Judge Reserves Decision In Zaoui Bail/Transfer Bid

Justice Paterson has reserved his decision regarding a High Court bid to have Algerian refugee Ahmed Zaoui released on bail or transferred to the Mangere Refugee Detention Centre.

A vigil held outside the Auckland High Court Friday in support of Algerian refugee and asylum seeker Ahmed Zaoui. Image courtesy of Amnesty International.

For Ahmed Zaoui, Dr Rodney Harrison and Deborah Manning have sought a High Court ruling to have Zaoui released on bail from the Auckland City Remand Prison or transferred to either the Mangere Refugee Detention Centre or the Auckland Dominican community.

Ahmed Zaoui is an Algerian academic, elected MP, and refugee who seeks asylum in New Zealand from a ruling Algerian military regime that in absentia sentenced him to death for alleged security crimes. Those convictions and related convictions in Belgium and France (countries closely aligned to the Algerian regime) have been deemed “unsafe” inaccurate and politicised by the New Zealand judicial body, the Refugee Status Appeals Authority.

Zaoui has been held in New Zealand prisons since his arrival in 2002, much of that time in solitary confinement. Suspecting Zaoui had links to the GIA, an Algerian militant organisation, the New Zealand Security Intelligence Service on March 20 2003 issued a security risk certificate against Zaoui.

Ahmed Zaoui has long denied having links to the GIA, an organisation that actually issued a death order against him.

Since arriving in New Zealand seeking asylum Ahmed Zaoui has been forever in the news. The case raises issues of fair justice, accuracy of information supposedly held in secret and against him, whether a systematic and bureaucratic agenda exists that ensures motivations for keeping Zaoui detained remain classified, and whether New Zealand has become subservient to western alliance pressures extraordinarily sensitive to perceived national security threats flagged by the United States of America.

Such is the back-drop to this the latest in a long series of court cases involving whether Ahmed Zaoui ought to be freed from a detention without charge and definite conclusion.

At the Auckland High Court on Thursday and Friday July 1 - 2, before Justice Paterson, Zaoui’s counsel sought:

Opposing this, the Crown asserted “considerable portions” of Zaoui’s counsel’s pleading, evidence and submissions seek to impeach the basis for the director of Intelligence and Security when issuing the security risk certificate, alleged failures by the director and the inspector general of Intelligence and Security, alleged delays in the Inspector General’s review process, and the alleged failure to review the security risk certificate and the consequences of detention, in light of information subsequent to the making of the certificate.

The Crown said due to Zaoui having been issued with a security risk certificate, that while it is current, the law allows no other alternative to detention in a prison.

The argument is countered by Zaoui’s legal team that asserts the success or failure of these claims turns on the proper interpretation of the Immigration Act: “That said, the Bill Of Rights-based claims … by no means… stand or fall on the interpretation of these provisions for which Mr Zaoui will contend.”

Zaoui’s counsel say his ongoing detention, consequential deteriorating mental health - complicated by an inability to assert full disclosure rights to the information the SIS holds against him - breaches his rights under the New Zealand Bill of Rights and international humanitarian law.

Secondly, a case of Habeas Corpus has been asserted.

The Crown opposed bail and advised against transferring Zaoui to the Mangere Detention Centre submitting it is an unsuitable place of detention for an individual of which a security risk certificate has been issued against. The Crown also submitted that the High Court has no jurisdiction to issue bail orders, with or without conditions, where that individual has been deemed a security risk by the director of the Security Intelligence Service.

Zaoui’s counsel Dr Harrison said a Security Risk Certificate in this case is not “the be all and end all” but that the Court ought to consider other relevant factors.

He said the New Zealand Bill Of Rights is relevant considering:

For more see… Corrections Department Psychologist Deems Zaoui Low Risk

Dr Harrison said bail ought to be considered as it would be in the spirit of justice as applied in criminal and indictable cases, especially as Zaoui has been held in New Zealand prisons without charge for approximately 19 months.

He said, if the Crown fails to persuade that the security risk certificate alone is enough to keep Zaoui detained at the Auckland City Remand Prison, then there is “nothing else” that would support his imprisonment.

But the Crown asserted that as long as a Security Risk Certificate remains in force it prevents, under the Immigration Act, the High Court from issuing bail or ordering Zaoui’s transfer to a place other than a prison.

The latter point is debatable.

Indeed the Human Rights Commission submitted to the High Court challenging the Crown’s view asserting that the law provides an alternative place of detention. And it is on this premise that Zaoui’s counsel too rests its argument that the Mangere Refugee Detention Centre is an intended place of detention, especially so when a prison becomes an inappropriate facility to incarcerate a refugee for a lengthy period while the Crown or courts determine the accuracy of a security risk certificate issued against him.

Additionally, the Crown said the Immigration Act does not include a bail regime: “And, there is a deeper difficulty. Section 1140(2) requires the person to whom the warrant is directed to detain the person named in the warrant until, materially: ‘ordered by the High court or a Judge of the High Court on an application for a writ of habeas corpus, to release the person’,” the Crown said.

Do Human Rights Laws Come Second To New Zealand’s Immigration Laws?

Specifically the Crown insists a relevant section of the Immigration Act (1140) states a person of whom a security risk certificate has been issued takes precedence over the Bill Of Rights and international human rights laws and conventions. National security interests, it was submitted, add weight to this assertion.

Crown counsel insisted that the Bill Of Rights Act accepts Parliament is entitled to enact legislation inconsistent with rights protected in the Bill Of Rights.

It said Parliament will have made value judgments when considering a balance between national security and an individual’s human rights. The Crown further submitted that the Court can challenge Parliament’s assessment of factors inconsistent with the Bill Of Rights, but to do so rejects Parliament’s considered judgments and “thrusts the Court” into political debate.

On a possible breach of Zaoui’s human rights (including arguably his ongoing detention without charge, conditions unbefitting a refugee [note: the Ombudsmen’s office is investigating this aspect], mixing with alleged criminals on remand, contrasting solitary confinement, or the inability to specify a duration limit to his imprisonment), the Crown submitted a “proof of intention” of conduct or treatment that is “cruel or degrading” must be established.

Zaoui’s conditions at the Auckland City Remand Prison, the Crown said, provide “reasonable accommodation” and meet Zaoui’s cultural, religious, and psychological needs.

But Dr Harrison asserted that the time Zaoui has spent in prison and the possibility that he may continue to be imprisoned for some time is unacceptable, particularly considering his non-voluntary segregation, and the alleged misconduct by prison guards, contributes to the “unacceptability” of Zaoui’s ongoing detention.

Editor’s Note: A snapshot of what this means in real terms is: During Ramadan, Zaoui’s religion insists he eat only after the sun goes down. Prison officers refused to leave food with him to be eaten after sunset or to provide him with food after normal daylight scheduled meal times. Zaoui survived on popcorn during the night hours of Ramadan. The inflexibility of prison guards added to his anguish. This possibly added to an episode where Zaoui became disturbed at the length of his detention without any foreseeable end in sight. Prison guards believed him to be at risk psychologically and locked him in a ‘special needs unit’. There he was left naked, and without food, and without psychologist care for over 24 hours, until a duty psychologist returned to duty.

The Human Rights Commission said many refugees are disturbed that they are considered criminals: “combined with other stressors such as fear of repatriation or the safety of family members and lack of familiarity with the asylum process, detention can not only re-traumatise people, but exacerbate existing symptoms.”

The Public health Association of Australia for example, states: “The mandatory detention of asylum seekers is an excessive response that arbitrarily denies people of certain human rights; prolongs and exacerbates the trauma they have experienced before and during their flight; denies them the possibility and security of normal family life; impairs their successful resettlement and severely affects their mental health and well being.”

The HRC told the High Court Zaoui’s psychological reports “indicate his symptoms are similar to those outlined above. For example, he exhibits symptoms of anxiety, his intrusive memories and nightmares related to torture, apprehension by police in Algeria and Europe and the isolation of non-voluntary segregation at Paremoremo”. Zaoui also reports guilt because of his separation and worry about the welfare of his wife and children.

The Crown told the High Court that it is satisfied Zaoui’s psychological needs have and are being met.

The Crown accepted that Zaoui’s length of detention “was unforeseen by all parties involved” but insists it is the review of the security risk certificate that has prolonged what was anticipated to be “a speedy process”. But it denied the prolonged detention to be a breach of Zaoui’s human rights and insists there have been adjustments to Zaoui’s detention and individual needs.

These include providing weekly phone calls to his family, more reading material, giving consideration to his religious and cultural needs, allowing a television to be located in is cell, tuition in English, and health services.

Did The Crown Block A Court Order?

But the Crown is reluctant to examine further “adjustments” especially with respect to detaining at a location other than a prison.

It is a moot point and relevant to add that despite a Court order, Corrections Department head psychologist Dr Ronnie Zuessman was blocked from inspecting the Mangere Refugee Detention Centre, where he was to gauge its suitability as an alternative to Auckland City Remand Prison.

The Auckland High Court heard how the Mangere Refugee Detention Centre manager refused to grant Dr Zuessman access to the site.

There was a suggestion advanced by Zaoui’s counsel that this block was orchestrated and designed to prevent a sister Crown agency (Corrections) from recommending Zaoui be transferred to the Immigration Department’s Mangere Refugee Detention Centre.

Zaoui’s counsel said, if the Crown was “sincere” in its care for Zaoui’s rights “it would have said ‘come over Mr Zuessman and inspect the centre’”.

“But the Crown,” Dr Harrison said, “says ‘this is all a misunderstanding’.” He suggested doubt erodes the Crown’s claim when one considers the Corrections Department, in train, prevented Zuessman from communicating with Zaoui’s lawyers, muzzling him from advancing the fact that the Court order had been blocked.

To place this into context, Dr Zuessman testified in the High Court that after 60 hours of psychological examination Zaoui poses a very low risk of committing any offence or absconding from a community facility: “If considering the issue of risk within the community of committing any offence or serious offence, disturbing public order, or interpersonal violence, or flight for that matter, I would say Mr Zaoui appears to be at a very low risk” Dr Zuessman said.

He added that transferring Zaoui to the Dominican community (Zuessman could not comment on the Refugee Detention Centre as he had been blocked from inspecting it) would be beneficial to his ability to cope and function during a review of the security risk certificate.

The Crown was resistant to being drawn into human rights and Bill Of Rights specifics. Its argument remained simple: “A valid security risk certificate exists… unless and until the Inspector General (of Intelligence and Security) finds that the certificate was not validly made, the agencies of the Crown are entitled, indeed obliged, to maintain Mr Zaoui in detention, by reference to the certificate.”

It added: “The Plaintif’s (Mr Zaoui’s) submission that it is for the Crown to show just cause for continuing to keep Mr Zaoui in custody demonstrates a fundamental misconception about the nature of the security risk certificate and the statutory process for review.”

However, the Crown did accept there may be a point where it may not legitimately detain Zaoui, it said “that is not the case at this time”.

The Human Rights Commission (HRC) intervened disagreeing with the Crown’s submission.

It told the High Court Zaoui is an “Algerian national who arrived in New Zealand on 4 December 2002 and claimed asylum. It was alleged that he belonged to the GIA (a militant Algerian group)… He admits to being a founding member of the FIS but denies any connection with the GIA. Principally as a result of his alleged links with the GIA, a security risk certificate was issued in relation to him by the Director of Security.”

In the Commission’s view, in order for the security criteria of the Immigration Act to apply, Zaoui must present a threat to national security or fall within the definition of a suspected terrorist.

The Crown admits and reiterates Zaoui is not suspected of being a terrorist.

The HRC said: “New Zealand is part of the International community,” and that New Zealand has obligations it must respect especially as it is a signatory of human rights conventions and covenants.

It acknowledged the importance of national security but submitted, even in the post ‘911’ world, this should not lead to the abrogation of human rights protections that apply to everybody irrespective of their status – “particularly the right to be treated with humanity and dignity if deprived of liberty”.

It said some rights may be limited due to circumstances “others are absolute even in times of public emergency”.

“New Zealand should ensure at all times that the fight against terrorism does not impose undue hardship on asylum seekers,” the Human Rights Commission said.

Specifically, it cited caution in Zaoui’s case: “The Immigration Act 1987 can be interpreted as permitting the detention of a person held pending the review of a security risk certificate in a place other than a penal institution.”

Indeed even disgraced former Immigration Minister Lianne Dalziel in late December 2003 wrote to Zaoui’s lawyers saying legal advice suggested that another alternative location may be allowed to detain Zaoui. She later of course changed her mind on that advice.

The Human Rights Commission said: “The fact that the plaintiff (Zaoui) was detained for a significant period of time in a penal institution with convicted criminals while awaiting determination of his refugee status contravenes the relevant international standards relating to the refugees and the interpretation of those standards by international bodies,” the HRC said.

The Commission submitted that case law in other countries suggested the length and circumstances of Zaoui’s detention may amount to “arbitrary detention” and “inhumane treatment”.

It told the Court: “Reports by human rights bodies on the effect of detention on asylum seekers suggests that for humane reasons the plaintiff (Zaoui) should be moved to a facility other than a prison.”

Justice Pederson has reserved his decision.

Editor’s Note: There are similarities with respect to giving extraordinary weight to national security, and a perceived abandonment of an individual’s right to oppose detention without charge to the United States of America experience of detaining terrorist suspects, or those supporting organisations it perceives as the enemy, to a no-man’s-legal-land at Guantanamo Bay. There is thought among few New Zealand media that we now live in a post 911 world where ‘old conventions’ respecting individual human rights and justice ought to be reassessed. This view, Scoop suggests, is a dangerous principle contrary to the public interest and damaging to New Zealand’s international reputation. Should the Crown be contemplating, at the conclusion of the broader case, transferring Ahmed Zaoui to an alternative jurisdiction, and seek a Pacific Solution, or a more exotic alternative, then this would abandon the rightful principles long held that New Zealand is a nation respecting the global interests of the international community and an observer of internationally accepted human rights ideals.

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