Crown fights bail ruling on detainees

By HELEN TUNNAH

The Crown will appeal against a court ruling giving asylum seekers held in jail or at the Mangere refugee centre the right to apply for bail.

Lawyers for the Attorney-General will ask the Court of Appeal to overturn Justice David Baragwanath's interim High Court ruling that people claiming to be refugees can ask for bail while their status is assessed.

Last Friday, Justice Baragwanath said a new Government policy of detaining virtually all asylum seekers broke United Nations rules and could not be sustained.

He stopped short of declaring the detentions unlawful, pending his final judgment, but said the policy introduced after the September 11 terrorist attacks breached the UN Convention on Refugees of which New Zealand is a signatory.

In the High Court at Auckland yesterday, Crown lawyer Andrew Butler sought a stay on the interim order, which would have prevented any claimants applying for bail over the next week, but Justice Baragwanath declined the application.

He said he was reluctant to deprive a person of the right to apply for bail. He said if someone was wrongly detained, the court should terminate that.

"I do not want refugee status claimants to be detained a moment longer than necessary.

"There may be some who are rightly detained. There may be others who ought not be detained when the merits are looked at."

He said a bail hearing could consider those merits.

He cited as a hypothetical example the case of a 97-year-old woman in a nun's habit who may have forgotten her passport. Any detention of her would in his view be wrong.

Justice Baragwanath was asked to review the legality of the detentions by the Refugee Council of New Zealand and the Human Rights Foundation, which argued that the detentions breached the convention and broke New Zealand law.

One refugee who was detained, known only as D, has filed a compensation claim for wrongful arrest for $150,000. Other damages claims are expected to follow if the Crown loses the case.

The new policy of detaining refugee claimants, either at Mt Eden Remand Centre or the Mangere Refugee Resettlement Centre, was introduced on September 19.

Previously, just 5 per cent of refugee claimants were detained. After the new policy was introduced by the Immigration Service, detentions rose to about 95 per cent or 208 out of 221 people who arrived here between September 19 and January 31.

Human Rights Foundation spokesman Peter Hosking said he welcomed Justice Baragwanath's interim decision but was disappointed that the Crown intended to appeal over the bail ruling.

He said the foundation did not disagree with detaining people considered a real risk to New Zealand.

However, those caught up in past detentions included a pregnant woman and a 14-year-old boy.

"We too are concerned about security but we think just because there are concerns about a few doesn't justify detaining everybody."

Feature: Immigration