Govt must keep right to refuse entry, asylum case told

3.15pm

The Government must be able to reserve the right to refuse entry to anyone coming into the country who is not a New Zealand citizen, the Court of Appeal was told today.

Deputy Solicitor General Helen Aikman, representing the crown, made submissions today appealing against a High Court decision that the Government's practice of detaining most asylum seekers was unlawful.

She told Justices Blanchard, Tipping, McGrath, Anderson and Glazebrook at the Appeal Court in Wellington of the need to detain those who were not granted permits at the border when they first arrived.

"No one who is not a New Zealand citizen has a right to enter New Zealand. It is the Government's right as to who is allowed to enter New Zealand.

"What has happened after September 2001 is that there has been increased emphasis on ensuring the identity of persons and until they know who they are we don't know if they constitute a security risk."

In a High Court ruling in June, Justice Baragwanath said an Immigration Service operational instruction outlining detention was unlawful and breached New Zealand's obligation under the United Nations convention on refugees.

New Zealand introduced a new detention regime amid security concerns following the September 11 attacks, which meant almost all asylum seekers who now arrive here are detained either in jail or at the Mangere Refugee Resettlement Centre.

Before the attacks, most asylum seekers were released into the community.

The Human Rights Foundation and the Refugee Council challenged the legality of the detentions, provided for under the operating instruction issued by the Immigration Service.

One refugee, who has name suppression, has filed a claim for $150,000, alleging wrongful arrest.

Lawyers for the two groups argued the detentions were illegal under the Immigration Act, partly because the law recognises New Zealand's obligations under the UN Convention on Refugees.

Crown lawyers argued it was not reasonable for officials to give a person a permit to enter New Zealand when it was not known who they were. Detention at Mangere was also not harsh, and asylum-seekers taken there could apply for day leave passes.

Today the court was told how the Immigration Department had used one particular feature of the Immigration Act in order to justify refugees' detention.

However, Justice Tipping noted the department was left in a difficult position because it may have been forced to stretch the intent of the wording in the section.

The department was bound to detain the refugee status claimants because they were not in New Zealand legally until they had a refugee permit.

They were also not allowed to return people directly back to where they came before their permit was considered.

The court case has already attracted international attention from other governments that have also introduced stricter refugee policies since the September 11 attacks on the United States last year which killed more than 3000 people.

The October 12 terrorist bombing in Bali, in which more than 180 people died, most of them Australians, is also expected to increase interest in the case.

- NZPA

Further reading
Feature: Immigration