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Perez (aka Loaiza) v Chief Executive of the Department of Corrections [2012] NZHC 2115 (16 August 2012)

Last Updated: 3 September 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-004754 [2012] NZHC 2115

IN THE MATTER OF the Habeas Corpus Act 2001

BETWEEN JOSE ROBERTO JIMENEZ PEREZ (AKA ALEXANDER CORZO LOAIZA) Applicant

AND CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent

Hearing: 16 August 2012

Counsel: DA Ewen for Applicant

A Longdill for Respondent

Judgment: 16 August 2012

_{JUDGMENT OF ASHER J}

Solicitors/Counsel:

DA Ewen, Woodward Chambers, PO Box 5744, Wellington 6145. Email: douglas@woodward.net.nz

Crown Solicitor, DX CP24063, Auckland 1140. Email: anna.longdill@meredithconnell.co.nz

JOSE ROBERTO JIMENEZ PEREZ (AKA ALEXANDER CORZO LOAIZA) V CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS HC AK CIV-2012-404-004754 [16 August 2012]

[1] The applicant Jose Roberto Jimenez Perez, also known as Alexander Corzo Loaiza (“Mr Corzo”) applies for a writ of habeas corpus. Mr Corzo is a Columbian national. He was arrested shortly after his arrival in New Zealand in 2011. He is presently held in prison at Auckland under a warrant of commitment for sentence of imprisonment dated 28 February 2012. The sentence was for three years and six months’ imprisonment following his conviction on two counts of aggravated robbery.

[2] Mr Corzo became eligible for parole on 3 August 2012. On or about that date he sought parole and the hearing took place at Mt Eden Corrections Facility on

6 August 2012. Mr Corzo through his lawyer, Mr Ewen, asked to be released by Thursday, 9 August 2012. The panel had before it a letter sent on 4 April 2012 from Immigration New Zealand. It advised that Mr Corzo was unlawfully in New Zealand and stated:

Immigration New Zealand (INZ) intends to deport JOSE JIMENEZ PEREZ from New Zealand on completion of his prison sentence. He will be taken into custody by police pursuant to section 313 of the Immigration Act 2009 and removed on the first available flight.

We would appreciate if possible, a minimum of 4 weeks notice prior to any release date in order that we can organise travel arrangements for him and any police escorts that may be required to travel with him.

[3] The Parole Board briefly set out the background of Mr Corzo being in prison and noted that he had been a compliant prisoner and that his risk of re-offending was assessed as low. It observed:

He is subject to an order for deportation. In this Board’s view, subject to his deportation, he no longer presents an undue risk to the safety of the community.

Accordingly, Mr Jiminez-Perez [Mr Corzo] will be released from prison on

3 September 2012 subject to the two special conditions:

(1) That he be released on 3 September 2012 into the custody of the New Zealand Immigration Service or the New Zealand Police for immediate deportation from New Zealand.

(2) That he not re-enter New Zealand for the period of his special leave conditions of parole which are through until his sentence end date of

1 December 2014.

Standard release conditions were imposed.

[4] I record that by consent the name of the respondent which was originally stated to be the manager of Mt Eden Corrections Facility has, by consent, been changed to “Chief Executive of the Department of Corrections”.

The application

[5] The application for a writ of habeas corpus states:

The New Zealand Parole Board has wrongly and unlawfully deferred the release date until 3 September 2012, by acting under the dictation of another, namely an immigration officer, Nicole Willson.

[6] Mr Ewen accepted that Mr Corzo was held under a valid warrant of committal. However, he submitted that his ongoing detention was illegal and that the Parole Board had acted contrary to the guiding principles of s 7 of the Parole Act

2002 and that he was being detained longer than was consistent with the safety of the community. He submitted that the Parole Board, having determined that Mr Corzo was no longer a danger to the community, was obliged to release him with all possible speed, which in the circumstances would have been no longer than seven days after the date of the decision, rather than the one month that was directed.

[7] Mr Ewen submitted that in the end the Parole Board was dictated to by the Immigration Service and simply carried out its instruction to defer parole for four weeks without any proper consideration of whether this was necessary for the safety of the community. The Parole Board, he submitted, disregarded its own paramount governing principles and also acted inconsistently with the purposes of the Immigration Act 2009 which contains specific provision for parolees liable for

deportation.1 He submitted that the immigration officer’s request was an irrelevant

_{consideration that the Parole Board took into account when it should not have.}

1 Immigration Act 2009, ss 335–336.

[8] The Habeas Corpus Act 2001 provides for the quick and summary determination of an application. In such a short notice application as this (the papers were filed yesterday) it is difficult for a court to, in any satisfactory way, determine substantive contested issues that do not relate to the face of the record under which the applicant is held. Nevertheless, under s 14(2) the Judge must inquire into matters of fact and law claiming to justify the detention. It was stated in Manuel v

Superintendent of Hawkes Bay Regional Prison:2

A person who detains another can fairly be expected to establish, effectively on demand, the legal justification for the detention. In cases involving imprisonment or other statutory confinements, this will involve the production of a relevant warrant or warrants or other documents which provide the basis for the detention. We accept that apparently regular warrants (or other similar documents) will not always be a decisive answer to a habeas corpus application. But it will be a rare case, we think, where the habeas corpus procedures will permit the Court to inquire, into challenges on administrative law grounds to decisions which lie upstream of apparently regular warrants. This is particularly likely to be the case where the decision 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.

(emphasis added)

[9] As I have indicated there is no contest about the prima facie position. Mr Corzo is held under a valid warrant. As Mr Ewen accepts, the question is whether this is one of those rare cases where the habeas corpus procedures will permit the Court to inquire into challenges on administrative law grounds to decisions that lie upstream of the regular warrant. As part of the exercise I must assess whether the arguments are properly susceptible to fair and sensible summary

_{determination.}

2 Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA) at [49].

[10] It was observed in Manuel that it was particularlyunlikely to be the case that an upstream consideration would be warranted where the decision-maker was not the detaining party. Here the decision-maker, the Parole Board, is not the detaining party. This indicates an inherent difficulty in dealing with this application by way of habeas corpus. The Parole Board exercises a discretionary power whereby it may direct the early release of a prisoner. The prisoner is not held under the warrant of the Parole Board. The Parole Board procedure is, in comparison to Court processes, informal. There is no orthodox right of appeal but there is a right of review to the chairperson of the Parole Board or a single panel convener. While there are guiding principles set out, the Parole Board in exercising a broad discretion, looks at many considerations. This abbreviated and formal habeas corpus courtroom process provides at best a very awkward forum for the determination of a challenge to such a discretionary decision. It is with these principles in mind that I go on to consider the merits of the arguments for Mr Corzo.

Statutory context

[11] Sections 7(1) and (2)(a) of the Parole Act 2002 provide:

7 Guiding principles

(1) When making decisions about, or in any way relating to, the release of an offender, the paramount consideration for the Board in every case is the safety of the community.

(2) Other principles that must guide the Board's decisions are—

(a) that offenders must not be detained any longer than is consistent with the safety of the community, and that they must not be subject to release conditions that are more onerous, or last longer, than is consistent with the safety of the community

...

(emphasis added)

[12] There are provisions in the Parole Act that are also relevant. It is provided at s 28(1AA):

28 Direction for release on parole

(1AA) In deciding whether or not to release an offender on parole, the Board must bear in mind that the offender has no entitlement to be released on parole and, in particular, that neither the offender's eligibility for release on parole nor anything else in this Act or any other enactment confers such an entitlement.

(emphasis added)

[13] Section 28(2) requires the Parole Board, when considering undue risk to the safety of the community, to have regard to the support and supervision available to the offender following release and the public interest in the reintegration of the offender into society as a law abiding citizen. Section 28(3) requires the Parole Board to specify the date on which an offender is to be released which must be a date that is not later than six months after the hearing.

[14] Three observations can be made arising from these provisions: (a) safety of the community is the paramount consideration;

(b) an offender has no entitlement to be released on parole and nothing in the Parole Act confers such an entitlement; and

(c) it is contemplated that despite the fact that any release date is on the basis that the safety of the community will not be imperilled by the release, a date of up to six months out from the hearing can be specified.

This application

[15] In considering Mr Ewen’s submissions I must now consider these factors and relate them to what the Parole Board did. It had before it an offender who was going to be deported. Under s 28(3) of the Parole Act it had up to six months in which to fix the date for his deportation. Provided he remained in custody up to the time of his deportation, there was no danger to the safety of the community. However, that safety was entirely dependent on Mr Corzo remaining in immigration custody from the moment of his release from prison. The details of what would happen following

his release from prison into the hands of Immigration New Zealand was not a matter within the knowledge of the Parole Board. The only reason it could give a certain and quick release was the certainty that Immigration New Zealand would take control of Mr Corzo and that the community would be protected as a consequence. Therefore, it is not surprising that it should be guided by Immigration New Zealand’s own assessment of the time it needed from the moment of release to when Mr Corzo was flown out of the country.

[16] Ms Longdill for the respondent pointed out that once released to an immigration officer, Mr Corzo could only be held for up to 96 hours without a warrant under s 313 of the Immigration Act. This is a significant consideration. For him to be detained after 96 hours, an application would have to be made to the District Court. It would be open to Mr Corzo to seek a release on conditions. From that point there would be a risk to the community that the Parole Board would have no control over, and not be able to assess.

[17] Mr Ewen stated that he, and indeed his client directly to the Court, would be prepared to undertake not to challenge his continued detention. He made the point that his client only wanted to go home to Columbia as soon as possible. The difficulty with an undertaking is that while the Court would accept any undertaking from Mr Ewen that was in respect to a matter that was under his control, there is no certainty as to what might happen and what action might be taken at a later point in time by Mr Corzo. I cannot assume that any undertaking is certain to be respected.

[18] There can be occasions when, in an immigration context, there is a proven and material upstream error that can warrant intervention under a writ of habeas corpus,3 but this is not one of those cases. I am not persuaded that any error on the part of the Parole Board has been demonstrated. I do not accept that there was any clear inconsistency with the guiding principles in s 7(2) of the Parole Act in the Parole Board’s decision to accept the request of the immigration department that there should be a time period of four weeks to enable them to arrange and ensure

_{Mr Corzo’s departure. Rather, consistent with s 7(1), the safety of the community}

3 For example, see Garnie v Chief Executive of Department of Labour [2011] NZAR 300 (HC).

has led the Parole Board to adopt the timing put forward by Immigration New

Zealand as the practical way forward.

[19] Further, the arguments presented by Mr Ewen are not properly susceptible to fair and sensible summary determination. To assess fully the community safety issues of immediate release before a departure date had been arranged by immigration officers, the Court would be required to go beyond what could be sensibly determined on the information before it. Mr Ewen has referred to discussions he has had with immigration officers and various perspectives he has on the conduct or mechanics of the departure. He has referred to the structure of the immigration regime in the Immigration Act. But it is quite impossible for this Court to form with confidence an assessment of the reasonableness or unreasonableness of the four week period provided for. The Parole Board was not being dictated to by Immigration New Zealand. But if it was minded to release Mr Corzo, it could accept the timeframe put forward as a safe and practicable way to release him.

[20] It is relevant to note that in the case of Misiuk v New Zealand Parole Board4 the Parole Board had on 24 January 2012 directed that Mr Misiuk be released on parole on 23 March 2012, some two months later. Ultimately, that time was extended even further to 7 April 2012. The case in the High Court5 and Court of Appeal6 did not turn on whether this delay reflected an adequate regard for s 7(2) of the Parole Act, but there was no suggestion in those decisions that the period between the decision and release of two and a half months was excessive. It is also

to be noted that the Parole Board there had considered that if Mr Misiuk was not to be deported in the time period, that would require a fresh consideration of the issues. So in this case if Mr Corzo was not to be deported on 3 September 2012 the immediate result would be a fresh consideration of when the appropriate deportation would be, rather than any immediate release. This demonstrates the difficulty involved in the immediate release that would result if this application for a writ of

_{habeas corpus were granted.}

4 _{Misiuk v New Zealand Parole Board [2012] NZCA 116.}

5 _{Misiuk v Department of Corrections [2012] NZHC 527.}

6 Misiuk v New Zealand Parole Board, above n 4.

[21] The fact immediate release is not a remedy obviously available in this Court in the habeas corpus jurisdiction is a further indication that this application cannot succeed.

Conclusion

[22] The detention of Mr Corzo under the warrant of commitment is lawful. This is not one of the rare cases where there is an upstream error capable of fair and sensible summary determination that warrants the consideration of upstream matters.

Result

[23] The application for a writ of habeas corpus is declined.

...................................

Asher J