Indian ‘was wrongfully held’

Press, 26 December 1985, Page 5

Indian ‘was wrongfully held’

A High Court judge has confirmed his interim finding that an Indian who sought refugee status in New Zealand was unlawfully detained for 114 days in 1983.

In a 78-page decision Mr Justice Chilwell found that the Indian, Jagpal Singh Benipal, was wrongfully held in Mount Eden prison between. May 15 and September 6, 1983. His honour also declared that the Auckland District Court warrant used to detain Benipal under a section of the Immigration Act was invalid.

He further declared that the district court registrar, Mr Alan McGuffog, mistaken about the facts, had no jurisdiction and acted

unfairly when he issued the warrant; and that the police had also unlawfully detained Benipal before he went to prison. The judgement confirmed and gave reasons for His Honour’s interim decision last November on a writ of habeas corpus filed! by Benipal’s lawyers against his detention.

In that 382-page decision, His Honour declared invalid the rejection of Benipal’s application for refugee status.

It ordered the Ministers of Foreign Affairs and Immigration, Mr Lange and Mr Burke, respectively, to reconsider ana determine the application. Benipal, a 27-year-old Sikh, sought refugee status

because he was a member of a banned separatist group in India and feared persecution. He arrived in Auckland on May 15, 1983, bearing a false Dutch passport which was discovered by customs officers at Auckland Airport. In the decision His Honour said the police arrested Benipal the same day under Section 161 of the Immigration Act relating to obtaining an entry permit using a false document However, Labour Department immigration officers decided the next day to proceed under section 14a of the act.

That section says that where a temporary entry

permit is refused, a person may be detained until placed on the first available ship or aircraft leaving the country. Among His Honour’s reasons for his final decisions were that

• .Benipal’s application for temporary permit was not refused (as this was a condition for applying section 14a, the registrar had no authority to issue the warrant) • .The police failed to provide relevant facts to the registrar when seeking the warrant for Benipal’s detention.

• .The registrar did not meet his obligation to determine the facts of the issue before issuing the warrant • .An aircraft was avail-

able to take Benipal out of the country from the firstday of his detention in prison. His Honour said Benipal should have been released earlier, even allowing for the respondents’ claim that his refugee application and lack of passport were delaying factors. ■ . when regard is had to the aspect of immediacy in section 14a in terms of transportation by the next available aircraft, a detention of 114 days cannot, in my judgement, be justified on any conceivable ground.” His Honour said the police and immigration officials “failed lamentaWy”in their duty to tell Benipal he was being detained under section 14a.