QIWEN HUANG V THE MANAGER OF CUSTODIAL SERVICES, AUCKLAND CENTRAL REMAND PRISON CA CA389/2008

QIWEN HUANG V THE MANAGER OF CUSTODIAL SERVICES, AUCKLAND CENTRAL REMAND PRISON CA CA389/2008 9 July 2008IN THE COURT OF APPEAL OF NEW ZEALAND CA389/2008 [2008] NZCA 225BETWEEN QIWEN HUANG Appellant AND THE MANAGER OF CUSTODIAL SERVICES, AUCKLAND CENTRAL REMAND PRISON Respondent Court: William Young P, Chambers and Ellen France JJ Counsel: F C Deliu for Appellant A Longdill for Crown Judgment: 9 July 2008 at 11.30 am (On the Papers)JUDGMENT OF THE COURT The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by William Young P) [1] This appeal was filed yesterday and is against a judgment delivered on Monday 7 July by Venning J in which he dismissed an application for habeas corpus. With the consent of the parties, given in circumstances to be discussed later in this judgment, we are dealing with the appeal on the papers. [2] The challenged detention is pursuant to a warrant of commitment issued under s 60 of the Immigration Act 1987 on 4 July 2008. We note in passing that thelegislation provides for a right of appeal against the issuing of such warrants, see the judgment of Potter J in Mohebbi v Chief Executive of the Department of Labour HC AK CIV 2007-404-3710 5 November 2007. The appellant's primary complaint is that the judge who granted the warrant was biased. This is the sort of challenge which would normally be addressed in judicial review proceedings to which the judge was a party and where there would be appeal rights on both sides. In those circumstances the case fell to be determined in accordance with the principles discussed in Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA) which Venning J applied in dismissing the application. [3] The appellant sought an urgent hearing of the appeal to this Court and proposed that this take place yesterday afternoon, ie within hours of the appeal being lodged. The impugned warrant expires at 5.00pm today and an application to extend the warrant is to be heard in the District Court at Manukau at 2.15 pm today. Counsel for the appellant anticipated that a further warrant will be issued (or the original warrant will be extended) and that this will render moot the present proceedings. Counsel wanted to have the appeal heard yesterday afternoon so that if it were dismissed he could apply for leave to appeal to the Supreme Court. [4] The President was not prepared to set the appeal down for hearing on that basis. He considered that if Manuel is to be reconsidered, it should be in the context of a properly argued case where all the facts are properly before the Court. He took the view the case would not be ready to be heard, and could not be fairly dealt with, yesterday afternoon. [5] In response, counsel for the appellant invited the Court to deal with the case on the papers. This invitation was made on the basis that counsel expects the appeal to be dismissed but seeks a decision from this Court which can be the subject of further appeal. The Crown has no objection to us proceeding on that basis.[6] Accordingly, we dismiss the appeal. We adopt the reasons given by Venning J and apply Manuel.Solicitors: Equity Law, Auckland for Respondent S J Eisdel Moore, Crown Solicitor, Auckland for Respondent