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OPARAH V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR HC AK CIV 2006-404-002348 [2006] NZHC 458 (4 May 2006)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                             CIV 2006-404-002348

              UNDER                      the Habeas Corpus Act 2001

              IN THE MATTER OF           s 60 of the Immigration
Act 1987

              AND

              IN THE MATTER OF           ss 22, 23 and 27 of the New Zealand Bill of
              
                          Rights Act 1990

              BETWEEN                    EZE ISAAC OPARAH
                           
             Applicant

              AND                        THE CHIEF EXECUTIVE OF THE
                                    
    DEPARTMENT OF LABOUR
                                         Respondent


Hearing:      4 May 2006

Appearances: Mr C S Henry
for Applicant
             Ms K Cato for Respondent

Judgment:     4 May 2006


                     ORAL JUDGMENT OF VENNING J




Solicitors:   Witten-Hannah Howard, Takapuna, Auckland
              Crown Solicitor, Auckland
Copy to:      Mr C Henry, Auckland




OPARAH V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR HC AK CIV 2006-404-
002348 4 May 2006

Introduction


[1]     This
is an application for habeas corpus.       At present the applicant is in
custody under s 60 of the Immigration Act 1987.


Background


[2]     The applicant is a Nigerian National who arrived in New Zealand on a work
visa on 5 July 2003. He was granted a work permit
which was valid until 25 August
2004.   The applicant applied for further permits, the last of which expired on
9 November 2005.
Since 10 November 2005 the applicant has been unlawfully in
New Zealand. According to the records of the Department of Labour administering
the Immigration Act he has not renewed his permit and has no outstanding
applicat ions, appeals or reviews. I interpolate here that
during the course of hearing
Mr Henry submitted that his client in fact had applied for a review which had not
been determined but
I note there is no reference to that in the applicant's affidavit.


[3]     On the evidence before the Court the applicant is unlawfully
in New Zealand.
On 21 April 2006 the applicant attended the premises of the Immigration Service,
Queen Street. He was served with
a removal order. He was also taken into custody
on the same day pursuant to s 59 of the Immigration Act 1987 for the purposes of
executing the removal order.


[4]     At the time that the applicant was taken into custody by the police pursuant to
s 59 of the
Act he was advised of his rights to consult and instruct a lawyer without
delay in accordance with the New Zealand Bill of Rights
Act 1990 (NZBOR).


[5]     In order for the applicant to be removed from New Zealand to Nigeria the
Immigrat ion Service has to
obtain a risk assessment from the police, obtain airline
clearances and must also obtain a South African transit visa from the South
African
High Commission in Canberra. That is because the applicant's return to Nigeria is

via South Africa. The names of the police
escorts are required to be provided to the
South African High Commission in support of the visa application.


[6]     Section 59
of the Immigration Act permits the detention for up to 72 hours
without further authority of a person arrested under the section
pending placement on
a craft leaving New Zealand. Because of the visa requirements it was not possible
for the applicant to be removed
within that 72 hour period. Section 60 therefore
applied, particularly s 60(1)(d).      The Immigration Service did not release the
applicant so he was required to be brought before a District Court Judge for the
purpose of obtaining a warrant of commitment.


[7]     On 24 April the applicant was brought before the District Court at Auckland.
The Immigration Service applied for a warrant
of commitment under s 60. The
applicat ion for warrant was supported by an affidavit by Mr Ludlam, an immigration
officer familiar
with the applicant's file.


[8]     In addition to the general background set out above Mr Ludlam confirmed
there was no issue as to identity, and that the applicant had confirmed
he was neither
a New Zealand citizen nor permanent resident and did not have a permit to be in
New Zealand. Mr Ludlum then set out
the practical difficulties the Service faced in
removing the applicant from New Zealand due to the requirement for the South
African
transit visa.     He expected that may take two weeks.         A warrant of
commit ment was issued on 24 April 2006 for a period
of seven days until 1 May
2006.


[9]     The applicant was brought back before the District Court at Auckland on
1 May 2006.   
  At that time the Service sought an extension of the warrant of
commit ment. The application was supported by a further affidavit,
this time by
Mr Fennell, another immigration officer. Mr Fennell also deposed as to the practical
difficult ies facing the Service
in removing the applicant. He noted the applicant had
refused to sign the transit visa request on 21 April 2006 so the Service had
to obtain
further information. He deposed this usually takes 10 working days to be processed
and sent back to the Immigration Service
and advised the Court that a provisional
flight had been booked for the respondent to depart New Zealand on 20 May 2006

subject
to travel documents and appropriate clearances. A warrant of commitment
was sought for a further seven days.


[10]   The applicant
was not represented by counsel in Court on the first occasion
on 24 April but he was represented by his current counsel when he appeared
before
the Court on 1 May 2006. When it was indicated his continued detention was to be
opposed the matter was stood down and the
Judge returned to the application later.
There is a slight difference in the evidence before this Court as to what took place at
that hearing when the Judge confirmed the warrant of commitment and extended the
warrant for a further seven days until 8 May 2006.


[11]   Mr Alphaeus Onyeke who attended to support the applicant said (at para 9 of
his affidavit) that counsel, Mr Henry, had submitted
that an extended period of
detention to 20 May 2006 when previously 8 May 2006 had been the suggested date,
was unreasonable. Mr
Onyeke deposes that at that point the Judge interjected to say
that a four week detention is not unreasonable in immigration matters.
Mr Henry
began to say to the Judge that he would present the grounds on which Mr Oparah's
detention was unreasonable, but the Judge
intervened and said he was going to
reissue the warrant of commitment and that Mr Henry could appeal. Mr Onyeke said
the Judge did
not permit Mr Henry to make any submissions as to why Mr Oparah's
detention was unreasonable.


[12]   The solicitor attending for
the Service that day Ms Cotton has also deposed
what took place. She said that she indicated the applicant could seek release on
condit ions at the next application for extention of the warrant in response to counsel
Mr Henry's submission for the dismissal of
the warrant. The Judge indicated that
that was the appropriate course. Mr Henry then asked to further address the Court.
He began
making the submissions referred to in para 9 of the affidavit of Alphaeus
Onyeke Onyeke. He argued that detention until 20 May 2006
was unreasonable.
His Honoured ruled that detention to 20 May 2006 was not an unreasonable period
for these types of matters. At
that point there was some debate between Mr Henry
and the learned Judge as to what was unreasonable. The Judge observed it was
actually
a quite short period of time. Judge Noble granted an extention to the warrant
for seven days. Mr Henry was still attempting to argue
the matter at which point His

Honour said that that was his ruling and Mr Henry would have to review the decision
if he disagreed.


The Habeas Corpus Act


[13]   It is against that background that this application for habeas corpus comes
before this Court. The
application is pursuant to s 14 of the Habeas Corpus Act:

       14    Determination of applications

       (1)     If the defendant fails to establish that the detention of
the detained
       person is lawful, the High Court must grant as a matter of right a writ of
       habeas corpus ordering the
release of the detained person from detention.

       (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-martial, or an officer exercising
        
      summar y powers under Part 5 of the Armed Forces Discipline Act
               1971; or

               (b)     a ruling as
to bail by a court of competent jurisdiction.

       (3)     A Judge must determine an application by--

               (a)    
 refusing the application for the issue of the writ; or

               (b)      issuing the writ ordering the release from detention
of the
               detained person.

       (4)      All matters relating to the costs of and incidental to an application
  
    are in the discretion of the Court and the Court may refuse costs to a
       successful party or order a successful party to
pay costs to an unsuccessful
       party.

       (5)     A writ of habeas corpus may be in the form set out in the Schedule.

[14]
  That section and the principles to apply have recently been considered by the
Court of Appeal in the decision of Manuel v Superintendent
of Hawkes Bay Regional
Prison  [2005] 1 NZLR 161.


[15]   In response to the application for habeas corpus the respondents have
produced copies of the warrant of commitment issued
by the District Court on both

24 April 2006 and 1 May 2006 under s 60 of the Immigration Act 1987. Prima facie
in light of the
warrants of commitment the detention is lawful. However, Mr Henry
for the applicant challenged the lawfulness of the warrant on the
basis the grounds
were not made out for the Judge to have issued the warrant.


The applicant's submissions


[16]   In essence,
Mr Henry's submissions were that under s 60(2) of the
Immigrat ion Act the Judge had to find that the applicant's detention was necessary
and there was no evidence before the Court on which the Judge could have found the
continued detention was necessary and second,
that in breach of the applicant's
rights under the New Zealand Bill of Rights Act the applicant was not given the
opportunit y to
address evidence to the Court or to challenge the reasonableness or
the necessity for his continued detention.


[17]   Mr Henry
referred to statements of principle from the case of Mohebbi v
Minister of Immigration  [2003] NZAR 685, para [25] in particular, and a number of
passages in the decision of Lord Browne-Wilkinson delivering the advice of the
Privy Council
in Tan Te Lam v Superintendent of Tai A Chau Detention Centre &
Anor [1996] UKPC 5;  [1997] AC 97. The statements of principle from those cases are not, and cannot
be in issue. I observe, however, that Mohebbi was a quite different
case. While
under the Immigration Act it was under quite different provisions of the Immigration
Act. The facts of that case cannot
assist resolution of the present application. I also
observe that in the case of Tan Te Lam the applicants have been detained for
four
years under the statutory powers authorising detention pending removal from Hong
Kong. The strong statements of Lord Browne-Wilkinson
as to the unreasonableness
of the detention in that case were no doubt informed by that factual background.


The issue ­ section
60


[18]   The issue for the Court is whether the detention of the applicant is lawful. As
noted the challenge to the lawfulness
is the adequacy of the information and whether
the Judge could have properly found the further detention on 1 May was necessary


and reasonable. Consideration of that matter must be against the background of s 60
and the scheme of the Immigration Act itself.


[19]     I interpret the relevant provisions of the Immigration Act in the following
way. Section 59 permits the arrest, without
warrant, of a person on whom a removal
order has been served and their detention for the purposes of execution of the
removal order.
In a number of cases, that removal will be achieved within a 72 hour
period. Practically, one can understand why it may be necessary
and appropriate for
a person to be detained during that 72 hour period to ensure their effective removal
within that short time period.
However, in some instances, for the reasons set out in
s 60(1) it will not be possible to remove a person within the 72 hour period.
At that
stage either the person must be released or brought before a District Court Judge for
the purpose of obtaining a warrant
of commitment.


[20]     Section 60(3) provides that a Judge may issue a warrant of commitment if
satisfied on the balance of probabilities
that the person in custody is the person
named in the removal order, (which is not in issue in this case), and that any one of
the
conditions in (a) to (d) applies. In this case the Immigration Service rely on
s 60(c):

         The other reasons the person was
not able to leave New Zealand within the
         72-hour period are still in existence and are likely to remain in existence, but
         not for an unreasonable period.

[21]     If the Judge is satisfied under that subsection that the reasons the person
could
not be removed within 72 hours remain, and are likely to do so, but not for an
unreasonable period, the Judge may issue a warrant
of commitment.


[22]     The warrant of commitment a Judge may issue if satisfied as to s 60(3)(c) is
to be:

         for a period
of 7 days or such shorter period as the Judge thinks necessary to
         enable the execution of the removal order.

         
                                                          Section 60(2)

[23]     The scheme of the Act is that if the person that
is illegally in New Zealand
cannot be removed within 72 hours it is anticipated they will be removed within a

further seven day
period. If that is not the case then the protection for the person in
custody is that they are brought back before the Court at the
most every seven days
and have the opportunity for their continued custody to be reviewed by the District
Court Judge. The Judge
must be satisfied on each occasion that the reasons he was
not able to leave remain and that the continued custody is not for an
unreasonable
period.


[24]      Putting the provisions of s 6 aside, (which are not relied on in the present
case), I note that
s 60(7) provides that:

          No person may be detained under 1 or more warrants of commitment under
          this Part for
a consecutive period of more than 3 months, unless the person is
          a person to whom subsection (6) applies.

[25]      Parliament
has determined that at the outside, three months would be
unreasonable. There may well be shorter periods that in certain circumstances are
unreasonable.


[26]      I also
note that under s 60(5) if the Judge can be satisfied that the person is
unlikely to abscond, otherwise than by leaving New Zealand,
then the person may be
released subject to conditions.


[27]      On my reading of ss 59 and 60 the issue for the Judge on an application
for
warrant of commitment under s 60(3)(c), is whether the other reasons that the
applicant was not able to leave New Zealand within
the 72 hour period still exist and
are likely to remain in existence, (which on the evidence before the Judge was the
case), and
whether those reasons were not likely to continue for an unreasonable
period. In the present case the issue is the reasonableness
or otherwise of the
extended period. That to a degree must be informed by the three month cut-off
which Parliament has determined
is unreasonable .


[28]      On the information before the Court the applicant had been arrested on 21
April 2006. He was before
the Court first on 24 April and again on 1 May 2006. At
the most recent appearance the Court was informed it was likely he would
be
removed on 20 May. The Judge had that information before him and concluded that

that time period was not an unreasonable time
period on the information before him.
That is a decision the Judge was entitled to make.


[29]   Mr Henry highlighted the use of
the word "necessary" in s 60(2). As I read
s 60(2) the reference to necessary is a reference to the length of the detention, in
other
words, it is a reference to the period of seven days or such shorter period as is
necessary to enable execution of the removal order,
rather than being directed at the
issue of whether the continued detention per se is necessary. In other words if the
Judge thought
that a period of three days was necessary to enable execution of the
removal order then that would be the period for which the warrant
of commitment
would issue.


[30]   I also accept the submission by Ms Cato that to a degree whether or not the
delay and the further
time in custody was unreasonable and the issues that might
inform that would also affect whether or not it was necessary. Put another
way, if it
was not necessary for the warrant to be issued for an extended period to enable
execution of the removal order then undoubtedly
it would be unreasonable.
However, on the information before the Judge in this case he determined that the
continued detention given
the anticipated flight of 20 May 2006, was not for an
unreasonable time period.


[31]   I am not able to accept the second submission
Mr Henry advanced, namely
that the applicant was denied the opportunity to put evidence before the Court.
First ly as a matter of
fact the applicant has not been denied any rights under the
NZBOR such as to in any way impinge on the validity of the warrant of
commitment
issued by the Judge. When arrested initially the applicant was given his rights under
the NZBOR. While held in custody
by the police he was visited by Mr Onyeke. I
would expect that when he was first before the Court on 24 April the duty solicitor
was available. Mr Onyeke himself intended to instruct Mr Henry from an early stage
on the applicant's behalf. Mr Henry certainly
attended on behalf of the applicant
when he was last before the Court on 1 May which was when the warrant was last
reviewed.

[32]
  Even accepting the slightly differing versions of what took place on 1 May
before the Court it is apparent that submissions were
addressed to the Court on the
issue now raised by Mr Henry, namely the reasonableness or otherwise of the
continued detention. The
matter was squarely before the Judge and the Judge ruled
on the matter. I do not accept that there has been any denial of rights
to the applicant
such as to invalidate the warrant of commitment issued or to otherwise undermine
the decision of the Judge.


[33]
  In summary the issue for the Judge was whether he should confirm the
warrant of commitment for a further period of seven days. On the information
before him the Judge
had the authority and jurisdiction to issue a warrant of
commit ment for a further seven days.       The Judge was directed to the
issue of
reasonableness. He ruled against the present applicant on that point and issued the
warrant. There is nothing in the submissions
advanced to this Court which lead me
to the view that the detention of the applicant is otherwise than lawful. It follows
that the
application for the writ of habeas corpus must be dismissed. It is dismissed
accordingly.


[34]   I do, however, draw counsel's
attention again to s 60(5). It seems to me that
if Mr Henry wishes to pursue this matter further for the applicant then the focus
ought to be on whether, at the next appearance before the District Court, the
applicant can satisfy the Court as to the matters set
out in s 60(5) and appropriate
condit ions could be fixed to ensure the release of the applicant pending removal.




          
                                   __________________________
                                              Venning J