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YADEGARY V AUCKLAND CENTRAL REMAND PRISON & ANOR HC AK CIV-2006-404-7620 [2006] NZHC 1585 (14 December 2006)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                         CIV-2006-404-7620



              BETWEEN                        HOSSEIN YADEGARY
                                             Applicant

       
      AND                            MANAGER, CUSTODIAL SERVICES,
                                             AUCKLAND CENTRAL REMAND
                                             PRISON
                                             First Respondent

             
AND                            CHIEF EXECUTIVE, DEPARTMENT OF
                                             LABOUR
              
                              Second Respondent


Appearances: D J Ryken and I M Chorao for Applicant
             A R Longdill for
Respondents

Judgment:     14 December 2006 at 3:30 pm


                 RESERVED JUDGMENT OF COURTNEY J




                  
         This judgment was delivered by me on
                                14 December 2006 at 3:30 pm
                      
   pursuant to r 540(4) of the High Court Rules




Solicitors:   Meredith Connell, P O Box 22213, Auckland
              Fax: (09)
336-7629

Counsel:      D J Ryken, Ryken & Associates, P O Box 501, Auckland
              Fax: (09) 356-7372

YADEGARY V AUCKLAND
CENTRAL REMAND PRISON & ANOR HC AK CIV-2006-404-7620 14
December 2006

Introduction


[1]     Mr Yadegary is subject to a removal
order pursuant to the Immigration Act
1987.      He has been detained since November 2004 pursuant to a warrant of
commit ment issued
under s 60, which has been periodically extended. Mr Yadegary
has applied for a writ of habeas corpus on the ground that the purpose
for which he
was originally detained no longer exists and that his ongoing detention is therefore
unlawful. Alternatively, Mr Yadegary
applies for bail pursuant to the inherent
jurisdict ion of the High Court.

[2]     At the conclusion of argument, Mr Ryken indicated
that he wished to file an
applicat ion for judicial review. I will hear that application on 18 December 2006. In
this judgment I
deal only with the application for habeas corpus, as I am required by
s 9 Habeas Corpus Act 2001 to give that application precedence
over all other
matters.    I will deal with the application for bail along with the forthcoming
applicat ion for judicial review.


Circumstances giving rise to application

[3]     Mr Yadegary arrived in New Zealand in 1993. He made three unsuccessful
applicat
ions for refugee status. By September 2004 he had exhausted all avenues of
appeal and judicial review and had failed to persuade
the Minister of Immigration to
intervene. He was detained pursuant to s 59 for the purpose of removing him to his
country of origin,
Iran.

[4]     However, Mr Yadegary had destroyed his passport, making removal within
the 72 hour period provided in s 59(3) impossible.
A warrant of commitment under
s 60 was therefore obtained, authorising his detention for seven days to enable the
removal order to
be executed. However, obtaining travel documentation for Mr
Yadegary proved more difficult than expected because he refused (and
continues to
refuse) to sign an application for a passport and the Iranian government requires
applicat ions for Iranian passports
to be signed by the applicant. Efforts are being
made to resolve this problem.

[5]     The warrant for commitment was last extended
by Field DCJ pursuant to
s 60(6A) on 17 November 2006.          It will expire on 15 December 2006 and

Immigration New Zealand
will then apply for a further extension. Mr Yadegary was
represented at the hearing on 17 November 2006 and made a cross-application
for
condit ional release under s 60(6) which provides:

       Unless the Judge considers that there are exceptional circumstances
that
       justify the person's release, a Judge may not order the release of the person
       under subsection (5) if - ...


      (b)     A direct or indirect reason for the person being unable to leave New
               Zeala nd is or was some action or inaction by the person occurring
       
       after the removal order was served.

[6]    The Judge found that exceptional circumstances for the purposes of s 60(6)
did
not exist and accordingly extended the warrant.


Availability of habeas corpus

[7]    The application is brought under the Habeas
Corpus Act 2001, s 14(2) which
provides:

       (2)     A judge dealing with an application must enquire into the matters of
  
            fact and law claimed to justify the detention and is not confined in
               that enquiry to the correction of
jurisdictional errors; but this
               subsection does not entitle a judge to call into question -

              a)    
A conviction of an offence by a court of competent
              jurisdiction, a duly constituted court marshall, or an officer

             exercising summary powers under Part 5 of the Armed Forces
              Discipline Act 1971; or

              b) 
   A ruling as to fail by a court of competent jurisdiction.

[8]    Mr Ryken submitted that the purpose for Mr Yadegary's detention
had
effect ively changed from allowing time to execute the removal order to trying to
reach a general agreement with the Iranian
authorities on the means by which a
person who refuses to sign a passport application can nevertheless be returned to
Iran. He said
that the passage of time and the lack of certainty as to whether and
when such agreement might be reached have rendered the initially
lawful detention
unlawful.

[9]    Clearly, Mr Yadegary's argument requires consideration of the facts on
which the decision to extend
the warrant of commitment was based. Enquiry into
those facts is not precluded by s 14(2). But that does not, in itself, mean that
Mr

Yadegary's position is appropriate for resolution through an application for a writ of
habeas corpus.

[10]   An application
for a writ of habeas corpus is only appropriate where the
arguments in issue are properly susceptible to fair and sensible summary
determinat ion.   Otherwise they should be held over for evaluation and judicial
review proceedings. This was the carefully explained
by the Court of Appeal in
Superintendent of Hawkes Bay Regional Prison  [2005] 1 NZLR 161:

       [46]    ...it would be wrong to conclude that a Court on a habeas corpus
       application is not entitled to examine an
administrative decision which
       underpins the legality of the applicant's detention........

       [47]    On the other hand,
Parliament must have contemplated a
       consideration of underlying questions of fact and law only to the extent to
       which
such inquiry is possible within the procedures provided for in the Act.
       The inquiry envisaged must have been one that although
conducted in
       circumstances of urgency would allow an appropriately considered judicial
       exa mination that would warrant
making an unappealable finding against the
       lawfulness of the detention.........

       [49]     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 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
       ma ker 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 property susceptible to fair and sensible
       summar y 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.

[11]   The respondents have produced a copy of the warrant of commitment
extended
by Field DCJ on 17 November 2006. It is apparently valid. Mr Ryken did
not suggest otherwise. The basis for the application is a
challenge to the grounds on
which the warrant was extended. Mr Ryken argued that the Judge's approach to the
applicat ion for extension
of the warrant and the cross-application for conditional
release was erroneous in that he failed to consider the change in the purpose
for

which the warrant was being sought and wrongly limited his consideration of
"except ional circumstances" to humanitarian issues.

[12]   I accept Ms Longdill's submission that these arguments are properly the
subject of an application for judicial review. There
are three main reasons for this.
First, Mr Yadegary's detention has been reviewed on a regular basis by a District
Judge. On each
occasion Mr Yedagary has either been represented or had the
opportunit y to be represented. On the occasion of the last extension
he was
represented there was argument in relation to the extension and his cross-application
for conditional release.

[13]   Secondly,
Mr Ryken's argument raises issues as to the proper construction of
ss 59 and 60, both in relation to the purpose of detention under
each of them and the
meaning of "extraordinary circumstances" in s 60(6).         I would be required to
consider the evidence adduced
by the respondent about the efforts being made to
make arrangements for the involuntary repatriation of those. These are important
issues and not appropriate for summary determination.

[14]   Thirdly, the respondent would have no right of appeal in the event
of a
decisio n in Mr Yadegary's favour. This is a significant factor, given the importance
of the issues raised.


Conclusion

[15]
  I find that Mr Yadegary's challenge to the lawfulness of his detention is
properly the subject of an application for judicial review rather than a writ
of habeas
corpus. I therefore dismiss the application.




                                                             ____________________


                                                             P Courtney J

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