Thomas v Ministry of Immigration

[2012] NZHC 2513

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2012-419-001329 [2012] NZHC 2513

IN THE MATTER OF     the Habeas Corpus Act 2001

BETWEEN  AARON THOMAS Applicant

ANDMINISTRY OF IMMIGRATION First Respondent

ANDNEW ZEALAND POLICE Second Respondent

Hearing:         27 September 2012

Appearances: No appearance for Applicant

S Cameron for Respondents

Judgment:      27 September 2012

ORAL JUDGMENT OF VENNING J

Solicitors:           Crown Solicitor, Hamilton

Copy to:            Tamatepo Hapu Incorporation, Maori Agents Unit, C/- J Gurnick, 9563 Ngati Maru

Highway, State Highway 26, RD1, Kopu, Thames

THOMAS V MINISTRY OF IMMIGRATION HC HAM CIV-2012-419-001329 [27 September 2012]

[1]      Yesterday the Registrar of the High Court referred an application to me as the Duty  Judge  in  Hamilton.    The  application  was  intituled  in  the  matter  of  an application for a writ of habeas corpus and in the matter of an application under the New Zealand Bill of Rights Act and an application for the High Court to state a case in accordance with s 61 of the Te Ture Whenua Maori Act 1993.   I treated the application as an application for habeas corpus and directed the Registrar to arrange a hearing.   The Registrar allocated a hearing at 10.00 a.m. this morning.   I am advised  by  the  Registrar  that  all  parties  have  been  advised  of  the  hearing  this morning.

[2]      The application was made on behalf of Aaron Thomas by Rawinia Tiareti, a Maori agent.  There is no appearance of on behalf of her or any other appearance on behalf of the applicant.   I am advised that if the application is unsuccessful it is intended that Mr Thomas will be deported from New Zealand later today.

[3]      The matters raised in the application record on the morning of Tuesday 25

September Mr Thomas was arrested at his home in Thames and has been in custody since that time.  The application suggests that the Immigration Department’s actions may be in response to a notice to Department of Immigration that the Hauraki Tribal Authority  considers  the  applicant  a  ‘whangai’,  with,  in  their  words,  “the  same powers and protections as all members of a whanau, hapu according to Te Ture Whenua Maori Act 1993”.

[4]      It is said in the application that that Act allows an application to the High Court whenever questions  of tikanga  arise in  a dispute and  they seek  to  make applications to the High Court for a writ of habeas corpus and to state a question on a tikanga Maori to the Maori Appellate Court as to who has jurisdiction in this matter. The application appears to raise, as I have noted, issues of habeas corpus and the related issue of matters under the Te Ture Whenua Maori Act 1993.

[5]      In relation to habeas corpus this Court is directed to consider whether the detention of Mr Thomas is lawful.  It is for the respondent to satisfy the Court that it

is.  Ms Cameron appears on behalf of the respondents and has provided the Court with background material and relevant documentation. The position is this.

[6]      Mr Thomas was served with a deportation liability notice on 6 December

2011.  The notice was served under s 16 of the Immigration Act 2009.  The copy of the notice I have confirms it was signed by the Minister and there is an acknowledgement  of receipt  of it  by Mr Thomas.   Although  Mr Thomas  is  an Australian citizen and was deemed to have New Zealand residency upon arrival in New Zealand, he lost that residency because within five years of his arrival in New Zealand on 23 February 2007 he was convicted of an offence carrying a maximum penalty of more than two years.   The relevant section of the Immigration Act is s 161(1)(b).

[7]      Mr Thomas was convicted of aggravated burglary, burglary and injuring with intent to injure and on 5 April 2011 was sentenced to two years’ imprisonment.  At that stage he lost his entitlement to residency.  He is obviously not a citizen of New Zealand.

[8]      Although Mr Thomas had the right to appeal against the notice served on him on 6 December that right expired after 28 days.  Mr Thomas did not exercise that right of appeal.

[9]      Recently  the  Immigration  Department,  in  particular  Mr  Gardiner,   an immigration officer, requested police assistance to deport Mr Thomas.  Mr Thomas was a person liable to arrest and detention under s 309 of the Immigration Act as a person liable for deportation.   Section 310 provides jurisdiction for the arrest and detention for the purposes of a person liable for deportation.  They may be detained pending the making of the deportation order and following the making of the deportation order by placing on the first available craft leaving New Zealand.

[10]     Mr Thomas was liable for deportation under those provisions and liable to arrest and detention.

[11]     Section  313  of  the  Immigration  provides  that  a  constable  may,  and  if requested by an immigration officer must, for the purpose set out in section 310 arrest the person without warrant and place them in custody.  It was acting on that authority and at the request of Mr Gardiner that the police arrested Mr Thomas on Tuesday 25 September 2012.   The background provided to the Court records that occurred at about 10.55 a.m. on Tuesday morning.

[12]     Mr Thomas was served with a deportation order.  Again a copy of the order served on him by Mr Gardiner dated 25 September has been provided to the Court.  I note Mr Thomas has acknowledged receipt of that deportation order.

[13]     Section 313(2) provides an assurance as to the length of detention without warrant.  It provides that a person may not be detained for a period longer than 96 hours.  The 96 hour period has not yet expired.

[14]     On  the  information  before  the  Court  I  am  satisfied  that  the  arrest  and detention of Mr Thomas is lawful and there is no basis for this Court to grant a writ of habeas corpus.

[15]     That leaves the other issue raised in the application, the request for this Court to state a case to the Maori Appellate Court.  The jurisdiction for that arises under s 61 of the Te Ture Whenua Maori Act 1993 where any question of tikanga Maori (any question of Maori customary values and practices) arises in the High Court.  It seems to be the case on the part of the applicant in the papers that the application is whangai (adopted).   I note that the jurisdiction to state a case under s 61 is discretionary but in any event this aspect of the application is entirely misconceived.

[16]     No issue of tikanga Maori arises.  The applicant is not a New Zealand citizen. He has lost his rights to residency under New Zealand law.  Whether or not he may be whangai does not confer New Zealand citizenship on him nor exempt him from the provisions of the Immigration Act.  He, like other people within New Zealand, is subject to the provisions of the Citizenship Act 1977 and the Immigration Act.  They are Acts of Parliament which are binding on all persons within the jurisdiction of New Zealand regardless of whether they are Maori or Pakeha or of other race.  This

Court is obliged to give effect to the Acts of Parliament.   There is no basis upon which s 61 of the Te Ture Whenua Maori Act can be engaged in this case.

[17]     The applications are therefore dismissed.

Venning J