Dalziel Lianne: Immigration Amendment Bill — Instructions to CommitteeCWH In Committee 
Dalziel Lianne: Immigration Amendment Bill — Instructions to CommitteeCWH In Committee 
[Volume:611;Page:8254] 
Hon LIANNE DALZIEL (Minister of Immigration) 
: 
 I move  
That it be an instruction to the Committee of the whole House on the Immigration Amendment Bill that it have the power to consider and if it thinks fit adopt the amendments set out in Supplementary Order Paper 131. 
I begin by thanking the parties in the House that have responded positively to my request that support be given to the Supplementary Order Paper in my name. I apologise for the lateness of the advice to parties; however the High Court decision that it addresses was delivered on 7 August 2003. I took immediate advice from the Department of Labour a paper was taken to Cabinet committees last week and this measure was confirmed by Cabinet yesterday and by our own caucus today. As soon as our caucus confirmed the introduction of the Supplementary Order Paper I signed letters to each of the parties and received immediately positive responses from United Future the National Party and New Zealand First. I thank them for their willingness to address what is a fundamental flaw in the Immigration Act. 
Details of the Mohebbi case were reported in the  
New Zealand Herald  
on Friday 8 August. This is a very important decision; it has very serious implications for New Zealand’s security and it is a matter that this House must address. We have the opportunity of the Immigration Amendment Bill to do so. Essentially the individual concerned utilised every avenue to remain in New Zealand including marrying a New Zealander despite already being married to another woman. He was convicted of bigamy and his residence application—quite rightly—was declined. A further appeal to the Removal Review Authority on the basis of a new relationship and a new son was dismissed. The authority observed: “The appellant’s evidence is untrustworthy and he will mould his evidence to suit whatever current purpose he has.” He was given 7 days to leave New Zealand. He did not. He came to the attention of the police in March this year and as a result was detained under the Immigration Act. 
Rt Hon Winston Peters 
: There were 20000 overstayers. 
Hon LIANNE DALZIEL 
: Mr Peters’ party has already agreed to support this amendment to the Immigration Act and therefore I would have thought his assistance would be rather more graciously given. 
Mr Mohebbi then applied to the High Court for an interim restraint of the decision to remove him ahead of judicial review. This was dismissed as hopeless by the High Court. The substantive application for judicial review still awaits a full hearing. 
In the meantime the New Zealand Immigration Service has been unable to remove Mr Mohebbi. Why? Because it cannot get a travel document for him. Why? Because he has refused to request one from his own country’s embassy. The 3-month limitation on detention under section 60 of the Immigration Act came to an end so the Immigration Service sought to detain him under section 138A. Under that section an immigration officer—where the officer has good cause to suspect that a person is in New Zealand unlawfully and is liable to be removed—for the purpose of establishing identity may request that the person provide documents. If the person fails to comply with this provision he or she may be placed in custody and brought before the District Court to establish identity. 
The District Court accepted this approach in June this year largely because a failure to do so and I quote from the judge “countenanced the deliberate non-compliance with New Zealand laws”. The District Court therefore ordered the respondent to produce a passport or to assist the Immigration Service in the application for one and ordered his continued detention for 30 days or until the order was complied with and brought back for determination of identity. The judge said for the sake of completeness that he would have made those orders even if he had been satisfied as to identity. 
On an application under the Habeas Corpus Act the High Court ruled that section 138A could not be used in that way and that as section 60 had a 3-month limitation he could not be held under the Immigration Act. Justice Chambers concluded “albeit with some reluctance” that a writ of habeas corpus must be issued and ordered the release of Mr Mohebbi. 
That result was not in the minds of the drafters of section 60. That provision was written into the Act in 1999. I sat on the select committee that considered the bill and I cannot recall even discussing the possibility of such wilful non-cooperation leaving New Zealand exposed to the release from detention of such an individual. The Supplementary Order Paper will enable a judge not the Immigration Service to extend the warrant of commitment where the person’s own action or inaction either directly or indirectly results in the person being unable to leave New Zealand. 
In conclusion I want to mention that another individual was released by the District Court as a result of the Mohebbi decision. That individual is back in custody but I have to say in terrible circumstances. That individual is facing charges following the shooting of a Manurewa woman in her backyard almost 3 weeks ago. Although those are only charges at this stage they serve to highlight the danger associated with our not addressing this important matter. 
I believe that the House is quite right to allow the Committee of the whole House to extend its consideration of the Immigration Amendment Bill to include a matter that is not normally within its ambit. I therefore call on members of the House to support this motion. Again I thank members of United Future the National Party and New Zealand First for setting aside politics on this occasion and agreeing to address this urgent matter.