Echo Yang, Aka Hong Yi Yang and Anor v Superintendent of Auckland Region Womens Corrections Facility and Ors

• Jurisdiction: New Zealand
• Judge: KEANE J
• Judgment Date: 07 September 2010
• Neutral Citation: [2010] NZHC 1552
• Date: 07 September 2010
• Court: High Court
• Docket Number: CIV 2010-404-005829

[2010] NZHC 1552

IN THE COURT OF APPEAL OF NEW ZEALAND

CIV 2010-404-005829

CIV 2010-404-5829

Under the Habeas Corpus Act 2001

Between

Echo Yang, Aka Hong Yi Yang

First Applicant

and

David Li Aka Ha Wei Li

Second Applicant

and

Superintendent of Auckland Region Womens Corrections Facility

First Respondent

and

The Superintendent of Waikeria Prison

Second Respondent

and

The District Court of New Zealand At Tauranga

Third Respondent

Under the Habeas Corpus Act 2001

Between

And Under the Judicature Amendment Act 1972

Echo Yang, Aka Hong Yi Yang

First Plaintiff

and

David Li Aka Ha Wei Li

Second Plaintiff

and

The Attorney General

First Defendant

and

The District Court of New Zealand At Tauranga

Second Defendant

Appearances:

F C Deliu for App1icants/Plaintiffs

A M Powell for Respondents/Defendants

JUDGMENT OF KEANE J

1 The applicants, Ms Yang and Mr Li, who seek release from their present detention under the Immigration Act 1987, are husband and wife. They are from China. In November 2000 they became citizens of Nauru. In November 2002 they entered New Zealand on Nauruan passports. They have been overstayers since 2004.

2 On 13 May 2010 Mr Li, who had been in custody for some time having been charged with injuring with intent to injure Ms Yang, was sentenced to eight months imprisonment in the District Court, Tauranga. On that day also, at the Court, both were served with removal orders under the Immigration Act 1987. An immigration officer, then or later, applied to that Court for the issue of warrants of commitment.

3 On the face of the incomplete papers that I have those applications were seemingly set down for 14 May. Whether orders were then made is not evident. The first order I have was not made until 8 July 2010. But no issue arises as to their initial detention. That seven day order was extended, first by 28 days, then by 14 days and again most recently on 18 August 2010 by a further 28 days. It is to expire on 15 September 2010. It is that last order that is in issue.

4 By applications filed on Friday, 3 September 2010, Mr Li and Ms Yang seek immediate release on a writ of habeas corpus, or by way of judicial review an order quashing the warrants, dated 18 August 2010. Those applications were set down before me in the Duty Judge List for Monday, 6 September 2010; and I accorded the habeas corpus application urgency.

5 A notice of opposition was filed in the habeas corpus proceeding on behalf of the Superintendents of the Auckland Region Womens Correction Facility and Waikeria Prison but not on behalf of the third respondent, the District Court, Tauranga. That Court, it is the Crown's position, is not properly a party.

6 In the course of an interrupted hearing throughout the day counsel for Ms Yang and Mr Li pressed for their immediate release by writ of habeas corpus. Counsel for the Crown, while opposing that, proposed instead, after instructions, interim orders, on oral application in the review proceeding, permitting their conditional release; such terms to be reviewed and confirmed by the District Court under the Immigration Act 1987.

7 Ms Yang and Mr Li, I consider, must be released forthwith but, as the Crown says, conditionally and not outright; and I will decline their application for a writ of habeas corpus but make interim orders for their conditional release. Counsel for Ms Yang and Mr Li, though contending still for the issue of a writ of habeas corpus, accepts the Crown's terms are not unreasonable.

Section 60 regime

8 It is uncontested that Ms Yang and Mr Li, overstayers since 2004, were, when served with the removal order on 13 May 2010, unlawfully in New Zealand and liable to be removed. 1 There is no issue as to the efficacy of the removal orders. 2 Nor that they became liable to be taken into custody and the order executed. 3 Nor as to the fact of their arrest without warrant. 4 Nor that, on their arrest, they were liable to be detained for up to 72 hours pending removal. 5 The issues that arise concern the warrants of commitment issued under s 60.

9 Section 60, the Court of Appeal held in Chief Executive of Department of Labour v Yadegary, 6 has as its principal purpose to facilitate the removal of unlawful immigrants, if need be by keeping them in custody to coerce them to co-operate. It governs their detention on first appearance, an aspect of the section that does not arise here. It also governs their detention, or conditional release, on a second or subsequent appearance; the powers in issue on 18 August 2010.

10 On that date the Judge elected not to exercise the circumscribed power given him by s 60(5) to release Ms Yang and Mr Li on terms; that power being expressed in this way:

If a person is brought before a Judge under subsection (4) for a second or subsequent time the Judge may, where it seems likely that the detention may need to be extended a number of times, and where satisfied that the person is unlikely to abscond otherwise than by leaving New Zealand, instead of extending the warrant of commitment for a further period of up to 7 days, order that the person be released subject to—

• (a) Such conditions as to the person's place of residence or as to reporting at specified intervals to an office of the Department of Labour or a Police station as the Judge thinks fits; and

• (b) Such other conditions as the Judge may think fit to impose for the purpose of ensuring compliance with the residence and reporting conditions.

11 Instead the Judge considered himself obliged by s 60(6) to extend the term of the warrant of commitment under s 60(6A); and s 60(6) says this:

Unless the Judge considers that there are exceptional circumstances that justify the person's release, a Judge may not order the release of a person under subsection (5) if—

• (a) …

• (b) 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 removal order was served.

12 Material to the Judge's decision was s 60(8) under which he was ‘to seek to achieve an outcome that ensures a high level of compliance with immigration laws’. He had also to take into account s 60(7), which says:

No person may be detained under 1 or more warrants of commitment under this Part for a consecutive period of more than 3 months, unless the person is a person to whom subsection (6) applies.

Impugned decision

13 On 18 August 2010 the Judge had updating affidavits from the immigration officer, seeking to have the warrant of commitment extended, completed the day before. The officer said that Mr Li and Ms Yang had not been deported because they continued to refuse to complete applications for Chinese travel documents. They did not, the officer said, have current Nauru passports, and might be declined any. They had obtained Nauru passports under an investment policy of the Nauru Government. Mr Li's conviction could be complicating, as could an application against both still to be resolved under the Proceeds of Crime Act 1991. He identified five reasons why, if released, they were likely to abscond.

14 Counsel for Ms Yang and Mr Li, not their present counsel, submitted that they had not been unco-operative. By taking out Nauruan citizenship they had relinquished Chinese citizenship. They were not entitled...