 process was not followed in this case.[8] We will deal with these points in turn.Section 28(5) Parole Act 2002[9] As Woodhouse J noted, s 28(5) gives the Board power to revoke or amend any direction that an offender be released on parole at any time before the offender isreleased, but if it does so, the Board is required to hold another parole hearing "as soon as practicable".[10] Mr Misiuk argued in the High Court that the Board should have held a hearing at which he was able to make submissions before it decided to change his release date. He said its failure to do so was a breach of his right to be heard. The High Court Judge found that s 28 did not require a hearing to be conducted before a decision was made, but rather required that another parole hearing be held as soon as possible after the decision was made. We agree with the Judge. Mr Misiuk told us that the Parole Board was conducting hearings at Paremoremo Prison on the day on which the variation decision was made. He said that it would have been a simple matter for the Parole Board to arrange for him to be summoned and for a hearing to take place. He said in those circumstances s 28(5) should be interpreted as requiring a hearing to be conducted before the decision to vary or revoke the direction for release is made.[11] We can see no basis for that submission. Either there is a requirement for a hearing or there is not. There is no basis to interpret the s 28(5) differently, based on where the Parole Board happens to be conducting its business at any time. While the Board may choose to hold a hearing if that is practical in the circumstances, it does not seem that the holding of such a hearing would absolve it of the obligation under s 28(5) to hold another hearing as soon as practical after the decision. In the end, the words of the section are clear and the practicalities do not alter that meaning. This point of appeal fails.Section 55 Parole Act 2002[12] Section 55 of the Parole Act provides for a process which may be followed in cases where an offender is to be released early for deportation. Under that section the Minister of Immigration may, in his or her discretion, give the manager of aprison a notice ordering the release of an offender into the custody of a constable or immigration officer if certain preconditions apply. We are not able to determine whether s 55 is applicable on the facts of this case. But even if it is, it is not clear to us that it provides an exclusive process for dealing with serving prisoners who are to be deported, supplanting the powers of the Parole Board to order release under s 28.[13] The appellant argued that s 55 had to be followed in circumstances such as the present case. He said the Parole Board did not have power to impose a condition that he be released into the custody of the police or the New Zealand Immigration Service for deportation (that is, that he be released from one form of detention to another2). He said that the Parole Board had not said in its decision what power it was exercising in imposing that condition. The Parole Board did, however, make it clear that the condition that he be released into the custody of the New Zealand Police or the New Zealand Immigration Service was a special condition, and we think it is clear that in those circumstances the Board was exercising (or purporting to exercise) the power under s 29(1)(b) of the Parole Act to impose special conditions.[14] Under s 15(2), a special condition must not be imposed unless it is designedto reduce the risk of reoffending by the offender, facilitate or promote the offender'srehabilitation or provide for the reasonable concerns of victims of the offender. Ms Fong argued that in the present case the Parole Board must have been imposing a special condition for deportation because that would have reduced the risk of reoffending by the offender. She said the Board had taken into account the risk of reoffending in both New Zealand and in Poland, apparently following the decision of this Court in Va'alele v New Zealand Parole Board3 and had determined that the additional family support available to the appellant in Poland, and the fact that the victim of his offending would be in New Zealand while he was in Poland, meant that the risk of reoffending in Poland was lower than the risk of reoffending in New Zealand.2 He referred us to Garnie v Chief Executive of Department of Labour [2011] NZAR 300 (HC) asauthority for this, but we do not accept that it is authority for that proposition.3 Va'alele v New Zealand Parole Board [2007] NZCA 535 [2008] NZAR 281.[15] It is not entirely clear that that is what the Parole Board did in this case. The decision is sparse in explaining the conditions. And it is not clear to us how the power of the Minister under s 55 interacts with that of the Parole Board under s 28. The fact that this Court in Va'alele contemplated that the Parole Board would need to consider the risk of an applicant for parole re-offending in another country suggests the Parole Board does have a role in dealing with applicants who are to be deported immediately after release. We should not be seen as making any decision on this point: we do not have sufficient information to do so and for the reasons that follow it is not necessary that we do so.[16] The reason that it is not necessary for us to decide the point is that, even if s 55 was an exclusive process in the circumstances of the present case, the practical effect would be to render invalid the decision of the Parole Board which would have been made without jurisdiction. The consequence of that would be that no valid direction for the release of the appellant would exist, and he would remain subject to imprisonment under the warrants of commitment for sentence of imprisonment signed by a District Court Judge following his conviction for various offences on 6 April 2011. That would mean he was lawfully detained and that there would be no grounds for the issue of a writ of habeas corpus.Result[17] The appellant raised some points concerning the Parole Board's powers thatthe Parole Board will no doubt consider at the hearing tomorrow. But those points do not call into question the lawfulness of his detention.[18] The appeal is dismissed.Addendum[19] The appellant pointed out to us that the amended date for his release is 7 April, which is a Saturday. That appears to be contrary to s 28(3)(b) and (4) of the Parole Act.Solicitors:Crown Law Office, Wellington for Respondents