Wednesday, June 06, 2007

More indefinite detentions

New Zealand First is banging the xenophobia drum again, complaining about the difficulty of deporting people when they refuse to sign the papers required for their travel documentation (something which incidentally is entirely in the hands of the destination governments, not the New Zealand government). But their xenophobia has served a useful purpose: it has highlighted the use of prolonged detention without trial in New Zealand.

According to answers to Parliamentary questions, there are 51 people currently detained under the Immigration Act (table here [PDF]). Nine of these are detained under s59, essentially waiting for their plane. 16 are detained under s128, which applies to people who show up without permits or are refused entry at the border. These are usually refugee claimants, and so most are held at the Mangere detention "accommodation" centre (though three are in prison, all from Muslim countries, one who has been held for six months). The remaining 23 are detained under a Warrant of Commitment issued under s60, and it is this group which is most troubling. Section 60 allows people to be detained for up to three months on a monthly warrant of commitment where it will take more than three days to make travel arrangements (either because they have no documentation, or because of timetabling issues) - and this seems acceptable. The problem is that it also allows longer detention where people refuse to cooperate in their own deportation. As many of those detained under this clause are failed refugee claimants who have very good reasons not to return home (for example, they fear being killed or tortured, regardless of how the New Zealand authorities (who you can safely say have never faced such danger) assess the risks), it can result in effectively indefinite detention.

We saw this in the case of Thomas Yadegary, who was freed in April after being imprisoned for more than two years for refusing to sign a passport application he views as his own death warrant. But Yadegary isn't the only one. According to the Ministry of Immigration's figures, there are six people - four Iranians, a Chinese and a Czech - who have been imprisoned for more than a year. Two of them have been imprisoned for more than two years - without any sort of trial, let alone a conviction. They are in prison purely for the convenience of the authorities, in an effort to coerce them into signing travel documents.

This is simply wrong. Regardless of what you think about immigration and the need for deportation, this sort of prolonged detention without trial goes against our deepest values. Throwing people in jail and keeping them forever is the sort of practice indulged in by absolute monarchs, third-world despots, or the Americans in their Caribbean gulag in Guantanamo - not by my New Zealand.


All of this is true and it is simply immoral to send someone back to a situation where they will be killed or tortured. The government may as well do it themselves and save on the carbon emissions from the flight home.

The flipside is that if they can't be imprisoned, anyone, genuine refugee or otherwise, will be gauranteed entry to NZ if they refuse to sign their travel documents. What is your solution to this problem?


Posted by Anonymous : 6/06/2007 09:24:00 PM

I would very much like to hear the answer to Mike's question only.

What should the state do when someone who has no legal right to be in NZ refuses to leave?

Posted by David Farrar : 6/07/2007 07:54:00 AM

Mike: I don't have a problem with imprisonment consequent to immdiate deportation; if the police need to sit on someone for a couple of days while waiting for appropriate transport, then that seems justified. But where there will be no deportation, imprisonment becomes bothing but pointless sadism, misery run to waste. And that's what we're seeing now. And judging from the Yadegary case, it seems our courts agree.

Frankly, if someone is willing to put up with three month's jail for the right to stay in New Zealand, I'd say let 'em. At least it shows they're keen.

Posted by Idiot/Savant : 6/07/2007 08:31:00 AM

DPF: I have a better question: how sadistic and vicious are you willing to be simply to prove that you are a hardarse? Because that's all this is about. The imprisonment serves no purpose - people will not sign travel documents when they believe they will be murdered or tortured at the other end. It is simply an exercise in pointless sadism.

So, how pointlessly vicious are you willing to be?

Posted by Idiot/Savant : 6/07/2007 08:34:00 AM

I/S - you can draw an analogy with other continuing offences - yes, big corporate X continues to illegally discharge effluent into some otherwise pristine river, but the fine for doing it a week ago didn't stop them, and the fine for the day after that, and after that and yesterday, and tomorrow won't stop them so why keep fining them?

Now certain immigration offences aren't expressed as continuing offences, but making new ones - being unlawfully in New Zealand - wouldn't be too difficult (and need only be applied prospectively).

Though I suppose this would meet your objection to having these people in prison without conviction, would a system in which people were punished (on proof and conviction) for being unlawfully in New Zealand really be all that much better? Imprison them, then let them out then rearrest them for the new offence of being unlawfully in New Zealand on a later date, then reimprison them...

Posted by Graeme Edgeler : 6/07/2007 10:28:00 AM

I/S said:

"Frankly, if someone is willing to put up with three month's jail for the right to stay in New Zealand, I'd say let 'em. At least it shows they're keen."

Are you serious I/S when you say that anyone who gets here and spends their three months in detention should be allowed to stay? Getting access to health care, education, income support?

Presumably without having to undergo any identity checks, police clearance checks from their previous country, health or character checks?

Posted by Anonymous : 6/07/2007 05:04:00 PM

Anon: Are you serious I/S when you say that anyone who gets here and spends their three months in detention should be allowed to stay? Getting access to health care, education, income support?

Yes, I am. Because no matter what you might want, we can't send them back, and I am neither sadistic nor inhumane enough to believe that we can just keep them in jail forever.

A fundamental foundation of our system is that detention must serve a purpose. Prolonged immigration detention serves no purpose whatsoever. It is simply pointless, vicious sadism.

I do not believe that is what this country is about, and I do not believe that it is worth compromising our fundamental values simply so people like you can posture as hardarses.

Posted by Idiot/Savant : 6/07/2007 05:33:00 PM

I should add: people seem to be under a mistaken impression that indefinite immigration detention works. It doesn't. The current regime was created in 2003, as a knee-jerk response to a detainee serving the then-three-month limit and then successfully challenging his detention. Following the amendment of the law, he was re-arrested, and has been in prison ever since. The attempt to coerce him into signing a passport application he views as his own death warrant has been nothing but a hugely expensive and pointless act of sadism.

Posted by Idiot/Savant : 6/07/2007 05:40:00 PM

Graeme: while we could punish people for being unlawfully in New Zealand, we are forbidden by international law from doing it in refugee cases.

Posted by Idiot/Savant : 6/07/2007 05:43:00 PM

I/S - your response shows the lack of credibility for your position.

Under your policies every illegal immigrant in existence can stay here by refusing to sign their deportation papers, if they come from the right countries.

Laws have to be upheld. Nothing to do with sadism. It is to do with having a society based on democratic law instead of anarchy and rule of might.

Just as someone may eventually go to jail if they refuse to pay their fines, likewise you go to jail if you refuse to sign your deportation papers.

I/S doesn't actually beleive much in incentives or motivation. But the rest of teh world does. If there is no punishment for refusing to be deported, then a huge number of people will do the same thing.

So yes one has to be hard arsed. To give an incentive for others not to follow the example of the people who refuse to sign.

Really I/S you should join the Libertarianz with your support for laws being voluntary.

Posted by David Farrar : 6/07/2007 05:54:00 PM

DPF: And I think yours displays your total lack of humanity. But then, sadism and inhuamnity are de rigeur on the right these days, aren't they?

As for laws needing to be upheld, what about our laws against indefinite detention in the BORA? And more importantly, the principles underlying those laws, going back all the way to the Magna Carta? But it seems you'd rather ignore our entire legal tradition in favour of posturing.

We do not have a huge number of people impeding their deportation. it is not a large problem from an immigration standpoint. It is however a large moral problem - and one you sadly seem utterly blind to. And you call yourself a "liberal"?

Posted by Idiot/Savant : 6/07/2007 06:05:00 PM

DPF: Just as someone may eventually go to jail if they refuse to pay their fines, likewise you go to jail if you refuse to sign your deportation papers.

That's not the case. Firstly, its not deportation papers which are at issue here, but applications for travel documents. Secondly, the detention is for the purpose of effecting removal; s60 (6) overrides the normal three month limit in the case of people who refuse to cooperate, but this does not change the underlying purpose of detention. Thirdly, your contention that a court can order people to sign a passport application and imprison them if they do not is false - see Mohebbi v Minister of Immigration [2003] NZAR 685.

If you want the government to be able to jail people to force them to sign papers, you'll need to seek a law change. but at the moment, it can imprison only to effect removal. Needless to say, I think the fact that these people have not been removed suggests that the detention does not serve its purpose, and that they should therefore be released.

Posted by Idiot/Savant : 6/07/2007 06:15:00 PM

You forget I/S - David Farrar has been a welcome guest at the Freedom Ranch. He's been touched by dazzling light of the neo-cons, and is a believer in Israel, the United States of America and the war for freedom, which involves locking up at lot of people.

Posted by Sanctuary : 6/07/2007 06:17:00 PM

"while we could punish people for being unlawfully in New Zealand, we are forbidden by international law from doing it in refugee cases."

True, but irrelevant. We're discussing people whose refugee claims have been denied, and all appeals exercised (and failed).

Refugee Convention Article 31:

"Refugees unlawfully in the country of refuge

1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence."

Yadegary (and the others) have not shown good cause for their illegal entry (or presence). They've tried to show good cause, and failed. They are not refugees, they are not refugee claimants. They are no longer protected by the Refugee Convention.

Posted by Graeme Edgeler : 6/07/2007 06:24:00 PM

If people who are found to not be refugees refuse to leave NZ, they are exploiting a weakness in our asylum system. The result of people "abusing" the protection system has been that NZ, in common with Canada, the US and Europe, is making it increasingly difficult for asylum seekers to come to NZ in the first place. So, you might argue that it's pointless or wrong to keep people in prison, and they should be released, but ultimately, this will lead to governments like ours, and immigration departments charged with removing people who are here illegally, shutting down the asylum system. Result? - those who are genuinely in need of protection will not get it, because others "just wanted to stay in NZ".

Those who refuse to sign their travel docs to return home should be returned by other means (ie. their country agrees to issue docs anyway).

Failed asylum seekers held under s 60 were those found to not be in any danger. We operate a world class asylum system here in NZ - ask the UNHCR. If there was a whiff of credibility about their claim or a small but real chance they were at risk, they'd get approved. NZ has returned numerous failed asylum seekers to their home countries, including Iran, with no record of consequent mistreatment. People who accept asylum seeker stories on face value should check out the numerous credibility decisions on the net at People do lie to stay here. We should not allow them to ruin the very good and fair asylum system we have.

Posted by Anonymous : 6/08/2007 09:31:00 AM


I am not convinced that your “Guantanamo” comparison is accurate. Mr Yadegary (like the other detainees) is entirely the author of his own misfortune and could have left detention at any time. He chose to stay in prison. I think you will find that those detained by the “absolute monarchs, third-world despots, or the Americans in their Caribbean gulag in Guantanamo” are not free to return, at any time, to their home countries as Mr Yadegary and the other detainees are.


Posted by Anonymous : 6/08/2007 09:55:00 AM

Yet again, what an extraordinary world you live in, Idiot.

The United Nations has established a process on the treatment of refugees. New Zealand has signed up to that process. The process says that anybody coming to New Zealand can claim refugee status, but that an immigration officer then sits down with them to determine the veracity of that claim, as set down by international law.

Now, it appears that many people who claim refugee status aren't actually entitled to it. So New Zealand's response is to send them home.

What you're saying, Idiot, is that firstly you don't have any faith in the credibility of the UN-sanctioned system to determine the status of refugees, and you're more than happy to see floods of people claiming refugee status, refusing to return home when it is declined, and for those people to be allowed to remain in New Zealand after spending three months in jail.

What a bizarre outcome. What's the point in having any immigration processes at all?

Posted by Insolent Prick : 6/14/2007 05:17:00 PM

The point of having immigration processess( controls) is to regulate the movement of labour. In the name of freedom all immigration controls should be scrapped, and in a future more civilised world they will be. Bring that happy day closer by defending the rights of refugees and asylum seekers penalised by the Labour yuppies.

Don Franks

Posted by Anonymous : 6/19/2007 07:02:00 PM