Zaoui v Attorney-General - [2004] NZCA 228

IN THE COURT OF APPEAL OF NEW ZEALAND
CA166/04
BETWEENAHMED ZAOUI

Appellant

ANDATTORNEY-GENERAL

First Respondent
ANDSUPERINTENDENT, AUCKLAND CENTRAL REMAND PRISON

Second Respondent
ANDHUMAN RIGHTS COMMISSION

Intervener

Hearing:6 and 7 September 2004

Coram:McGrath J
Hammond J
O'Regan J
Appearances: R E Harrison QC and D Manning for Appellant

C R Gwyn, I C Carter and T M A Luey for First and Second Respondents
R M Hesketh and S A Bell for Intervener

Judgment:17 September 2004

JUDGMENTS OF THE COURT

Judgments

Para No

McGrath J [1] to [114]

Hammond J [115] to [221]

O’Regan J [222] to [272]

McGRATH J

Table of Contents

PARAGRAPH NUMBER

Introduction 1

Facts 4

Judgment under appeal 10

Immigration Act 1987:Part 4A procedures 17

Mr Zaoui’s case 29

Approach to interpretation 32

Warrant of commitment 37

Is detention under Part 4A mandatory? 57

Inherent jurisdiction to grant bail 71

Habeas Corpus orders 77

Is the detention of Mr Zaoui arbitrary? 84

Cruel or degrading treatment 103

Conclusion and summary of judgment 109

Introduction
[1] This appeal concerns the application of provisions in the Immigration Act 1987 (the 1987 Act) and in particular Part 4A which provides for special procedures in the case of persons concerning whom immigration decisions are to be made, where classified information indicates that they pose a risk to national security. Application of the Part 4A process to a person who is not a New Zealand citizen can, following exercise of a right of review, lead directly to the removal or deportation of the person concerned. Part 4A also provides for the detention of such persons, once a preliminary decision has been taken by the responsible Minister to rely upon an earlier decision by the Director of Security that the person is a security risk to New Zealand. If the person seeks a review then he or she is detained while the Director’s decision is reviewed by the Inspector-General of Intelligence and Security, an independent statutory officer who has held office as a Judge of the High Court.
[2] The central issue in the appeal concerns whether the appellant, Mr Ahmed Zaoui, who has the status of a refugee under the United Nations Convention Relating to the Status of Refugees 1951 (the Refugee Convention), and who is also the subject of a security risk certificate under Part 4A which is presently the subject of review, is lawfully detained under the 1987 Act. Mr Zaoui is an Algerian national who is currently detained at the Auckland Central Remand Prison pursuant to a warrant of commitment issued by a District Court Judge at the Manukau District Court on 28 March 2003 under ss114G(6) and 114O of the 1987 Act. Mr Zaoui has made a number of applications to the High Court with the objective of obtaining his release from detention or his transfer to a less onerous form of detention at the Mangere Detention Centre. These applications were heard together by Paterson J in the High Court. In a judgment delivered on 16 July 2004…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] NZCA 228
Decision Date: 17 September 2004

CaseChat Overview and Summary

This appeal concerns the detention of Ahmed Zaoui under the Immigration Act 1987 (the 1987 Act). Mr Zaoui is an Algerian national who arrived in New Zealand on a false passport and was detained under the 1987 Act. He has been detained for over twenty-one months while a security risk certificate and subsequent review process is undertaken. The central issue in the appeal is whether Mr Zaoui is lawfully detained under the 1987 Act. Mr Zaoui argues that his detention is unlawful and that he should be released on bail or transferred to a less onerous form of detention. The appeal was heard by Paterson J in the High Court, who dismissed all of Mr Zaoui's applications. Mr Zaoui now appeals to the Court of Appeal.

The Court of Appeal found that the warrant of commitment issued by the District Court was valid and did not limit detention to a penal institution. However, the Court held that there was no power to vary the warrant to alter the place of detention. The Court found that detention under Part 4A of the 1987 Act is mandatory and that there is no inherent jurisdiction to grant bail. The Court concluded that the High Court was unable to exercise its jurisdiction to grant Mr Zaoui bail under its inherent jurisdiction, as the exercise of such jurisdiction would be contrary to the statutory scheme. The Court did not rule out the possibility of a grant of bail by the High Court in its inherent jurisdiction if the circumstances of the case warranted it. The Court found that Mr Zaoui's detention was not arbitrary and that he had not been subjected to cruel or degrading treatment. The Court dismissed the appeal.

Orders