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Immigration Act 2009

Detention and monitoring - Warrants of commitment and release on conditions

317: Decision on application for warrant of commitment (non-claimant)

You could also call this:

"A judge decides if someone who is not a claimant should be kept in custody or released."

Illustration for Immigration Act 2009

If you are not a claimant, a District Court Judge will make a decision about your application for a warrant of commitment. The Judge must release you from custody if they are satisfied you are not the person named in the application. The Judge can issue a warrant of commitment or release you on conditions under section 324F if they are not satisfied that detention is warranted. The Judge can issue a warrant of commitment if they are satisfied that you are the person named in the application and a craft is likely to be available to take you from New Zealand. The Judge must consider the need to maximise compliance with the Immigration Act when making their decision. You will not be released on conditions if your identity is unknown or has not been established to the satisfaction of the court, unless there are exceptional circumstances. The Judge's decision will depend on the circumstances of your case. They will consider factors such as whether a craft is available to take you from New Zealand and whether you have supplied satisfactory evidence of your identity. The Judge's goal is to make a decision that is in the public interest and maximises compliance with the Immigration Act.

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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.

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Immigration and citizenship > Border controlCrime and justice > Courts and legal help
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316: Application for warrant of commitment, or

"Asking to Keep Someone in Detention"

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317AA: Decision on application for warrant of commitment (claimant), or

"A judge decides if you should be detained or released when you apply for a warrant of commitment."

Part 9Detention and monitoring
Warrants of commitment and release on conditions

317Decision on application for warrant of commitment (non-claimant)

  1. This section applies to a person who a District Court Judge is satisfied is not a claimant.

  2. On an application for a warrant of commitment in respect of a person to whom this section applies, a District Court Judge—

  3. 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 324F, 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, issue 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.

                          Compare
                          Notes
                          • Section 317 heading: amended, on , by section 38(1) of the Immigration (Fiscal Sustainability and System Integrity) Amendment Act 2025 (2025 No 75).
                          • Section 317(1AA): inserted, on , by section 38(2) of the Immigration (Fiscal Sustainability and System Integrity) Amendment Act 2025 (2025 No 75).
                          • Section 317(1): amended, on , by section 38(3) of the Immigration (Fiscal Sustainability and System Integrity) Amendment Act 2025 (2025 No 75).
                          • Section 317(1)(b)(ii): amended, on , by section 38(4) of the Immigration (Fiscal Sustainability and System Integrity) Amendment Act 2025 (2025 No 75).
                          • Section 317(3): amended, on , by section 38(5) of the Immigration (Fiscal Sustainability and System Integrity) Amendment Act 2025 (2025 No 75).
                          • Section 317(5)(d): repealed, on , by section 38(6) of the Immigration (Fiscal Sustainability and System Integrity) Amendment Act 2025 (2025 No 75).