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High Court of New Zealand Decisions |
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CIV-2006-404-7683
UNDER The Judicature Amendment Act 1972
BETWEEN
HOSSEIN YADEGARY
Plaintiff
AND CHIEF
EXECUTIVE, DEPARTMENT OF
LABOUR
First
Defendant
AND THE DISTRICT COURT AT
AUCKLAND
Second Defendant
Hearing: 18 December 2006
Appearances: D J Ryken and I M
Charao for Plaintiff
B Keith and A Longdill for Defendants
Judgment: 4 April 2007 at 5:00 pm
RESERVED JUDGMENT OF COURTNEY J
This judgment was delivered by Justice Courtney
on 4 April 2007 at 5:00 pm
pursuant to r 540(4) of the High Court Rules.
Registrar / Deputy Registrar
Date............................
Solicitors:
Meredith Connell, P O Box 2213, Auckland
Fax: (09) 336-7629
Counsel: D J Ryken, Ryken & Associates, P O Box
501, Auckland
Fax: (09) 356-7372
YADEGARY V CEO DEPT OF LABOUR & ANOR HC AK CIV-2006-404-7683 4 April 2007
Introduction
[1] This case raises the very difficult question of how long a person who
deliberately obstructs his removal under the Immigration
Act 1987 can lawfully be
detained under s 60 of that Act.
[2] Mr Yadegary is an Iranian national who is subject to a removal
order. He has
been detained since November 2004 under a warrant of commitment issued pursuant
to s 60. He cannot be removed because
he has destroyed his passport and refuses to
apply for a new one. There are no arrangements in place with the Iranian
government
for involuntary repatriation.
[3] When Immigration New Zealand (INZ) applied in November 2006 to have
the warrant of commitment
extended Mr Yadegary filed a cross-application seeking
conditional release pursuant to s 60(5), which was refused. He now applies
for
judicial review of that decision.
[4] Judicial review of decisions by the District Court can be undertaken as part of
the
supervisory function of this Court. However, the power is exercised sparingly.
It is appropriate where, by reason of the nature of
the error of jurisdictional law in
the District Court, the intervention of this Court is necessary: Auckland District
Court v Attorney-General
[1993] 2 NZLR 129 at 133-136.
[5] Mr Yadegary asserts several errors by the Judge; however, they can be
viewed as two general complaints. First,
that the Judge did not consider whether
ongoing detention would be lawful. Secondly, that the Judge misdirected himself as
to the
meaning of the phrase "exceptional circumstances" in s 60(6).
Statutory scheme
[6] Sections 59 and 60 make provision for the
arrest and detention of persons
who are subject to removal orders. The two sections are complementary. Section
59 permits the arrest
without warrant and detention for up to 72 hours of any person
on whom a removal order has been served. The purpose of detention
under s 59 is
specified in s 59(2):
(2) the purpose of arrest and detention under this section is to execute
the
removal order by placing the person on a craft that is leaving New
Zealand.
[7] Section 60 applies when it becomes apparent
that the detainee is unable to
leave New Zealand within 72 hours. Section 60(2) authorises a District Court Judge
to issue a warrant
of commitment for up to seven days "to enable the execution of
the removal order". The circumstances in which a warrant of commitment
may be
issued are very wide, including, at s 60(1)(d), if "for some other reason the person is
unable to leave New Zealand within
the 72 hour period".
[8] Section 60 recognises that there will be cases where the removal order cannot
be executed within the
seven day period provided by s 60(2) and allows for the
warrant of commitment to be extended, although s 60(7) limits detention to
three
months. Where several extensions are likely to be required s 60(5) gives the Judge
the option of releasing the detainee on
conditions. The only prerequisite is that the
Judge must be satisfied that the person is unlikely to abscond otherwise than by
leaving
New Zealand:
(5) If a person is brought before a Judge under subsection (4) for a
second or subsequent time the
Judge may, where it seems likely that the
detention may need to be extended a number of times, and where satisfied
that the person is unlikely to abscond otherwise than by leaving New
Zealand, instead of extending the warrant of commitment
for a further period
of up to 7 days, order that the person be released subject to--
(a) Such conditions as to
the person's place of residence or as to
reporting at specified intervals to an office of the Department of
Labour or a Police station as the Judge thinks fit; and
(b) Such other conditions as the Judge may think fit
to impose for the
purpose of ensuring compliance with the residence and reporting
conditions.
[9]
However, under s 60(6), there are two categories of persons whose detention
is not limited by s 60(7) and whose eligibility for
conditional release under s 60(5) is
restricted. Mr Yadegary is a person to whom s 60(6) applies.
[10] Sections 60(6), (6A) and
(7) provide:
(6) Unless the Judge considers that there are exceptional circumstances
that justify the person's
release, a Judge may not order the release of a
person under subsection (5) if -
(a) The person is currently a
refugee status claimant who claimed
refugee status only after the removal order was served; or
(b) A direct
or indirect reason for the person being unable to leave New
Zealand is or was some action or inaction by the person
occurring
after the removal order was served.
(6A) Where a Judge determines not to order the release of a
person to
whom subsection (6) applies, the Judge may--
(a) extend the warrant of commitment for a further period
of up to 30
days, in which case--
(i) the warrant authorises the detention of the person named
in
it for the period specified in the extension of the warrant;
and
(ii) subsections (3) to (6) and this subsection apply at
the expiry
of the extension of the warrant; and
(b) make any orders and give any directions that
the Judge thinks fit.
(7) 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.
[11] Sections
60(6), (6A) and (7) in their current form were introduced through
the Immigration Amendment Act (No 2) 2003 in response to the decision
in
Mohebbi v Minister of Immigration [2003] NZAR 685 in which a detainee who
refused to sign a passport application was released because the three month
limitation under s 60(7) had
expired. The record of parliamentary debate at the time
shows that such behaviour had not been contemplated when s 60 was introduced
in
1999 and that Parliament regarded it as unacceptable that a person should secure
release through deliberately obstructing the
removal process.
Limits on detention under s 60
[12] Mr Ryken submitted that the power to detain under s 60 is subject to certain
implied limitations, including, particularly, that:
a) Detention must be necessary for the purpose for which it is
authorised; and
b) The period of detention cannot exceed what is reasonable in the
circumstances,
even where the person is one to whom s 60(6) applies.
Purpose of detention
[13] The Crown does not dispute that, to be lawful,
Mr Yadegary's detention must
be for the purpose authorised by s 60. There is, however, dispute between the parties
as to what the
purpose of detention under s 60 actually is. Mr Ryken submitted that
the purpose was the same as under s 59 i.e. to execute the removal
order by placing
the person on a craft that is leaving New Zealand. I do not accept that argument; it is
apparent from the circumstances
in which detention may be authorised under s 60
that it serves a much wider purpose than detention under s 59.
[14] In comparison,
the Crown asserts a wider purpose than that specified under
s 60(2). Mr Keith submitted that, by virtue of s 60(6)(b), detention
serves the
following broader purposes:
· applies a more stringent standard to those who obstruct removal;
· provides an incentive to the detainee to co-operate with removal
measures and a sanction for not doing so;
and
· prevents persons who obstructs removal from obtaining the benefit of
de facto residence.
[15]
Sanctioning obstructive conduct and giving an incentive for co-operation are
obvious reasons for denying conditional release under
s 60(5). But I do not accept
that they represent the purpose for which detention is authorised. The statutory
purpose appears clearly
from s 60(2), namely to enable a removal order to be
executed. Further, the warrant of commitment itself specifies execution of
the
removal order as the purpose of detention. It would be a surprising result if this
clearly stated purpose was enlarged by implication,
with a wider purpose being
inferred solely from the provisions that circumscribe conditional release.
[16] While the practical
effect of the purpose stated in s 60(2) and the objectives
identified by Mr Keith may well be the same (continued detention) I consider
that
the lawfulness of the continued detention requires fulfilment only of the purpose
identified in s 60(2). Put shortly, if ongoing
detention no longer serves the purpose
of enabling the removal order to be executed, then the purposes asserted by the
Crown could
not, in themselves, justify continued detention.
Length of detention - the Hardial Singh principles
[17] The circumstances
in which persons who obstruct the removal process can be
detained for prolonged periods have been extensively considered by the Privy
Council in Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1996] UKPC 5; [1997]
AC 97 and the High Court of Australia in Al-Kateb v Godwin [2004] HCA 37. Mr
Ryken relied heavily on the decision in Tan Te Lam, which concerned, in part,
Vietnamese detainees subject to removal orders under
the Hong Kong Immigration
Ordinance who could apply for voluntary repatriation but refused to do so. They
complained that their ongoing
detention was unlawful because the period for which
they had been detained was unreasonable.
[18] The Privy Council applied the
principles enunciated by Woolfe J in R v
Governor of Durham Prison, ex parte Hardial Singh [1983] EWHC 1; [1984] 1 WLR 704:
Although the power which is given to the Secretary of State...to detain
individuals is not subject to any express
limitation of time, I am quite
satisfied that it is subject to limitations. First of all, it can only authorise
detention
if the individual is being detained...pending his removal. It cannot
be used for any other purpose. Secondly, as the power
is given in order to
enable the machinery of deportation to be carried out, I regard the power of
detention as being
impliedly limited to a period which is reasonably
necessary for that purpose. The period which is reasonable will depend upon
the circumstances of the particular case. What is more, if there is a situation
where it is apparent to the Secretary
of State that he is not removing persons
who are intended to be deported within a reasonable period, it seems to me
that it would be wrong for the Secretary of State to seek to exercise his
power of detention. In addition, I would regard
it as implicit that the
Secretary of State should exercise all reasonable expedition to ensure that the
steps are taken
which will be necessary to ensure the removal of the
individual within a reasonable time.
[19] While affirming those principles,
the Privy Council recognised that they
could be excluded by express provisions. Delivering the judgment in Tan Te Lam,
Lord Browne-Wilkinson
said at p 111:
Section 13D(1) confers a power to detain a Vietnamese migrant "pending his
removal from Hong Kong".
Their Lordships have no doubt that in conferring
such a power to interfere with individual liberty, the legislature intended
that
such power could only be exercised reasonably and that accordingly it was
implicitly so limited. The principles
enunciated by Woolfe J in the Hardial
Singh case [1983] EWHC 1; [1984] 1 WLR 704 are statements of limitations on a statutory
power of detention pending removal. In the absence of contrary indications
in the statute which confers the power to detain "pending removal" their
Lordships agree with the principle stated by
Woolfe J. First, the power can
only be exercised during the period necessary, in all the circumstances of the
particular
case, to effect removal. Secondly, if it becomes clear that removal
is not going to be possible within a reasonable time,
further detention is not
authorised. Thirdly, the person seeking to exercise the power of detention
must take all reasonable
steps within his power to ensure the removal within
a reasonable time.
Although these restrictions are to be applied
where a statute confers simply a
power to detain "pending removal" without more, it is plainly possible for
the legislature
by express provision in the statute to exclude such implied
restrictions. Subject to a constitutional challenge (which does
not arise in
this case) the legislature can vary or possibly exclude the Hardial Singh
principle. But in their Lordships'
view the courts should construe strictly
any statutory provision purporting to allow the deprivation of individual
liberty by administrative detention and should be slow to hold that statutory
provisions authorise administrative detention
for unreasonable periods or in
unreasonable circumstances. (emphasis added)
[20] In the present case, although the Crown
accepts that s 60 does not authorise
indefinite detention (which quite apart from anything else would be a breach of the
Bill of
Rights Act 1990), it does not accept that there should be a limitation of the
kind imposed in Tan Te Lam. It asserts that s 60(6)
shows an intention that there be
a different approach to the detention of persons who obstruct the removal process i.e.
(although
not expressed this way in submissions) that there is a contrary indication
of the kind referred to by Lord Browne-Wilkinson in Tan
Te Lam.
[21] In Tan Te Lam the Privy Council held that there was no conflict between the
Hardial Singh principles and the relevant
part of the Ordinance, which required
expressly what Hardial Singh would otherwise imply. In addition, the Ordinance
specified that,
in considering whether the detention was reasonable, the fact that the
detainee could put an end to his detention was a factor
to take into account in
determining the reasonableness of the detention:
Section 13D(1A), which was inserted in 1991, expressly
envisages that the
exercise of the power of detention conferred by s 13D(1) will be unlawful if
the period of detention
is unreasonable. It expressly provides that "the
detention..." shall not be unlawful by reason of the period of the detention
if
that period is reasonable having regard to...What s 13D(1A) does is to
provide expressly that, in deciding whether
or not the period is reasonable,
regard shall be had to all the circumstances including (in the case of a person
detained
pending his removal from Hong Kong) "the extent to which it is
possible to make arrangements to effect his removal" and "whether
or not
the person has declined arrangements made or proposed for his removal".
Therefore the sub-section is expressly
based on the requirement that
detention must be reasonable in all the circumstances (the Hardial Singh
principle) but
imposes specific requirements that in judging such
reasonableness those two factors are to be taken into account...
In their Lordships' view the fact that the detention is self-induced by reason
of the failure to apply for voluntary repatriation
is a factor of fundamental
importance in considering whether, in all the circumstances, the detention is
reasonable.
[22] The application of the Hardial Singh principles was considered by the High
Court of Australia in Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562,
which concerned a stateless person detained under the Migration Act 1958 (Cth), s
196 of which requires that an unlawful non-citizen "must be kept in immigration
detention until he or she is.....removed from Australia.....
deported..... or granted a
visa". Section 196(3) provides:
To avoid doubt, subsection (1) prevents the release, even by a court, of an
unlawful non-citizen from detention
(otherwise than for removal or
detention) unless the non-citizen has been granted a visa.
[23] The majority of that Court
rejected the earlier decision by the Federal Court
of Australia in Minister for Immigration & Multi-cultural & Indigenous Affairs
v Al
Masri [2003] FCAFC 70 (also dealing with s 196), which had endorsed the Hardial
Singh principles and held that the language of s 196 was not sufficiently clear and
unambiguous as to show a conscious decision to curtail personal liberty for a
potentially unlimited
period.
[24] However, the ratio of the decision in Al-Kateb was that s 196 was sufficiently
clear to override any implied limitation of the kind implied by the Hardial Singh
principles. Implicit in the
judgment is the acknowledgement that such principles
would apply in the absence of such clear legislative intention. In his dissenting
judgment Kirby J, reviewing the decisions in Zadvydas v Davis [2001] USSC 16; 533 US 678 (2001),
Hardial Singh and Tan Te Lam, said of the approach to construction of relevant
legislation:
Likewise, in Tan Te Lam
the approach to the judicial function of statutory
interpretation adopted by the Privy Council in a Hong Kong appeal can only
be explained by reference to the same judicial resistance to unlimited
executive detention. In different courts the
resistance leads to different
techniques of decision-making and to different powers and outcomes. But
the common thread
that runs through all these cases is that judges of our
tradition incline to treat unlimited executive detention as incompatible
with
contemporary notions of the rule of law. Hence, judges regard such
unlimited detention with vigilance and suspicion.
They do what they can
within their constitutional functions to limit it and to subject it to express or
implied restrictions
defensive of individual liberty.
[25] Hayne J, while reaching a different conclusion as to the effect of the language
used in
s 196 expressed the same view as to the construction of legislation conferring
a power to detain:
There is a relevant general principle
to which effect must be given in
construing the provisions now in question: legislation is not to be construed
as interfering
with fundamental rights and freedoms unless the intention to
do so is unmistakably clear. General words will not suffice.
Reading the
three sections together, however, what is clear is that detention is mandatory
and must continue until
removal, or deportation, or the grant of a visa. The
relevant time limitation introduced to the otherwise temporally unbounded
detention is the time limit fixed by s 198- removal as soon as reasonably
practicable after certain events. No other more stringent, time limit can be
implied
into the legislation. (That is why the reasoning in Hardial Singh
finds no application here.) But more than that, the time
limit imposed by the
Act cannot be transformed by resort to the general principle identified. The
words are, as I have
said, intractable.
Application of Hardial Singh principles in New Zealand
[26] There have been cases in this Court in which
the Hardial Singh principles
have been accepted as applying, though without the point having been specifically
argued e.g. Abu v
Superintendent Mt Eden Womens' Prison [2000] NZAR 260;
Oparah v The Chief Executive of the Department of Labour HC AK CIV 2006-404-
002348 4 May 2006 Venning J. In particular, the question
whether s 60(6) ousts the
Hardial Singh limitations in relation to persons to whom s 60(6) applies appears
never to have been argued.
[27] For the reasons expressed by Lord Browne-Wilkinson in Tan Te Lam and
Hayne and Kirby JJ in Al-Kateb, it must be the case
that, absent clear legislative
intent, the Hardial Singh principles apply in New Zealand to the power to detain
under s 60. Section
60(5) clearly intends that, unless it is inappropriate because of
the risk of offending or absconding, persons should not be detained
longer than
necessary. Aside from s 60(6) there is nothing that could possibly be viewed as a
clear intention to permit prolonged
and possibly indefinite detention.
[28] However, the Crown contends that s 60(6), coupled with the removal of the
limitation
in s 60(7), should be interpreted as a clear intention to permit potentially
prolonged detention. One might view the removal of the
limitation in s 60(7) in
respect of those to whom s 60(6) applies as disclosing an intention that there be no
such limitation, express
or implied, in respect of such persons. This is especially so
having regard to the concerns recorded in the parliamentary debate
that preceded this
change. On the other hand, there is nothing in the wording to indicate that this
change was specifically intended
to permit prolonged detention. The removal of the
three month limitation period might simply reflect the fact that, in respect of
those to
whom s 60(6) applies, three months is unlikely to be sufficient to enable execution of
the detention order. I do not
consider that the change to s 60(7) conveys a
sufficiently clear intention that the limitation as to reasonableness implied into
other
detentions under s 60 should be excluded in these particular cases.
[29] This leaves the question whether, either alone
or coupled with the change to
s 60(7), the wording of s 60(6) is sufficiently clear to oust the implied requirement
for detention
to be reasonable in the circumstances. Clearly, s 60(6) was intended to
alter the way in which specified categories of persons are
dealt with by refusing them
the benefit of conditional release under s 60(5). Section 60(6) takes away the power
of conditional release
in respect of them unless exceptional circumstances exist. But
for the opening words "Unless the Judge considers that there are exceptional
circumstances that justify the person's release", s 60(6) would be couched in
absolute terms that would leave no room for doubt
that Parliament intended to
preclude absolutely the release of the specified categories of persons.
[30] So the question comes
down to whether the opening words of s 60(6) detract
from that meaning sufficiently to conclude that, even in relation to those specified
in
s 60(6), detention must be still be limited to what is reasonable in the circumstances.
The construction of these words must be
undertaken against the obvious intention
that the categories of persons specified in s 60(6) are to be treated less favourably
than
others to whom s 60 applies. However, the decision to add the opening words
to s 60(6) when, without them, the intention to allow
prolonged detention would
have been clear, can only have been intended to limit the effect that s 60(6) would
otherwise have had.
[31] The opening words of s 60(6) specifically envisage that there will be people
to whom s 60(6) applies who should nevertheless
be entitled to conditional release.
In adding these words Parliament has drawn back from the kind of unmistakable
language used by
the Australian legislature. I find that the opening words must have
been intended by Parliament to ensure that there was a safety
net that would prevent
the literal effect of s 60(6) being implemented. The result is that the Hardial Singh
principles apply to
those detained under s 60(6) as to any other person detained
under s 60.
[32] Mr Ryken submitted that the length of the detention should be regarded as an
exceptional
circumstance. There is no express restriction on what is encompassed in
the expression "exceptional circumstances". The phrase was
considered by the UK
Court of Appeal in R v Kelly [1999] UKHL 4; [1999] 2 All ER 13 in the context of whether
exceptional circumstances existed justifying not imposing a life sentence under the
Crime (Sentences) Act
1997. Lord Bingham said that:
We must construe "exceptional" as an ordinary, familiar English adjective,
and not as
a term of art. It describes a circumstance which is such as to form
an exception, which is out of the ordinary course, or
unusual, or special, or
uncommon. To be exceptional, a circumstance need not be unique, or
unprecedented, or very rare;
but it cannot be one that is regularly or
routinely, or normally encountered.
[33] In Patel v Removal Review Authority
and Department of Labour [2000]
NZAR 200 the Court of Appeal considered the phrase "exceptional circumstances of
a humanitarian nature" in the context of s 63B Immigration
Act 1987, observing that
in its natural usage "exceptional circumstances" sets a high threshold necessarily
involving questions of
fact and degree.
[34] Clearly, the words "exceptional circumstances" require circumstances that
are special and not usually
encountered. But because the phrase is not qualified so as
to be limited to humanitarian factors whereas it is so qualified elsewhere
in the Act, I
do not consider that it needs to be strictly limited to humanitarian factors in the sense
of physical or mental well-being.
I infer that a broader meaning was intended.
Given my conclusion that the Hardial Singh principles are to be implied into s 60(6)
I find that "exceptional circumstances" must include detention that would be
regarded as unreasonable within those principles. Only
in this way can the Hardial
Singh principles be given effect to.
[35] However, what is reasonable depends on the particular
circumstances of the
case. The factors that will usually be relevant were canvassed by Dyson LJ in R v
Secretary of State for the
Home Department, ex parte I [2002] EWCA Civ 888
(CA):
It is not possible or desirable to produce an exhaustive list of all the
circumstances that are or may be
relevant to the question of how long it is
reasonable for the Secretary of State to detain a person pending deportation
pursuant to paragraph 2(3) of schedule 3 to the Immigration Act 1971. But in
my view they include at least: the length
of the period of detention; the
nature of the obstacles which stand in the path of the Secretary of State
preventing
a deportation; the diligence, speed and effectiveness of the steps
taken by the Secretary of State to surmount such obstacles;
the condition in
which the detained person is being kept; the effect of detention on him and
his family; the risk
that if he is released from detention he will abscond; and
the danger, if released, he will commit criminal offences...
[36] In Tan Te Lam, the Privy Council observed that the conduct of the detainee
was of fundamental importance. However,
the relevant legislation specifically
required the Court to have regard to whether a detainee had declined arrangements
for removal,
thereby giving a clear signal that the detainee's conduct was to be given
significant weight.
[37] In comparison, in Ex parte
I Dyson LJ viewed the detainee's refusal to leave
voluntarily as relevant, though of limited significance, observing that:
...the mere fact (without more) that a detained person refuses the offer of
voluntary repatriation cannot make reasonable
a period of detention that
would otherwise be unreasonable. If Mr Robb were right, the refusal of an
offer of voluntary
repatriation would justify as reasonable any period of
detention, no matter how long, provided that the Secretary of State
was
doing his best to effect deportation.
[38] There is some force in this statement. If the detainee's conduct alone could
determine the reasonableness of the detention then the situation would become an
unseemly test as to whether the detainee could endure
detention long enough for the
Court to declare the period unreasonable. However, it is impossible to ignore the
obvious intention
behind s 60(6) that those who obstruct the removal process are to
be treated less favourably than those who do not. I consider that
this can only be
achieved by according the detainee's conduct substantial weight in determining
whether ongoing detention would be
unreasonable.
[39] I therefore conclude that detention of those to whom s 60(6) applies is subject
to the Hardial Singh principles.
If detention would be unreasonable in terms of
those principles then exceptional circumstances will exist for the purposes of s 60(6).
In determining whether detention would be unreasonable, the detainee's conduct is
to be accorded significant weight.
The present
case
Background
[40] Mr Yadegary arrived in New Zealand in 1993. He made three unsuccessful
applications 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.
[41] However,
having destroyed his passport, Mr Yadegary could not be removed
within the 72-hour period provided for in s 59(3). INZ obtained a
warrant of
commitment under s 60, authorising his detention for seven days to enable the
removal order to be executed. The purpose
of this extended period was to arrange
travel documentation. This proved impossible because Mr Yadegary refused (and
continues to
refuse) to sign an application for a passport and the Iranian government
requires applications for Iranian passports to be signed
by the applicant.
[42] There have been ongoing diplomatic efforts over the last two years or so to
secure arrangements with the
Iranian authorities for the involuntary repatriation of
persons in Mr Yadegary's position. Throughout this period INZ has regularly
obtained extensions to the warrant of
commitment. Prior to applying for such
extensions it offers Mr Yadegary the opportunity to change his position and apply
voluntarily
for an Iranian passport. He invariably declines the invitation.
The District Court decision
[43] In November 2006 the Judge
was confronted with INZ's application to
extend the warrant and Mr Yadegary's cross-application for conditional release. It is
clear
from the decision that the Judge did not give separate consideration to the
application to extend the warrant. Instead he appears
to have assumed that grounds
existed on which to allow that application and moved immediately to consider the
cross-application for
conditional release.
[44] After reviewing the background to the applications and observing the
provisions in s 60(6) the Judge
dealt with the question of whether exceptional
circumstances existed that would justify releasing Mr Yadegary. The
Judge
considered the facts that Mr Yadegary had not committed any criminal offence, was
not a flight risk and may yet be able to
apply again for refugee status. He also noted
the delay before his situation could be resolved. He then reached his conclusion that
there were no exceptional circumstances that would justify release:
[15] However, to come directly to the point, has
the respondent satisfied
me that there are exceptional circumstances here that would justify his
release?
[16]
An exceptional circumstance is a circumstance truly out of the
ordinary. It might include matters such as severe problems
with the physical
and mental health of the respondent or there may be extreme humanitarian
grounds on which the Court
could act. At the moment what I have is an
extensive support network; we have a significant delay that seems likely not
to persist indefinitely; we have the fact that Mr Yadegary has been in
custody for two years without having committed
any crimes; there is some
psychological effect on him to date - and I can well understand that.
[17] However,
I regret to say that these are not exceptional
circumstances. They are circumstances which would be common, I expect,
in many cases, to people who come before the Court and who have managed
to attract, deservedly, the concern of the community.
Grounds for judicial review
[45] Mr Yadegary says that the judge erred in:
a) Failing to consider the lawfulness
of ongoing detention. He maintains
that his ongoing detention no longer serves the purpose for which
detention is authorised under s 60 and is therefore unlawful;
b) Failing to consider whether the length of detention
to date would
make further detention unreasonable and therefore unlawful;
c) Misinterpreting the meaning
of "exceptional circumstances" in s 60(6)
by limiting it to humanitarian issues and not taking into account the
length of detention;
d) Wrongly finding that the prospect of a meeting in February between
INZ and Iranian authorities gave definition to the length of detention;
and
e) Refusing leave to cross-examine
the Crown's deponent, Mr Baker in
relation to the state of negotiations with the Iranian authorities.
[46] I deal
with the first, fourth and fifth grounds together as all being part of the
enquiry into whether the detention is still necessary
for the purpose authorised by
s 60. I consider the second and third grounds together as they both depend on an
assessment of the
reasonableness of ongoing detention.
Purpose of detention
[47] Mr Ryken submitted that Mr Yadegary's detention, although initially
lawful,
had become unlawful because its original purpose had been overtaken by the
inconclusive attempts to reach agreement with the Iranian authorities for involuntary
repatriation. Somewhat
inconsistently, he accepted that if repatriation was imminent
then Mr Yadegary could not maintain that he was being unlawfully detained.
So I
took the general tenor of the argument to be that progress towards arrangements for
involuntary repatriation has become so slow
and inconclusive that further detention
could not be said to be for the statutory purpose of removing Mr Yadegary, rather
than that
his detention until now had been unlawful.
[48] If Mr Ryken's submission were correct, it would follow that further detention
would be unlawful. If so, there would have been no basis on which to extend the
warrant. It was incumbent on the Judge in this case
to consider whether ongoing
detention would be lawful so as to support a further extension to the warrant. His
failure to do so was
undoubtedly an error. However, for the reasons I am about to
come to, it is an error that would not have affected the decision.
[49] The Crown says that meaningful diplomatic contact is continuing with
Iranian authorities and that there is reason to hope
that progress will be made this
year to effect suitable arrangements for involuntary repatriation.
[50] The District Court Judge
had before him an affidavit 16 November 2006 by
the National Manager, Border Security and Compliance Operations of Immigration
New
Zealand, Mr Baker. That affidavit very briefly outlined the diplomatic contact
and negotiations between New Zealand and Iran. Mr
Baker said that INZ, the
Ministry of Foreign Affairs and the Iranian Government were working towards an
agreement that complies with
the Convention on International Civil Aviation as well
as the respective domestic legislation of both countries. He expressed the
view that
conclusion of arrangements may be reached to coincide with a planned meeting of
the respective authorities in early 2007.
[51] The Judge refused Mr Yadegary leave to cross-examine Mr Baker on the
ground that "...all he [Mr Baker] could say was that
he had these discussions and
that was the result".
[52] Mr Baker gave a further affidavit 12 December 2006 for the purposes
of Mr
Yadegary's application for habeas corpus in which he gave more detail about the
ongoing negotiations between New Zealand and
Iran regarding both the provision of
passports for those who are co-operative and involuntary repatriation for those who
are not.
It is reasonable to assume that if Mr Baker had been cross-examined it is this
further detail that would have emerged.
[53] I
am satisfied from Mr Baker's evidence that INZ has been actively
addressing the issue of involuntary repatriation and that progress
is being made. It
cannot be said that negotiations have broken down or reached a stalemate such that a
concluded arrangement is unlikely
to be agreed upon some time in the future.
However, nor is there any certainty as to when the negotiations might actually
produce
an agreement that can be implemented. Mr Baker did not give any objective
basis for thinking that the meeting scheduled to take place
in February 2007 would
result in a firm agreement being reached.
[54] I was left with the strong impression from Mr Baker's evidence
that workable
arrangements are unlikely to be achieved until some time later this year, at the
earliest. Indeed, as the time for
the planned meeting has now passed with no advice
from INZ of a firm agreement being reached, this impression would seem to be
correct.
[55] Even on the Crown's evidence, it seems quite possible that Mr Yadegary
could be detained for at least three years and quite
possibly longer. In these
circumstances, can it be said that continued detention is still necessary for the
purpose of enabling
the removal order to be executed? The diplomatic negotiations
are unquestionably slow. They may, in the end, be unsuccessful. But
it seems quite
clear that they are being undertaken specifically to find a means by which Mr
Yadegary and others in his situation can be removed from New Zealand.
It is the
purpose that is in issue at this stage of the enquiry, not the certainty of the outcome.
I consider that the statutory
purpose required by s 60(2) is still being served by
ongoing detention.
Would ongoing detention be unreasonable under the Hardial
Singh principles?
[56] Mr Ryken's second main point was that the length of Mr Yadegary's
detention to date coupled with the likely
length of future detention made ongoing
detention unreasonable or alternatively constituted an exceptional circumstance for
the purposes
of s 60(6). As I have already concluded, if detention of a person to
whom s 60(6) applies would be unreasonable then exceptional
circumstances will
exist for the purposes of s 60(6).
[57] While the Judge specifically considered whether Mr
Yadegary's
circumstances were "exceptional" within the meaning of s 60(6), he failed to realise
that determining whether exceptional
circumstances existed in this case required
determination of whether ongoing detention would be reasonable. Although the
Judge did
not expressly limit the circumstances that might be regarded as exceptional
for the purposes of s 60(6), those that he identified
as relevant fell solely within the
realms of general humanitarian issues. He did not consider the reasonableness of
ongoing detention
within the Hardial Singh principles. As a result he effectively
limited the facts that should have been taken into account in deciding
whether
exceptional circumstances existed and wrongly failed to take into account the length
of detention to date, the likely length
of future detention and Mr Yadegary's conduct
in obstructing the removal process.
[58] I therefore turn to consider whether further
detention would be unreasonable.
Mr Yadegary has now been in detention for more than two years. He has no
criminal convictions. Apart
from immigration issues he led a law-abiding existence
in New Zealand before being detained. He has considerable support from reputable
members of the community. There is substantial evidence as to his good character.
He has offers of support, including accommodation.
[59] Although it would be unrealistic to exclude the risk of a person in
Mr Yadegary's position absconding, in Mr Yadegary's
case the risk does seem to be
low. There seems little risk of him offending. If these risks were high then one
would regard a longer
detention as tolerable but the Crown does not suggest that
there is a significant risk in this case.
[60] I regard the unchallenged
evidence of Mr Yadegary's good character as
significant. He appears to present little risk to the community and, to the contrary,
has something to contribute. I am mindful of the fact that the concern sparked by the
Mohebbi case seemed to arise as much from the
fact that Mr Mohebbi had
convictions for violence as from the fact that he was obstructing the removal process.
[61] Mr Yadegary
is being held at the Auckland Central Remand Prison. A
psychiatric report obtained in June 2005 describes a number of physical and
psychological symptoms which suggest that ongoing detention will be detrimental to
his mental health. Psychiatrist Dr Colin Goodwin
commented:
He presents with a mixture of both anxiety and depressive symptoms in
direct response to both his incarceration
and his ongoing uncertainty about
the possible length of that incarceration. In my opinion Mr Yadegary
currently
qualifies for the diagnosis of adjustment disorder with depressed
mood and anxiety as per the Diagnostic and Statistical
Manual 4TR (DSM-
IV TR)) of the American Psychiatric Association.
I am also of the opinion that Mr Yadegary's symptoms
appear to be
worsening while incarcerated. It appears likely that his symptoms will
continue to develop to the point
where he develops a Major Depressive
Episode in the future unless there is significant alteration to his current
circumstances.
Continued incarceration without a release date will result in
deterioration of Mr Yadegary's mental state.
[62] The next
factor to consider must be the probable length of detention in view
of the ongoing diplomatic negotiations. I accept that INZ has
been conscious of the
need to advance the issue of involuntary repatriation and has taken reasonable steps
to do so. Those steps
have progressed slowly but this seems likely to be the nature
of negotiating with a foreign government. As I have found, there is
still the prospect
of removal being achieved, albeit not soon. It seems very likely that Mr Yadegary
could be detained for at least
a further year until there are arrangements for his
removal in place. Given the time that he has already spent in custody, this is
a very
long time by anyone's standards. It exceeds the time regarded as unreasonable in R v
Secretary of State for the Home Department,
ex parte I.
[63] The circumstances of the detention and Mr Yadegary's psychological
response to them are hardly unusual. Regrettably,
many people find themselves in
the Auckland Central Remand Prison and find the conditions difficult to bear.
However, not many spend
more than two years there with the prospect of ongoing
detention for an unknown period (possibly years) without having committed
or even
being accused of any crime. Against the background of his good character and the
likely effect of ongoing detention on his
mental condition, in the absence of any
other factor, I consider that ongoing detention would be unreasonable.
[64] Against those
factors, however, is Mr Yadegary's obstructiveness. He could
secure his removal from New Zealand at any time. He has a genuine belief
that he
will be in danger if he does that. However, it was beyond the scope of either the
District Court considering the application
for extension of the warrant or of this
Court in reviewing the District Court's decision to enquire into the foundation for
that
belief. While accepting that the belief is genuine, I must proceed on the basis
that Mr Yadegary's status has been properly determined
and that he could, if he
wished, effect his removal from this country within a very short time by applying for
a passport.
[65]
Given my earlier conclusion as to the intention behind s 60(6) that a person in
Mr Yadegary's position be treated less favourably,
I accord this factor significant
weight. However, it cannot have the status of a trump card. There is a point at
which the unreasonableness
of ongoing detention outweighs the need to sanction
obstructive conduct. This does, of course, give rise to the unpalatable possibility
that
a detainee may be able to secure release simply by enduring detention long enough
for a Court to declare further detention unreasonable.
However, had Parliament
intended the sanctioning of obstructive conduct to prevail over other factors it could
have stated its intention
in unmistakable terms. It has not done so.
[66] I find that, even taking into account Mr Yadegary's obstructiveness, the
circumstances
of his detention are such as to make further detention unreasonable.
Exceptional circumstances therefore exist for the purposes of
s 60(6) and Mr
Yadegary is entitled to conditional release under s 60(5).
Summary of conclusions and relief
[67] I have found
that:
a) The purpose of detention under s 60 is to enable the execution of
removal orders. The Judge should
have considered whether ongoing
detention would serve this purpose. However, I am satisfied that it
would
and, therefore, this error would not have altered the outcome of
the decision;
b) The principles enunciated
in Hardial Singh apply generally to
detention under s 60, namely that:
i) Detention can only be for the purpose authorised by s 60;
ii) The length of detention must be limited to the period
reasonably necessary for the statutory purpose;
iii) What is a reasonable period depends on
the circumstances of
the particular case;
iv) The State must take the steps necessary to
achieve removal
within a reasonable time;
v) If it becomes apparent that removal cannot
be achieved within
a reasonable period the detainee must be released;
c) There is nothing in the
language of s 60(6) that could operate to
exclude the Hardial Singh principles. Accordingly, the phrase
"exceptional circumstances" in the opening words of s 60(6) is to be
construed so as to include detention
that would be unreasonable under
those principles. However, in determining what a reasonable period is
the detainee's own conduct in obstructing the removal process is to be
given significant;
d) The Judge
erred in not considering the reasonableness of ongoing
detention in light of all the relevant circumstances and in
limiting the
meaning of "exceptional circumstances" to purely humanitarian
issues. Proper consideration
of all the relevant factors would have
shown that on-going detention would be unreasonable and therefore
exceptional circumstances existed, with the result that Mr Yadegary
was eligible for conditional release.
[68] It is open to this Court to quash a decision of the District Court where it has
been reached on the basis of an error and
substitute its own decision: Fiordland
Venison v Minister of Agriculture & Fisheries[1978] 2 NZLR 341. I consider that to
be the
appropriate course in this case. I therefore grant the application for judicial
review, quash the decision of the District Court
and order that Mr Yadegary be
released on conditions. However, since I was not addressed on appropriate
conditions I remit the
matter to the District Court for conditions to be set, with that to
be addressed as a matter of urgency.
____________________
P Courtney J
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