Tesimale v Green

[2020] NZHC 3371

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-2390

[2020] NZHC 3371

IN THE MATTER OF

An appeal in terms of s 124 of the District Court Act 2016 concerning sections 316, 317 and 320 of the Immigration Act 2009 and s 9 of the New Zealand Bill of Rights Act 1990.

BETWEEN

FANAIKA TESIMALE

Appellant

AND

JACOB HAMILTON GREEN, of Auckland, IMMIGRATION OFFICER

(NEW ZEALAND IMMIGRATION)

Respondent

Hearing:	15 December 2020
Appearances:	M J Mellin and P Broad for the Appellant M Mortimer for the Respondent
Judgment:	17 December 2020

JUDGMENT OF POWELL J

This judgment was delivered by me on 17 December 2020 at 11 am pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

TESIMALE v NEW ZEALAND IMMIGRATION [2020] NZHC 3371 [17 December 2020]

[1]    Fanaika Tesimale has appealed a decision of Judge Lovell-Smith issuing a warrant of commitment authorising Mr Tesimale’s detention pursuant to s 317 of the Immigration Act 2009 (“the Act”).1

[2]    A concise  background  to  the  appeal  is  set  out  in  the  submissions  of  Mr Mortimer filed on behalf of the respondent:

Mr Tesimale is a citizen of Tuvalu. He has been unlawfully in New Zealand since 27 June 2004.

On 5 May 2016, Mr Tesimale was sentenced to imprisonment for sexual offending against a child. His end sentence was three years and 11 months, with a non-parole period of one year and 11 months.

On 13 September 2016, an immigration officer served on Mr Tesimale a deportation order, issued under s 175 of the Immigration Act 2009.

Mr Tesimale served his sentence in full after being declined parole three times.

Mr Tesimale was released from prison on 1 April 2020. On the same day, Police arrested Mr Tesimale under s 313 of the Immigration Act 2009 (which authorises the arrest and detention of a person served with a deportation order).

Section 313(2) authorises detention for 96 hours. Persons in Mr Tesimale’s position are often deported while in custody. Immigration New Zealand had booked a flight to Tuvalu for Mr Tesimale in anticipation he would be deported upon his release from prison.

However, Tuvalu’s travel border was closed as a result of COVID-19. It has remained closed since then.

Immigration New Zealand held concerns that Mr Tesimale may either abscond (having been unlawfully in New Zealand for 14 years before being sentenced) or offend further. So an immigration officer applied to the District Court for a warrant of commitment under s 316. The District Court granted that application. Since early April 2020, Mr Tesimale has been held on successive warrants of commitment. Each warrant has been issued by a District Court judge.

Counsel understands that the first few warrants were granted largely without opposition. More recently, the applications for warrants of commitment have been opposed. For each application, Immigration New Zealand has explained its efforts to effect Mr Tesimale’s deportation, including obtaining places for Mr Tesimale on New Zealand Defence Force repatriation flights. Those flights did not go ahead when the Tuvaluan government kept its travel border closed.

On 13 November 2020, the respondent applied to the District Court at Manukau for a warrant of commitment. Judge Lovell-Smith heard argument

1      Minute of Judge J H Lovell-Smith, CIV-2020-092-001094, dated 13 November 2020.

and granted the application that day. The warrant of commitment that issued authorised Mr Tesimale’s detention for another 28 days (until 11 December 2020).

On 4 December 2020, Mr Tesimale filed a notice of appeal in the High Court.

On 8 December 2020, the registry set the matter down for a case management conference in the appeals list on 15 December 2020.

On 11 December 2020, the respondent applied for a further warrant of commitment. Judge Winter granted that application and issued a warrant of commitment authorising Mr Tesimale’s detention until 18 December 2020.

[3]    As a preliminary matter Mr Mortimer raised two issues when the appeal was called for the first time:

(a)that there is no jurisdiction to appeal a warrant of commitment issued pursuant to s 316 of the Immigration Act; and

(b)even if there is jurisdiction the appeal is moot and should not proceed to a hearing.

[4]    Given the nature of Mr Tesimale’s ongoing detention an urgent hearing was convened to consider these two issues, and my judgment now follows.

Is there jurisdiction for Mr Tesimale to appeal?

[5]    Part 9 of the Act establishes a tiered system of detention powers with the stated purpose of ensuring the integrity of the immigration system, and the safety and security of New Zealand.2 This system is engaged where it becomes apparent that a person is liable for deportation and for some reason cannot be deported. In those circumstances an immigration officer may apply to the District Court for a warrant of commitment authorising the individual’s detention for up to 28 days.3

[6]    Part 9 of the Act is highly prescriptive, with s 308 in particular requiring that Part 9 is to be treated as a code for the purposes of detention and monitoring. There is no dispute that Part 9 does not provide an express right to appeal a decision of a

2      Immigration Act 2009, s 307.

3      Section 317.

District Court Judge under s 317, and neither does Part 7 of the Act, which addresses rights of appeal and review generally, with the stated intention of providing “comprehensively for the system of appeal and review in respect of decision making under the Act”.4

[7]    There is no dispute that Mr Tesimale is a person liable for detention, or that Part 9 of the Act applies. Mr Tesimale however contends that the absence of an express right of appeal in either Part 9 or Part 7 of the Immigration Act represents a gap or lacuna in the legislation. Mr Mellin, on behalf of Mr Tesimale, submits that in these circumstances s 124 of the District Court Act 2016 operates to provide a right of appeal. This section provides:

(1)This Part applies to a decision of the Court, other than a decision of a kind in respect of which an enactment other than this Act –

(a)expressly confers a right of appeal; or

(b)expressly provides that there is no right of appeal.

(2)A party to a proceeding in the District Court may appeal to the High Court against the whole or a part of a decision made by the District Court in or in relation to the proceeding.

[8]    As both counsel acknowledged, whether Mr Tesimale has a right of appeal turns on whether ss 308 and 184 of the Immigration Act amount to an express provision that there is to be no right of appeal in terms of s 124 of the District Court Act 2016. Having considered the statutory framework as established in Parts 7 and 9, I accept Mr Mortimer’s submission that ss 184 and 308 amount to an express provision that there is no right of appeal available to Mr Tesimale. Section 308 of the Act is clear that Part 9 is a code, an exhaustive set of rules, that applies to detention and monitoring under the Act. That part provides no right of appeal. Section 184 is equally clear that Part 7 is a comprehensive system governing appeals that arise under the Act. That part also provides no right of appeal. Together these provisions give rise to a necessary implication that Parliament has intended there be no such appeal right available. To otherwise conclude that s 124 of the District Court Act gives a right of appeal in respect of decisions made pursuant to s 317 would necessarily require both reading down the requirement that Part 9 “be treated as a code for the purposes of the

4      Section 184(a).

detention and monitoring of any person”, and finding that the appeal and review rights provided for in Part 7 are not in fact comprehensive. As a result, the only conclusion open is Parliament intended that the general provision for appeals contained in s 124 of the District Court Act be overridden by the specific provisions in the Act.

[9]    This interpretation is supported by the broader purpose of the Act, which is to “manage immigration in a way that balances the national interest, as determined by the Crown, and the rights of individuals”.5 It is also supported by the fact that s 308 was not present in the previous immigration legislation, the Immigration Act 1987, and was added to ensure that the courts, in considering an application for a warrant of commitment could not rely on the inherent jurisdiction of the court to undermine the provisions of the Act relating to immigration detention and monitoring.6 Given this position, the decision of Mohebbi v The Department of Labour,7 referred to in some detail at the hearing before me, has clearly been superceded and as a result cannot assist Mr Tesimale. In that case the Court determined the general right of appeal available under the then District Courts Act 1947 was not excluded by the provisions of the Immigration Act 1987, effectively rejecting the Crown’s argument in that case that in the absence of express words the 1987 Immigration Act was a code thereby excluding the general right of appeal.8

[10]   Taken together I agree there is no jurisdiction for this Court to hear Mr Tesimale’s appeal and it must therefore be dismissed.

Is the appeal moot?

[11]   Given my conclusion on the first of the issues raised by Mr Mortimer there is no need to address the issue of mootness in any detail. For completeness I note that while it is clear that the appeal was technically moot, given the warrant issued by Judge Lovell-Smith that was the subject of the appeal has now been superceded by the warrant issued by Judge Winter on 11 December 2020, I would nonetheless have considered that the appeal should have been allowed to proceed. This is because of

5      Section 3(1).

6      Immigration Bill 2007 (132-2)(select committee report) at 28.

7      Mohebbi v The Department of Labour HC Auckland, CIV 2007-404-3710, 5 November 2007.

8      At [19]-[26].

the extraordinary position Mr Tesimale now finds himself in, as well as the immense practical difficulties faced by Mr Tesimale in making any challenge to any particular decision before it is superceded by the next warrant, noting that, as Mr Mellin submitted, a decision on the appeal would still be able to give effective guidance on the approach required for future warrants.

[12]   Although the appeal must be dismissed, as Mr Mortimer submitted, decisions by the District Court pursuant to s 317 are nonetheless still subject to judicial review,9 subject to the restrictions contained in s 247(1) of the Act, and that therefore appears the appropriate forum for any challenge Mr Tesimale wishes to make.

Decision

[13]The appeal is dismissed. Costs are to lie where they fall.

Powell J

9      Khobta v District Court at North Shore [2012] NZHC 3600; WCT v Ministry of Business, Innovation and Employment [2016] NZHC 272; Maritz v District Court at Auckland [2018] NZHC 828, [2019] NZAR 721; Rodda v District Court [2018] NZHC 1453.