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Wasim v Chief Executive of the Department of Corrections HC Auckland CIV 2010-485-2542 [2010] NZHC 2326; [2011] NZAR 142 (21 December 2010)

Last Updated: 11 January 2011

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

_{CIV 2010-485-2542}

UNDER the Habeas Corpus Act 2001

IN THE MATTER OF an application for a Writ of Habeas Corpus

BETWEEN MOHAMMED WASIM Applicant

AND THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS First Respondent

AND THE SUPERINTENDENT OF RIMUTAKA PRISON

Second Respondent

Hearing: 20 and 21 December 2010

Counsel: R Woods for Applicant

I Carter for Respondent

Judgment: 21 December 2010

_{JUDGMENT OF MILLER J}

[1] Mr Wasim is in the custody of the Chief Executive of the Department of Corrections, and held at Rimutaka Prison, pursuant to an interim recall order made by a convenor of a panel of the New Zealand Parole Board on 17 November 2010. He moves for Habeas Corpus, contending that his detention is unlawful.

[2] Mr Wasim is a citizen of Pakistan and an overstayer in New Zealand. He arrived in this country in 1996 and married a New Zealander in 1997, separating from her soon afterwards. He went through a bigamous marriage with his current partner, a New Zealand citizen, in August 2002. They have been living together

_{since about 1998 and have three children, all of whom are New Zealand citizens.}

MOHAMMED WASIM V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS AND ANOR HC WN CIV 2010-485-2542 21 December 2010

[3] On 28 September 2007 Mr Wasim was sentenced to imprisonment for bigamy, the Judge noting that when he purported to marry his current partner he used false particulars to conceal his true identity. On 27 November 2007 he was sentenced for tax fraud, having pleaded guilty to 81 charges involving the presentation of fraudulent invoices to defraud the Inland Revenue Department of GST, PAYE and income tax. His cumulative sentence was five years, nine months imprisonment from 27 November 2007. His statutory release date is 20 June 2013.

[4] On 14 November 2008 Mr Wasim was served with a removal order.

[5] As is the custom of the Parole Board in such cases, he was granted parole soon after he first became eligible for it. The Board expected that he would be deported immediately he was released. One of the conditions of his parole was that he must not enter New Zealand during it.

[6] Mr Wasim was paroled on 17 November. However, he was not released on that date, because arrangements for his immediate deportation failed. An Immigration officer advised the Department of Corrections that the High Commission for Pakistan had not issued the necessary travel document. (I observe in passing that Mr Wasim alleges he has not sought to resist deportation, and that the problem with his Pakistan entry document was that when applying for the travel document the Immigration Service incorrectly stated that he had been convicted of assault charges. I am given to understand that his Pakistani passport, which would presumably entitle him enter Pakistan without any form of visa, has expired.)

[7] The interim recall application was made on the same day, 17 November. It is now common ground that the basis on which the interim recall order was sought was that Mr Wasim could not comply with his release conditions, in that he could not immediately be deported to Pakistan. The reasons of the convenor are not in evidence, but I will infer in the absence of evidence to the contrary that the order was granted on the grounds advanced. There is no reference to safety of the community in the supporting documents.

[8] On 23 November 2010 the Parole Board gave notice of a substantive recall application, to be heard on 17 December. Mr Wasim claims not to have been served with this document until 16 December. The ground of the recall application was that he could not comply with his release conditions and had effectively breached them. Again, there was no reference to safety of the community in the application.

[9] It is common ground that the statutory grounds for an interim recall order do not include breaching release conditions. The convenor must be satisfied, on reasonable grounds, that the offender poses an undue risk to the safety of the community or to any person or class of persons, or is likely to abscond before the

determination of the application for recall.[1]

[10] On 17 December the Board met, but the hearing was adjourned until 22

December because of the non-availability of documents. Mr Wasim’s stance was that he ought be released pending deportation. The adjournment triggered this application, which is a challenge to the interim recall order. Mr Woods accounts for the delay in bringing the application by explaining that Mr Wasim was not represented on 17 November.

[11] The interim recall order is regular on its face. But if there was no evidence that could reasonably lead the convenor to conclude that Mr Wasim posed an undue risk to others, his detention under the interim order is unlawful. It is immaterial that he may be lawfully detained under a final recall order as soon as tomorrow.

[12] Section 14(2) of the Act provides that a Judge dealing with a Habeas Corpus application must inquire into the matters of fact and law claimed to justify the detention. It is well established that a Court will not in such context deal with arguments that should properly be the subject of judicial review proceedings, but it will deal with matters that can sensibly be dealt with summarily.[2] The question, then, is whether the respondents, on whom the onus lies, can point to any evidence that justifies the detention or at least indicates that its lawfulness is not properly susceptible to summary determination.

[13] The application for Habeas Corpus was filed yesterday and called at 2.15pm. The respondent was able to produce a number of documents at that time, but not the application for an interim order and the affidavit in support and the reasons of the convenor. The matter was adjourned until 10am today, when the respondent, remarkably, was still unable to produce those documents. Fortunately, Mr Woods was able to produce the application and supporting affidavit, but as noted the convenor’s reasons have not yet been made available.

[14] The Act provides that an inter partes hearing must be held within three days of filing, but the Court need not wait until the third day. In my judgement, the respondent has had sufficient time to justify the detention by pointing to some apparently reasonable grounds for it.

[15] I am prepared to assume, without deciding, that for purposes of s 62 the safety of the community is not limited to physical safety; there might for example be a risk to safety if the offender were likely to commit fraud. It is, however, implausible that in the time between the granting of parole and hearing of the recall application Mr Wasim would be able to commit such offences, still less that the likelihood of him doing so is such as to present an ‘undue’ risk to others. There is no suggestion that he poses a risk of flight within New Zealand. The most that Mr Carter could point to was the sentencing notes from the District Court, which demonstrate that he was guilty of a sophisticated fraud on the Revenue. That shows conclusively that Mr Wasim is a person of bad character, but that falls well short of showing that he posed an undue risk to the community during the relevant period. More importantly, there is nothing to indicate that the convenor inquired into safety at all. On the contrary, the order was apparently issued on a ground – anticipated non-compliance with release conditions – that does not justify an interim order in law.

[16] On the evidence before me I am satisfied that the interim recall order is unlawful.

[17] Mr Carter emphasised that Mr Wasim’s complaints might be dealt with in judicial review. He urged me to convert the application to an application for interim

relief against the Parole Board. I accept that some of Mr Wasim’s complaints, particularly those relating to notice of the hearing on 17 December, are properly the subject of a judicial review application against the Parole Board, and not habeas corpus against the present respondents. However, Mr Carter came close to submitting that habeas corpus is unavailable whenever a complaint might be dealt with in judicial review. I reject that submission as untenable, along with Mr Carter’s further submission that habeas corpus must be refused because the Parole Act establishes a regime governing recall, including a right of appeal. As he conceded, no authority binds me to that course of action.

[18] I conclude that Mr Wasim’s continued detention under the order is unlawful. A writ of habeas corpus will issue.

[19] The Chief Executive of the Department of Corrections is added as a respondent, Mr Carter having pointed out that Mr Wasim is strictly in the custody of the Chief Executive rather than the Superintendent or Prison Manager.

Miller J

Solicitors:

Crown Law, Wellington for Respondent

[1] _{Section 62(1) Parole Act 2002.}
[2] Manuel v Superintendent, Hawke’s Bay Regional Prison [2005] 1 NZLR 161 (CA) at [49].