Misiuk v Chief Executive of the Department of Labour

[2012] NZCA 239

IN THE COURT OF APPEAL OF NEW ZEALAND

CA301/2012
[2012] NZCA 239

BETWEEN  PAWEL MARIAN MISIUK
Appellant

AND  CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR
Respondent

Hearing:         25 May 2012

Court:             Randerson, Harrison and Wild JJ

Judgment:      25 May 2012

Reasons:         11 June 2012

JUDGMENT OF THE COURT

The appeal is dismissed.

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REASONS OF THE COURT
(Given by Wild J)

1. These are our reasons for the judgment we delivered urgently at 12.20 pm on 25 May dismissing Mr Misiuk’s appeal.  By cellphone from Auckland Airport at approximately 11.45 am on that day, Mr Misiuk had lodged an appeal against the judgment of Venning J delivered orally earlier in the morning, dismissing Mr Misiuk’s application for a writ of habeas corpus.  Mr Misiuk was detained at the Airport awaiting deportation from New Zealand on an aircraft scheduled to leave at about 12.40 pm that day.

2. Mr Misiuk advised this Court’s Registry when he telephoned that his grounds of appeal were:

   (a)        Breach of natural justice.

   (b)       He was denied access to a lawyer for this morning’s hearing in the High Court.

   (c)        His children were denied the ability to speak to the High Court.

3. We did not consider there was anything in those three grounds of appeal.  There was no breach of natural justice:  Mr Misiuk’s application was heard by the High Court and dismissed in a considered judgment.  Mr Misiuk was not denied access to a lawyer for the hearing.  Venning J recorded at [17] of his judgment that he accepted that counsel for the respondent had made eight unsuccessful attempts to contact the counsel Mr Misiuk advised he had “spoken to about this matter”, to advise counsel of the hearing.  As to the third appeal ground, Venning J recorded at [5] of his judgment that Mr Misiuk had purported to bring the application on behalf of his two sons.  The Judge did not accept that they had any standing to apply because they were not in custody or detained in terms of the Habeas Corpus Act 2001.  There is no mention in the judgment of Mr Misiuk seeking an opportunity for his sons to address the High Court, and they anyway could not have said anything relevant to the issue.

4. Venning J correctly defined what that issue was at [6] in his judgment, and he also correctly stated the onus, in [18].

5. We agreed with Venning J that the answer to the issue depended on whether the removal order pursuant to which Mr Misiuk had been detained had legal force and effect.

6. We agreed with Venning J that the removal order did have force and effect, and for the reasons the Judge gave in [18] and [12].  The result was that Mr Misiuk has been lawfully arrested and detained pursuant to the Immigration Act 2009, pending his deportation.

7. Finally, we agreed with the Judge’s peremptory dismissal of Mr Misiuk’s arguments that his detention was somehow rendered unlawful because it put him in breach of his parole conditions, and/or by reason of the fact that he had a leave application outstanding before the Supreme Court.