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An Iranian overstayer and convicted bigamist who has waged a 10-year battle to stay in New Zealand has been freed from prison after a judge ruled that continued detention breached his human rights.
The High Court judge ordered the release of Iranian asylum-seeker Amir Hoshang Mohebbi, who had
been in jail almost four years under a law passed to keep him there.
Mohebbi was released after an application for bail was heard in the High Court in August. The Government opposed the application.
* Mohebbi was convicted of bigamy after he married New Zealand-resident Iranian Jaran Ahmadian in 1998 while still married to his first wife in Iran. His then wife fled to Australia and obtained a protection order against him.
* His case sparked a rushed amendment to the Immigration Act in 2003 allowing continued detention of overstayers who could not be deported to their home country.
* Last night Immigration Minister Clayton Cosgrove said Parliament would need to look at the case.
Justice Judith Potter has ruled that, after almost four years in jail, Mohebbi's continued detention has become "arbitrary" and therefore breaches the Bill of Rights.
He has returned to live in Pakuranga with his current partner, Philippines-born New Zealand resident Marian Banawa, and their two children, aged 5 and 3.
His lawyer, David Ryken, said Mohebbi's three years and 10 months in jail was the longest period of administrative detention served by anyone in New Zealand since the detention of Japanese citizens at Featherston during World War II.
He hailed Justice Potter's judgment as setting a precedent for future District Court cases.
But the Labour Department has appealed against a High Court judgment by Justice Patricia Courtney in April that the continued detention of another Iranian, Thomas Yadegary, was unreasonable.
Mr Cosgrove said the Yadegary and Mohebbi judgments were "at odds with Parliament's intention" when it changed the law in 2003.
The issue would need to be examined by the select committee now considering the Immigration Bill.
Yadegary, Mohebbi and another Iranian released in September, Ali Panah, all claim to have become Christians and say they cannot return to Iran because converting from Islam to Christianity is a capital offence there.
A Catholic chaplain at the Auckland Central Remand Prison, former Springbok tour protester Father Terry Dibble, said Mohebbi had attended Mass at the prison for three years and he believed he was a genuine Christian.
In her 33-page judgment, Justice Potter says the law change specified that a person unable to leave New Zealand through their own action or inaction could be detained "unless the judge considers that there are exceptional circumstances that justify the person's release".
She considered that after almost four years, the length of Mohebbi's detention was unreasonable.
The Government had been negotiating with Iran since 2004 to get it to accept its nationals without signed applications for travel documents, but "it cannot be said that there is a real possibility for early resolution", the judge said.
There was psychiatric evidence that Mohebbi had "an adjustment disorder with associated psychological morbidity" because of his continued detention.
Justice Potter held that Mohebbi was unlikely to abscond if released because his best chance of gaining residence was to prove his "stable family background".
She noted his evidence that his bigamy conviction arose because he believed he had divorced his first wife in Iran but later found out that the divorce was not finalised until after his marriage to Ms Ahmadian.
Mohebbi has been before a series of New Zealand courts and tribunals over the past 10 years.
The Removal Review Authority said in 2003 it was cynical about Mohebbi's ability to tell the truth.
And in a 1999 decision, it said his conduct over his bigamous marriage had been deplorable.
