Chief Executive of Department of Labour v Yadegary
[2008] NZCA 295
•13 August 2008
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IN THE COURT OF APPEAL OF NEW ZEALAND
CA199/2007
[2008] NZCA 295BETWEENCHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR
Appellant
ANDHOSSEIN YADEGARY
First RespondentANDDISTRICT COURT AT AUCKLAND
Second Respondent
Hearing:19 March 2008
Court:William Young P, O'Regan and Baragwanath JJ
Counsel:M S R Palmer and B J R Keith for Appellant
D J Ryken for Respondents
Judgment:13 August 2008 at 10am
JUDGMENT OF THE COURT
A THE APPEAL IS DISMISSED.
BTHE APPELLANT MUST PAY THE RESPONDENT’S COSTS WHICH WE FIX AT $6,000 PLUS USUAL DISBURSEMENTS.
CTHE COURT ORDERS THAT THE AFFIDAVITS OF ARRON BAKER MAY NOT BE SEARCHED NOR PUBLISHED.
____________________________________________________________________
REASONS
Baragwanath J [1]
O’Regan J [163]
William Young P (Dissenting) [207]BARAGWANATH J
Table of Contents
Para No
The appeal and its context [1]
Background facts [10]
The immediate legislative scheme [17]
The submissions [28]
Tools of interpretation [30]
Text [32]
The Bill of Rights Act and the principle of legality [35]
Context [42]
New Zealand imprisonment policy [43]
Criminology and the criminal law [43]
The purposes of detention under s 60 [47]
Custodial sentences in New Zealand [49](i) The Sentencing Act 2002 [50]
(ii) The Bail Act 2000 [53]
(iii) The Immigration Act 1987 [56]
(iv) Appropriate lengths of imprisonment [59]
Discussion [66]
Purposes [70]
The principle [74]
Review of the District Court decision [85]
The grounds in s 60(3) and (6) [88]
Section 60(3)(c) [90]
Section 60(3)(d) [96]THE PRESENCE OF A S 60(6) FACTOR AND EXCEPTIONAL CIRCUMSTANCES [98]
Application of principles [99]
Unreasonable period [99]
Public interest[109]
Exceptional circumstances [111]
Summary: evaluating subs (6) cases [115]
The alternative ground: arbitrary detention [123]
Decision [128]
Orders [133]Appendix [134]
The international context [134](i) The United Kingdom [136]
(ii) Hong Kong [143]
(iii) Canada [145]
(iv) Australia [155]
(v) USA [157]
The appeal and its context
[1] The respondent is an Iranian national who is unlawfully in New Zealand. In November 2004 he was detained by a warrant of commitment made under s 60 of the Immigration Act 1987. He remained in detention until April 2007, when he was released by order of the High Court: Yadegary v Manager, Custodial Services, Auckland Remand Prison [2007] NZAR 436. The Chief Executive of the Department of Labour now appeals against that decision.
[2] The respondent had destroyed his passport and, as Iran will not accept repatriation of its nationals without a passport, he could not be deported. The respondent could have ended his detention by applying for an Iranian passport to replace the one he destroyed, in which case he would have been immediately deported. But he has persistently refused to do so.
[3] The question raised by this appeal concerns the interpretation and effect of s 60 as part of the scheme for removal of unlawful immigrants from New Zealand. The section was amended in response to a decision of the High Court which ordered the release of two Iranian overstayers who refused to apply for passports: Mohebbi v Minister of Immigration [2003] NZAR 685. The amendment removed the three-month limit in the case of persons whose own conduct is a reason for their inability to leave New Zealand (s 60(6)). Certain other aspects of the amendment must be examined in detail.
[4] Being unlawfully in New Zealand, the respondent is obliged by law to leave (s 45). A removal order was made against him by an immigration officer (s 54). He was arrested (s 59) and detained under a series of warrants of commitment issued by a District Court Judge and extended several times (s 60). Two years after the respondent was first imprisoned, an application for a further extension of the warrant of commitment was heard by Judge Field. The Judge was satisfied that the respondent had committed no criminal offence, was not a flight risk, and had support available if granted conditional release from detention (available under s 60(5)). But he understood s 60(6) to prohibit release in the absence of “exceptional circumstances”. The Judge considered that there were no “exceptional circumstances” and so granted the Crown’s application and ordered that the warrant be extended. On judicial review of that decision, Courtney J in the High Court decided that there were “exceptional circumstances” and ordered that the respondent be released on bail.
[5] Under international law the decision whether a non-citizen may remain in New Zealand is the sole prerogative of the executive. That is, in general, also the domestic law of New Zealand. An often-cited statement (see R (on the application of Saadi and others) v Secretary of State for the Home Department [2002] 1 WLR 3131 (HL) at 794 – 795) is that of Lord Atkinson, giving the decision of the Privy Council in A-G for Canada v Cain, A-G for Canada v Gilhula [1906] AC 542 at 546:
One of the rights possessed by the supreme power in every State is the right to refuse to permit an alien to enter that State, to annex what conditions it pleases to the permission to enter it, and to expel or deport from the State, at pleasure, even a friendly alien, especially if it considers his presence in the State opposed to its peace, order, and good government, or to its social or material interests: Vattel, Law of Nations, book 1, s. 231; book 2, s. 125
[6] The allusion is to the elected government, which has plenary authority to admit immigrants to the country. It is only when statute otherwise provides, as in the case of successful applicants to the Removal Review Authority (ss 47 - 52), that the executive’s decision is not final. So the crucial question is the meaning and effect of s 60 in its amended form.
[7] I have reached the conclusion that the learned District Court Judge erred in extending the warrant of commitment. Because of the way the legislation was read in the District Court and the High Court, as in this Court, the parties confined their submissions to the concept of “exceptional circumstances” in the new s 60(6). As a result those Courts did not recognise the significance of the concepts of “unreasonable period” and “public interest” in s 60(3) which are imported in the present class of case by the new s 60(6A)(a)(ii). Courtney J was however right to grant relief on the exceptional circumstances ground.
[8] The other members of this Court are of a different opinion as to whether the concepts of “unreasonable period” and “public interest” in s 60(3) apply to persons falling within subs (6). In my view the plain language of subss (3) and (6A)(a)(ii) says that s 60(3) does apply. The other members regard subs (3) as inapplicable, despite the language, because the amendment to meet the Mohebbi decision introduced the “exceptional circumstances” test for persons falling within subs (6); that, they consider, is inconsistent with the continued application of subs (3). They say, in short, that Parliament has made a mistake and we should read the section as if the reference to subs (3) were deleted.
[9] My view is that, since Parliament has stated that subs (3) as well as subs (6) applies, and since such construction can be adopted consistently with Parliament’s expression of its purpose, both subsections must be applied by the Court. This construction also accords with the New Zealand Bill of Rights Act 1990 (the Bill of Rights Act) and the principle of legality. Moreover if doubt existed as to what that purpose is, it must be resolved in favour of the common law presumption in favour of ability to apply for bail, which under the Immigration Act is preserved even for terrorism suspects and others who threaten national security. Bail conditions are devised to ensure that due process of law is followed. If the Crown’s continued attempts to reach agreement with Iran succeed, such conditions should ensure that the respondent remains available to be removed from New Zealand.
Background facts
[10] The respondent arrived in New Zealand on 1 October 2003, whereupon he destroyed his Iranian passport. This fact, and the fact that he declines to apply for a replacement, is central to the case and must be set in context. Such conduct, like the use of a false passport, may in the case of a bona fide refugee status claimant have reduced moral and sometimes legal significance: see R v Asfaw [2008] 2 WLR 1178 (HL) approving R v Uxbridge Magistrates’ Court, ex p Ademi [2001] QB 667 (QB), followed in Ghuman v Registrar of the Auckland District Court [2004] NZAR 440 (HC). There is at present no agreement between New Zealand and Iran by which the respondent could be removed there without his consent. While New Zealand has been negotiating with Iran to alter its policy of refusing entry to its citizens if they do not hold a passport, there is no evidence of likelihood of any change in the foreseeable future. As a Christian convert, the respondent believes that to return to Iran would expose him to risk of death and he therefore declines to apply for a passport. The relevant New Zealand authorities, including Judges of the District Court and of the High Court, accept the honesty of his belief.
[11] On his arrival in October 2003, the respondent applied for refugee status on the ground of political persecution. The application was declined by the Refugee Status Branch of the Department of Labour (the RSB) and an appeal to the Refugee Status Appeals Authority (the RSAA) was dismissed. While the respondent’s credibility was accepted by the RSAA, which found that he might suffer difficulties in Iran, the ground of well-founded fear of persecution was not established.
[12] Following his conversion to Christianity, the respondent made a second application, based on fear of religious persecution. The application was rejected by the RSB and the RSAA. An application to the High Court for judicial review of that decision was dismissed. A third application to the RSB and to the RSAA was dismissed as showing no change of circumstances.
[13] An application to the Removal Review Authority was also dismissed and the dismissal was sustained on application to the High Court for judicial review. Applications to the Minister of Immigration seeking a special direction in favour of the respondent under s 130 were also rejected.
[14] On 2 November 2004 the respondent was served with a removal order and taken into custody at Auckland Central Remand Prison where he remained under successive warrants issued by the District Court. After delivery of Courtney J’s judgment on 4 April 2007 he was released on conditions fixed by the District Court. Those included residence at a stipulated address, a curfew between 7 pm and 7 am, and reporting to the police three times a week.
[15] The 29 months in custody took their toll on the respondent. A psychiatrist reported in July 2005:
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 (DSMIV 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.
[16] The High Court Judge stated:
[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.
The immediate legislative scheme
[17] When he was served with a removal order, the respondent became liable to be removed from New Zealand under Part 2 of the Immigration Act (ss 53 – 4).
[18] It is necessary to reproduce the essential sections. I have italicised relevant provisions and underlined those of special importance. I have added in bold certain words and numbers. Since the factual and legal setting for the analysis must be provided, their discussion is deferred to [66] – [69].
55 Content and effect of removal order
(1)A removal order authorises any member of the police to take into custody the person named in the order and to proceed to execute the order in accordance with section 59.
…
59 Execution of removal order
(1)¶ Any member of the police may arrest without warrant a person on whom a removal order has been served and detain that person in accordance with this section.
(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.
(3)A person arrested and detained under this section may be detained for up to 72 hours without further authority than this section pending their placement on a craft that is leaving New Zealand.
…
60 Release or extended detention if craft unavailable, etc, within a 72-hour period
(1)Where a person is arrested and detained under section 59 and it becomes apparent that –
(a)no craft will be available within the 72-hour period specified in that section; or
…
(c)it is not practicable for the person to be placed on a craft within the 72-hour period; or
(d)for some other reason the person is unable to leave New Zealand within the 72-hour period, –
then, unless the person is released, an immigration officer must arrange for the person to be brought before a District Court Judge for the purpose of obtaining a warrant of commitment.
(2)Subject to any extension of it under subsection (4) or subsection (6A), a warrant of commitment issued under this section authorises the detention of the person named in it for a period of 7 days or such shorter period as the Judge thinks necessary to enable the execution of the removal order.
(3)· ¹ A Judge may issue a warrant of commitment on the application of an immigration officer if satisfied on the balance of probabilities that the person in custody is the person named in the removal order and that any of the following applies:
(a)A craft is likely to be available, within the proposed period of the warrant of commitment, to take the person from New Zealand:
(b)The practical difficulties that meant that the person could not be placed on an available craft within 72 hours are continuing and are likely to continue, but not for an unreasonable period:
(c)The other reasons the person was not able to leave New Zealand within the 72-hour period are still in existence and are likely to remain in existence, but not for an unreasonable period:
(d)In all the circumstances it is in the public interest to make a warrant of commitment.
(4)¸ ½ If at the expiry of a warrant of commitment made under this section the person has still not left New Zealand, then, unless released, the person must be again brought before a Judge for an extension of the warrant of commitment, in which case subsections (2) and (3) (and, if appropriate, subsection (6A)) apply.
(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.
(6)» Unless the Judge considers that there are exceptional circumstances that justify the person’s release, º 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)¼ 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
½(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.
(8)In making any decision under this section a Judge is to seek to achieve an outcome that ensures a high level of compliance with immigration laws.
(9)No release of a person under this section in any way affects their liability for later detention and removal.
[19] The general purposes of arrest and detention under these provisions are stated in ss 59(2) and 60(8): to execute the removal order by placing the person on a craft leaving New Zealand and to achieve a high level of compliance with immigration laws. The specific purpose of subss (6) – (7) is to impose an incentive on the person to conform with the immigration laws.
[20] Parliament contemplates by ss 59(3) and 60 that removal will normally take place within a 72-hour period. Close judicial control of the statutory processes is stipulated. If removal within such period is not practicable (s 60(1)(c)) the person must (unless released, an option not generally considered appropriate in cases falling within s 60(6)) be brought before a District Court judge for the purpose of obtaining a warrant of commitment (s 60(1)).
[21] Subject to s 60(6), a judge may issue a warrant if the person is not able to leave New Zealand within 72 hours, but not if the inability will extend for an unreasonable period (s 60(3)(c)), unless it is in the public interest to make a warrant of commitment (s 60(3)(d)). Warrants are generally for no longer than 7 days (s 60(2)) with a maximum of 30 days at a time (s 60(6A)). And, again subject to s 60(6), where a person who is unlikely to abscond comes before the judge on a second or subsequent occasion, the judge may order the person’s release subject to appropriate reporting and other conditions. Except in cases falling within s 60(6), no one may be detained for a consecutive period of more than three months (s 60(7)).
[22] Subsection (6) however provides an exception to the limitations on issue of warrants and on the court’s powers to order release from detention. A judge may not order release under subsection (5) if:
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.
Unless there are exceptional circumstances that justify the person’s release.
[23] There can be no doubt that the respondent’s continued refusal to apply for an Iranian passport constitutes “some action or inaction by the person occurring after the removal order was served” and is “a direct or indirect reason for the person being unable to leave New Zealand”.
[24] Before proceeding further it is necessary to dispose of a difficulty arising from the way the legislation is drafted. If it is clear that deportation within 72 hours will not be possible, looking at s 59 alone it is arguable that there is no power of arrest under that section. It could be said that the purpose of arrest and detention under s 59(2) is confined to execution of the removal order by placing the person on a craft that is leaving New Zealand within that time. Such reading is supported by s 60(1) which permits the issue of a warrant “where a person is arrested and detained under section 59 and it becomes apparent that … it is not practicable for the person to be placed on a craft within the 72-hour period” (s 60(1)(c)). It is also consistent with a reading of s 60(2) that the authorised detention is “for a period of seven days … to enable the execution of the removal order”, ie removal within seven days must be in contemplation.
[25] But ss 59 and 60 are to be read as a whole, which includes s 60(6). That makes plain that a person may be under detention and unable to leave New Zealand because of some action or inaction on his part after the removal order was served. It follows that the textual argument in [24] cannot succeed. Section 59(2) is not to be confined to the case where the person will be removed within 72 hours but extends to cases where that is not possible. On such reading, s 60(1) is not limited to the case where it became apparent after arrest and detention that it is not practicable for the person to be removed within the 72 hour period. Rather it extends to cases where it becomes apparent at some other stage, as after service of the removal order in terms of subs (6)(a). Likewise s 60(2) may be read to authorise the detention either for a period of seven days (if removal is not imminent), or for a shorter period (if it is). The alternative to such construction would be to deprive subs (6) of effect, which is a conclusion the Court will decline to reach if, as in this case, another option is reasonably available.
[26] Once that construction is adopted there is, at first sight, no difficulty in operating the successive stages as argued by the parties and accepted in the lower Courts. This is also the construction preferred by the other members of this Court.
(1)A removal order is served and executed under s 59;
(2)If the person cannot be removed within 72 hours an immigration officer applies for a warrant under s 60(1);
(3)The warrant is issued under s 60(2) for seven days if it is in the public interest (s 60(3)(d)) which s 60(6) may justify;
(4)If the person cannot be removed before the expiry of the first warrant a further application will be made under s 60(4). If the conditions in 60(6) are extant release may not be ordered in the absence of exceptional circumstances; and
(5)If s 60(6) applies, the three-month time limit under s 60(7) is excluded.
[27] But as is apparent from the difference of opinion in this Court the scheme is in fact more complex. To explain it requires further detail of the parties’ submissions, of legal principle, of fact, and of New Zealand’s policy concerning imprisonment.
The submissions
[28] The Deputy Solicitor-General contends for the Crown that Courtney J erred in directing the respondent’s release because there are no exceptional circumstances in this case. He submits that there is nothing exceptional about a person’s failure or refusal to sign a passport application which would enable his removal from New Zealand; rather it is a deliberate policy adopted to resist the operation of the law which imposes an obligation to leave New Zealand. Nor, says the Crown, can simple passing of time ever fall within the concept of exceptional when it is open to the person imprisoned to bring the detention to an end at any time, by signing the passport application and there is the prospect of removal proceeding as a result of diplomatic negotiations. So the case falls outside the s 60(6) ground on which release from detention is permissible. There is no other justification for release. This Court should therefore allow the appeal and return the respondent to detention.
[29] Mr Ryken for the respondent submits that Courtney J construed and applied the law correctly. The learned Judge stated:
[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 had 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.
…
[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.
…
[63] … 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).
Tools of interpretation
[30] The Courts have at their disposal a range of tools for interpreting legislation that is susceptible of more than one meaning. First, Parliament has directed the Courts when construing legislation to consider both its text and its purpose (Interpretation Act 1999, s 5). Second, Parliament has directed the Courts to prefer an interpretation that is consistent with the rights and freedoms contained in the Bill of Rights Act where such a meaning is available (Bill of Rights Act, s 6). Third, recourse may be had to settled common law principles of statutory interpretation, which include the principle of legality and the principle of proportionality.
[31] In the present case, the issue arises as to the correct application of the procedures in s 60 and, on my reading, we are required to give meaning to concepts of “unreasonable period”, “exceptional circumstances” and “public interest”.
Text
[32] Under s 60(3) a person may be kept in detention as long as the detention will not be for an unreasonable period or it is in the public interest to continue the detention. As earlier noted, in considering whether these criteria are satisfied, regard must be had to the stipulation that a person caught by s 60(6) may not be released unless there are exceptional circumstances.
[33] The definitions of the three material expressions are indeterminate. Parliament has refrained from setting time frames for the operation of s 60(6) and it is not our task to do so. The rule of law requires that laws be as clear and predictable as practicable (see John Finnis Natural Law (1980) at 270). But as Jeremy Bentham observed in his “Theory of Legislation” (Etienne Dumont edition translated and edited by CM Atkinson, 1914) at 62:
… the legislator, who cannot pass judgment in particular cases, will give directions to the tribunal in the form of general rules, and leave them with a certain amount of latitude in order that they may adjust their decision to the special circumstances.
[34] It is neither practicable nor desirable for us, in the context of a single appeal, to seek to give a ruling as to the precise meaning of “exceptional”, “reasonable” or “public interest”. In this judgment I will consider only whether the particular circumstances of this case fall within those broad concepts.
The Bill of Rights Act and the principle of legality
[35] Section 6 of the Bill of Rights Act requires that legislation be interpreted so as to give effect to the rights and freedoms contained in that Act. Similarly, the principle of legality requires that the law be applied consistently with fundamental human rights. In a celebrated passage in R v Home Secretary ex parte Simms [2000] 2 AC 115 at 131 (HL) Lord Hoffmann stated:
Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights…. The constraints upon [the] exercise [of its power] by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.
[36] It is therefore to be assumed that, when it enacted s 60(6), Parliament did not intend to infringe fundamental liberties. That conclusion is supported by its use of the terms “exceptional circumstances” and “unreasonable”. While, as the President explains (at [258], see also O’Regan J’s discussion at [195] – [197]), the “exceptional circumstances” test has been held to be exacting when the right to trial by at least 11 jurors is lost (Rajamani v R [2008] 1 NZLR 723 (SC) and Wong v R [2008] NZSC 29), the approach used in those cases in favorem libertatis is not to be applied in reverse. On the contrary, in cases where the exception would affect personal liberty a more generous approach is adopted. In R v Kelly [2000] QB 198 (QB) where the Court of Appeal construed legislation requiring it to impose a mandatory life sentence unless there were exceptional circumstances, Lord Bingham of Cornhill CJ said (at 208) that “[w]e must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art.” That decision was followed by the Supreme Court in Creedy v Commissioner of Police (2008) NZELC 99,336 at [32] (discussed by O’Regan J at [198]). Here, where s 60(6A) imports the reasonableness test of s 60(3), “exceptional” naturally bears the first meaning in the Oxford English Dictionary: “out of the ordinary course, unusual, special”.
[37] The next question is which rights are implicated in the current case. Two are potentially relevant. The first is the right to liberty of the person, formulated in the Bill of Rights as the right not to be arbitrarily arrested or detained (s 22). The second is the right not to be subject to cruel or disproportionately severe treatment, identified in s 9 of the Bill of Rights. Each of these rights must be construed using both the language of the Act and the common law (s 28 of the Bill of Rights Act states that existing rights or freedoms shall not be restricted by reason only that they are included only in part).
[38] As to liberty of the person, the Bill of Rights and the principle of legality require us to presume that Parliament did not intend to authorise arbitrary detention. The focus must be on the term “arbitrary”, rather than on the idea of lawful detention, otherwise the right would be substantially diluted. In van Alphen v The Netherlands Comm 305/1988 23 July 1990 (UNHRC) cited in R v Goodwin (No 2) [1993] 2 NZLR 390 at 393 (CA) it was accepted that “arbitrary” included not merely concepts of unlawfulness, but also “inappropriateness, injustice and lack of predictability.” In a similar vein, Thorp J in Clarke v Police HC AK AP208/95 11 October 1995 at 8 defined arbitrary as “unreasonable, unnecessary or unprincipled.”
[39] It follows that by the terms “reasonable” and “exceptional circumstances”, Parliament intended to preserve the right to be free from detention that is inappropriate, unnecessary and unpredictable.
[40] It could be only in the most unusual of circumstance that detention for a period that is unreasonable could nevertheless be in the public interest.
[41] As to the right not to be subjected to treatment that is disproportionately severe, the standard by which that is to be measured is that treatment be “so severe as to shock the national conscience”: Taunoa v Attorney-General [2008] 1 NZLR 429 (SC) at [289]. Reasonableness is a less exacting test. Here there are no findings as to the conditions likely to have been experienced by the respondent in detention, beyond the evidence that he was seriously assaulted and of there being some effect on his mental health.
Context
[42] Because the words of the statute are indeterminate, we must look at the context in considering how they should be understood. I begin with certain criminological materials which illuminate the nature of imprisonment. I then move on to discuss the local legal context. (The approach in other jurisdictions is sketched in an appendix to this judgment at [134] – [162].) Once this background is in place I return to analyse the words of the legislation in the light of the Interpretation Act, the Bill of Rights Act and the common law principles of statutory interpretation.
New Zealand imprisonment policy
Criminology and the criminal law
[43] Imprisonment is now the most stringent form of punishment known to the law of New Zealand. As the Supreme Court stated in Zaoui v Attorney-General [2005] 1 NZLR 577 at [52]:
… it is of prime importance that any powers of detention be approached in light of the fundamental right, long recognised under the common law, of liberty for all persons subject only to such limits as are imposed by law.
[44] The importance of the basic right to be free from detention is evident in New Zealand’s legislation as from principles of the common law. Before moving to discuss the legal framework, I mention some academic literature.
[45] Deprivation of liberty is used as a common form of punishment of those who have committed grave crimes. In A Rage to Punish (1994) Lois G Forer, an American trial judge for 16 years, records the lack of general public awareness of what happens inside prison walls (at 74). He urges consideration of the need for imprisonment of non-violent offenders (at 95), which carries by necessary implication the need to justify the length of any prison term. An analogous theme is advanced by Professor McSherry of Monash University in her essay “Sex, Drugs and Evil Souls” (2006) 32 Monash Law Review 237 at 269, discussing the principle nulla poena sine lege - that punishment should be confined to cases of criminal conduct.
[46] In “Imprisonment: An expanding scene” Maguire, Morgan and Reiner (eds) The Oxford Handbook of Criminology (4ed 2007) 1110 Rod Morgan and Alison Liebling say at 1107-1108:
The most fundamental way of answering the question, ‘What are prisons for’, is to distinguish the three legal functions, custodial, coercive and punitive.
Suspects refused bail and detained before trial, or convicted but not yet sentenced, are held in custody to ensure that the course of justice proceeds to its conclusion and that everyone concerned is protected against the likelihood of harm in the interim. A small number of non-criminal prisoners – held under the Immigration Act, for example – are imprisoned pending completion of enquiries or execution of and administrative decision. There is no justification for holding such prisoners in conditions more oppressive than is warranted by the fact of custody itself, either because they are not eligible for punishment (the unconvicted are subject to the presumption of innocence) or, if convicted, because the court has not yet determined that loss of liberty is the appropriate sentence.
Offenders held coercively – nowadays almost entirely fine defaulters – are kept in prison for as long as they fail to comply with a court order that they pay a financial penalty enforced by the court. As soon as they pay, or once the custodial period in lieu of payment is served, they are released. In this case the prison, the loss of liberty, and possibly also the conditions in custody, is used to pressurise the offender into conforming.
Finally, there are persons held punitively – nowadays the great majority – as a sanction for offences of which they stand convicted. Since the abolition of the death penalty in 1965 imprisonment has been the most serious penalty the courts can impose in Britain. The punishment of imprisonment for sentenced prisoners might comprise both loss of liberty and harsh living conditions in the name of ‘less eligibility’ … or deterrence. Today prison administrators generally disavow such purposes, reiterating Paterson’s famous dictum that offenders are sent to prison ‘as a punishment, not for punishment.’
The purposes of detention under s 60
[47] I consider that the purposes of detention under s 60 must be custodial (to facilitate deportation) and coercive (to encourage the recalcitrant to sign). These immediate purposes both contribute to the ultimate purpose of securing the respondent’s removal from New Zealand. This being a civil and not a criminal procedure, I do not consider that punishment of the recalcitrant for refusing to sign, or indeed (beyond what is inherent in the coercive) to deter others, is a legitimate purpose. While deterrence can be an important element of the criminal law, quite explicit language would be required to justify civil detention in order to dissuade others. Properly, the Deputy Solicitor-General did not seek to justify continued detention on the basis that s 60(8) contains a purpose of ensuring compliance by others with immigration law.
[48] While Parliament has accepted the need for detention in cases coming within s 60(6), such considerations bear on whether the term of the detention is longer than for “a reasonable period” and also on what is in the public interest. They are also relevant to understanding when detention would fall within “exceptional circumstances that justify the person’s release.”
Custodial sentences in New Zealand
[49] The insistence in the criminological literature on viewing custodial sentences as being of the most serious character is echoed in the New Zealand legislative context.
(i) The Sentencing Act 2002
[50] Parliament’s intentions with regard to the role of imprisonment in New Zealand’s penal system are most evident from the Sentencing Act 2002. Section 10A sets out the hierarchy of sentences and orders that may be imposed, from the least restrictive to the most restrictive:
(a) discharge or order to come up for sentence if called on:
(b) sentences of a fine and reparation:
(c) community-based sentences of community work and supervision:
(d)community-based sentences of intensive supervision and community detention:
(e) sentence of home detention:
(f) sentence of imprisonment.
[51] Section 8(g) of the Sentencing Act requires the Court to impose the least restrictive outcome that is appropriate in the circumstances in accordance with this hierarchy.
[52] That there is an emphasis in the criminal arena on imposing the least restrictive outcome is an important indicator when assessing detention in the administrative arena, as in the case of immigration detention.
(ii) The Bail Act 2000
[53] After sentencing, bail is one of the key areas where the law must deal with the propriety of imprisonment. In Zaoui the Supreme Court confirmed the inherent authority of the High Court to grant bail in all cases, civil and criminal, where someone is detained. The inherent jurisdiction by its very nature protects the basic liberty of the individual to be free from detention, even if on a conditional basis.
[54] The Courts are well accustomed in the most serious criminal cases, including murder, to the exercise of jurisdiction under the Bail Act 2000 which sets out the public interest considerations. They include:
8 Consideration of just cause for continued detention
(1) In considering whether there is just cause for continued detention, the court must take into account—
(a)whether there is a real and significant risk that—
(i)the defendant may fail to appear in court on the date to which the defendant has been remanded; or
(ii)the defendant may interfere with witnesses or evidence; or
(iii)the defendant may offend while on bail; and
(b)any matter that would make it unjust to detain the defendant.
(2)In considering whether there is just cause for continued detention under subsection (1), the court may take into account the following:
(a)the nature of the offence with which the defendant is charged, and whether it is a grave or less serious one of its kind:
(b)the strength of the evidence and the probability of conviction or otherwise:
(c)the seriousness of the punishment to which the defendant is liable, and the severity of the punishment that is likely to be imposed:
(d)the character and past conduct or behaviour, in particular proven criminal behaviour, of the defendant:
(e)whether the defendant has a history of offending while on bail, or breaching court orders, including orders imposing bail conditions:
(f)the likely length of time before the matter comes to hearing or trial:
(g)the possibility of prejudice to the defence in the preparation of the defence if the defendant is remanded in custody:
(h)any other special matter that is relevant in the particular circumstances.
[55] The statutory scheme is consistent with the principles of the common law, each of which keeps a careful and proportionate balance between the competing public interests of protection of the public and avoiding unnecessary detention.
(iii) The Immigration Act 1987
[56] In accordance with conventional New Zealand standards I take the scheme of the Immigration Act to apply as far as practicable the principle that imprisonment is limited to cases of practical necessity. For example, where there is an obvious flight risk and perhaps other risks in relation to persons whose eligibility for a permit is not immediately ascertainable, custody may be appropriate. Section 60(6) applies that principle to the removal of those who fall within it.
[57] The Supreme Court in Zaoui at [48] recounted the various regimes for bail and conditional release provided by the Immigration Act. The Court found that the scheme of the Act did not reveal a consistent approach to detention in immigration cases (at [49]).
[58] Under Part 6 persons whose eligibility for a permit is not immediately ascertainable may not be granted bail (s 128B(15)). However, in such a case the detention must be reviewed if no determination has been made after 28 days and every seven days thereafter (s 128B (9) and (10)). If a determination is made that the permit should be refused, the person must not be granted bail but may be conditionally released from detention (s 128(15)) unless they are caught by s 60(6). Under Part 3 even persons threatening national security and suspected terrorists must be brought before the District Court within 48 hours and may be released on conditions pending deportation (s 79(1)(b)(ii)).
(iv) Appropriate lengths of imprisonment
[59] The laws of sentencing, bail and immigration detention all reflect the fundamental proposition that deprivation of liberty in the form of imprisonment is a serious matter, but that it is appropriate in some cases. It is therefore instructive to take into account the type of cases in which imprisonment similar to what the respondent has undergone have been considered appropriate.
[60] The respondent has served 29 months in detention. Statistics produced by Soboleva, Kazakova and Chong Conviction and Sentencing of Offenders in New Zealand: 1995 to 2005 (Ministry of Justice, December 2006) recording sentencing statistics in New Zealand contain the following results at 71 and 89:
Table 1: Average custodial sentence length (months) imposed by type of violent offence 1996 – 2005
Offence
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
Kidnapping/
abduction
37.9
36.1
39.5
29.3
32.2
31.7
43.3
32.9
31.5
35.0
Attempted sexual violation
41.1
61.0
47.1
49.2
43.4
55.0
57.3
62.5
44.1
52.8
Indecent assault
21.4
19.9
20.4
21.6
20.7
22.8
19.7
18.9
24.1
18.2
Robbery
16.0
20.4
22.9
22.2
21.4
24.1
19.1
23.1
24.1
24.1
Grievous assault
21.1
21.8
22.9
22.0
25.6
23.6
25.4
23.7
24.1
24.1
Table 2: Average custodial sentence length (months) imposed by type of offence against the administration of justice 1996 – 2005
Offence
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
Failure to answer bail
2.0
1.9
2.1
2.0
2.1
2.1
1.9
1.8
2.1
2.1
Breach protection/non-molestation order
2.0
3.4
2.9
3.3
3.3
3.4
3.9
4.0
3.9
3.8
Escape custody
5.3
4.9
6.5
4.5
5.4
5.6
5.8
6.6
4.1
4.4
Obstruct/ pervert course of justice
9.1
9.0
12.4
9.8
10.3
9.1
11.5
12.2
10.9
10.1
Other against justice
5.1
12.5
5.0
3.1
7.0
4.2
3.8
10.2
3.9
4.7
[61] It should be noted that to reflect actual time served such periods must generally be reduced by somewhere between one‑third and two‑thirds.
[62] It is apparent from these statistics that the respondent has spent an amount of time in custody comparable to that which would be served by a person convicted of a serious offence.
[63] The period is far in excess of what would be expected for any other breach of or refusal to comply with a legal order or process. No general statistics for New Zealand contempt cases resulting in imprisonment were presented, but Table 2 above indicates the period of detention deemed appropriate for offences against judicial processes. The decision of the Full Court of the High Court in Solicitor-General v Siemer HC AK CIV 2008-404-472 8 July 2008 cites the English regime at [92] – [93].
[64] In the absence of New Zealand statistics it is convenient to consider a selection of the longest custodial sentences imposed for contempt in the United Kingdom since 1981 when the Contempt of Court Act of that year capped the period of imprisonment for contempt at two years (extracts from Arlidge, Eady and Smith On Contempt (3ed 2005) Appendix 3):
Table 3: Examples of penalties imposed for contempt since 1981
Name of Case
Nature of Contempt
Penalties
James (1988) 1 Cr App R (S) 392
Threat of violence to a witness and a suggestion that he give false evidence. “A very serious contempt … upon a man who was clearly susceptible.”
Two years’ imprisonment upheld.
Att-Gen v Jackson [1994] COD 171
Series of threatening phone calls made from person to a witness.
12 months’ imprisonment upheld.
Stredder [1997] 1 Cr App R (S) 209
The appellant spoke to the sole prosecution witness at his trial whose car had been damaged (“That was just a warning”). He also said “I’ll do you when I see you anyway”. This was “unplanned, hot headed, rash but, nevertheless, severely threatening.”
12 months’ imprisonment upheld.
Mitchell-Crinkley [1998] 1 Cr App R (S) 368
The appellant was a friend of an accused person. He recognised a juror and telephoned him, mentioning that the previous jury had been discharged. “A grave case.”
12 months’ imprisonment upheld.
Mesham v Clarke [1989] 1 FLR 370
Repeated breaches of a non-molestation and exclusion order, despite express warning from the judge.
Maximum sentence of two years’ imprisonment upheld.
Lightfoot v Lightfoot [1989] 1 FLR 414
Breach of an order not to dispose of any monies received, and to pay them into a joint account. He received £30,000, none of which was paid into the joint account.
18 months’ imprisonment upheld.
Re O (Contempt Committal) [1995] 2 FLR 767
Parents writing anonymous letters in breach of an injunction. They would apparently stop at nothing to secure the return of their “former children” who had been adopted. There was a danger of destabilising the adoption and the parents’ conduct constituted an attempt to pervert the course of justice.
12 months’ imprisonment upheld.
A-A v B-A [2001] 4 FLR 1
The husband raped the wife during the currency of restraining orders.
12 months’ imprisonment for the contempt in respect of rape. Upheld on appeal.
[65] It may be noted that while the inherent power of the New Zealand High Court to sentence for contempt is unlimited, the maximum penalty for contempt under the Crimes Act 1961, s 401 and the Summary Proceedings Act 1957, s 206 is three months imprisonment or a fine of $1,000.
Discussion
[66] Against that setting I return to the application of s 60, using the numbering I have inserted in the legislation set out at [18] above.
First period of detention
(1)¶ The person is arrested and detained under s 59.
(2)· If the person cannot be removed within 72 hours a warrant may be issued under s 60(3) provided one of the conditions in that subsection is satisfied. The warrant can be issued for up to seven days (60(2)).
Second and subsequent periods of detention
(3)¸ When the warrant expires, the person must be brought before a judge for extension of the warrant, in which case s 60(4) provides that subs (2) and (3) and (6A) apply.
It is at this point that the difference between my interpretation and that of the other members of the Court occurs in the case of a person falling within subs (6). If subs (3) is given effect, then the judge must undertake the assessment required by that subsection as to whether an extension should be granted. In doing so the judge must take account of what Parliament says in subs (6), (6A) and (7) about how persons affected by subs (6) are to be treated; I return to that point shortly. ¹ On that view, the judge may not issue a warrant “for an unreasonable period” unless “in all the circumstances it is in the public interest to make a warrant of commitment”.
(4)Once a second or subsequent warrant has been issued, the judge may consider conditional release under subs (5) unless the person is a subs (6) person. º If the person is a subs (6) person, the judge may not order release under subs (5) unless there are exceptional circumstances. »
The other members of the Court consider that there is an inconsistency between the requirements in subs (3) and the provision of subs (6) that the judge may not order release unless there are exceptional circumstances. I return also to that point.
(5)¼ If a new warrant is issued and there are no exceptional circumstances, the warrant may be extended for up to 30 days and the three month time limit is excluded.
(6)½ In that event, at the expiration of the warrant subs (3) – (6) and (6A) apply in the same manner (starting again from (3) above).
[67] I return to the two points arising from the foregoing analysis. The first is that at the subs (4) stage subs (2) and (3) and (6A) apply. The second is that there is inconsistency between the requirements of subs (3) and (6). They may be dealt with together.
[68] It is axiomatic that a statute must be read as a whole. Here that entails reading “exceptional circumstances” as consistent with and informing the interpretation of both “unreasonable period” and also the further subs (3) exception that “it is in the public interest to make a warrant of commitment”. Such construction gives effect to the language of both subs (3) and of subs (6), each of which Parliament has said apply at the expiry of a warrant under subs (6). I recognise with respect that the Minister referred only to “exceptional circumstances” as avoiding indefinite detention of a person who refuses to sign a passport application (see the Hansard passage reproduced by O’Regan J at [167]). But the constitutional duty of the Court is to apply the language selected by Parliament. It must do so in full.
[69] “Unreasonable” is a flexible term which will readily accommodate the requirements of exceptionality, and thus recognise the need to treat differently cases falling within subs (6), for which Parliament contemplates longer detention to give effect to the purposes of the section, and those to which subs (6) does not apply. In a context where subs (6) has no application, “unreasonable” will be measured against the three month limit of subs (7). Where subs (6) does apply, “unreasonable” will be measured against the fact that the three month limit has been disapplied; that the test of subs (6) is of “exceptional circumstances”; and in the light of the general purposes of ss 59(2) and 60(8) and the specific purposes of imposing an incentive on the person to conform with the immigration laws (subs (6) – (7)).
Purposes
[70] The Interpretation Act requires consideration of the purpose of the statute in construing “unreasonable”, “exceptional circumstances” and “public interest”. As earlier noted, two principal purposes are expressly stated. Section 59(2) states that “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”. This purpose is reiterated in s 60(2). That subsection is expressed as being subject to subsections (4) and (6A), but that qualification logically applies to the time period for review (seven days), rather than the purpose. A second purpose is stated in s 60(8). That is “to achieve an outcome that ensures a high level of compliance with immigration laws.”
[71] So long as the detention serves the s 59(2) and 60(8) purposes it will be rare that the circumstances could be exceptional, the period of detention unreasonable, and that the public interest would not require continued detention. But since subss (3) and (6) must be given due weight there will be circumstances where the statutory purposes are being pursued, but the person cannot be detained because there is no sufficient public interest and detention would be for an unreasonable period, which may mean that there are exceptional circumstances which also require release. If the detention does not serve the statutory purpose at all there is simply no basis for detention. This possibility was an alternative ground raised by the respondent and is discussed below at [123].
[72] Returning to the three purposes of detention identified by Morgan and Liebling (at [46] above) I have noted that the purposes of immigration detention under s 59 are custodial – to ensure proceedings can be executed swiftly, and coercive – to encourage compliance with immigration laws. There is no punitive purpose. Unlike in the UK and the USA, in New Zealand failure or refusal to sign a passport application to facilitate removal is not a criminal offence triable in a criminal court and punishable by a penalty.
[73] But it is obvious that Parliament was concerned that non-compliance should not be seen as an easy option. The clear policy of section 60(6) is that detention is to be employed as an incentive to compliance with a removal order. This interpretation is reinforced by the fact that subs (6) was added as a direct result of the High Court’s grant of habeas corpus to Mr Mohebbi who, in circumstances somewhat analogous to the present, had refused to apply for an Iranian passport.
The principle
[74] The present judgment does not propose any easy option. It contemplates imprisonment to seek to achieve the statutory purposes until, on the stern test appropriate for cases falling within subs (6), it becomes unreasonable to continue the detention or unless the public interest otherwise requires. I cite at [35] the common law rule that legislation is presumed to conform with constitutional principle, at least unless very clear language to the contrary is used.
[75] The constitutional principle in favour of preserving liberty can be traced back to at least 1215, when the Magna Carta expressly prohibited detention otherwise than by law. That measure was confirmed in 1297 and remains part of New Zealand law: see s 3(1) of the imperial Laws Application Act 1988 and Reprinted Statutes vol 30 at 26. It is given effect by the common law presumption that, where more than one construction is available, the law should be interpreted in favorem libertatis adopted in Crowley’s Case (1818) 2 Swans 1, 67-8; 36 ER 514, 53 (HC). Kersley, Broom’s Legal Maxims (10ed 1939) cites the extended form: in favorem vitae libertatis et innocentiae omnia praesumuntur. In its form in favorem vitae, the maxim was recently cited by the successful appellant in Roodal v State of Trinidad and Tobago [2005] 1 AC 328 at 336 (PC). The principle, which underlies the onus of proof in criminal cases, is of general application. To continue detention for a period that is “unreasonable” would plainly, in my view, run contrary to New Zealand’s constitutional values. No New Zealand authority was cited to us to justify such a result.
[76] I therefore respectfully differ from O’Regan J. To justify detention for a term that is unreasonable, via the reference in subs (6A)(ii) back to “this subsection”, would give no effect to the fact that “this subsection” also refers to subs (3) and thereby imports the reasonableness test in that subsection. O’Regan J’s construction would add by implication to the language of sub (6A):
(ii) subsections (3) to (6) and this subsection apply at the expiration of the warrant the words [but subsection (3) applies only if subsection (6) no longer applies to the person].
I recognise that sometimes the Court is compelled, in order to avoid an absurd result, to read words in to a statute. But while the interpretation proposed by O’Regan J is no doubt a logical possibility, the Court should be reluctant to read words in; and the more so when the consequence would be detention for an unreasonable period. The literal construction suggested in this judgment requires no addition: the statement that “this section appl[ies]” empowers the Judge to extend the warrant provided the conditions of subs (3) are satisfied. It would terminate detention at the point where to continue it would be unreasonable. No “public interest” in terms of s 60(3)(d) was identified.
[77] The literal construction is also consistent with the two evident purposes of s 60: to seek a high level of compliance with immigration laws (subs (8)); and to seek removal by imposing an incentive on the person to conform with those laws (subss (6) – (7)), even though that incentive is lesser than the alternative of indefinite detention.
[78] The liberty principle in my respectful view is also relevant to the President’s argument that the approach adopted in this judgment does not square with the policy expressed in subss (6) and (8) of s 60. Certainly the starting point of this judgment, as of the other judgments of the Court, is s 5 of the Interpretation Act, which requires the Court to examine not only the language but the purpose of the measure. It is common ground that subss (6) and (8) are clear pointers to the general legislative policy. The point of difference concerns whether the text is to be overridden by other indicators of policy.
[79] The President relies on the historical context, which is recounted by the Minister of Immigration in the Hansard passage referred to at [167]. The President proceeds on the basis that s 60(6) was introduced “on a particular assumption as to its effect” (at [223]).
[80] But that conclusion reaches beyond the language Parliament has selected. While reference to Hansard will often shed light on what policy Parliament has adopted, it is ultimately the language of the statute, read in the light of accepted conventions of interpretation, which constitutes the law. The other members of the Court acknowledge linguistic difficulty with their preferred interpretation (at [165], [223] and [231]). While the literal construction does not in my view give rise to uncertainty, if contrary to that opinion there is any lack of specificity, I prefer the approach that the statute should not be extended beyond the limits of its language and that any residual doubt be resolved by the presumption in favour of liberty.
[81] The New Zealand patterns of use of imprisonment do not permit of long term detention for those who have not been convicted of serious crime. In cases where the elapsed period is not unreasonable another warrant can be issued and the subs (4) procedure may then be employed, and so on until the unreasonable period in subs (3)(c) is reached and the public interest no longer applies, exceptional circumstances have arisen, or the purposes of ss 59(2) and 60(8) are no longer operative.
[82] For detention to remain lawful, each step in the process must be in furtherance of the purpose of placing the person on a craft that is leaving New Zealand (s 59(2)). That point is made by the Minister, who disavowed indefinite detention, even for a person who refuses to cooperate.
[83] In summary, detention of persons falling within s 60(6) must terminate if either:
(a)there are exceptional circumstances, which includes the case where further detention would be for an unreasonable period unless it is in the public interest to make a warrant of commitment; or
(b)the purpose of placing the person on a craft that is leaving New Zealand is no longer being served.
These categories may overlap.
[84] What is an unreasonable period may depend upon two particular considerations of present relevance. One is a realistic prospect that the means of removing the person from New Zealand will come into existence, as by the securing of a agreement with the authorities of another state. The other is simply that too much time has elapsed (a topic considered in R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704 (QB) judgment discussed at [139] – [140] of the Appendix). What is in the public interest also requires particular consideration.
Review of the District Court decision
[85] This appeal is from a judicial review of a District Court decision. The basis for such review was outlined by Thomas J in Auckland District Court v Attorney-General [1993] 2 NZLR 129 at 133 (CA):
It is based on the fundamental premise that statutory (and some prerogative powers) can be validly exercised only within their true limits. It is the task of the High Court to determine those limits and it does so by the process of judicial review. But the High Court cannot review its own decisions; it must determine its own jurisdiction and, if it is responsible for any irregularity, the defect must be corrected by the Court itself or on appeal: see Isaacs v Robertson [1985] AC 97, per Lord Diplock at p 103.
[86] Since the grounds in s 60(3) were not taken into account by the District Court in considering the Crown’s application, its decision was defective. In considering what relief should follow it is necessary to consider:
(a)whether Judge Field was properly satisfied on the balance of probabilities that one of the conditions of s 60(3) was established (either that the detention would not be for an unreasonable period or that it was required in the public interest); and, whether the Judge correctly decided there were no exceptional circumstances and therefore he could not make an order for release;
(b)if not, whether continued detention would serve the statutory purposes.
[87] These must be considered in light of the essential facts before the District Court, which were:
(a)The respondent had been held in Auckland Central Remand prison for two years;
(b)He could have secured his own release by signing the travel documents;
(c)It was not clear when negotiations with Iran allowing for the respondent’s release by deportation might be completed;
(d)There was no evidence that the respondent’s determination not to sign travel documents would be altered by further time in prison;
(e)There was little risk that the respondent would abscond or commit an offence if released;
(f)The respondent honestly believed that return to Iran would place his life and health at risk; and
(g)He had suffered psychological damage as a result of his time in prison and further detention would be detrimental to his health.
It is also relevant to our decision that the respondent has now been on bail since the orders following the High Court judgment.
The grounds in subss 60(3) and (6)
[88] It has been noted that the District Court Judge seems not to have been invited to consider the grounds in s 60(3); nor was the High Court; nor were we. But since they provide the basis of the Court’s jurisdiction to extend a warrant they must form the starting point of any analysis.
[89] I repeat that subs (3) states that a Judge may issue a warrant of commitment on the application of an immigration officer if satisfied on the balance of probabilities that any of the following applies:
(a)a craft is likely to be available, within the proposed period of the warrant of commitment, to take the person from New Zealand:
(b)the practical difficulties that meant that the person could not be placed on an available craft within 72 hours are continuing and are likely to continue, but not for an unreasonable period:
(c)the other reasons the person was not able to leave New Zealand within the 72-hour period are still in existence and are likely to remain in existence, but not for an unreasonable period:
(d)in all the circumstances it is in the public interest to make a warrant of commitment.
For present purposes the relevant grounds are (c) and (d).
Section 60(3)(c)
[90] There is no question that at the time of the District Court judgment (November 2006) the reasons Mr Yadegary was unable to leave New Zealand were still in existence and were likely to remain in existence. There is an issue as to whether those factors were likely to remain in existence for an unreasonable period. If they were likely to remain in existence for no more than a reasonable period this ground would not have been made out.
[91] The questions which, in my view were for consideration by the Judge, were whether he was satisfied on the balance of probabilities that the negotiations would be concluded in early 2007 as the Crown suggested and if so whether that would be a “reasonable” period of detention.
[92] The factors were that Mr Yadegary could not be removed because the Iranian government would not allow him entry without an Iranian passport and because he would not sign the application that would allow him to acquire such a passport. Judge Field had before him an affidavit by the National Manager, Border Security and Compliance Operations of Immigration New Zealand, Mr Baker, suggesting that negotiations with Iran on an agreement that would allow repatriation of Iranian citizens who refused to sign passport applications might be concluded in early 2007. The Judge noted that the respondent viewed this with “some scepticism”, and the Judge did not come to any conclusion on the likely length of time before negotiations would be concluded. There was no suggestion that the respondent was likely to relent and sign the documents. The respondent’s opinion as to the negotiations has to date proved correct.
[93] In the High Court, Courtney J had the advantage of a second affidavit by Mr Baker that gave further detail about continuing negotiations. She was satisfied that progress was being made. But she concluded that there was no “certainty as to when the negotiations might actually produce an agreement that can be implemented” (at [53]). She noted that Mr Baker did not provide any objective basis for thinking an agreement would be concluded in early 2007 (at [53]).
[94] Judge Field had even less information before him as to the likelihood of negotiations being concluded. The only evidence he had was a statement of opinion that an agreement might be reached in early 2007. I consider he could not have been satisfied on the balance of probabilities that Mr Yadegary would be able to be deported at that time.
[95] Even if the Judge had been satisfied that Mr Yadegary would be deported in early 2007 he would have next had to consider whether detention during that time would be unreasonable, employing the test stated at [69] above. This is discussed further below at [99] and following.
Section 60(3)(d)
[96] It would still have been possible for the Judge to have issued a warrant if para (d) was satisfied, that is, if in all the circumstances it was in the public interest to issue a warrant. This ground does not specify any reasonable time requirement. See below at [109] – [110].
[97] In interpreting this term it should be recalled that the Judge is required to seek to achieve an outcome that ensures a high level of compliance with immigration laws.
The presence of a s 60(6) factor and exceptional circumstances
[98] Because the respondent falls within s 60(6), the question of exceptional circumstances arises. See below at [111] and following.
Application of principles
Unreasonable period
[99] From the principles outlined above I draw together the factors that contribute to my conclusion of what constitutes an unreasonable period of detention in the present case.
[100] This appeal concerns the case of self-induced impediment to removal considered in overseas decisions cited in the Appendix including Tan Te Lamv Tai A Chau Detention Centre [1997] AC 97 (PC) (below at [103] – [104] and [144]), the English cases subsequent to Hardial Singh, albeit with a different statutory formula (below at [141] – [142]), the Canadian decision Canada (Minister of Citizenship & Immigration) v Kamail [2002] FCT 381 (below at [151]) and the US cases Pelich v INZ 329 F 3d 1057 (2003) (below at [161]) and Lema v INS 341 F 3d 853 (2003) (below at [162]). Other cases, where removal was generally prevented by a refusal of foreign states to admit the detainee, and Hardial Singh, where the appellant had lost rather than destroyed his passport and delay in securing a replacement did not lie with him, are distinguishable. In the former cases detention can contain a potential incentive to the detainee to assist the removal process which is absent from the latter.
[101] The reasons for detention are custodial and coercive. The extent to which detention would continue to serve these purposes is relevant to the reasonableness of the period of detention.
[102] Overseas standards such as those discussed in the Appendix are relevant as a broad reality check: see for example Lawrence v Texas 539 US 558 (2003). While the cases show a willingness to maintain detention to provide an incentive to overstayers to facilitate their deportation, there is little evidence in the states against which we are accustomed to compare ourselves of administrative detentions for really long periods, with the exception of in Al-Kateb v Godwin (2004) 219 CLR 562 (below at [156]). That decision has been severely criticised, notably by the three very experienced dissenters.
[103] The decision of most assistance to the Crown is Tan Te Lam, where the Privy Council restored orders of habeas corpus granted to applicants who had experienced detention for periods ranging between 35 months and 68 months. The Board’s view, with which I agree, was that 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. These remarks were made in the context of periods of detention which considerably exceeded that experienced by the respondent. Accordingly that case favours the Crown argument.
[104] But social conditions in Hong Kong, where in the period leading to the withdrawal of the British Crown over 20,000 migrants awaited repatriation to Vietnam, have little to do with the standards we apply in New Zealand. I appreciate the undesirability of drawing a line of reasonableness of term of detention. Nevertheless, short of imputing a parliamentary purpose of detention of non-offenders for terms equivalent to those imposed on the very worst criminals, there is no escape from the need to make the proportionality judgment in relation to New Zealand standards, that is an integral part of the judicial office.
[105] In the present case there is a low risk of the respondent absconding, and the imprisonment is unlikely to achieve its coercive aims. An alternative to imprisonment, by release on conditions under s 60(5), is available and was properly employed by Courtney J.
[106] On the other hand, Parliament’s intention to discourage people from taking advantage of the fact that they cannot be deported without their cooperation must weigh heavily in the analysis. Care must be taken not to give the impression that a person who is unlawfully in New Zealand but cannot be deported unless he or she cooperates will be given free entry to the country if prepared to undergo a certain term of imprisonment in exchange. In the present case the respondent could (in a double sense) determine the length of his detention by agreeing to sign the documents.
[107] But as the criminal and contempt cases show, the principle of legality requires very clear language before there is departure from the constitutional basic: in New Zealand we do not imprison for long periods persons who have not offended gravely against the criminal law. The principles behind our sentencing and bail legislation reflect an awareness that deprivation of liberty is a severe step and that alternatives should always be considered. In the present case, at the time of the District Court Judge’s decision the respondent had already been in detention for two years. At least an additional six months must have been in the Judge’s contemplation. In terms of the application of the Parole Act 2002 the total would equate to a term of between and seven and a half years imposed by a criminal court at the time.
[108] I have concluded that at the time of the District Court Judge’s decision it was apparent that the reasons the respondent was not able to leave New Zealand were likely to remain in existence for what would, by New Zealand standards, constitute an unreasonable period. It follows that the “not unreasonable” time ground of s 60(3)(b) was not established.
Public interest
[109] The purposes of ensuring deportation and a high level of compliance with immigration law indicate a firm perspective that it is in the public interest to deport overstayers expeditiously and to ensure that breaches immigration law are taken seriously. But difficulty in the deportation process is already dealt with under s 60(3)(c), and the reasonableness requirement in that subsection cannot be short-circuited by an appeal to the public interest. Some other circumstance is needed such as, for example, risk of offending or absconding.
[110] In the present case, the only factor that could take the respondent’s case outside the normal circumstances that would call for a s 60(3)(c) assessment was his refusal to sign the travel documents. There is no danger to the public and a very low flight risk. The fact that terrorism suspects are eligible to apply for bail ([58] above) is a significant pointer against the proportionality of treating public interest as requiring indefinite detention in the present case. I do not consider there is a sufficient public interest in the respondent’s detention to warrant further incarceration beyond a reasonable period. It follows that the ground in s 60(3)(d) is not established.
Exceptional circumstances
[111] As the foregoing analysis above has shown, the question of what constitutes an unreasonable period should take into account whether there are exceptional circumstances in subs (6) cases.
[112] In this Court the Crown’s principal submission was that, given the respondent’s power to secure release by signing a passport application (ie by assenting to deportation), mere passing of time cannot be a consideration unless the negotiations with Iran have concluded. As I understood the submission, it was based on a premise of human autonomy – that detention from which the detainee can escape by his own decision is self-induced and no responsibility of the Crown, which would be very happy to see him released. On that argument detention of a person who has committed no offence could last many decades and as long as that of the worst criminal.
[113] It has been noted that such submission is not supported by either the text or the purpose of s 60(6). Textually, it would require the Court to ignore the prohibition of detention for an “unreasonable period” in s 60(3)(c) and would read in to the unconditional expression “exceptional circumstances” the unexpressed condition “save any consideration of term of imprisonment”. In terms of purpose it would require the Court to disregard evidence that continued imprisonment could not serve the stated statutory purpose of removing the person from New Zealand. Nor does the Crown argument meet the principles of legality and proportionality.
(c)A further review of the reasons for continued detention must occur at least once during the seven days following the first review and thereafter at least once within every subsequent 30-day period (s 57(2)).
There is no limit on the period for which a person may be detained, subject to regular reviews. Nor does the statute specifically address the significance of a refusal to cooperate with removal.
[235] The leading Canadian case is Sahin v Canada (Minister of Citizenship & Immigration) [1995] 1 FC 214. Mr Sahin, a Turkish national, had been held in detention (14 months as at the date of the appeal) since his arrival in Canada. He had been granted refugee status, but this decision was under appeal. The adjudicator’s decision to continue to hold Mr Sahin in detention was appealed to the Federal Court. Rothstein J noted at 227 – 228 that detention under the then Immigration Act could not be indefinite:
Having regard to the fact that detention under section 103 of the Immigration Act is not for the purpose of punishment after conviction, but rather, in anticipation of an individual’s likely danger to the public or likely failure to appear for inquiry, examination or removal, I do not think such detention may be indefinite.
The Judge concluded that the adjudicator had erred in law by not taking, in particular, s 7 of the Canadian Charter of Rights and Freedoms into consideration. Indefinite detention could constitute a deprivation of liberty not in accordance with the principles of fundamental justice. In returning the decision whether to continue Mr Sahin’s detention, the Judge set down at 231 – 232 a non-exhaustive list of factors to be considered in such cases:
(1) Reasons for the detention, i.e. is the applicant considered a danger to the public or is there a concern that he would not appear for removal. I would think that there is a stronger case for continuing a long detention when an individual is considered a danger to the public.
(2) Length of time in detention and length of time detention will likely continue. If an individual has been held in detention for some time as in the case at bar, and a further lengthy detention is anticipated, or if future detention time cannot be ascertained, I would think that these facts would tend to favour release.
(3) Has the applicant or the respondent caused any delay or has either not been as diligent as reasonably possible. Unexplained delay and even unexplained lack of diligence should count against the offending party.
(4) The availability, effectiveness and appropriateness of alternatives to detention such as outright release, bail bond, periodic reporting, confinement to a particular location or geographic area, the requirement to report changes of address or telephone numbers, detention in a form that could be less restrictive to the individual, etc.
A consideration that I think deserves significant weight is the amount of time that is anticipated until a final decision, determining, one way or the other, whether the applicant may remain in Canada or must leave.
[236] These factors have been referred to in a number of subsequent cases and are now largely incorporated into s 248 of the Immigration and Refugee Protection Regulations.
[237] Canada (Minister of Citizenship & Immigration) v Kamail [2002] FCT 381 involved a fact situation very similar to the present. Mr Kamail was an Iranian who by refusing to sign travel documents was frustrating attempts to deport him. After four months in detention, he was released on bail. This decision was overturned on appeal by O’Keefe J. It was held that on a proper application of the Sahin factors, Mr Kamail should not have been released on bail. The sole reason for his continued detention was his refusal to sign travel documents. O’Keefe J (at [33]) regarded this factor as weighing heavily against his release:
[33] When the factors enunciated by Rothstein J. (as he then was) in Sahin, supra, are applied to the facts of the present case, factors one and three would favour keeping the respondent in custody. Under factor one, the respondent is not likely to appear. With respect to factor three, the respondent was the cause of the delay in executing the removal order and therefore, it should count against him. In relation to factor three, I cannot accept that the delay caused by the respondent's refusal to sign travel documents can be used to support a finding that his detention time cannot be ascertained or to support a finding that a further lengthy detention is anticipated. The respondent himself is causing the delay. In the circumstances, the respondent's stay in detention of approximately four months was not an unreasonable length of time. Finally, since the respondent is unlikely to report for removal, it is unlikely that other options, such as outright release, bail bond, periodic reporting or reporting changes of address, would be available so as to favour release.
And at [38] the Judge concluded that to allow Mr Kamail’s release at this stage would be to undermine the Canadian immigration system:
It is my view that the decision of the adjudicator was unreasonable. To hold otherwise would be to encourage deportees to be as uncooperative as possible as a means to circumvent Canada’s refugee and immigration system. The decision of the adjudicator cannot be allowed to stand.
Hong Kong
[238] Tan Te LamvSuperintendent of Tai A Chau Detention Centre [1997] AC 97 (PC) concerned the position of large numbers of Vietnamese asylum-seekers who had arrived in Hong Kong following the fall of Saigon in 1975. The Hong Kong legislative scheme provided for the detention of these people pending removal, but only for a period that was “reasonable having regard to all the circumstances affecting that person’s detention”. One such circumstance was whether the detainee had “declined arrangements made or proposed for his removal”. The four appellants had experienced detention for periods ranging between 35 months and 68 months.
[239] The Privy Council accepted that the Hardial Singh principles applied and was able to determine the appeals on the basis that:
(a)Removal of the appellants to Vietnam was not possible. The Vietnamese authorities would not accept repatriation of those whom they did not regard as Vietnamese and all of the appellants were in this category.
(b)Accordingly, their cases were within the first of the Hardial Singh principles.
This conclusion meant that there was no need to determine how the second of the Hardial Singh principles was to be applied in the context of the statutory direction as to the relevance of the detainee having “declined arrangements made or proposed for his removal”. The Privy Council did, however, make the following comments (at 114 – 115):
However, since there are a large number of Vietnamese boat people still in Hong Kong who may only be able to bring proceedings on the basis that the inordinate length of their detention renders it unreasonable, it is desirable to emphasise one point. The large majority of those in detention do not wish to return to Vietnam and have declined to apply for voluntary repatriation. The evidence shows that, if they did so apply, most of them would be repatriated in a comparatively short time, thereby regaining their freedom. It follows that, in such cases, the Vietnamese migrant is only detained because of his own refusal to leave Hong Kong voluntarily, such refusal being based on a desire to obtain entry to Hong Kong to which he has no right. In assessing the reasonableness of the continuing detention of such migrants, s 13D(1A)(b)(ii) requires the court to have regard to “whether or not the person has declined arrangements made or proposed for his removal.” 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.
Given that these remarks were made in the context of periods of detention which considerably exceeded that experienced by Mr Yadegary, this case favours the Crown’s argument. It is also right to recognise, however, that the huge number of Vietnamese migrants to Hong Kong created problems for the Hong Kong authorities which were of a completely different order of magnitude from those faced by Immigration New Zealand.
United States
[240] The United States Supreme Court decisions cited by Baragwanath J (Zadvydas v Davis 533 US 678 (2001) and Clark v Martinez 543 US 371 (2005)) were decided in the context of the Immigration and Nationality Act. This statute provides for a default removal period of 90 days in which inadmissible aliens must be detained while deportation is arranged. Section 241(a)(6) contemplates detention beyond the removal period in certain circumstances, in particular if the alien is deemed either a risk to the community or unlikely to comply with an order of removal. In issue in the two Supreme Court cases was whether this provision contemplated indefinite detention. Neither case concerned detainees who were frustrating repatriation.
[241] The same legislative scheme does, however, provide (see s 241(a)(1)(C)), that:
The removal period shall be extended beyond a period of 90 days and the alien may remain in detention during such extended period if the alien fails or refuses to make timely application in good faith for travel or other documents necessary to the alien's departure or conspires or acts to prevent the alien's removal subject to an order of removal.
Of more interest in the present context, therefore, are two cases which address this provision.
[242] In Pelich v INS 329 F 3d 1057 (2003) (9th Cir) the detainee had not been able to be removed because he had refused to fill out passport applications and had provided conflicting information regarding his name, birthplace and residence and his parents’ names, birthplaces and residences. At 1060 the Court held:
The risk of indefinite detention that motivated the Supreme Court’s statutory interpretation in Zadvydas does not exist when an alien is the cause of his own detention. Unlike the aliens in Zadvydas, Pelich has the “keys [to his freedom] in his pocket” and could likely effectuate his removal by providing the information requested by the INS .…
… Zadvydas does not save an alien who fails to provide requested documentation to effectuate his removal. The reason is self-evident: the detainee cannot convincingly argue that there is no significant likelihood of removal in the reasonably foreseeable future if the detainee controls the clock.
Therefore, on the basis that Mr Pelich’s conduct was the reason for his continued detention, the Court concluded that his detention was not indefinite. Indeed the length of detention was held (at 1062) to be “in direct proportion to the detainee’s recalcitrant refusal to co-perate in effectuating his removal”.
[243] Just over three months after the Pelich decision the Court of Appeals for the Ninth Circuit reaffirmed its position in Lema v INS 341 F 3d 853 (2003). Mr Lema was refusing to cooperate to facilitate his removal to Ethiopia and, accordingly, had been detained under s 241(a)(1)(C) for over two years. The Court concluded (at 856 – 857) that Mr Lema was unable to show that there was no significant likelihood of him being removed in the reasonably foreseeable future:
We cannot know whether an alien’s removal is a “remote possibility,” Zadvydas, 533 U.S. at 690, 121 S.Ct. 2491, until the alien makes a full and honest effort to secure travel documents. A particular alien may have a very good chance of being removed, but if that alien is refusing to cooperate fully with officials to secure travel documents, neither the INS nor a court can sensibly ascertain the alien’s chance of removal.… We conclude that 8 U.S.C. § 1231(a)(1)(C), interpreted mindful of the concerns underlying Zadvydas and Pelich, authorizes the INS’s continued detention of a removable alien so long as the alien fails to cooperate fully and honestly with officials to obtain travel documents.
The application of the New Zealand Bill of Rights Act 1990
[244] The most immediately relevant provisions of the New Zealand Bill of Rights Act (“NZBORA”) are ss 9 and 22, which provide:
9 Right not to be subjected to torture or cruel treatment
Everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment.
22 Liberty of the person
Everyone has the right not to be arbitrarily arrested or detained.
[245] Also relevant are ss 4 – 6:
4 Other enactments not affected
No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights),—
(a) hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or
(b) decline to apply any provision of the enactment—
by reason only that the provision is inconsistent with any provision of this Bill of Rights.
5 Justified limitations
Subject to section 4, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
6 Interpretation consistent with Bill of Rights to be preferred
Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.
[246] In the context of this case, these provisions give rise to the following questions:
(a)Does my interpretation involve “disproportionately severe treatment” for the purposes of s 9 of the NZBORA or “arbitrary” detention for the purposes of s 22 of the NZBORA; and if so, is there a contrary but tenable interpretation of s 60(6) which is to be preferred by reason of s 6?
(b)Does the application of s 60(6) contended for by the Crown result in “disproportionately severe treatment” or “arbitrary detention”?
The first of these questions involves interpretation of the statute. The second is one of application. A conclusion that the continued detention of Mr Yadegary involved disproportionately severe treatment would suggest (and may be require) his release under s 60(5) on the basis that “exceptional circumstances” should be construed or applied so as to prevent such treatment.
[247] I do not see my interpretation of s 60 or a refusal of conditional release as resulting in a detention which is arbitrary. It is pursuant to a legal process and, subject to the issues identified in [246] above being resolved in favour of the Crown, serves legitimate public ends.
[248] Likewise, I am of the view that my interpretation of s 60 would not lead, and the refusal of conditional release would not amount, to “disproportionately severe treatment”.
[249] The appropriate approach to s 9 of the NZBORA was addressed by the Supreme Court in Taunoa v Attorney-General [2008] 1 NZLR 429, a case which of course focused on the conditions of detention rather than detention itself. Section 9 is unusual, in the context of human rights instruments, in specifically incorporating the concept of disproportionality. The majority view in Taunoa was that the concept involved “treatment or punishment which is grossly disproportionate to the circumstances”, see Blanchard J at [176] (with whom McGrath J agreed at [340]), or “conduct which is so severe as to shock the national conscience”, see Tipping J at [289] with whom Henry J agreed at [383] and [384].
[250] As I have noted, the proportionality issue raised by this case is rather different from that in Taunoa. Here there are legitimate public purposes which are being served: Mr Yadegary is acting in defiance of his legal obligation to leave; if he is allowed to remain in the community, this will tend to undermine the effectiveness of the immigration system and as well give Mr Yadegary in a de facto sense (at least for the time being) rights of residency to which he is not entitled.
[251] Similar issues can arise where there has been a contempt of court. It is open (at least theoretically) to a New Zealand court to impose a sentence of indeterminate imprisonment as a means of coercing a contemnor into compliance. But resort is not often had to this power. The sort of contemptuous conduct which might merit such a sanction is likely to be associated with high levels of obstinacy and irrationality on the part of the contemnor. Experience has shown that such contemnors are sometimes willing to spend lengthy periods of time in prison and then, in the end, are released anyway (by way of example, after 18 months in Re Davies (1888) 21 QBD 236). The Courts have understandably shied away from the concept that a person who remains in disobedience of a court order should never be released (see Re Barrell Enterprises [1973] 1 WLR 19 (CA)). Once the point has been reached that the period of imprisonment served is appropriate by way of punishment for the contempt and there is no longer any likelihood of the contemnor complying with the court order, release will be directed (see Re Barrell Enterprises where the contemnor had served six months in prison).
[252] Although the analogy with contempt of court cases has some relevance to this case, there are differences. The first is that detention of indeterminate duration has been specifically provided for by the legislature. Further, it cannot be said that Mr Yadegary is acting irrationally. By sitting out the government he has managed to obtain de facto residency rights. As well, the periods of detention which have troubled courts in the contempt cases are distinctly different from those which have been found acceptable in immigration contexts in other jurisdictions, which perhaps provide a more sensible yardstick for assessing proportionality. And by that yardstick, it cannot fairly be said that imprisonment in the present circumstances of Mr Yadegary involves disproportionately severe treatment.
Is the proposed removal of Mr Yadegary so unlikely or remote as to no longer justify detention?
[253] A number of Western countries have encountered difficulties in repatriating Iranian overstayers and I am considerably less sanguine than the Crown about the prospects of an early diplomatic solution to the current impasse. So I am inclined to see the prospect of involuntary removal (standing by itself) as too remote to justify continuing (or resumed) detention. Given that nearly four years has passed since s 60 was amended (and three and half years since Mr Yadegary was first detained), I think that it is now too late to detain him against the off-chance that the Iranian government may change its policy. This means that I necessarily approach the case on a rather different basis than that primarily contended for by the Crown under which the appropriateness of the detention depended fundamentally on the continuing momentum of the current diplomatic process. Counsel for the Crown was reluctant to acknowledge that the purpose of the detention is effectively one of coercion.
[254] On the other hand, as I have indicated, I think it at least possible that Mr Yadegary might eventually cooperate in his return and I have explained why. The overseas authorities suggest a general reluctance on the part of the Courts to accept that removal will not occur when such removal can be effected providing the detainee cooperates.
[255] In this context, I do not see the proposed removal of Mr Yadegary as so unlikely or remote as to no longer justify detention.
Did Mr Yadegary’s detention become indefinite?
[256] It is common ground that Mr Yadegary was able secure his release at any time by cooperating in his repatriation to Iran. I see this consideration as extremely important in assessing whether his detention has become indefinite but not, as in itself, resolving the question in favour of the Crown.
[257] The decisive consideration in relation to this issue is that the possibility of Mr Yadegary submitting to removal has yet to be excluded (at least to my way of thinking). Given that the underlying statutory purpose may still be achieved, I do not regard the detention as indefinite.
Are there exceptional circumstances which warrant Mr Yadegary’s conditional release?
[258] Section 60(6) provides a default rule which is to apply to particular (defined) situations and also power to depart from that default rule in “exceptional circumstances”. This is a fairly common legislative technique. To give effect to the underlying legislative intention, it is necessary to confine “exceptional circumstances” to situations that are outside the general run of cases that are prima facie subject to the default rule. As to this, see the recent Supreme Court decisions: Rajamani v R [2008] 1 NZLR 723, Wong v R [2008] NZSC 29 and Creedy v Commissioner of Police (2008) 8 NZELC 99,336.
[259] On this approach I think it appropriate to identify the type of case which the legislature had in mind in enacting s 60(6).
[260] Mohebbi highlighted what, from the view point of Immigration New Zealand, was a gap in the system. The three month limit provided for by s 60(7) meant that an Iranian national without a passport or travel documents could sit out the Immigration Service and secure his or her release by refusing, for three months, to make the necessary request of the Iranian embassy for the issue of a passport or travel documents.
[261] In this context, it is clear that:
(a)Section 60(6)(b) was enacted with the particular problem that can arise with Iranian overstayers firmly in mind.
(b)More particularly, it was intended to apply in a situation where the overstayer was prepared to sit in prison for three months rather than seek travel documents from the Iranian authorities.
(c)Further, because s 60(6) applies to prevent the conditional release under s 60(5), the legislature must have assumed that it would apply in cases in which conditional release under s 60(5) would otherwise have been ordered. Since a Judge can only order conditional release under s 60(5) if “satisfied that the person is unlikely to abscond”, s 60(6) must likewise have been intended to apply in such cases.
[262] The sort of circumstances which are part and parcel of the ordinary run of cases which must have been envisaged when the legislative scheme was enacted do not seem to me to be properly regarded as “exceptional”. So the general unpleasantness of imprisonment (which is a given in any debate about imprisonment) and predictable impacts of detention on the appellant seem to me to be of no more than contextual significance. Nor is the absence of flight risk (because absence of flight risk is a precondition to the discretion to release under s 60(5), which is constrained by s 60(6)). I also do not place the significance that Baragwanath J does on the rationality and honesty of Mr Yadegary’s reasons for not wishing to go back to Iran. No one would rationally be prepared to stay in prison rather than return home unless he or she had good reasons (at least when assessed from that person’s point of view).
[263] On that analysis, the only factor associated with the case which might be exceptional is the length of Mr Yadegary’s detention. As is apparent from what I have said already, I have no difficulty in accepting that length of detention may be a exceptional circumstance. I also agree that whether any particular period of detention amounts to an exceptional circumstance falls to be determined in the context of the other time limits stipulated in s 60 (72 hours, seven days and three months). But it also falls to be determined in the context of the sort of situation which the legislature must have envisaged as likely to arise involving an obdurate detainee who is not prepared to cooperate in repatriation. In this context, s 60(8) is of significance.
[264] If the judgment of Courtney J is upheld, the next person in Mr Yadegary’s situation will be reasonably confident that, absent a change in policy by the Iranian government, he or she will gain de facto residency rights if prepared to spend say two years in prison. Someone who prefers to live in New Zealand rather than Iran may well be prepared to undergo two years imprisonment on that basis. So the reality is that the result of this case will encourage non-compliance with immigration laws, both by Mr Yadegary (who will be encouraged to remain in resolute defiance of his obligations under s 45 of the Act) and by anyone else similarly placed.
[265] As already indicated by my approach to the issues associated with remoteness of removal and whether Mr Yadegary’s detention had become indefinite, I think that the underlying legislative purpose had not been spent in his case at the time he was released.
[266] In short, I am of the view that the circumstances of Mr Yadegary were not exceptional.
Proposed disposition
[267] I have no desire to see Mr Yadegary returned to prison and I am prepared to accept the possibility that the apparent harshness of returning him to prison after his period of liberty as a result of the judgment Courtney J might form a basis for a defensible finding of exceptional circumstances. Given that mine is a minority view, I need not explore its implications in any detail. It is sufficient to say that I would allow the appeal but on the basis that the question whether there are now exceptional circumstances warranting conditional release be reconsidered in the District Court.
Solicitors:
Crown Law Office, Wellington for Appellant
Ryken and Associates, Auckland for Respondents
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