Misiuk v Chief Executive of the Department of Labour

[2012] NZHC 1143

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-002857 [2012] NZHC 1143

IN THE MATTER OF     THE HABEAS CORPUS ACT 2001

BETWEEN  PAWEL MARIAN MISIUK Applicant

ANDCHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR Respondent

Hearing:         25 May 2012

Appearances: Applicant in Person

A Longdill for Respondent

Judgment:      25 May 2012

ORAL JUDGMENT OF VENNING J

Solicitors:           Crown Solicitor, Auckland

Copy to:            P M Misiuk.

MISIUK V CE OF THE DEPT OF LABOUR HC AK CIV-2012-404-002857 [25 May 2012]

[1]      Mr Misiuk applies to this Court for release from custody.  He relies on the provisions of the Habeas Corpus Act 2002.  He has been brought before the Court as a matter of urgency.

[2]      It is for the respondent in this case, the Chief Executive of the Department of

Labour, to satisfy the Court that the detention of Mr Misiuk is lawful.[1]

[1] Habeas Corpus Act 2001, s 14(1).

[3]      Mr Misiuk has been before this and other Courts on a number of occasions. The urgency in this case arises because he is scheduled to be deported from New Zealand on a flight leaving today.

[4]      In his application for habeas corpus Mr Misiuk refers to the following initial grounds:

(a)       He has just been taken into custody by New Zealand Police and/or

New Zealand Immigration for deportation.

(b)      He has been granted parole and wants to serve his parole in New

Zealand where his children are.

(c)       He has  a  habeas  corpus  application  or  appeal  pending before  the

Supreme Court, SC23/12.

(d)He has a conviction and sentence appeal before the Supreme Court, SC133/11.

(e)      Being under the jurisdiction of the High Court and Supreme Court any attempt to remove him would be a contempt of Court in breach of the Act.

[5]      He also purports to bring the application on behalf of his two sons.  I do not accept that there is any standing or basis for an application to be brought on behalf of

his two sons. There is no evidence they are in custody or detained as that term is contemplated by the Habeas Corpus Act.

[6]      The issue for today is whether Mr Misiuk’s present detention is lawful.

[7]      Mr Misiuk is subject to a removal order which was served on him on 24 April

2009.  The actions of the respondent, and the Police at the request of the respondent, in detaining Mr Misiuk arise from and are based on that removal order.  Mr Misiuk says the removal order is of no effect.  He relies on a judgment of Priestley J in this Court to that effect.  The judgment is dated 8 May 2009.[2]    It was an oral interim judgment of the Judge.  The Judge was focused at that time on a convoluted set of facts which arose out of the detention of Mr Misiuk at that time.  It involved charges Mr Misiuk was facing as well as his detention under the removal order.

[2] Misiuk v The Prison Manager, Mt Eden Remand Prison HC Auckland CIV-2009-404-002648,

8 May 2009

[8]      In  the  course  of  the  judgment  the  Judge  observed  that  the  Immigration Service decided not to proceed with implementing the removal order.  He stated “the removal order thus lapsed on Monday 27 April”.[3]   Mr Misiuk relies on that statement to establish that the removal order dated 24 April 2009 has no legal standing.  I am unable to accept that submission.  It is apparent that in context the Judge was just observing that the limited time provided under the Act for detention pursuant to the

[3] At [6](f).

removal order had lapsed.  The Judge was not, in his interim oral judgment, making any substantive finding as to the validity or otherwise of the removal order.   I am satisfied the removal order remains in full force and effect.  It has not been cancelled and nor, despite the numerous cases he has brought before this Court, has Mr Misiuk successfully challenged it.

[9]      As  Mr  Misiuk  is  subject  to  the  removal  order  then,  in  accordance  with s 432(5)(b) of the Immigration Act 2009, he is liable for arrest and detention under Part 9 of the Act pending his deportation.

[10]     On 25 May 2012, at the request of an immigration officer, a copy of which has been put before the Court, the Police arrested Mr Misiuk for the purposes of his

removal.   He is therefore presently held in Police custody in accordance with that request.  Section 313 of the Immigration Act 2009 applies.  Section 313(1) provides the authority for detention by the Police on the request of an immigration officer, provided the request is for a purpose set out in s 310.  In this case that is the position. Section 310 contemplates arrest and detention for the purposes of deportation, which is exactly what is proposed for Mr Misiuk.

[11]     Section  313  provides  that  the  detention  may  be  only  for  as  long  as  is necessary to achieve the purpose, in this case deportation, but in any case may not be longer than 96 hours.

[12]     Mr Misiuk argues that as he was previously detained under the same removal order there is no jurisdiction for his detention at present.  I am unable to accept that submission.  The detention at present is for the purposes I have referred to.  Such detention for deportation is contemplated by the Immigration Act 2009 which, by its transitional provisions, entitles the immigration officer to rely on the earlier removal order issued under the previous Act.

[13]     Mr  Misiuk  also  says  that  the  removal  will  be  in  breach  of  his  parole conditions, one of which is apparently to require him to report to a probation officer within a certain period of time.   That is not a matter that is of any substantive concern to the Court.  Obviously if Mr Misiuk, as a matter of impossibility, is unable to comply then there would be no sanction for such breach but the short point is that the issue for this Court is the legality of his detention at present.

[14]     The actions and directions of the Parole Board have nothing to do with that issue.  The legality of the detention is to be determined pursuant to the provisions of the Immigration Act.

[15]     Mr Misiuk also has, as I have noted, referred to his application for leave before the Supreme Court and his application for leave to appeal his conviction and sentence before the Supreme Court.   The latter matter can have no relevance whatsoever to the present situation.

[16]     The application for leave before the Supreme Court in relation to a previous habeas corpus application is not a matter which prevents this Court dealing with the present circumstances that are before it this morning.  There is no stay in place that could affect or prevent reliance on the existing removal order.

[17]     Mr Misiuk also referred to the fact he has spoken about this matter to a lawyer, Mr Romaniuk.  Ms Longdill has attached a letter dated 24 May 2012 from the lawyer to the notice of opposition.   The letter refers to his understanding that removal procedures were in place to uplift Mr Misiuk and asked for documents to be faxed to him.  Ms Longdill says that she did that and has attempted to contact Mr Romaniuk on eight occasions since receipt of that fax.  She has been unable to do so. I accept that.

[18]     On the information before the Court there is no basis raised by Mr Misiuk to suggest that his detention is unlawful.  Indeed on the information before the Court the respondent has satisfied the onus on him that Mr Misiuk’s detention for deportation is lawful. The application for habeas corpus is dismissed.

[19]     [Mr Misiuk says he wants to appeal.]

[20]     Mr Misiuk, I decline your application for stay.  You are to be deported Mr

Misiuk.  Stand down.

Venning J