BC (Philippines) v Attorney-General

[2018] NZHC 1640

NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYING PARTICULARS OF THE APPLICANT AND OF HIS CLAIM OR STATUS

MUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATION ACT 2009. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA

TĀMAKI MAKAURAU ROHE

CIV-2018-404-1283

[2018] NZHC 1640

UNDER

the Habeas Corpus Act 2001

IN THE MATTER

of an application for a writ of habeas corpus

BETWEEN

BC (PHILIPPINES)

Applicant

AND

THE ATTORNEY-GENERAL

First Respondent

MINISTRY OF JUSTICE

Second Respondent

IMMIGRATION NEW ZEALAND
Third Respondent

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Fourth Respondent

Hearing:	4 July 2018
Appearances:	Applicant in person (by AVL) J Simpson for the Respondents
Judgment:	4 July 2018

ORAL JUDGMENT OF WOODHOUSE J

BC (PHILIPPINES) v THE ATTORNEY-GENERAL [2018] NZHC 1640 [4 July 2018]

[1]        Mr [BC] has applied for a writ of habeas corpus. He is in custody at Mt Eden Prison. He has been in custody for approximately 16 months. He was arrested and then committed because he is illegally in New Zealand.

[2]        Mr [BC] arrived in New Zealand in 2007. He had visas to be in New Zealand up until 25 May 2011. Mr [BC] acknowledges in his application that the last visa expired on that date. In consequence, he has been unlawfully in New Zealand since that date.

[3]        The commitment to prison is subject to provisions of the Immigration Act 2009 (the Act) in Part 9. Section 308 of the Act provides that this part must be treated as a code for the purposes of detention and monitoring of any person and no person who is liable for arrest and detention under the Act may be granted bail from that detention. There is provision for warrants of commitment for a period of up to 28 days. Warrants have been reissued over the preceding period. The most recent warrant has been produced by Mr Simpson, appearing on behalf of the respondents. This is a warrant issued by Judge D A Burns in the District Court at Auckland on 21 June 2018. There is nothing to indicate on the face of the warrant any irregularity to suggest that the detention is unlawful. That conclusion by itself, and in the absence of any evidence to the contrary, would be sufficient to result in the present application being refused.

[4]        In addition, Mr [BC] has made clear that he is not contending that the detention in itself is unlawful. His concern is the conditions of his detention. There are two matters in particular.

[5]        One is that at Mt Eden Mr [BC], he says, has not been separated from other prisoners, or persons on remand, who are at Mt Eden having been convicted of criminal offences or are on remand facing criminal charges. Mr [BC] in his application has referred to provisions of a United Nations Convention or United Nations Rules relating to the treatment of prisoners. This provides that persons imprisoned for debt and other civil prisoners shall be kept separated from persons imprisoned by reason of criminal charges. Mr [BC] is in custody in respect of a civil matter – that is, breach of the New Zealand immigration laws.

[6]        The other matter of particular concern is difficulties Mr [BC] says he has had in getting legal advice and preparing for an application he has before this Court. Mr [BC], after he was arrested, or perhaps after a deportation order was issued, applied for recognition as a refugee or protected person. That application was declined and an appeal to the Immigration and Protection Tribunal was dismissed on 11 January 2018. Mr [BC’s] application to this Court for leave to appeal and judicially review that decision is for hearing on 26 July 2018.

[7]        I have explained to Mr [BC] that, on an application for a writ of habeas corpus an order must be made for Mr [BC’s] release if the respondent fails to establish that the detention is lawful. The respondent has established that it is lawful, as Mr [BC] has effectively acknowledged. In consequence, the writ cannot be issued and the application is declined.

[8]        During the course of this hearing I had an opportunity to discuss some of the background matters with Ms Thompson, Immigration New Zealand’s counsel and a person familiar with this case. Ms Thompson has agreed to contact two or three organisations who endeavour to assist persons in Mr [BC’s] circumstances. I am grateful for that offer of assistance. Ms Thompson also referred to the possibility that Mr [BC] in custody may be able to get assistance from the Prisoners’ Assistance Group.

[9]        In addition to these matters, I have advised Mr [BC] that he may be able to make an application to the District Court under s 324 of the Act. I apprehend from Mr [BC’s] submissions that he may be familiar with the relevant provisions of the Act, but I will attach a copy of that provision to this judgment, which will be sent to     Mr [BC]. I am recording some of these matters, which go well beyond the reasons for declining the application for the writ, for Mr [BC’s] assistance.

[10]      The final matter is to direct that a copy of this decision is to be sent to the manager of Mt Eden Prison with a request that the manager look into the matters of concern to Mr [BC]. As I explained to Mr [BC], this Court is not in a position to make orders in relation to the matters of concern to him. Similarly, this Court cannot order

that Mr [BC] be removed from Mt Eden and transferred to the Refugee Centre in Mangere, which is a particular request he made in the discussions with me.

[11]      It is to be hoped that adequate assistance can be provided to Mr [BC]. This is not solely for his benefit, although principally to seek to ensure that he is adequately represented, but also to assist this Court when the application is heard towards the end of this month.

Woodhouse J

Parties/Solicitors:

The Applicant

Mr J Simpson, Meredith Connell, Office of the Crown Solicitor, Auckland

Copy to:

The Manager, Mt Eden Prison

Ms T Thompson, Immigration New Zealand

324     Review of warrant of commitment or release on conditions

(1AA) In this section, warrant of commitment does not include—

(a)a mass arrival warrant issued under section 317B (in respect of all or specified members of a mass arrival group); or

(b)a further warrant of commitment issued under section 317E(1)(a) (in respect of all or specified members of a mass arrival group).

(1)At any stage during the currency of a warrant of commitment an immigration officer may apply to a District Court Judge for—

(a)a variation of the warrant of commitment; or

(b)an order that the person who is detained under the warrant be released on conditions under section 320; or

(c)an order that the person be released from custody.

(2)At any stage when a person is released on conditions under section 320 an immigration officer may apply to a District Court Judge for—

(a)an order that the person who is released on conditions be detained under a warrant of commitment; or

(b)a variation of conditions.

(3)Subject to subsection (5), a person detained under a warrant of commitment may apply to a District Court Judge for—

(a)a variation of the warrant of commitment; or

(b)an order that the person be released on conditions under section 320.

(4)Subject to subsection (5), a person released on conditions may apply to a District Court Judge seeking a variation of those conditions.

(5)An application under subsection (3) or (4) must be made with the leave of a District Court Judge, which may be granted only if the Judge is satisfied that new information has become available that—

(a)is material to the person’s ongoing detention or release on conditions; and

(b)was unavailable at the time the warrant of commitment or the decision to release on conditions was made.

(6)An application for a review of a warrant of commitment or release on

conditions must be considered [having regard to] section 317, 318, or 323, as appropriate.