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High Court of New Zealand Decisions |
Last Updated: 31 October 2010
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2010-404-006661
IN THE MATTER OF section 6 of the Habeas Corpus Act 2001 and section 60 of the Immigation Act 1987
BETWEEN JIAN WU LIN Plaintiff
AND CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent
Hearing: 8 October 2010
Appearances: SHN Chan for the Plaintiff
A Longdill for the Respondent
Judgment: 8 October 2010
ORAL JUDGMENT OF PRIESTLEY J
Counsel:
SHN Chan, McVeagh Fleming, P O Box 4099, Shortland Street, Auckland 1140. Fax: 09 377 9956
DX CP21506. Email: schan@mcveaghfleming.co.nz
A Longdill, Meredith Connell & Co, P O Box 2213, Auckland 1140. Fax: 09 336 7629
DX CP24063. Email: anna.longdill@meredithconnell.co.nz
LIN V CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS HC AK CIV-2010-404-006661 8
October 2010
[1] This is an application under the Habeas Corpus Act 2001. As required by the statute it has been heard expeditiously. It was filed yesterday morning.
[2] The named respondent is the Chief Executive of the Department of Labour. The respondent has been named in error. Ms Longdill, who appears for the respondent has been instructed by the Chief Executive for the Department for Corrections, the Corrections Department being the entity currently detaining the plaintiff.
[3] This error is perhaps understandable. Inevitably habeas corpus documents (particularly in this case) have to be prepared as a matter of urgency. The relevant factual background relates to the Immigration Act 1987 and the plaintiff’s immigration history.
[4] By consent, the statement of claim and intituling is amended to show the correct respondent in substitution for the currently named respondent.
The detention
[5] The plaintiff is currently held in Auckland Remand Prison. It would seem that he was initially detained under s 59 of the Immigration Act. However, because he did not have a valid passport issued by the Peoples Republic of China, s 60 of the Act became relevant.
[6] The warrant of commitment shows that the original warrant was issued in the Manukau District Court on 24 September 2010 pursuant to the provisions of s 60(2). The warrant was extended by five days on 24 September, by seven days on 29
September, and relevantly for a further seven days on 6 October (two days ago) by
Judge C S Blackie.
[7] Behind this application (which I consider to be misconceived) for the powerful remedy of the Habeas Corpus Act lies a human tragedy. The plaintiff has set out in his supporting affidavit his immigration history. Although there is inconsistent evidence on the District Court file relating to some of the dates, the broad outline is clear, and for the purposes of this judgment I accept the plaintiff’s history to which there is no current challenge.
[8] The plaintiff deposes that he arrived in New Zealand in December 2002. He appears to have arrived and stayed on a student permit.
[9] Various extensions were made up to March 2007. No extensions were obtained beyond that date, with the result that for approximately the last three and a half years the plaintiff has been residing in New Zealand illegally. At some stage around the time the plaintiff intended to seek a further extension (March 2007) his Chinese passport was stolen. This, he says, prevented him from obtaining a further extension. He further states that the Chinese Consulate in Auckland told him they would not issue him with a replacement passport until he provided evidence that he was lawfully residing in New Zealand. On that basis, perhaps, the plaintiff was in a catch 22 situation.
[10] In early 2009 the plaintiff sought some immigration advice from a consultant. That does not appear to have borne any fruit. He applied in April of this year for a work permit which was declined.
[11] During the last seven years the plaintiff has lived in a number of addresses in the Auckland conurbation. In October 2008 he “married” Jia Qi Shi. Clearly this has been an enduring relationship and I note that Ms Shi is in Court this morning supporting the plaintiff. Both the plaintiff and Ms Shi have deposed that they, despite their “marriage”, never registered it because of the plaintiff’s unlawful immigration status in New Zealand.
[12] In due course, as is apparent from the above narrative, the plaintiff was arrested as an overstayer. He has remained in custody for the last several weeks.
[13] The last affidavit on the Manukau District Court file from an immigration officer, Ms J A Tims, suggested that, although steps had been taken to obtain an emergency travel document from the Peoples Republic of China Consulate, it would take three to five weeks for that travel document to be issued. Although there is no direct evidence on the topic, email exchanges (involving hearsay evidence) suggest that despite that time line, some form of travel document is available. Arrangements have been currently made to remove the plaintiff from New Zealand tomorrow (9
October) on an Air New Zealand flight, departing at 2250 hours.
[14] Since filing this application and with commendable speed, the plaintiff’s solicitors have filed an application with the Associate Minister of Immigration invoking what can only be regarded as a last ditch attempt to seek special directions under s 130. It is apparent from Ms Tim’s recent affidavit in this Court that the Minister’s office is aware of that application; is aware of the current habeas corpus application; and have advised that the request will be placed before the Minister before the plaintiff’s departure from New Zealand.
[15] Section 130, of course, is somewhat circumscribed. As I understand the law, there is no statutory obligation on the Minister even to consider it. She may, however, in the circumstances want to do so, that being entirely her prerogative.
[16] The underlying practical concern of the plaintiff is that he wants to be released from custody so that he can obtain further information, precise details of which are not personally known by Ms Shi, to buttress his s 130 application, particularly in the area of various commercial ventures which he has afoot.
Process and the law
[17] The current detention of the plaintiff is pursuant to s 60(5) which provides:
(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 think fits; 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.
[18] When the matter was called before Judge Blackie in the Manukau district Court two days ago it was Mr Chan’s intention to invoke the discretion which a District Court Judge has in that provision. Clearly, in terms of subs 2 and 4, the plaintiff was appearing for “a second or subsequent time”. On the basis of the evidence then before the court, because of Ms Tim’s suggested time lines of a three to five week period before a travel document could be issued, the plaintiff’s situation fell within the ambit of it “seem[ing] likely that the detention may need to be extended a number of times”. In that situation the provision clearly provides that, having weighed whether or not a person is likely to abscond or otherwise disappear from New Zealand, liberty might be granted on conditions akin to bail. It was that provision which the plaintiff sought to invoke.
[19] It is abundantly clear, in administrative law terms, that what a District Court
Judge is exercising in this situation is a discretion under subs 5.
[20] The plaintiff’s challenge is that the discretion was improperly exercised; in fact was not exercised at all; and that the extension of the warrant for commitment for another seven days breached fundamental or administrative law provisions such as the right to natural justice. To some extent, submits Mr Chan, rights under ss 22 and 23 of the New Zealand Bill of Rights Act 1990 were engaged.
[21] It is clear from Ms Cameron’s helpful affidavits that when the matter was called before Judge Blackie on 6 October, the Court was encountering a busy day. According to counsel, although the Judge heard the Minister of Immigration’s request for a further seven day extension, he did not either hear or determine the case which the plaintiff wished to mount for release under subs 5.
[22] The District Court’s approach is fairly set out in the Judge’s directions which have been transcribed and are before me. What the Judge did is as follows:
• He extended the warrant for a further seven days to 13 October.
[23] For reasons which are not absolutely clear, the plaintiff’s energies over the last 48 hours have been directed to a habeas corpus application rather than to having the conditional release application reheard. There is no criticism of counsel for this. I suspect that what has dominated the plaintiff’s landscape since then has been the knowledge that a travel document is available and that a flight has been booked for his removal to China.
[24] Mr Chan has advanced competent and focused submissions. He accepts my initial comment that the provisions of the Habeas Corpus Act are being used for what is essentially an administrative law dispute. However, Mr Chan has referred to the Court of Appeal judgment of Manuel v Superintendent of Hawkes Bay Prison.1 I set out what seemed to me to be the relevant aspects of that authority:
1 Manuel v Superintendent of Hawkes Bay Prison [2005] 1 NZLR 161.
[46] Given s 14(2), Courts are not confined to jurisdictional enquiry and some consideration of the underlying questions of fact and law relevant to an applicant's detention is clearly envisaged. Further, it is perfectly clear that the Law Commission intended, by what is now s 14(2), to adopt the criticisms made by Sir William Wade of the English cases referred to in para [36] above. Against that background 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. So, for these reasons, we are not able to accept the reasons given by Robertson J for his decision in Hunia although, it will be apparent, we are well satisfied that the result he reached was right.
[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 examination that would warrant making an unappealable finding against the lawfulness of the detention.
[48] The English legal debate to which we have referred has taken place in a legal context well removed from the context in which we must decide this case. There are considerable differences between the relevant procedural rules that apply in New Zealand on the one hand and in England and Wales on the other. The primary reason why there has been disquiet about the recent English decisions to which we have referred relates to the discretionary nature of judicial review proceedings, particularly the need to obtain leave to commence such proceedings and as to remedies which might be available. Our concerns are as to the capacity of the summary process invoked by the appellant to determine fairly and appropriately the important questions which are raised. In our system of administrative law, the leave of the Court to the commencement of proceedings is not required. Interim relief is available. Prompt hearings in judicial review cases are common. It is inconceivable that a Judge would refuse relief on discretionary grounds to someone who is illegally detained. In this context there seems to be no risk of injustice in requiring judicial review proceedings to be commenced in those cases in which administrative law challenges are not susceptible to fair summary determination.
[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 [2005] 1 NZLR 161 page 176production 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 maker is not the detaining party. There may not be a bright line which distinguishes between those arguments which are available on habeas corpus applications 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 properly susceptible to fair and sensible summary 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. In such proceedings, an application for interim relief (including release from custody) would be dealt with urgently and the Judge dealing with such an application would be in a position to give directions as to the future conduct of the litigation to ensure prompt substantive determination.
[25] There is no need for me to analyse those helpful dicta. It is significant that there is no “bright line” distinguishing habeas corpus applications from applications which are essentially judicial review applications under the Judicature Amendments Act 1972.
Discussion
[26] Mr Chan, being aware of the importance of this distinction, nonetheless submits that on the basis of the evidence and materials before me it was possible for me to determine the administrative law issues in a decisive and summary way.
[27] At the heart of counsel’s approach is his submission that the order made by
Judge Blackie two days ago was invalid. This was because:
a) Inextricably linked with the Immigration Service’s application for an extension of the warrant for commitment was the plaintiff’s s 60(5) application for conditional release.
b) Given that those two matters had to be determined together, it was not open to the Judge to defer the application.
c) As a matter of jurisdiction it was not open for the Judge to purport to defer the hearing of the conditional release application for one or two days. That application ought to have been heard, as a matter of statutory interpretation, in tandem with a decision on the issue of whether or not the warrant was to be extended.
[28] Because, Mr Chan submits, these matters are powerful and indeed self- evident, he invites me to conclude first that the warrant under which the plaintiff is
currently held is fatally flawed and that thus the Writ of Habeas Corpus should run, resulting in the plaintiff’s immediate release.
[29] In opposition to those submissions Ms Longdill submits that the issues raised by the plaintiff are essentially judicial review issues; that the plaintiff is seeking the wrong redress under the wrong statute; and that the matters raised by the plaintiff are not susceptible to a fair and sensible decision in a summary way.
[30] In particular, submits Ms Longdill, what lies at the heart of the plaintiff’s case is a challenge to the procedure adopted in the District Court and the overarching applicability of s 60. In that situation the District Court should be a party in any judicial review application.
[31] There is significant cogency to Ms Londill’s argument, particularly when I consider the observation of the Court of Appeal (supra [24]) at [49] observing that it would be a rare case where habeas corpus would permit a court to inquire into administrative law challenges lying up stream of apparently regular warrants, and particularly in cases where the decision maker (in this case a District Court Judge) is not the detaining party (in this case the Corrections Department).
Result
[32] I have reached the firm conclusion that, despite the distressing personal background, and particularly given the time considerations under which the plaintiff and his advisors have been operating, the type of challenge the plaintiff wishes to mount is not amenable to the Habeas Corpus Act procedure. Although I understand and have reflected on Mr Chan’s jurisdictional submission (which I have tried to encapsulate accurately) it would be surprising if a District Court exercising powers under s 60 of the Immigration Act could correctly take the view that its powers to order conditional release under s 60(5) could only be exercised in tandem with, and indeed simultaneously with, its power to extend a warrant of commitment for a further seven days. Certainly that was not the Judge’s view given his comment that the matter might have to come on with some urgency.
[33] The procedural landscape, as I have stated, has shifted with greater speed than the plaintiff would have hoped. The Immigration Service now has the capacity, if it wishes, to remove the plaintiff from New Zealand before the expiration of the current warrant.
[34] I do not consider that there are cogent grounds to attack the legitimacy of the current warrant. Nor, having given anxious thought to the matter, do I consider the Court of Appeal’s approach in Manuel would justify me in using my power under the Habeas Corpus Act to decide, in a summary way, the judicial review and administrative law issues which Mr Chan has advanced.
[35] Whether or not there are cogent or indeed practical grounds to justify a judicial review application in respect of the removal order or the pending s 130 application are not matters on which I wish or need to comment. I suspect, unfortunate thought it may be for the plaintiff and his partner, that the remaining grounds for attack are slim.
[36] For the reasons I have stated I am very clear that the only proper result in respect of the current application before me under the Habeas Corpus Act 2001 is to dismiss the application.
[37] Accordingly the application is dismissed.
Costs
[38] Given the highly competent way in which Mr Chan has acted (albeit arguably pushing the wrong button) and given the personal factors for the plaintiff and his partner which are at large, in the exercise of my discretion under s 14(4) I decline to make an order for costs. Costs will lie where they fall.
.......................................... Priestley J
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