Tesimale v Manukau District Court

[2021] NZHC 2599

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-215

[2021] NZHC 2599

IN THE MATTER

of an application for judicial review under the Judicial Review Procedure Act 2016

BETWEEN

FANAIKA TESIMALE

Applicant

AND

MANUKAU DISTRICT COURT

First Respondent

AND

ANDREW CHANIK PARK (IMMIGRATION NEW ZEALAND)

Second Respondent

Hearing:

22 April 2021; further submissions and materials on 24 May, 2

June and 5 July 2021

Appearances:

RS Pidgeon, MJ Mellin and LIE Tothill for Applicant MJ Mortimer and OL Wilkinson for Second Respondent

Judgment:

30 September 2021

Reissued:

1 October 2021

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 1 October 2021 at 3.00pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

Solicitors:        Crown Law, Wellington To:     R Pidgeon, Auckland

M Mellin, Auckland L Tothill, Auckland

TESIMALE v MANUKAU DISTRICT COURT [2021] NZHC 2599

Introduction  [1]

The grounds for Mr Tesimale’s application for review  [11]

Background - more detail  [14]

Mr Tesimale’s arrival in New Zealand and criminal offending  [14]

Mr Tesimale’s Parole Board hearings  [18]

Mr Tesimale continues to be detained  [27]

Mr Park’s Decision  [29]
The District Court Decision  [35]

The statutory framework  [42]

The Act’s purpose and Part 9  [42]
Section 317 of the Act  [48]
Section 317(2) – assessment of an “unreasonable period”  [54]

Section 317(3) – issue of a warrant in the “public interest”  [67] Other relevant factors – s 3(1) of the Act and the Sentencing and Parole Acts? [71] Section 317(4) of the Act – maximising compliance with the Act  [77] Amendment to the statutory framework in light of COVID-19  [80]

NZBORA in the context of the statutory framework  [85]

Approach to review in the statutory context  [94]

Mr Park’s Decision  [107]

The District Court Decision  [114]

Pursuant to which statutory provision was the District Court Decision made?[114] Could a warrant have lawfully been granted pursuant to s 317(2)?  [119] Was the issue of a warrant pursuant to s 317(3) lawful?  [125]

Result and relief  [144]

Introduction

[1]                 Mr Tesimale arrived in New Zealand from Tuvalu in September 2003, on a visitor visa requiring him to have left New Zealand by 27 June 2004. Mr Tesimale did not do so and accordingly his continued residence in New Zealand became unlawful.

[2]                 That remained the position for some 12 years, until his arrest in 2015 on charges of sexual offending against a child. On 5 May 2016, having pleaded guilty to three such charges, Mr Tesimale was sentenced in the District Court to three years and 11 months’ imprisonment.

[3]Mr Tesimale served his full sentence and was released on 1 April 2020.

[4]                 In the interim, Mr Tesimale had been served with a deportation order, which he did not challenge. He was, therefore, liable for deportation upon his release from prison. Pursuant to s 313 of the Immigration Act 2009 (the Act), he was arrested shortly after his release from prison and held in custody pending deportation.

[5]                 It was expected that Mr Tesimale would be deported to Tuvalu fairly quickly. By that time, however, the COVID-19 pandemic had tightened its grip on the world and flights between New Zealand and Tuvalu were suspended. On 3 April 2020, pursuant to s 317 of the Act, the District Court granted a warrant of commitment which authorised Mr Tesimale’s detention for a further 28 days.

[6]                 Tuvalu’s borders remained closed, however, throughout 2020 and into 2021. Mr Tesimale remained detained pending deportation on a series of warrants granted by the District Court every 28 days, until he was released on residence and reporting conditions on 16 April 2021. Mr Tesimale had, therefore, been detained for just over a year before being released.

[7]                 Prior to his release, Mr Tesimale filed an application in this Court for judicial review of two decisions:

(a)first, the second respondent’s decision not to agree to Mr Tesimale’s release on residence and reporting conditions, and instead to apply for

a further warrant of commitment on 13 January 2021 (Mr Park’s Decision); and

(b)second, the District Court’s decision on 15 January 2021 to grant a further warrant of commitment (the District Court Decision).1

[8]                 By the time Mr Tesimale’s application for judicial review was heard, both decisions at issue had been overtaken, in that:

(a)further warrants of commitment had been granted by the District Court in the intervening period, such that the District Court Decision was not the operative decision by which Mr Tesimale’s detention was authorised; and

(b)as noted, Mr Tesimale was released from detention shortly prior to the hearing.

[9]                 Counsel for Mr Tesimale and the second respondent nevertheless agreed that the hearing should proceed, despite the ultimate result sought (Mr Tesimale’s release) having become moot.2 Counsel submitted, and I agreed, that the application concerned important matters relating to Mr Tesimale’s liberty and, if successful, a declaration would serve the purpose of vindicating his rights. Counsel also noted that the decision would be of broader assistance in the context of other detentions pending deportation, and provide guidance in the event Mr Tesimale breached his conditions of release and was again detained.

[10]The balance of this judgment is structured as follows:

(a)First, I summarise the grounds upon which Mr Tesimale seeks judicial review of each of the decisions in issue. This is not entirely straightforward, because Mr Tesimale’s amended statement of claim is not particularly clear as to the grounds for review of each decision, and

1      New Zealand Immigration v Tesimale [2021] NZDC 542.

2      The first respondent, the District Court, abides the decision of this Court.

the subsequent written and oral submissions made on his behalf strayed from the pleaded case. It is important, however, that the claim is assessed by reference to the pleaded grounds of review.3

(b)Second, I set out the factual background to Mr Tesimale’s application in a little more detail, including a summary of the two challenged decisions.

(c)Third, I set out the statutory framework within which the decisions were made.

(d)Fourth, I address the approach to judicial review in the context of the statutory framework.

(e)Fifth, I address the application for judicial review of Mr Park’s Decision.

(f)Finally, I address the application for judicial review of the District Court Decision.

The grounds for Mr Tesimale’s application for review

[11]              The following grounds for judicial review can be discerned from Mr Tesimale’s pleadings.

[12]First, Mr Tesimale says that Mr Park’s Decision was:

(a)unreasonable, given Mr Park did not exercise the power available to him pursuant to s 315 of the Act to agree to Mr Tesimale’s release on residence and reporting conditions (as an alternative to applying for a warrant of commitment);

3      The Court of Appeal in Yan v Mainzeal Property and Construction Ltd (in liq) [2021] NZCA 99 at [493]-[494], recently emphasised the importance of pleadings and assessing a claim by reference to the pleaded case.

(b)made for an improper purpose, given “the excessive duration of detention”;4 and

(c)made in breach of ss 3(1) and 317(4) of the Act, in failing to consider the New Zealand State’s obligations at international law regarding immigration detainees and Mr Tesimale’s personal situation.

[13]Second, in relation to the District Court Decision, Mr Tesimale alleges:

(a)that the District Court Judge failed to consider (presumably mandatory) relevant considerations, namely:5

(i)Mr Tesimale’s rights pursuant to the New Zealand Bill of Rights Act 1990 (NZBORA), and in particular, the right not to be arbitrarily detained (s 22) and the right to life (s 8);

(ii)Mr Tesimale’s rights under the Mandela Rules;6

(iii)Mr Tesimale’s rights under the Sentencing Act 2002, in particular, the principle of rehabilitation, as well as the objects of the Parole Act 2002;

(b)that the District Court Decision was unlawful in terms of s 317 of the Act, because:

4      This pleading was developed in submissions to the effect that, given the original purpose of detention (to facilitate deportation to Tuvalu) was no longer possible, applying for a further warrant must have been for an improper purpose.

5      In addition to these pleaded matters, counsel’s submissions also suggest that relevant considerations which the District Court Judge failed to take into account included a (lengthy) list of international conventions and related matters (attached as a schedule to the written submissions); “the practicalities” (being the absence of a craft to deport Mr Tesimale, the availability of family support were he to be released, and the costs to the taxpayer of detention); “reasonable alternatives in principle”; and the Parole Board’s revised special conditions of release (as to which, see [22] below).

6      Being the United Nations Standard Minimum Rules for the Treatment of Prisoners GA Res 70/175, A/Res/70/175 (2015) [the Mandela Rules]. The Mandela Rules were not, however, substantively addressed in counsel for Mr Tesimale’s submissions. I accordingly proceed on the basis that this aspect of the application for judicial review is not pursued. Rather, reliance was put on the “Hardial Singh principles”, taken from R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704 (QB). Counsel for the second respondent did not object to this, and made substantive submissions on those principles.

(i)the District Court failed to properly balance the interests of the New Zealand State and those of Mr Tesimale  as required by    s 3(1) of the Act;7 and

(ii)because deportation to Tuvalu could no longer be effected in a reasonable time, meaning continued detention was excessive; and

(c)that the District Court Decision was “unreasonable in all respects”.

Background - more detail

Mr Tesimale’s arrival in New Zealand and criminal offending

[14]              Mr Tesimale arrived in New Zealand on 27 September 2003, travelling on a visitor visa. This visa permitted him to remain in New Zealand until 27 June 2004.

[15]              Shortly before his visitor visa expired, Mr Tesimale’s application for a work visa was declined. As noted, Mr Tesimale did not depart New Zealand as required on 27 June 2004 and thus was unlawfully in New Zealand from that point onwards.    Mr Tesimale made no further attempts to regularise his status in New Zealand.

[16]              Mr Tesimale was living with various family members at this time, and over the period May 2004 to July 2008, he sexually offended against [Redacted], who was aged between [Redacted] years old at the time of the offending.

[17]              Mr Tesimale was arrested at some point in 2015 (exactly when is not apparent from the materials before the Court) and subsequently pleaded guilty to three charges of sexual offending.8 He was sentenced by Judge Glubb in the District Court on 5 May 2016 to three years, 11 months’ imprisonment. Mr Tesimale’s criminal and traffic

7      In particular, that “the convenience of the second respondent to locate, uplift and deport has been unnecessarily prioritised when at all material times [Mr Tesimale] had expressed his readiness to comply with deportation and return to his country of birth namely Tuvalu.” That the balancing exercise was “askew” was framed in counsel’s written submissions as the “golden  thread” to  Mr Tesimale’s application.

8      Namely, attempted sexual violation by rape, indecent act on a child under 12 years of age and a further (representative) charge of indecent act on a child under 12 years of age.

history report discloses no other convictions (or breaches of court-imposed conditions).

Mr Tesimale’s Parole Board hearings

[18]              Mr Tesimale appeared before the Parole Board a number of times during his sentence. It is necessary to review the Board’s decisions in detail, given submissions made on Mr Tesimale’s behalf to the effect that the Board’s (final and revised) special conditions on release ought to have been adopted by the District Court as conditions upon which Mr Tesimale was released from detention.

[19]              At the first parole hearing on 19 April 2018, the Board noted that Mr Tesimale had been served with a deportation notice and that, consequently, his counsel had advised him that “a release on parole to an address in New Zealand is unrealistic”. The Board noted that it would be assisted if the Immigration Service were involved in Mr Tesimale’s next appearance before the Board. The Board also referred to a psychological assessment of Mr Tesimale, noting that the assessment “records both that Mr Tesimale is in effect an untreated sex offender and … that no safety plan or release proposal has yet been prepared.” The Board considered a six month stand down pending further review would better enable it to understand “the circumstances Mr Tesimale would arrive into if and when deportation occurs”.

[20]              Mr Tesimale next appeared before the Parole Board on 15 October 2018. It is apparent from the Board’s decision that Mr Tesimale did not accept his offending, the Board noting that “Mr Tesimale pleaded guilty to prevent problems between [Redacted]”. The Board also said the following:

Mr Tesimale is still waiting to develop a safety plan with a psychologist. There has been contact between Mr Tesimale’s counsel, Ms Brown, who represented him again today, and Mr Tesimale’s family. Ms Brown says that Mr Tesimale’s brother [in Tuvalu] holds a high position as a minster in the Tuvalu community. She submitted there is a sense of honour involved in that position which would ensure that young girls [in] the Tuvaluan community were kept safe from any further offending by Mr Tesimale.

The Board does not share that confidence, especially in light of the fact that we understand from Mr Tesimale today that his brother does not accept that he is guilty of  this offending.  Therefore, in the absence of  evidence that  Mr Tesimale has addressed his offending through treatment, or that there is a

robust plan in place for his return to Tuvalu, the Board cannot be satisfied that the statutory test for release is met.

[21]              Mr Tesimale’s next appearance before the Board was on 10 December 2019. The Board’s decision noted that a management plan had been prepared (in conjunction with a psychologist), which would be shared with Mr Tesimale’s support persons in Tuvalu. The Board noted that it was proposed that Mr Tesimale live in Tuvalu with his brother, sister in law and their family (which included young children). Given this proposal, and that his brother did not accept Mr Tesimale was guilty of the offending, the  Board  did  not  approve  Mr  Tesimale’s  release.  The   Board  noted  that  as Mr Tesimale’s sentence expiry date was relatively close (April 2020), it would set his release conditions at sentence expiry. Those were stated to be the “usual conditions in a deportation order case”: recorded as first, not to return to New Zealand, and second, to be released into the custody of the New Zealand Immigration authorities, or the New Zealand Police, for deportation.

[22]              A further (on the papers) hearing  took  place  on  20  August  2020,  after  Mr Tesimale’s sentence expiry on 1 April 2020. The hearing had been convened because the COVID-19 pandemic had meant Immigration authorities had been unable to deport Mr Tesimale per the previous decisions and release conditions. The Board noted Immigration New Zealand’s advice that Mr Tesimale was being held in custody pending deportation, but it was “possible that another warrant for commitment will not be issued, and that Mr Tesimale will be released into the community.” The Board was accordingly asked to revisit the special conditions which had been imposed at the last Board hearing (see [21] above) and which were to apply until 3 October 2020.

[23]The Board stated as follows:

The Board sees merit in varying the special conditions and re-imposing the standard conditions. The special conditions recommended are designed to mitigate any risk that Mr Tesimale will offend in a like manner while subject to conditions.

The Board is removing the special conditions relating to being deported from New Zealand and being in the custody of Immigration or Police for deportation. We are substituting conditions relating to him being in the community in New Zealand.

[24]              The Board then imposed the standard conditions and the following special conditions, to apply until 3 October 2020:

(1)Not to have contact or otherwise associate, with a person under the age of 16 years, directly or indirectly, unless you have the prior written approval of a Probation Officer, or unless you are under the supervision and in the presence of an adult approved in writing by a Probation Officer.

(2)To reside at an address approved in writing by a Probation Officer, and not to move from that address unless you have the prior written approval of a Probation Officer.

(3)Not to associate with the victims of your offending, directly or indirectly, unless you have the prior written approval of a Probation Officer.

(4)If required for deportation, to hand yourself in to the custody of the New Zealand Immigration authorities, or to the New Zealand Police, for deportation from New Zealand.

(5)If deported from New Zealand, not to return to New Zealand.

[25]              I interpolate to note that, in setting these special conditions, the Board was not suggesting that Mr Tesimale ought to be released into the community on those conditions. This is relevant given submissions made on Mr Tesimale’s behalf to the effect that the Board “behove” Immigration New Zealand to accept those conditions (or conditions modified on reasonable grounds), rather than to seek continued detention.

[26]              Self-evidently, the Parole Board had no continuing discretion at this time as to whether Mr Tesimale ought to be released into the community or detained, given he had served his full sentence. Rather, the Board was exercising its jurisdiction to impose revised special conditions to apply until 3 October 2020 to meet the changed circumstances which had come about since the Board’s last decision; namely the possibility of Mr Tesimale being released (by the District Court) into the New Zealand community prior to being deported.

Mr Tesimale continues to be detained

[27]              In the event, however, and as noted earlier, Mr Tesimale continued to be detained in custody pending deportation pursuant to a series of warrants issued by the

District Court. The Immigration Officer assigned to Mr Tesimale’s file, a Mr Green, explains in his sworn affidavit that from around September 2020, Mr Tesimale began actively seeking a release on conditions pending deportation. For example, Mr Green says that at the warrant of commitment application hearing on 18 September 2020, counsel for Mr Tesimale put a number of documents before the Court, including a report from the Department of Corrections approving a residence for Mr Tesimale were he to be released, an accompanying statutory declaration by family members residing at that address, and  a  “Proposed Action  Plan Training  Programme”  for Mr Tesimale. Mr Green says that he collated all these documents and put them on his Immigration file for Mr Tesimale. I interpolate to note that these documents were also included in the bundle filed in this Court as reflecting the record of the District Court Decision.

[28]              Mr Green also addresses  in  his  affidavit  the  possibility  of  agreeing  to  Mr Tesimale’s release on conditions, rather than continuing to seek a warrant of commitment. Mr Green says:

Mr Tesimale never asked me directly to consider release on conditions, and for much of the time he was represented by duty lawyers (often Mr Mellin). But at Manukau District Court immediately before the monthly hearings for Warrants of Commitment, Mr Mellin would often ask me if I would consider agreeing to Mr Tesimale’s release in some form. In that context, I understood that to be a request to consider residence and reporting requirements for     Mr Tesimale instead of applying for a new warrant. That would be to the address set out in the documents to stay with the family members identified in the documents, as well as a condition that Mr Tesimale would report frequently to either INZ or the Police. I declined these requests. Those were decisions I made in my absolute discretion.

Mr Park’s Decision

[29]              The warrant of commitment granted by the District Court on 18 December 2020 was due to expire on 15 January 2021. Mr Green explains that he was going to be on annual leave at that time, and that his colleague Mr Park would therefore look after the file while he was away. Mr Green says that he spoke briefly with Mr Park about the file before he went on leave, and to assist Mr Park, prepared a draft affidavit to support any further application for a warrant. Mr Green says that he did not discuss with Mr Park what Mr Park’s decision-making should be around the forthcoming expiry of the warrant.

[30] Mr Park also provided an affidavit in these judicial review proceedings. He explains that he reviewed Mr Tesimale’s file on 12 January 2021, including the various documents submitted at prior District Court hearings on Mr Tesimale’s behalf and noted at [27] above. Mr Park also says that he reviewed the earlier Parole Board decisions discussed earlier in this judgment. Mr Park then says that:

I was aware that [Mr Green] had previously sought warrants of commitment. However, I knew that the decision to apply for a warrant of commitment was my decision as the immigration officer (temporarily) assigned to the file. It would require me to swear an affidavit in support, and I was aware that the affidavit (which included statements of my belief) had to represent my evidence and not anyone else’s.

Having considered Mr Tesimale’s file, I decided to apply for a warrant of commitment. …

(emphasis in original)

[31]              Mr Park accordingly applied for a further warrant on 13 January 2021. The application was accompanied by an affidavit sworn by him in support. That affidavit summarised Mr Tesimale’s criminal and immigration history, explained the steps that had been taken to try to arrange for Mr Tesimale’s deportation to that point, and why it had not been possible to do so (including repatriation flights which had had to be cancelled given the Tuvalu borders remained closed). Mr Park also stated that:

On 15 December 2020 INZ was informed by MFAT that the Tuvaluan Government remains cautious about commencing repatriations from New Zealand but will pick up conversations about this in the New Year. The Tuvaluan boarder is remaining closed until March 2021 at the earliest for general commercial travel, under Tuvalu’s state of emergency.

[32]As to why a further warrant ought to be granted, Mr Park said the following:

I believe that, if released, the Respondent would abscond otherwise than by leaving New Zealand for the following reasons:

(a)the Respondent has remained unlawfully in New Zealand for a period of more than 16 years;

(b)the Respondent has made no attempts to regularise his immigration status since becoming unlawfully in New Zealand in 2004;

(c)the Respondent’s criminal offending and immigration history show an unwillingness or inability to abide by New Zealand law;

(d)the Respondent was denied parole three times, with the Parole Board noting that there was little evidence that the Respondent had addressed his offending through treatment;

(e)I believe it is in the public interest in all circumstances because the Respondent would pose an undue risk to the public due to his previous criminal offending.

[33]              For completeness, I note that Mr Park also said in his affidavit that by the time of the hearing before the Parole Board on 10 December 2019, no release safety plan for Mr Tesimale had been developed. That was of course incorrect. Nevertheless, it  is not suggested that this error, in and of itself, is determinative of any of the matters arising in the present case. Further, the fact a release safety plan had been prepared would have been evident from the Parole Board’s December 2019 decision in any event.9

[34]              Turning back to Mr Park’s affidavit in the present proceedings, he says that prior to applying for a further warrant of commitment, he was not requested by counsel for Mr Tesimale to consider  agreeing  to  residence  and  reporting  requirements.  Mr Park says that he was nevertheless aware that Mr Tesimale had sought release on prior occasions, and took those matters into account when making the decisions he did.

The District Court Decision

[35]              The application for a further warrant of commitment was opposed. A hearing before Judge Lovell-Smith took place on 15 January 2015. Mr Mellin again appeared for Mr Tesimale and made submissions in opposition.

[36]              The Judge delivered an oral judgment granting Mr Park’s application. The Judge first traversed the essential factual background, including Mr Tesimale’s offending and immigration history. She recorded that Mr Tesimale had family in New Zealand, and that they were willing to support Mr Tesimale and ensure he would not reoffend pending deportation. The Judge also noted Mr Mellin’s submission that conditions for release could be “along the lines of those suggested by the Parole Board”.

9      The Parole Board decisions also forming part of the record of the District Court Decision.

[37]              The Judge then summarised the competing submissions, observing that there was “no idea at present” when Mr Tesimale might be deported. She also addressed the Ministry of Foreign Affairs and Trade’s engagement with the Tuvaluan Government on repatriation flights, observing that “whilst there can be no indication given the situation (sic) can be described as one that is likely to improve”.

[38]              The Judge then turned to her analysis of whether the application for a further warrant ought to be granted. Given the grounds upon which judicial review of the District Court Decision is sought, it is helpful to set out this aspect of the decision in full:

….

[16]In [Immigration New Zealand’s] submission it is in the public interest that you remain in custody as there can be no confidence that you would comply with the deportation order.

[17]Whilst it is accepted that there could be various conditions imposed there is no ability for official oversight over those conditions to ensure your compliance. In particular, in relation to the public interest there is your risk of re-offending which was recognised as medium to low by the New Zealand Parole Board.

[18]In my view, you are effectively an untreated sex offender and I repeat again that the serious sexual offending against [Redacted]. No official oversight can be imposed on you in respect of any conditions.

[19]There is no basis for directing you to report to an Immigration Court for monitoring. There is no doubt about it that you have spent a considerable period of time in custody and that there can be no certainty as to when you might be able to return to Tuvalu due to the pandemic.

[20]However, in my view, the public interest is such that given the lengthy period of time in which you evaded the immigration authorities which only ceased when you committed very serious child sex offending, that there can be no confidence that you would comply with any conditions that might be imposed should you be released.

[21]Having regard to all the circumstances the application for a Warrant of Commitment is granted.

[22]Mr Mellin has reminded me of his submissions relating to s 9 of the New Zealand Bill of Rights Act 1990 having regard to the length of your incarceration as through no fault of your own, you are not able to be deported.

[23]In my view the public interest outweighs those considerations given the significant period of time that you evaded the immigration laws of

New Zealand, never regularising your immigration position once your Visa lapsed and further you offended in a very serious way against [Redacted] while unlawfully in New Zealand.

[24]Taking all those matters into account it is in the public interest, in my view, that the application for a Warrant of Commitment be granted for 28 days.

[39]              Mr Tesimale accordingly continued to be detained, including on subsequent warrants of commitment issued after the District Court Decision.

[40]              Mr Tesimale was eventually released on conditions following a decision of Judge Harvey on 16 April 2021.10 The essence of the Judge’s decision was that, in light of the continuing uncertainty as to when Mr Tesimale would be deported, it was “not in the public interest to continue a person’s detention indefinitely”, even when there was a risk of reoffending or absconding.11

[41]I turn now to the statutory framework.

The statutory framework

The Act’s purpose and Part 9

[42]              The starting point for an examination of the statutory framework is the Act’s purpose: to “manage immigration in a way that balances the national interest, as determined by the Crown, and the rights of individuals”.12 Section 3(2) states that in order to meet that purpose, the Act establishes an immigration system with certain (listed) features.

[43]              One of those features is the power to arrest and detain persons pending deportation. Those powers are contained in Part 9 of the Act (“Detention and monitoring”).

10     Immigration New Zealand v Tesimale [2021] NZDC 7060.

11 At [24].

12     Immigration Act 2009, s 3(1).

[44]Section 307(1) sets out the specific purpose of Part 9:

307    Purpose of Part

(1)The purpose of this Part is to establish a tiered detention and monitoring regime in order to ensure —

(a)      the integrity of the immigration system through providing for the management of persons who are liable for deportation or turnaround; and

(b)      the safety and security of New Zealand where a person who is liable for deportation may constitute or be suspected of constituting a threat or risk to security.

[45]              Part 9 of the Act has been described as “highly prescriptive”.13 It is also to be treated as a code, and no person who is liable for arrest and detention under the Act may be granted bail from that detention.14

[46]              Section 310 sets out the particular purposes for which the arrest and detention powers under Part 9 of the Act may be exercised. These include to deport a person who is subject to a deportation order (such as Mr Tesimale), by placing him or her on the first available craft leaving New Zealand.15

[47]              Part 9 then sets out a number of prescribed steps for the arrest and detention of persons pending deportation. Section 313 permits an initial arrest detention without warrant for a period not exceeding 96 hours. If the person detained cannot be deported within that timeframe, and an Immigration Officer does not agree to the person’s release on residence and reporting conditions (pursuant to s 315), the officer may apply to a District Court Judge pursuant to s 316 of the Act for a warrant of commitment, authorising detention for a further 28 days. Any such application is to be determined pursuant to ss 317, 318 or 323, as the case may be, s 317 being the relevant provision in this case.

13 Maritz v District Court at Auckland [2018] NZHC 828, [2019] NZAR 721 at [25]; see also Chief Executive of Department of Labour v Yadegary [2008] NZCA 295, [2009] 2 NZLR 495 [Yadegary] at [171] per O’Regan J, where s 317’s predecessor, s 60 of the Immigration Act 1987 (the 1987 Act) was described as a set of “carefully circumscribed provisions for detention”.

14 Section 308.

15 Section 310(d)(ii).

Section 317 of the Act

[48]              Given the  proper  interpretation  and  application  of  s  317  is  central  to  Mr Tesimale’s application for judicial review, it is helpful to set it out in full:

317    Decision on application for warrant of commitment

(1)On an application for a warrant of commitment, a District Court Judge

—

(a)      must, if satisfied on the balance of probabilities that the person is not the person named in the application for the warrant of commitment, order that the person be released from custody immediately:

(b)      may, in any other case, either —

(i)issue a warrant of commitment in the prescribed form authorising the person’s detention, in a place named in the warrant, for a period of up to 28 days, if satisfied of the matters in subsections (2) and (3) (and having taken into account the matters in subsections (4) and (5)); or

(ii)order the person’s release from custody on conditions under section 320, if the Judge is not satisfied that detention is warranted.

(2)A Judge may issue a warrant of commitment if satisfied on the balance of probabilities that the person in custody is the person named in the application and that any 1 or more of the following applies:

(a)      a craft is likely to be available, within the proposed period of the warrantof commitment, to take the person from New Zealand:

(b)      the reasons why a craft was not available to take the person from New Zealand 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 are still in existence and are likely to remain in existence, but not for an unreasonable period:

(d)      the person has not supplied satisfactory evidence of his or her identity.

(3)If subsection (2) does not apply, the Judge may, nevertheless, make a warrant of commitment if it is, in all the circumstances, in the public interest to do so.

(4)In determining whether to issue a warrant of commitment, or whether to order the person’s release on conditions, the Judge must have regard to, among other things, the need to seek an outcome that maximises compliance with this Act.

(5)Unless there are exceptional circumstances, the Judge must not release the person on conditions if —

(a)      the identity of the person is unknown; or

(b)      the person’s identity has not been established to the satisfaction of the court; or

(c)      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 person was —

(i)served with a deportation liability notice; or

(ii)arrested and detained for the purpose of deportation or turnaround; or

(d)      the person claimed refugee or protection status only after the person was —

(i)served with a deportation liability notice or deportation order or with a removal order under the former Act; or

(ii)arrested and detained for the purposes of deportation or turnaround.

[49]              Section 317’s predecessor, s 60 of the 1987 Act, was considered in some detail by the Court of Appeal in Chief Executive of Department of Labour v Yadegary (Yadegary).16 Although the aspects of the statutory provision in issue in that case were different to those engaged in Mr Tesimale’s case (the Court in Yadegary focussing primarily on the predecessor to s 317(5)), the Court made a number of relevant general observations.

[50] First, the Court noted that the primary purpose of detention pursuant to s 60 “must be custodial (to facilitate deportation)”17 and “the execution of the removal order”.18 As can be seen, these purposes align with the subsequently enacted statutory purpose of detention, including that contained in s 310(d)(ii) of the Act and referred to at [46] above. The Court emphasised that punishment and/or general deterrence are not part of the purpose of detention.19

16     Yadegary, above n 13.

17     At [47] per Baragwanath J.

18     At [172] per O’Regan J.

19     At [47] per Baragwanath J.

[51]              The Court in Yadegary also addressed the relevance of the Hardial Singh principles to the statutory scheme of detention.20 William Young P (as he was then) said the following:21

The starting point for an analysis of s 60 of the Immigration Act is R v Governor of Durham Prison, ex p Hardial Singh … which addressed a power of detention pending removal. The case concerned not an illegal immigrant but rather one who was subject to deportation by reason of criminal offending who, by the time of the hearing in the High Court, was prepared to return to his home country. The principles which emerged from that case are that, in the absence of a contrary legislative direction:

(a)the power to detain can only be exercised during the period which is reasonably necessary to effect removal;

(b)if removal is not possible within a reasonable period, no further detention is permissible; and

(c)those insisting on detention must take all reasonable steps to ensure removal within a reasonable time.

It is clear that as first enacted s 60 was intended to be consistent with the

Hardial Singh principles. (emphasis added)

[52]              In a similar vein, O’Regan J observed that “…s 60 as originally drafted effectively incorporated the Hardial Singh principles”.22

[53]              On this basis, United Kingdom authorities on the interpretation and application of the Hardial Singh principles will no doubt continue to be of assistance in the interpretation and application of s 317. As emphasised in the above passage from William Young P’s judgment in Yadegary, however, they are subject to any contrary legislative direction.

Section 317(2) – assessment of an “unreasonable period”

[54] As can be seen from s 317 set out at [48] above, a key aspect of s 317(2) is whether detention will continue for an “unreasonable period”. In Yadegary, Baragwaneth J observed that “it is neither practicable nor desirable” to give a ruling

20     At noted at n 6 above, counsel for Mr Tesimale says these were a (mandatory) relevant consideration which the Judge did not take into account when making the District Court Decision.

21     At [214]; citing R v Governor of Durham Prison, ex parte Hardial Singh, above n 6.

22 At [174].

as to the precise meaning of a term such as “reasonable”,23 emphasising that “every case will turn on its own facts”.24

[55]              In a recent United Kingdom decision, R (Singh) v Secretary of State for the Home Department, Holman J summarised the factors likely to be relevant when assessing a reasonable period as follows:25

… relevant circumstances are likely to include the length of the period of detention to date, the nature of the obstacles to removal, the diligence, speed and effectiveness of the steps taken by the [relevant authorities] to effect removal, the conditions in which the person is being detained, the effect of detention upon him, the risk that if released he will abscond, and the risk that he will commit criminal offences.

[56]              These factors were drawn from R (I) v Secretary of State for the Home Department,26 as confirmed by the Supreme Court of England and Wales in R (Lumba) v Secretary of State for the Home Department (Lumba).27

[57]              In Yadegary, relevant factors were said to include whether there is “a realistic prospect that the means of removing the person from New Zealand will come into existence” and whether “simply that too much time has elapsed …”.28 The risk of the detainee absconding if released, and the risk of re-offending, were also recognised as relevant.29 Baragwanath J noted that these considerations were not exhaustive.30

[58]              The risk of Mr Tesimale reoffending was a key factor taken into account by Judge Lovell-Smith in granting a further warrant of commitment. It has been argued in some cases that a risk of reoffending is not a relevant consideration (at least when there is not also a risk of absconding), given the purpose of detention is to promote deportation and not public safety. But such arguments were firmly rejected by the Supreme Court in Lumba. Lord Dyson, with whom the other members of the Court

23 At [34].

24 At [122].

25     R (Singh) v Secretary of State for the Home Department [2021] EWHC 158 (Admin) at [4].

26     R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888, [2003] INLR 196 at [48].

27     R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, (2012) 1 AC 245 [Lumba].

28     Yadegary, above n 13, at [84] per Baragwanath J.

29     At [105] and [121] per Baragwanath J, at [203] per O’Regan J.

30 At [12].

agreed,31 rejected the suggestion that a risk of reoffending cannot itself justify detention. Lord Dyson observed that the purpose of facilitating deportation incorporates the object which is sought to be achieved by deportation, including “that of removing an offender whose presence is not conducive to the public good”.32 Lord Dyson also referred to observations in R (A) v Secretary of State for the Home Department, in which Toulson LJ had described a submission that the power of detention was not for the protection of public safety as “over-simplistic”, stating:33

If the reason why his presence would not be conducive to the public good is because of a propensity to commit serious offences, protection of the public from that risk is the purpose of the deportation order and must be a relevant consideration when determining the reasonableness of detaining him pending his removal or departure.

[59]              I note that Simon Brown LJ made similar observations in R (I) v Secretary of State for the Home Department, stating:34

The likelihood or otherwise of the detainee absconding and/or re-offending seemed to me to be an obviously relevant circumstance. If, say, one could predict with a high degree of certainty that, upon release, the detainee would commit murder or mayhem, that to my mind would justify allowing the Secretary of State a substantially longer period of time within which to arrange the detainee’s removal abroad.

[60]              I accordingly proceed on the basis that the factors referred to in R (Singh) v Secretary of State for the Home Department, including the risk of reoffending, are relevant to the assessment of what is a reasonable period for the purposes of s 317(2), depending of course, on the factual circumstances arising in any given case. In this case, for example, there is no suggestion that relevant government officials have not taken all appropriate steps to try to deport Mr Tesimale at the earliest possible opportunity; nor that any particular matters arose in relation to the conditions in which Mr Tesimale was being held which might have been relevant to the reasonableness of his detention.

31 Lumba, above n 27. Lord Phillips of Worth Matravers PSC dissenting on other matters.

32 At [107].

33 R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804 at [55]. In this jurisdiction, see Elias CJ’s comments in Helu v Immigration and Protection Tribunal [2015] NZSC 28, [2016] 1 NZLR 298 at [82] that “the power to deport is not a sanction for criminal offending, such sanctions are provided in the criminal justice statutes. Rather, deportation is a power provided for immigration purposes to remove those who have demonstrated they are not fit for residency”.

34 R (I) v Secretary of State for the Home Department, above n 26, at [29].

[61]              What is or is not a reasonable period should also be considered in the context of s 323 of the Act, which mandates a higher threshold for detention when a person has already been detained for a continuous period of more than six months.35 Pursuant to s 323, if a District Court Judge is not satisfied that the person’s deportation is being prevented by their own action or inaction, and there are no “exceptional circumstances” that warrant release, the Judge must order the person’s release on conditions.

[62]              Finally, I accept the second respondent’s submission that it is not necessary for the purposes of s 317(2) for a specific date or defined period to be identified by which deportation will be effected. This is consistent with Parliament’s use of the “flexible term”36 of an unreasonable period rather than setting a hard time limit. Counsel also referred me to United Kingdom authorities which support this proposition. Those authorities generally promote a flexible approach where there is uncertainty as to the time which will elapse before removal can be effected.37

[63]              For example, in R (Muqtaar) v Secretary of State for the Home Department (Muqtaar), Mr Muqtaar was to be deported to Somalia as a result of his criminal offending, and was detained pending deportation. He then applied to the European Court of Human Rights (ECtHR), which issued a “rule 39 indication” directing that Mr Muqtaar should not be deported pending the ECtHR’s determination of his substantive case. At the point at which the rule 39 indication was given, Mr Muqtaar had already been detained for 16 months. Mr Muqtaar argued that his continued detention after the rule 39 indication had been issued was unlawful as there was no way to predict how much longer he would be detained. He submitted that without knowing an end date for detention, it was impossible to conclude that it was apparent that deportation would be effected within a reasonable period.

35 Yadegary, above n 13, at [69] per Baragwanath J, who stated that “in a context where subs (6) has no application, ‘unreasonable’ will be measured against the three month limit of subsection (7).” The three month time limit in s 60(7) was replaced in the current Act by the six month limit in    s 323.

36 At [69] per Baragwanath J.

37 R (Muqtaar) v Secretary of State for the Home Department [2012] EWCA Civ 1270, [2013] 1 WLR 649 [Muqtaar]; and R (Samson Bello) v Secretary of State for the Home Department [2020] EWHC 950 (Admin).

[64]              The Court of Appeal rejected that argument. Richards LJ, with whom the other members of the Court agreed, stated:

[35]   The deputy judge dealt at some length with this issue. … He said that there was no suggestion that the ECtHR proceedings in the present case would take longer than usual to resolve or that there was more than usual uncertainty about when the judgment would be delivered. …

[36]   I see no reason for differing from the conclusion reached by the deputy judge on this issue. At the time of the receipt of the rule 39 indication there was a realistic prospect that the ECtHR proceedings concerning removal to Somalia would be resolved within a reasonable period: it was possible but not apparent that they would drag on as in practice they did. Nor was it apparent that the ECtHR’s final decision would be such as to prevent the claimant’s removal. I stress “apparent”, because that is the word used in the approved formulation of the Hardial Singh principle (iii) and in my view it is important not to water it down so as to cover situations where the prospect of removal within a reasonable period is merely uncertain.

…

[38] … I adhere to the view that there can be a realistic prospect of removal without it being possible to specify or predict the date by which, or period within which, removal can reasonably be expected to occur and without any certainty that removal will occur at all. At the time of receipt of the rule 39 indication in the claimant’s case, although it was not possible to say when the ECtHR proceedings would be concluded, there was none the less a realistic prospect of their being concluded and of removal being effected within a period that was reasonable in all the circumstances.

(emphasis in original)

[65]              Ultimately, however, the overriding requirement of s 317(2) is that the Judge is satisfied on the balance of probabilities that the circumstances preventing deportation will not continue for an unreasonable period. To be so satisfied, there must be some time parameters against which the Judge can make an assessment of what is, or is not, a reasonable period. So, for example, even in Muqtaar, there was no suggestion that the ECtHR proceeding would take “longer than usual” to resolve, which suggests the deputy judge and Court of Appeal had at least some broad timeframe in mind.38 The degree of uncertainty surrounding the time parameters being considered will also need to be taken into account when assessing a reasonable period.39

38     See, for example, R (Muqtaar) v Secretary of State for the Home Department [2011] EWHC 2707 (the first instance decision) at [98].

39     R (Samson Bello) v Secretary of State for the Home Department, above n 37, at [27].

[66]              Where the circumstances are highly uncertain however (which one might assume will be in relatively few cases), it may simply be impossible for the Judge to be satisfied on the balance of probabilities that the conditions preventing deportation will not continue for an unreasonable period (which does not necessarily involve a finding that the conditions will continue for an unreasonable period). In those cases,  s 317(2) will not apply and the Judge may assess the application under s 317(3). The absence of this “fall back” provision in the Hardial Singh principles means that the United Kingdom authorities need to be approached with that difference in mind. It may partly explain the flexibility evident in the United Kingdom authorities referred to earlier, and also provides context to the Court’s observation in Muqtaar that the reasonableness requirement in the Hardial Singh principles ought not to be “watered down” in cases of uncertainty.40 In this jurisdiction, cases of real uncertainty can be considered under s 317(3), to which I now turn.

Section 317(3) – issue of a warrant in the “public interest”

[67]              The test pursuant to s 317(3) is simply that in all the circumstances, it is in the public interest to continue the person’s detention. The inquiry is deliberately broad and unconstrained. Like the term “reasonable”, Baragwanath J in Yadegary did not consider it practicable or desirable to offer a definition of the term.41

[68]              The concept of the “public interest” suggests the District Court Judge weighs the rights of the individual against the broader interests of the public generally. The risk of the detainee absconding and/or re-offending will engage the public interest,42 though these considerations are obviously not exhaustive.

[69]              In Yadegary, Baragwanath J observed that “[i]t could only be in the most unusual of circumstances that detention for a period that is unreasonable could nevertheless be in the public interest”.43 While the legislative history does not disclose any particular consideration of this aspect of Yadegary in the formulation of s 317(3), Parliament did not carry through into s 317(3) the test of “exceptional circumstances”

40     Muqtaar, above 37, at [36].

41     Yadegary, above n 13, at [34].

42     At [109] per Baragwanath J, at [203] per O’Regan J.

43 At [40].

seen in s 323. That may indicate an intention that the test in s 317(3) is not to be so exacting that it will very rarely be established in practice. Parliament has also directed that in considering the public interest, the Judge must have regard to the need to seek an outcome that maximises compliance with the Act.44

[70]              The second respondent accepts, however, that the justification for a warrant in the public interest ought to be clear.   That must be so, in my view,  given resort to     s 317(3) will involve the Judge not having been satisfied that the conditions or reasons preventing deportation will not continue for an unreasonable period.

Other relevant factors – s 3(1) of the Act and the Sentencing and Parole Acts?

[71]              Before turning to the remaining (relevant) parts of s 317, it is helpful to address an argument advanced by Mr Tesimale that the decisions in issue were unlawful because the decision-makers did not carry out the balancing exercise mandated by    s 3(1) of the Act (managing immigration in a way which balances the national interest, as determined by the Crown, and the rights of individuals).

[72]              I do not agree that s 3(1) of the Act is a “freestanding” balancing exercise which a Judge must also carry out when making a decision pursuant to s 317(2) or (3) of the Act. As s 3(1) of the Act makes clear, the Act’s purpose is to manage immigration in a way that balances the national interest and the rights of individuals, and to achieve that purpose, s 3(2) records that “the Act” establishes an immigration system with certain listed features. Accordingly, Part 9 of the Act, including s 317, is part of an overall immigration system designed to meet the balancing exercise recorded in s 3(1).

[73]              There is no doubt that in considering what is a reasonable period of time pursuant to s 317(2), or what is in the public interest pursuant to s 317(3), a Judge will need to take into account any relevant factors affecting both the individual’s circumstances and wider or public considerations. But because the scheme of the Act itself meets the purpose set out in s 3(1), there is no need to separately conduct a balancing exercise pursuant to s 3(1) of the Act. To put the point another way, a Judge

44     Section 317(4), see further below at [77] – [79].

properly interpreting and applying s 317(2) or (3) of the Act will, in doing so, meet the statutory purpose.

[74] Further, and as noted from the summary of Mr Tesimale’s pleading at [13] above, Mr Tesimale also suggests that the District Court Decision was unlawful because the Judge failed to take into account relevant principles and objects of the Sentencing Act and/or the Parole Act . It is inherent in this pleading that these statutes are mandatory relevant considerations.

[75]              While these matters were not developed to any material extent in counsel’s written or oral submissions, I disagree that these statutes, or any particular provisions of them, are themselves mandatory relevant considerations to be taken into account when considering whether to issue a warrant pursuant to either s 317(2) or (3) of the Act. None of the authorities reviewed suggest this to be the case. No doubt this is because the Sentencing and Parole Acts are aimed at quite different purposes and circumstances than the Immigration Act’s provisions concerning detention pending deportation. Detention pending deportation is not a response to or punishment for earlier criminal offending (despite the fact a person might have become liable for deportation because of their criminal offending). Further, by the time of the District Court Decision, Mr Tesimale had served his full sentence and the six month period in which post release conditions could operate had come to an end. Neither Act, therefore, had any continuing application to Mr Tesimale. For that reason also, neither amounts to a mandatory relevant consideration to be taken into account when assessing in January 2021 whether to issue a further warrant.

[76]              All three statutes are nevertheless subject to the principle that statutes should be interpreted in favorem liberatis (in favour of liberty),45 and in the context of s 6 of the NZBORA (which provides that wherever an enactment can be given a meaning that is consistent with the rights and freedoms protected by NZBORA, that meaning is to be preferred). But that is a different proposition to the suggestion that the Sentencing and Parole Acts are themselves mandatory relevant considerations for the purposes of s 317.

45     Woods v New Zealand Police [2020] NZSC 141 at [62] and n 46.

Section 317(4) of the Act – maximising compliance with the Act

[77]              Section 317(4) requires a Judge determining whether to issue a warrant of commitment to take into account the need to seek an outcome that maximises compliance with the Act. This is accordingly an express mandatory relevant consideration to be taken into account when determining an application for a warrant pursuant to either s 317(2) or (3).

[78]              No particular issues as to the interpretation of s 317(4) arise in this case, other than counsel for Mr Tesimale’s submission that the reference to “the need to seek an outcome that maximises compliance with this Act” is a “two-way street”, and includes ensuring that Immigration New Zealand complies with its procedural duties.

[79]              The same argument was made in A v District Court at Manukau but rejected by Hinton J (albeit as obiter).46 Her Honour concluded that the expression in s 317(4) is a reference to maximising compliance by the person served with a deportation order, rather than applying to a wider scope of persons or entities, including Immigration New Zealand.47 While I am not bound by her Honour’s observations, I respectfully agree with them. This is not only consistent with the plain and ordinary meaning of the text of s 317(4), but is also consistent with the purpose of Part 9 of the Act, which includes ensuring the overall “integrity of the immigration system through providing for management of persons who are liable for deportation or turnaround” (emphasis added).48 Further, and while not a matter specifically in issue in Yadegary, I note this approach is consistent with the description of s 317(4)’s predecessor, s 60(8) of the 1987 Act, said to be demonstrative of the purpose of encouraging or coercing the detainee’s compliance with the Act.49

Amendment to the statutory framework in light of COVID-19

[80]              The inability to deport Mr Tesimale came about because of the COVID-19 pandemic and in particular, Tuvalu closing its borders to flights from New Zealand.

46     A v District Court at Manukau [2021] NZHC 744.

47 At [60].

48     Section 307(1)(b).

49     Yadegary, above n 13, at [172] per O’Regan J.

[81]              As discussed at [55] and [60] above, the reasons for the continued inability to deport will be a factor to be taken into account in considering what is an unreasonable period of time for the purposes of s 317(2), and will also be a relevant factor in the broad assessment of the public interest for the purposes of s 317(3). I accept the second respondent’s submission that it will be relevant that the current COVID-19 situation is a “once in several generations global pandemic”. The Divisional Court in R (Detention Action) v Secretary of State for the Home Department recognised the implications of the COVID-19 pandemic on deportations from the United Kingdom, and that the Secretary of State in those circumstances faced “exceptional circumstances”.50

[82]              In this jurisdiction, Parliament has expressly recognised the implications of the COVID-19 pandemic on deportation. In the ordinary course, and as noted earlier, if a person has been detained for a continuous period of six months, any application for a further warrant of commitment must be determined under s 323 of the Act. Pursuant to s 323, a District Court Judge must authorise continued detention if satisfied that the person’s deportation is being prevented by the deportee’s own action or inaction, and that no “exceptional circumstances” exist that would warrant release.51 In all other cases, the Judge must release the detainee on conditions pursuant to s 320 of the Act.52

[83]              Ordinarily, Mr Tesimale would have been caught by s 323 as of October 2020. In all likelihood he would have been released on conditions, there being no suggestion the reasons preventing his deportation came about by any action or inaction by him. However, pursuant to s 341(1) of the Act, the calculation of the six month period for the purposes of s 323 is not to take into account any periods of detention occurring while an Epidemic Management Notice is in force.53 At all times Mr Tesimale was detained, an Epidemic Management Notice was in force.54

50     R (Detention Action) v Secretary of State for the Home Department [2020] EWHC 732 (Admin) at [19].

51     Section 323(2).

52     Section 323(3).

53     Section 341(1)(a).

54     First coming into effect  on  25  March  2020  and  valid  for  three  months,  and  renewed  on  24 June 2020, 23 September 2020, 21 December 2020 and 17 March 2021.

[84]              I accordingly accept the second respondent’s submission that s 341 of the Act indicates Parliament’s acceptance that (reasonable) periods of detention may be longer during an epidemic than they would otherwise be. The impact of the pandemic will, however, be only one factor to be weighed in the assessment to be carried out under ss 317(2) or (3). The actual period of time spent in detention to the point of an application for a further warrant will naturally remain a materially relevant factor.

NZBORA in the context of the statutory framework

[85]              Counsel for Mr Tesimale relied heavily on the rights protected by NZBORA, and in particular, s 8 (the right not to be deprived of life) and s 22 (the right not to be arbitrarily detained).55

[86]              Rights protected by NZBORA are undoubtedly relevant to any proposed detention pursuant to s 317 of the Act. Again, this is evident from Yadegary. Baragwanath J identified the rights protected by ss 22 and 9 (right not to be subject to disproportionately severe treatment) as “potentially relevant”,56 and Young P described them as “the most immediately relevant” provisions of the NZBORA.57

[87]              As noted, Mr Tesimale relies not only on s 22, but also s 8 (right not to be deprived of life). Counsel submit that if a detention is arbitrary, and accordingly in breach of s 22, it “leads to a s 8 reduction in the quality of life – by dint of the arbitrary detention”. Counsel further suggest that s 8’s scope extends to protecting against a diminution of quality of life and thereby deprivation of dignity.

[88]              As a preliminary point, and as counsel for the second respondent observe, recourse to s 8 is not in fact required in this case, as its breach is said to flow only from a preceding breach of s 22. Nevertheless, I do not consider s 8 of NZBORA applicable in any event, and indeed I am bound by very recent Court of Appeal authority to that effect.

55     Sections 9 and 23 are also referenced in counsel’s submissions, but were not addressed in any substantive way.

56     Yadegary, above n 13, at [37].

57 At [244].

[89]              The appellant in AR (India) v Attorney-General also suggested that s 8 extends to protection against a diminution of quality of life and thereby deprivation of dignity.58 The Court of Appeal rejected that argument, stating:59

We have no hesitation in reaffirming that the fundamental rights in the NZBORA are to be given full effect and require generous interpretations. We also acknowledge that the meaning of the rights in the NZBORA may gradually expand in ways that accord with international jurisprudence.

We reject, however, the submission advanced on behalf of AR that interpreting the right not to be deprived of life means the right not to be deprived of dignity in circumstances where there is no suggestion of the plaintiff’s life being placed at risk. The suggestion that deprivation of life means an unqualified deprivation of dignity cannot be reconciled with the plain meaning of s 8 of the NZBORA and Parliament’s intention when it adopted the comparatively narrow formulation in s 8.

[90]              Accordingly, s 8 of the NZBORA is not relevant to detention pursuant to s 317, unless on the facts of any given case detention gives rise to an increase in the likelihood of death.60 There was no suggestion of such a risk in Mr Tesimale’s case.

[91]              Having identified the relevant provision of the NZBORA, the next question is how they are applicable in a case such as this. Young P’s judgment in Yadegary illustrates the relevance of ss 9 and 22 of the NZBORA to both the interpretation and application of s 317. His Honour stated:61

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 Bill of Rights Act or “arbitrary” detention for the purposes of s 22 of the Bill of Rights Act; 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 maybe require) his release

58 AR (India) v Attorney-General [2021] NZCA 291. Counsel for the appellant in that case were the same as counsel for Mr Tesimale. The decision in AR (India) v Attorney-General was released following the hearing in this matter, but before delivery of my judgment. Counsel responsibly brought the Court of Appeal’s judgment to my attention.

59 At [46] – [47].

60 At [31].

61 Yadegary, above n 13, at [246] – [248].

under s 60(5) on the basis that “exceptional circumstances” should be construed or applied so as to prevent such treatment.

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 at para [246] above being resolved in favour of the Crown, serves legitimate public ends.

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”.

[92]              As to the contents of the rights protected by ss 22 and 9, “arbitrary” detention extends beyond unlawful detention to include concepts of unreasonable, unnecessary or unprincipled detention.62 And as to s 9, the majority of the Supreme Court in Taunoa v Attorney-General stated that the concept of disproportionately severe treatment involves “treatment or punishment which is grossly disproportionate to the circumstances”63 or “conduct which is so severe as to shock the national conscience”.64

[93]              Despite the applicability of ss 22 of the NZBORA and that arbitrary detention extends beyond unlawfulness, to the extent a detention is lawful pursuant to either ss 317(2) or (3) of the Act, there is likely to be limited scope for it nevertheless to be unreasonable, unnecessary or unprincipled.65 That is because of the exercise the Judge must carry out under each of s 317(2) and (3): in particular, consideration of what is in all the circumstances an “unreasonable period” for the purposes of s 317(2), and what is in the “public interest” for the purposes of s 317(3).66 In the same way, lawful detention pursuant to s 317(2) or (3) is unlikely to be “disproportionately severe”, again because of the assessment to be made under each of those sections. Detention which is likely to continue but not for an unreasonable period is unlikely to be grossly

62 At [38] per Baragwanath J, referring to R v Goodwin (No 2) [1993] 2 NZLR 390 (CA); and Clarke v Police HC Auckland AP 208/95, 11 October 1995.

63 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [176] per Blanchard J, with which McGrath J agreed (at [340]).

64 At [289] per Tipping J, with which Henry J agreed (at [383]). In Taunoa, the focus was on the conditions of detention rather than the fact of detention itself.

65 The authors of The New Zealand Bill of Rights Act, A Commentary, 2nd ed, Wellington  2015,  Lexis Nexis, state (at 19.8.15) that “where arrest and detention has occurred in a manner that complied with relevant legislative provisions, it will be difficult (although not impossible) to prove a breach of s 22”.

66   At least in relation to s 317(2)’s predecessor in the 1987 Act, Baragwanath J in Yadegary, above  n 13, stated (at [39]) that it followed from the term “reasonable” that Parliament intended to preserve the right to be free from arbitrary detention. Similarly, it is not in the public interest to detain persons arbitrarily.

disproportionate or to shock the national conscience; and the public interest inquiry under s 317(3) will have already balanced the rights of the individual with the broader public interest. That ss 22 and 9 are likely to have little independent work to do when detention follows the proper interpretation and application of s 317(2) or (3) is also reflected in the Select Committee Report on the Immigration Bill 2008, which recorded that “the detention provisions in this bill have been developed to comply with the human rights standards in the New Zealand Bill of Rights Act 1990.”67

Approach to review in the statutory context

[94]              Finally, before turning to the application for judicial review itself, it is important to approach Mr Tesimale’s case within the framework of it being an application for review and not an appeal.

[95]              That judicial review is focused on the lawfulness of decisions was recently reinforced by Cooke J in a series of decisions, most recently in New Zealand Council of Licensed Firearms Owners Incorporated v Minister of Police.68 His Honour also commented on the complexity, or distraction, which can arise from suggested differing degrees of “intensity” of review depending on the nature of the decision, observing:69

The complications involved in variable standard review, and in identifying the standard or intensity to be applied in a particular case, can lead a Court into error. It distracts from the key questions which are directed to the nature and extent of the power given to the decision-maker, and whether the decision-maker has acted in accordance with that power together with any other requirements or limits imposed by law. Judicial review begins and ends with those questions notwithstanding the occasional case where it can be said the unreasonableness of the decision itself evidences material error.

[96]I respectfully agree with these observations.

67     Immigration Bill 2008 (132-2) (select committee report) at 27.

68     New Zealand Council of Licensed Firearms Owners Incorporated v Minister of Police [2020] NZHC 1456.

69 At [85]. This reflects Cooke J’s earlier judgment in Patterson v District Court, Hutt Valley [2020] NZHC 259.

[97]              I also refer to recent judicial comment on the approach to “reasonableness” as a ground for judicial review. I have found particularly helpful Palmer J’s discussion in Chamberlain v Attorney-General (Chamberlain),70 drawing on his Honour’s earlier decision in Hu v Immigration and Protection Tribunal (Hu).71 Palmer J states that traditional definitions of Wednesbury unreasonableness (a decision being one that no reasonable authority could ever have come to) are somewhat circular, and that a more appropriate approach is whether the decision lacks an adequate evidential foundation, or the evidence is inconsistent with or contradictory of the decision, or the only reasonable conclusion contradicts the outcome.72 As his Honour noted in Hu, the first two aspects of this approach involve the evidential foundation for the decision, the latter involving the chain of logical reasoning in the application of the law to the fact.73

[98]              I agree with Palmer J that this approach constitutes a “relatively narrow but useable concept of unreasonableness”.74 It also properly focuses the Court not on the merits of the decision under review, but on whether the decision was available as a matter of law. I will approach Mr Tesimale’s ground of review of “unreasonableness” on this basis.

[99]               Also relevant to the approach to review is that Mr Park’s Decision was essentially two-fold, involving a decision not to propose or agree to Mr Tesimale being released on residence and reporting requirements (pursuant to s 315 of the Act), and as a corollary, a decision to apply for a further warrant of commitment (pursuant to   s 316 of the Act).

[100]           A decision pursuant to s 315 of the Act is a matter for the absolute discretion of the Immigration Officer concerned.75 It is well settled that the availability of

70 Chamberlain v Attorney-General [2017] NZHC 1821, [2017] NZAR 1271 at [66] (overturned on appeal but not in relation to the ground of review based on unreasonableness, Palmer J’s decision in that regard not pursued on appeal).

71     Hu v Immigration and Protection Tribunal [2017] NZHC 41, [2017] NZAR 508.

72     Chamberlain v Attorney-General, above n 70, at [66].

73     Hu v Immigration and Protection Tribunal. above n 71, at [30].

74 At [30]. This approach to unreasonableness has been adopted in a number of subsequent decisions of the High Court (see those decisions referred to at [58] of Sweeney v The Prison Manager, Springhill Corrections Facility [2021] NZHC 181). See also The Partners of Waikanae Health Centre v The Health and Disability Commissioner [2021] NZHC 1488 at [55].

75 Section 315(2).

judicial review of such decisions is very limited; essentially confined to a question of reasonableness.76

[101]           While a decision to apply for a warrant of commitment pursuant to s 316 of the Act is not expressly said to be the exercise of an absolute discretion, as noted, it is the necessary corollary of such a decision. It is also analogous to a decision to prosecute. This also mandates a conservative approach to review.

[102]           The review of decisions to prosecute was addressed by Randerson J in Polynesian Spa Ltd v Osborne.77 In explaining the courts’ reluctance to interfere in such decisions by way of review, Randerson J emphasised the importance of recognising the proper constitutional boundaries between a function of executive government (in this case, making the application) and of the courts (in determining the application).78 Such decisions also involve a high content of judgement and discretion, and for that reason, Randerson J confirmed that prosecutorial decisions should not generally be subject to collateral challenge.79 And in cases where a decision to prosecute is made, the courts possess an inherent power to stay or dismiss the prosecution for abuse of process.80 Finally, if factual errors are made by a prosecuting authority, or a defendant considers there is additional material which ought to be considered, there is an opportunity to explore and test such issues at trial.81 Randerson J referred to the “similarly strict approach” to review of such decisions adopted in England, Australia and Canada.82

[103]          Randerson J nevertheless confirmed that a decision to prosecute can be reviewed on the basis of a failure to exercise a discretion,83 or if it can be shown that the prosecuting authority acted in bad faith or brought the prosecution for a collateral purpose.84 Despite this, however, his Honour concluded that:85

76     Zhang v Associate Minister of Immigration [2016] NZCA 361, [2016] NZAR 1222 at [25] – [39].

77     Polynesian Spa Limited v Osborne [2005] NZAR 408 (HC).

78     At [62(a)].

79     At [62(b)].

80     At [62(d)].

81     At [62(f)].

82 At [66].

83 At [63].

84 At [64].

85 At [68].

…it will only be in rare cases that any such challenge will be successful for the substantial policy and constitutional reasons reviewed … above. Ordinarily, matters which may have afforded grounds for judicial review in other contexts are properly addressed by the Court exercising jurisdiction at trial. …

[104]           Many if not all of these principles can be applied to a decision to apply for a warrant of commitment and the District Court then hearing and determining any such application. Both a decision to prosecute and to apply for a warrant involve a decision to put matters before a court (or a jury in appropriate cases) for independent determination. The discretion to apply for a warrant is also a function of executive government. It undoubtedly involves a high degree of judgement and discretion. Suggested errors in the applicant’s application or supporting evidence can be ventilated and challenged at the hearing before the District Court. The respondent has an opportunity to adduce any further relevant evidence or bring to the Court’s attention matters he or she says ought to be taken into account. The Court will retain the ability to dismiss an application for abuse of process. And, as also noted in Polynesian Spas,86 entertaining challenges to a decision to apply for a warrant outside the hearing process is likely to disrupt the statutory process for obtaining a warrant, which is constrained by strict time periods.

[105]           For the purposes of this case, therefore, I am prepared to accept that a decision to apply for a warrant can be reviewed on the basis of unreasonableness, bad faith or improper purpose. Like in the case of a decision to prosecute, however, most other matters which might have afforded grounds for review in other contexts are properly addressed in the determination of the application. In other words, the primary and proper “safety valve” in relation to a decision to apply for a warrant of commitment is that the application is determined by the District Court, properly interpreting and applying its own powers pursuant to s 317.

[106]With this framework in mind, I turn now to each of the challenged decisions.

86     At [62(b)].

Mr Park’s Decision

[107]          My analysis in relation to Mr Park’s Decision can be brief. I am clear in my view that the decision was not unlawful in the sense of warranting judicial review.

[108]          First, counsel for Mr Tesimale submit that at the time the decision was made, it was clear that Mr Tesimale’s deportation could not take place and accordingly the only purpose for which a warrant could be sought – deportation – was unavailable. Counsel submit that in those circumstances, the decision to apply for a warrant cannot have been for a proper purpose.

[109]          But at the time of Mr Park’s Decision, it is clear that deportation of Mr Tesimale remained possible, and indeed almost certain, the issue being one of timing only.   Mr Tesimale had not sought to challenge the deportation order and clearly flights to Tuvalu would resume at some point – even if it was unclear exactly when they would do so. The situation is quite different, therefore, to cases such as Yadegary in which the majority of the Court of Appeal accepted that there was no longer any prospect that Mr Yadegary would sign the application form necessary to obtain an Iranian passport, a step necessary to effect his deportation.

[110]          There is accordingly no basis upon which to infer Mr Park’s Decision must have been made for a purpose other than to facilitate deportation.

[111] Further, the decision was not, in my view unreasonable in any of the senses discussed at [97] above. It was made against the backdrop of successive and independent District Court Judges having granted prior applications, with there being no real change in circumstances other than the passage of a further 28 days. There was a rational basis for Mr Park’s view that Mr Tesimale was at risk of absconding and/or reoffending. Mr Park was aware of and had regard to the fact Mr Tesimale had previously sought to be released on residence and reporting considerations. He considered the materials on the file, including the proposed release management plan and residence arrangements, but in the exercise of his absolute discretion, did not propose Mr Tesimale’s release on conditions. There is nothing before the Court from which it can be concluded there was no lawful basis upon which Mr Park could have made such a decision, in the exercise of his absolute discretion.

[112]          Finally, and for  completeness,  counsel  for  Mr  Tesimale  suggested  that  Mr Park’s Decision was unlawful because of a failure to take into account relevant considerations. I agree with counsel for the second respondent that Mr Park’s Decision is not open to review on this basis, being a consequence of a decision made in the exercise of Mr Park’s absolute discretion, and itself analogous to a decision to prosecute. Given s 11 of the Act, Mr Park was not obliged to make any further inquiries into any other information and was (and is) not obliged to give reasons for his decision. He was “free to take whatever relevant considerations he thought appropriate into account and to place such weight on them as [he] chose”.87 Permitting review of a decision under s 315, and a consequent decision to apply for a warrant under s 316, on the basis suggested by Mr Tesimale would undermine the absolute discretion afforded to Immigration Officers pursuant to s 315, and the courts’ customary caution to review decisions to prosecute. As counsel for the second respondent submits, if Mr Tesimale was of the view that Mr Park failed to take into account matters relevant  to whether  a warrant ought to be issued,  it was open to  Mr Tesimale to put any such material before the District Court for its consideration.

[113]          The application for judicial review of Mr Park’s Decision is accordingly declined.

The District Court Decision

Pursuant to which statutory provision was the District Court Decision made?

[114]          There is an unfortunate lack of clarity in the District Court Decision as to which of the statutory provisions the decision was made under: s 317(2) or s 317(3). While counsel for the second respondent suggested the decision may have been made pursuant to s 317(2),88 by the end of the hearing, counsel accepted that it was more likely to have been made pursuant to s 317(3) (though maintained the position that a warrant of commitment would nevertheless have been available pursuant to s 317(2)). For the reasons which follow, I consider it is tolerably clear from the content of the

87     Dean v Associate Minister of Immigration [2019] NZCA 343 at [45].

88     On the basis that the Judge did not make an express finding that the reasons Mr Tesimale could not be deported were likely to continue for an unreasonable period.

District Court Decision (and the context in which it was made) that the Judge made her decision pursuant to s 317(3).

[115]          First, and as background context, the District Court Decision followed earlier decisions to grant warrants of commitments in relation to Mr Tesimale, which the Judge plainly had regard to in making her decision.89 These included a decision of Judge Bergseng of 16 October 2020 and an earlier decision of Judge Lovell-Smith made on 13 November 2020. Judge Bergseng expressly referenced s 317(3) of the Act in making his decision.90 In making her decision on 13 November 2020, Judge Lovell-

Smith expressly took into account Judge Bergseng’s earlier decision.91

[116]          Second, nowhere in the District Court Decision is the concept of an “unreasonable period” considered (or even mentioned), which would be somewhat odd if s 317(2) had been the basis for the decision.

[117]          Third, and in contrast to the point made in the preceding paragraph, the District Court Decision makes repeated references to “the public interest”. This includes references to counsel’s submissions at the hearing (which appear to have been directed only to the “public interest”) and the Judge’s analysis.92

[118]          I accordingly proceed on the basis that the District Court Decision (implicitly) recognised that s 317(2) was no longer available, and thus the decision was made under s 317(3) of the Act. Nevertheless, given counsel for the second respondent’s submission that a warrant could have been issued pursuant to s 317(2) (and thus the decision to issue the warrant in this case cannot have been unreasonable), I first address whether a warrant could have lawfully been granted pursuant to that section.

89 New Zealand Immigration v Tesimale, above n 1, at [8].

90 New Zealand Immigration v Tesimale [2020] NZDC 21468 at [27].

91 New Zealand Immigration v Tesimale, DC Manukau, CIV-2020-092-00194, 13 November 2020 [Minute of Judge Lovell-Smith] at [2].

92 New Zealand Immigration v Tesimale, above n 1, at [16], [20] and [24]. Immigration New  Zealand’s application for a warrant did not record which statutory provision was relied on, although Mr Park’s affidavit in support concluded that he believed “it is in the public interest in all circumstances” (emphasis added) to issue a further warrant.

Could a warrant have lawfully been granted pursuant to s 317(2)?

[119]          I have come to the conclusion that any decision in January 2015 to issue a warrant for commitment of Mr Tesimale pursuant to s 317(2) of the Act would have been unlawful. This is because any such decision would have been unreasonable, in the sense of there being no evidential foundation for the conclusion that the reasons why deportation could not be carried out were likely to continue, but not for an unreasonable period of time. I say this for the following reasons.

[120]          First, by 15 January 2021, Mr Tesimale had been detained for some nine and a half months. On any view that is a lengthy period of time, particularly when measured against the six month period which would have ordinarily applied pursuant to s 323. While I accept that Parliament envisaged that periods of detention might (or indeed, would) be longer than normal during the COVID-19 pandemic, the period following which Parliament intended (in normal times) a “harder look” would be taken at any application for continuing detention had been reached in Mr Tesimale’s case, and then exceeded by some 50 per cent.

[121]          Second, and for the reasons discussed in more detail below (in the context of the decision actually taken pursuant to s 317(3)), while there was clearly a basis for concluding that Mr Tesimale presented a risk of re-offending and/or absconding, that risk was plainly not significant for the reasons that:

(a)Mr Tesimale’s offending was somewhat dated (there being no suggestion of any further offending in the period 2008 to 2015) and the Parole Board had classified his risk of reoffending as medium to low. In addition, an approved residence was available, further reducing this risk.

(b)While Mr Tesimale  had been in New Zealand unlawfully for some   12 years prior to his arrest, there was no suggestion or evidence of him having breached specific court imposed conditions, or taking active steps to evade the New Zealand Immigration authorities once he had come to their attention. Nor had Mr Tesimale taken any steps to challenge his deportation, evidencing an acceptance of that outcome.

[122]          That the risk of reoffending and/or absconding was not high tempers the effect of the mandatory consideration of seeking an outcome which maximises compliance with the Act.

[123]          Third, as at January 2021, there was no basis upon which a Judge could have made  any  reliable  or  realistic  assessment   of   when   the   reasons   preventing Mr Tesimale’s deportation would cease. While flights to Tuvalu could be expected to resume at some point in the future, as the Judge observed, there was at that time “no idea” when Mr Tesimale might be deported.93 And while there were indications that discussions with the Tuvaluan Government would be picked up again in the New Year, the evidence to that point demonstrated that even relatively “concrete” plans has not come to pass. Two repatriation flights scheduled for November 2020 had been cancelled at the last minute, and a further possible flight in January 2021 was also known by 15 January 2021 to be off the table.

[124]          This was, therefore, a case involving a high degree of uncertainty. The period of detention to that point was long, and the risk of reoffending and/or absconding was not high. The available evidence was simply insufficient for a Judge to be satisfied on the balance of probabilities that the circumstances preventing deportation would continue but not for an unreasonable period.

Was the issue of a warrant pursuant to s 317(3) lawful?

[125]          I have concluded  that  the District  Court  Decision,  made on  the basis of     s 317(3), was unlawful. This is because the decision was unreasonable, in that the only reasonable conclusion on the evidence before the Court contradicts the outcome which actually occurred. My reasoning follows.

[126]          I start from the proposition that the threshold for continued detention pursuant to s 317(3) is reasonably high. Baragwanath J observed as much in Yadegary,94 and the second respondent accepts that the position must be clear. The reason for this is

93     New Zealand Immigration v Tesimale, above n 1, at [13].

94 See [69] above.

that for s 317(3) to apply, a Judge will not have been satisfied that detention will not continue for an unreasonable period.

[127]          In this case, by mid-January 2021, Mr Tesimale had been detained pending deportation for a considerable period. That delay was through no fault of his own (or, indeed, of Immigration New Zealand). Notably, Mr Tesimale had taken no steps to challenge his deportation. By all accounts, he was accepting of it.

[128]          As noted, the position looking forward was highly uncertain. That was evident not only from the length of detention already, but also reinforced by the fact the flights proposed in November 2020 and January 2021 had not come about. The highest the evidence could be put (and as recorded in Mr Park’s affidavit in support of the application for a warrant) was that “the Tuvaluan government remains cautious about commencing repatriations from New Zealand but will pick up conversations about this in the New Year”, and that Tuvalu’s borders remained closed for general commercial travel “until March 2021 at the earliest”. Given Mr Park’s affidavit was  sworn on  13 January 2021, the first comment no doubt reflected the draft affidavit prepared by Mr Green before he went on annual leave. But it highlights that Mr Park had no further updating information about those discussions to put before the Court on 15 January 2021. The District Court Decision records a submission by Immigration New Zealand that “the situation can only improve in time now that vaccinations are likely to take place in New Zealand in the second quarter.”95 But that was obviously still several months away. Any optimism towards an improving situation on Immigration New Zealand’s part, which in any event would require buy-in from Tuvalu’s government, was speculative.

[129]          The evidence before the District Court accordingly could not provide any real confidence or comfort that matters would improve in the short term. It is correct that the position would be reviewed in 28 days, but at 15 January 2021, there was nothing to suggest there would be any material change by then.   In those circumstances,    Mr Tesimale was facing indeterminate (though not indefinite) detention. The public interest in detention continuing in such circumstances ought to be clear.

95 At [14].

[130]          The only factor weighing in the public interest of Mr Tesimale’s continued detention was the risk of him reoffending and/or absconding. I consider there were flaws in the way in which these risks were assessed (that is, rather than simply the weight which the Judge ascribed to them).

[131]          Turning first to the risk of reoffending. The Judge observed that Mr Tesimale was essentially an untreated sex offender. That must be a correct assessment, despite Mr Pidgeon’s submission to the contrary. The Parole Board had recorded that as its view, and even Mr Tesimale (in his affidavit sworn in support of his application for judicial review) confirmed that “I did not receive sex offender treatment in prison”. The Judge was also correct when she described Mr Tesimale’s offending in 2004 to 2008 as “serious”.96 On that basis, there was plainly a risk of reoffending.

[132]          It is implicit in the District Court Decision that the risk of reoffending was assessed to be reasonably high.97 But I do not consider that to be an available assessment. As noted, the Parole Board assessed Mr Tesimale’s risk of reoffending as “moderate to low”. There was no evidence Mr Tesimale had offended again in the period from 2008 up to his arrest sometime in 2015. Moreover, the circumstances of his offending, which occurred [Redacted]. I make this observation as it highlights the relevance of an approved residence being available as of September 2020, which does not appear to have been taken into account in the District Court Decision. No young persons resided at that residence and the occupants accepted that Mr Tesimale had offended.

[133]          This also casts a somewhat different light on the Parole Board decisions, the Judge seemingly of the view that the fact Mr Tesimale had been denied parole and served his full sentence reinforced his risk of reoffending.98 As noted earlier, at the first parole hearing, the Board did not have any information about the circumstances which would exist were Mr Tesimale released on parole and immediately deported to Tuvalu. At the second parole hearing, the Board (unsurprisingly) rejected a proposed release and return to Tuvalu where Mr Tesimale would live with his brother’s family,

96     New Zealand Immigration v Tesimale, above n 1, at [20] and [23].

97 Given that the evidence was said to provide “no confidence” that Mr Tesimale would comply with release conditions; at [20].

98 At [4].

which included young children, with no release plan and when his brother did not accept Mr Tesimale had offended. The same obstacle presented at the third parole hearing. Ultimately, the scenario of Mr Tesimale residing at an approved address in New Zealand, subject to reporting conditions and with a release plan, was untested before the Parole Board.

[134]          Turning to the risk of absconding, the length of time Mr Tesimale had “evaded” New Zealand authorities without regularising his immigration status was a key plank of the Judge’s reasoning as to why the public interest mandated his continued detention.99 But I consider  this  to  be  the  wrong  lens  through  which  to  assess Mr Tesimale’s risk of absconding in 2021.

[135]          There is no evidence of Mr Tesimale actively “evading” authorities after having come to their attention. By January 2021, Mr Tesimale had been known to and on Immigration New Zealand’s radar for some four and half years, since being served with the deportation order in September 2016. As noted, he had not taken any steps to challenge that order. While I accept that Mr Tesimale had not had any real opportunity to “evade” authorities since being served with the deportation order (given he was served while in custody), the circumstances in which Mr Tesimale’s risk of absconding fell to be assessed in January 2021 were very different to those existing prior to his arrest in 2015.

[136]          This is accordingly a different type of case to those where the detainee has previously taken active steps to avoid authorities after having come to their attention. Examples to which I was referred include R (Samson Bello) v The Secretary of State for the Home Department, in which the Court accepted the fact that Mr Bello’s family had physically prevented escorts from taking Mr Bello from a hostel in order to give effect to removal orders provided “some support” for a risk of absconding.100 Another is R (Singh) v Secretary of State for the Home Department, in which the Court accepted Mr Singh posed a high risk of absconding, given he had absconded on three separate occasions after having been released from detention pending deportation, and had

99     At [20] and [23].

100   R (Samson Bello) v Secretary of State for the Home Department, above n 37, at [28].

previously committed the offence of failing to comply with sex offender notification requirements.101

[137]          A key question for the Judge in this case was the risk of Mr Tesimale failing to comply with residence and reporting conditions were he to be released under s 320 of the Act. The Judge concluded that:102

…the public interest is such that given the lengthy period of time in which you evaded the Immigration authorities which only ceased when you committed very serious child sexual offending, that (sic) there can be no confidence that you would comply with any conditions that might be imposed should you be released.

(emphasis added)

[138]          In my view however, the evidence was insufficient to justify this conclusion, and/or there was a flaw in the logic of the reasoning to reach it. The fact Mr Tesimale had sexually offended against [Redacted] some 13 to 17 years earlier says relatively little about his likelihood of complying with specific court ordered residence and reporting conditions in 2021. Further, Mr Tesimale being “under the radar” in New Zealand for a 12 year period does not speak directly to the likelihood of him complying with specific court ordered residence and reporting requirements, particularly in the changed circumstances of 2021. And as noted, there was no evidence before the Judge that Mr Tesimale had in the past breached court ordered conditions.

[139]          Tying all the threads together, given the lengthy period of time Mr Tesimale had already been detained, and that when he would be able to be deported was highly uncertain in the context of the COVID-19 pandemic, the countervailing factors justifying his continued detention needed to be clear. Taking into account the need to seek an outcome which maximised compliance with the Act, the risk of Mr Tesimale reoffending and/or absconding was insufficient to reasonably conclude that it was in the public interest to continue to detain him. To put the point another way, the only reasonable conclusion available on the evidence as at 15 January 2021 contradicts the actual outcome.

101   R (Singh) v Secretary of State for the Home Department, above n 25, at 31.

102   New Zealand Immigration v Tesimale, above n 1, at [20].

[140]          Given this conclusion, it is strictly unnecessary for me to address the further argument made by Mr Tesimale that the Judge failed to take into account relevant considerations. I nevertheless make some brief observations.

[141] The suggested (mandatory) relevant considerations which counsel for Mr Tesimale say the Judge failed to take into account are summarised at [13] above. In relation to each of those:

(a)I have discussed NZBORA at [83] – [93] above.

(b)As noted, the Mandela Rules were not pursued, and instead appeared to be replaced by the Hardial Singh principles. I have already discussed the relevance of those principles at [53] and [66] above. Specifically, they are not a separate, mandatory relevant consideration.

(c)I have already rejected the suggestion that the Sentencing Act and/or Parole Act (or particular aspects of them) are a mandatory relevant consideration when determining whether a warrant ought to issue pursuant to ss 317(2) or (3) of the Act.103

(d)In terms of “the practicalities”, the Judge plainly took into account the absence of a craft available to take Mr Tesimale to Tuvalu,104 and that he had the support of his family were he to be released pending deportation.105 I accept that the Judge did not expressly refer to the costs of detention. But I do not consider that a mandatory relevant consideration. It might be a relevant consideration in any given case, for example a lengthy detention and where evidence is put before the Judge as to the costs of that detention. None was in this case. Nor is it apparent that the costs of detention were raised at the hearing before the Judge in any event. There is nothing in this point.

103 See [74] – [76] above.

104   New Zealand Immigration v Tesimale, above n 1, at [6]-[7] and [19].

105 At [9].

(e)I have discussed earlier the context to the Parole Board’s revised special conditions.106 That context confirms that they do not amount to a mandatory relevant consideration.

[142]          Finally, counsel attached as a schedule to their submissions a long list of international conventions and principles said to be (mandatory) relevant considerations which the Judge failed to take into account. The schedule referred to:

(a)“Part 3” of the Act;

(b)“the other purposive provisions of each part of the Act as a whole”;

(c)the International Covenant on Civil and Political Rights;

(d)the Convention Against Torture and other Cruel, Inhumane or Degrading Treatment 1984;

(e)the Siracusa Principles;

(f)NZBORA;

(g)“common law principles” (in favorem liberatis; Hardial Singh

principles);

(h)the Corrections Act 2004, the Sentencing Act 2002, the Parole Act 2002 and the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules);

(i)the Vienna Convention on the Law of Treaties 1969;

(j)the “desirability of comity between nations, e.g. by honouring the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment”;

106   At [25] – [26] above.

(k)an extract from The New Zealand Bill of Rights Act, A Commentary, at p 1098; and

(l)the INZ Operations Manual.

[143]          The vast majority of these matters were not addressed, either at all or in any substantive way, in counsel’s submissions. Nor were most of them pleaded. If they are said to be mandatory relevant considerations which the Judge failed to take into account, they ought to have been pleaded and counsel ought to have made substantive submissions on them (for example, why each was said to be a mandatory relevant consideration and how the Judge failed to take it into account). A scatter-gun approach of simply listing a large number of international conventions and related matters is unhelpful and is to be discouraged. Other than as already addressed in this judgment, I accordingly say nothing further about them.

Result and relief

[144]          Mr Tesimale’s application for judicial review of Mr Park’s Decision is dismissed.

[145]          Mr Tesimale’s application for judicial review of the District Court Decision is granted, on the basis that the decision to issue a warrant was made pursuant to s 317(3) of the Act and that decision was unreasonable.

[146]          As noted at the outset of this judgment, counsel for Mr Tesimale and the second respondent were agreed that if Mr Tesimale’s application were successful, a declaration that the relevant decision was unlawful would be appropriate as vindication of Mr Tesimale’s rights.107 I agree, including because the right involved, liberty, is of the utmost importance.

[147]I accordingly make a declaration that the District Court Decision was unlawful.

107 Attorney General v Taylor [2018] NZSC 104, [2019] 1 NZLR 213 at [56] per Glazebrook and Ellen France JJ and [101] per Elias CJ; see also Just One Life Ltd v Queenstown Lakes District Council [2004] 3 NZLR 226 (CA) at [39].

[148]          Given the District Court Decision has been overtaken by other events, no further relief is required.

[149]          The parties did not address me on costs. Should they not be able to agree costs, Mr Tesimale may file a costs memorandum within 15 working days of this judgment. The respondents may file a response within a further five working days. No memorandum is to be longer than three pages in length (plus any schedules).

[150]Unless I need to hear further from counsel, I will determine costs on the papers.

Fitzgerald J

Addendum:

This judgment was reissued to correct a small number of typographical slips identified in the original.