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Immigration New Zealand v Tesimale [2020] NZDC 25917

Published 01 June 2022

Warrant of commitment — deportation notice — arbitrary detention — COVID-19 — international travel restrictions — right of appeal — Immigration Act 2009, ss 316 & 323 — New Zealand Bill of Rights Act 1990 — District Court Act 2016, s 124. The applicant, Immigration New Zealand, sought a warrant of commitment under s 316 of the Immigration Act in respect of the defendant for a further seven-day period. The defendant had been issued a deportation notice but due to the international travel restrictions as a result of the COVID-19 pandemic, deportation to his home country had not been possible. There had been three previous warrants of commitment granted over a six-month period. Counsel for the defendant raised concerns that the continued warrants constituted arbitrary detention and were a breach on the defendant's human rights, and sought some way to appeal the continued warrants. The Immigration Act sets out procedures and protocols for immigration matters in New Zealand, but s 316 does not specify any right of appeal. A possible avenue for appeal to the High Court might be by way of s 124 of the District Court Act. The Judge noted this hearing was not to determine that issue, but an opportunity to highlight that the defendant had few avenues of redress to appeal decisions related to his ongoing commitment. In considering the application, the Judge noted that the question that must be asked was whether anything had changed in the defendant's circumstances, similar to a bail hearing. The Judge noted that for the purposes of the application before the Court, nothing had changed, and the warrant of commitment for a further seven days was granted. Judgment Date: 11 December 2020.