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The Canary Islands and Detained Asylum Seekers


The Canary Islands and Detained Asylum Seekers:
One might ask what this Spanish Island and imprisoned refugee claimants might have in common: the thought stems from the ratio of the Court of Appeal in a Hague Convention case which necessitated a return to Tenerife: ie, the parens patriae jurisdiction of the High Court's inherent jurisdiction could not be called upon in aid of the appellant in Butler v Craig [2008] NZCA 198; (2008) 28 FRNZ 112. This was a case where Heath J told the writer to stop being a jack-in-the-box instructing solicitor seated in the public gallery, bobbing up to whisper in senior counsel's ear. Aside from that and the return to life of the dormant volcano on La Palma, the link to refugee law is described as twofold: (1) the treatment of refugee claimants is like a canary down the mineshaft for a nation (NZ has a lot to improve) and (2) the practical processing of warrants of commitment under Part 9 of the Immigration Act 2009 would benefit from use of the parens patriae jurisdiction to make the process fairer. Compliance officers of Immigration New Zealand (not lawyers) draft the application and supporting affidavits for District Court judges in busy Lists. Understandably the Court relies on counsel (including the in-house MBIE counsel who are handed forms by the Compliance officers) when making decisions. The respondent's counsel is given 1-2 days before the revolving 28 day hearing to prepare a response having taken instructions (if lucky) from the Prison where the client is held: with limited forewarning of the bases for detention and little or no ability to obtain evidence). While s 3(1) of the Immigration Act 2009 requires a balancing of Crown and the individual's rights, presently the balance is too far in favour of the Crown - and some use of pre-hearing resort to the High Court to even the balance (such as compelling service of papers well in advance of the 28 day cycle) might be needed. Such "aid" would arguably be within the powers of the District Court's inherent powers, but: "[52] The rationale for the suggestion that the High Court should exercise its inherent jurisdiction lies in its supervisory role over inferior courts. We hold that the High Court’s inherent jurisdiction is not available to assist a Family Court when the latter is given express jurisdiction by a statute to exercise originating jurisdiction over all Convention issues. No adjectival jurisdiction is required."

During the Review being undertaken for the Minister of Immigration by Margaret Casey QC of Part 9 of the Immigration Act, a recommendation that the express ability of the High Court to intervene using its inherent jurisdiction be enabled. There is, for example, no ability to grant (electronic) bail to a detained asylum-seeker (which would assist with the prosecution of the underlying refugee claim). This is slightly different to s 320 release on conditions. Electronic bail is not available for detained asylum seekers primarily because Corrections and Immigration New Zealand cannot work out a funding stream. Surely, in trying to have New Zealand keep its international obligations at refugee and complementary protection law - asylum seekers and their counsel deserve a fighting chance?