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Immigration Act 2009

Detention and monitoring - Warrants of commitment

317: Decision on application for warrant of commitment

You could also call this:

“Judge decides whether to hold or release someone after an application for a warrant of commitment”

When someone applies for a warrant of commitment, a District Court Judge will make a decision. If the judge is sure that the person is not who the application says they are, they must let the person go right away.

In other cases, the judge can do one of two things. They can either issue a warrant that allows the person to be held for up to 28 days in a specific place, or they can let the person go with some rules to follow.

The judge can issue a warrant if they believe the person is who the application says they are, and if one or more of these things is true:

  • A way to take the person out of New Zealand will likely be available soon.
  • The reasons why the person couldn’t leave New Zealand before are still happening, but won’t last too long.
  • The person hasn’t given good proof of who they are.

Even if none of these things are true, the judge can still issue a warrant if they think it’s best for the public.

When deciding what to do, the judge needs to think about what will best make sure the law is followed.

The judge usually won’t let the person go with rules to follow if:

  • They don’t know who the person is.
  • The person did something that made it hard for them to leave New Zealand after they were told they had to leave or were arrested.
  • The person only asked for protection as a refugee after they were told to leave or were arrested.

When the judge refers to letting someone go with rules to follow, they are talking about the rules in section 320.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM1441109.

Topics:
Immigration and citizenship > Visas
Immigration and citizenship > Border control
Crime and justice > Courts and legal help
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316: Application for warrant of commitment, or

“Asking a judge to keep someone in immigration detention”

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317A: Application for mass arrival warrant, or

“Requesting permission to hold a large group of arrivals”

Part 9 Detention and monitoring
Warrants of commitment

317Decision on application for warrant of commitment

  1. On an application for a warrant of commitment, a District Court Judge—

  2. must, if satisfied on the balance of probabilities that the person is not the person named in the application for the warrant of commitment, order that the person be released from custody immediately:
    1. may, in any other case, either—
      1. issue a warrant of commitment in the prescribed form authorising the person’s detention, in a place named in the warrant, for a period of up to 28 days, if satisfied of the matters in subsections (2) and (3) (and having taken into account the matters in subsections (4) and (5)); or
        1. order the person’s release from custody on conditions under section 320, if the Judge is not satisfied that detention is warranted.

        2. A Judge may issue a warrant of commitment if satisfied on the balance of probabilities that the person in custody is the person named in the application and that any 1 or more of the following applies:

        3. a craft is likely to be available, within the proposed period of the warrant of commitment, to take the person from New Zealand:
          1. the reasons why a craft was not available to take the person from New Zealand are continuing and are likely to continue, but not for an unreasonable period:
            1. the other reasons the person was not able to leave New Zealand are still in existence and are likely to remain in existence, but not for an unreasonable period:
              1. the person has not supplied satisfactory evidence of his or her identity.

                1. If subsection (2) does not apply, the Judge may, nevertheless, make a warrant of commitment if it is, in all the circumstances, in the public interest to do so.

                2. In determining whether to issue a warrant of commitment, or whether to order the person’s release on conditions, the Judge must have regard to, among other things, the need to seek an outcome that maximises compliance with this Act.

                3. Unless there are exceptional circumstances, the Judge must not release the person on conditions if—

                4. the identity of the person is unknown; or
                  1. the person’s identity has not been established to the satisfaction of the court; or
                    1. a direct or indirect reason for the person being unable to leave New Zealand is, or was, some action or inaction by the person occurring after the person was—
                      1. served with a deportation liability notice; or
                        1. arrested and detained for the purpose of deportation or turnaround; or
                        2. the person claimed refugee or protection status only after the person was—
                          1. served with a deportation liability notice or deportation order or with a removal order under the former Act; or
                            1. arrested and detained for the purposes of deportation or turnaround.

                            Compare
                            Notes
                            • Section 317(5)(d)(i): amended, on , by section 77 of the Immigration Amendment Act 2015 (2015 No 48).