323 Decisions on warrants of commitment where detention beyond 6 months

(1)

This section applies where a person would, upon a successful application for a further warrant of commitment under section 316, be detained under consecutive warrants of commitment for a continuous period of more than 6 months following—

(a)

the person’s initial detention under a warrant of commitment, where the person has exhausted all appeal rights under this Act at the time of that initial detention, or had no such appeal rights; or

(b)

where paragraph (a) does not apply, the later of—

(i)

the conclusion of any appeal proceedings brought by the person; or

(ii)

the expiry of any period for bringing such an appeal; or

(c)

the date when a claim for recognition as a refugee or a protected person is finally determined (within the meaning of section 128), if the claim was made only after the person—

(i)

was served with a deportation liability notice or order; or

(ii)

was arrested and detained for the purpose of deportation or turnaround.

(2)

A further warrant of commitment authorising the detention of a person to whom this section applies must be issued if a District Court Judge is satisfied—

(a)

that the person’s deportation or departure is prevented by some action or inaction of the person; and

(b)

that no exceptional circumstances exist that would warrant release.

(3)

If the Judge is not so satisfied, the Judge must order the person’s release on conditions under section 320.

(4)

An application for a further warrant of commitment in a case to which this section applies—

(a)

must be supported by evidence under oath by an immigration officer; and

(b)

must include a statement as to why the further warrant is required; and

(c)

may include any other supporting evidence.

(5)

The Judge may require the immigration officer to attend the hearing to give evidence and be subject to cross-examination.

(6)

The period of 6 months referred to in subsection (1) must be calculated exclusive of any period commencing on the date on which the person to whom the warrant relates escapes from lawful custody and ending 96 hours after the date on which the person is again taken into custody under this Act.

(7)

This section does not apply to a person whose deportation has been ordered under section 163.

(8)

To avoid doubt, if a person to whom subsection (1)(c) applies makes a subsequent claim, the 6-month period must be treated as starting on the date the subsequent claim is finally determined.

(9)

In subsection (1),—

appeal proceedings means the proceedings in respect of which the appeal rights are exercised

appeal rights means—

(a)

the rights of appeal the person has or had against liability for deportation; and

(b)

the refugee and protection appeals associated with any claim made before the person was served with a deportation liability notice or arrested and detained for the purpose of deportation or turnaround.

(10)

For the purposes of subsection (2), exceptional circumstances do not include—

(a)

the period of time that a person has already been detained under this Part; or

(b)

the possibility that the person’s deportation or departure may continue to be prevented by some action or inaction of the person.

Compare: 1987 No 74 s 60(6)(b)