Judge reserves asylum finding

By HELEN TUNNAH

A legal challenge to the Government policy of detaining almost all asylum seekers who have arrived since September 11 argues that new laws cannot make the original policy right.

Dr Rodney Harrison told the High Court at Auckland yesterday that if Parliament had "blundered ahead" in passing the Immigration Amendment Act last week without waiting for the court's expected ruling, it was up to Parliament to fix any mistakes.

The amendments could not retrospectively make the detention lawful.

Dr Harrison represents the Refugee Council of New Zealand, the Human Rights Foundation and one refugee, who has name suppression, in a challenge to the lawfulness of the detention policy. The refugee is claiming $150,000 for unlawful detention.

Between September 19, when the Immigration Service began applying the new policy, and January 31, 208 out of 221 asylum seekers arriving were held in jail or at the Mangere Refugee Resettlement Centre.

Before the service issued its new operational instruction, only 5 per cent of refugee claimants were declared a flight or security risk and held.

Justice David Baragwanath heard final submissions from Dr Harrison and the Attorney-General's solicitors yesterday, and reserved his decision.

He has already made an interim ruling saying the policy breaches the United Nations Convention on Refugees, which is recognised by New Zealand law.

However, in his interim ruling he said planned law changes might alter the policy, and therefore the outcome of the case.

The Immigration Amendment Act was passed by Parliament under urgency last week, and includes new provisions for those claiming refugee status to apply to be conditionally released from detention.

Dr Harrison said the law change had not altered the scope of the power of detention. It had altered the ability for a person to be released.

Deputy Solicitor-General Helen Aikman said it remained the Crown's argument that the detentions were lawful under both the operational instruction and the Immigration Act.

She said the Crown was not asking for the new law to apply retrospectively, because it believed the previous law was also correct.

She said the operational instruction might have been poorly worded, but it did give immigration officers the ability to use their discretion whether someone should be detained.

Justice Baragwanath said the instruction was "at the least, a confusing document".

In his interim ruling, Justice Baragwanath declared that refugee status claimants could apply for bail under the Immigration Act. The Crown has already lodged an appeal against that part of the decision.

Feature: Immigration