New Zealand Immigration Officer Making Wild Claims

[builder dan]

there is a well found boat missing in the Tasman as we speak.I think sean should be thanking us for saving his skin.Having sailed the south pacific and the Tasman sea more than once,and having lost friends in the Tasman I know its not a place for unsafe boats.The Pacific is a milk run the Tasman is not.

[lateral]

I have have a friend that was detained in the US for overstaying her Visa.
Not on a boat, but in a detention center in Honolulu. Two days of "interviews"
then escorted to her plane. Only a matter of days....

[Steve Pope]

One thing if he thinks he has problems in NZ they will be nothing compared to what our Aussie cuzzy's across the ditch are capable of.

[sctpc]

Originally Posted by Steve Pope

One thing if he thinks he has problems in NZ they will be nothing compared to what our Aussie cuzzy's across the ditch are capable of.

HAHA 90% of NZ are in AU thats where the attitude and stupid laws come from.

I still would like to know where the overstay came from. I thought he was given it for stealing internet? OH well I still blame ALL NZ for the bad laws in the world including speed cameras and poor old boatman getting harassed maybe the US customs guy came from NZ

[lateral]

Originally Posted by sctpc

HAHA 90% of NZ are in AU thats where the attitude and stupid laws come from.

Who do you blame Auzpost for? Us? Yeah right, we set it up to punish ourselves for sending stuff to you.

[Bluewaters2812]

Originally Posted by pdf27

Just reading that form again:

Sean D'EPAGNIER (the above named) is liable for arrest and detention under section 309 of the Immigration Act 2009 (the Act).
Instead of detaining the above-named under section 312 of the Act, or causing a constable to arrest and detain the above-named under the act, or making an application for a Warrant of Commitment under section 316 of the Act, I (case officer) Kerry Shane Sweetman an immigration officer authorised under section 388 (2) of the immigration act 2009 to exercise all functions and powers of an immigration officer under part 9 of the act, including section 315, agree to the following residence and reporting requirements under section 315 of the Act.

The relevant bit appears to be the warrant of commitment:
316
Application for warrant of commitment

(1)An immigration officer may apply to a District Court Judge for a warrant of commitment (or a further warrant of commitment) authorising a person’s detention for up to 28 days in any case where it becomes apparent, in the case of a person detained in custody under this Part, that before the expiry of the period for which detention is authorised—
(a)there will not be, or there is unlikely to be, a craft available to take the person from New Zealand; or
(b)the person will not, or is unlikely to, supply satisfactory evidence of his or her identity; or
(c)the Minister has not made, or is not likely to make, a decision as to whether to certify that the person constitutes a threat or risk to security; or
(d)for any other reason, the person is unable to leave New Zealand.

(2)Every application under this section—
(a)must be made on oath; and
(b)must include a statement of the reasons why the person should be the subject of a warrant of commitment; and
(c)may include any other supporting evidence.

(3)The Judge must determine the application under section 317, 318, or 323, as appropriate.

In other words, if the immigration officer can convince a judge that the vessel is unseaworthy, he is entitled to jail the owner for up to 28 days if they have also overstayed their visa (as defined in section 309 - basically he can only do this if they are already liable for deportation). And section 315 - the only bit keeping the OP out of Jail - pretty much says the immigration officer has total discretion in this - "A decision as to whether to offer or agree residence and reporting requirements under subsection (1) is a matter for the absolute discretion of an immigration officer."

\edit: link to full act here: Immigration Act 2009 No 51 (as at 19 June 2013), Public Act Contents – New Zealand Legislation

All not a problem, except for the highlighted para a) No person with the correct authority under any law has made a determination in accordance with a law and therefore there is a craft available to take him out of the country (his own sailing vessel).

[scoobert]

Originally Posted by boat_alexandra

this is the official document

so where is the photo of the boat?
how sure are you it does not need repair?
i'll take a free survey too while they are at it! lol
sucks you may have to leave your boat there and go home, on your dime i assume. hope you have a nice cash reserve. i would fly to LA, get another free boat and sail back, just to be a jerk. :P

[atoll]

Originally Posted by Bluewaters2812

All not a problem, except for the highlighted para a) No person with the correct authority under any law has made a determination in accordance with a law and therefore there is a craft available to take him out of the country (his own sailing vessel).

i think the part that we are not getting is that "he",the owner, has been using the unseaworthy condition of the vessel as the reason that he cannot leave,enabling him to get 18months in the country,the immigration have now turned the tables on him and given him the ultimatum!,after at least 6 months of grace where he could have got his **** together and left in april as most other yachts do that head north to the islands......

it is for this reason that french polynesia charge a bond for visitors,looks like nz will also have to fund him an airticket as well at the end of 30 days

[pdf27]

Originally Posted by Bluewaters2812

All not a problem, except for the highlighted para a) No person with the correct authority under any law has made a determination in accordance with a law and therefore there is a craft available to take him out of the country (his own sailing vessel).

The phrase is "there will not be, or there is unlikely to be, a craft available to take the person from New Zealand". Given that it's the middle of winter and this guy has been storing pot plants and driftwood on deck, plus it's a pretty small boat and looks scruffy then it isn't at all unreasonable for the immigration officer to believe it may not be seaworthy. We also don't know what the OP has told NZ immigration - he may have tried to claim he couldn't leave yet (he must have had a reason to overstay long enough to qualify for deportation).

In any case, the person with that authority is a judge if he's being imprisoned and by my reading of the act anything else is at the sole discretion of the immigration officer.
What I **THINK** has happened is that they've told him to get his boat inspected and fixed if necessary, with the threat that if he doesn't they'll arrest him and apply to the local district court judge for a warrant of commitment based on his vessel not being seaworthy.

Since he isn't in NZ legally, this is almost certainly legit - and the fact that he has overstayed his visa on a scruffy-looking yacht in winter would probably be enough to persuade most non-nautical judges. If the judge isn't an experienced seaman, what standard are they going to apply? The most obvious one would be that applying to New Zealand yachts.
Remember that a court isn't going to take "but they won't let me leave" very seriously as an argument if you've already overstayed by a significant period of time...

[Bluewaters2812]

Originally Posted by atoll

i think the part that we are not getting is that "he",the owner, has been using the unseaworthy condition of the vessel as the reason that he cannot leave,enabling him to get 18months in the country,the immigration have now turned the tables on him and given him the ultimatum!,after at least 6 months of grace where he could have got his **** together and left in april as most other yachts do that head north to the islands......

I wasn't aware of that. Did he say that? If that's the case he deserves what he is getting and must be a big man and deal with it. It doesn't change the fact that a person with the necessary authority has yet to make a determination that it is in fact unseaworthy. I just don't know what law provides which official with that authority (bearing in mind it is a pleasure craft and not a commercial craft). Oh, well, me tired of this thread now, time for me to move on lol.

[pdf27]

Originally Posted by scoobert

i would fly to LA, get another free boat and sail back, just to be a jerk. :P

Odds are he'll also be blacklisted from entering NZ (and possibly Australia - they have a customs union don't they?) for a period of time. For most countries this is 10 years, the US it's 5 and in some cases you'll get a lifetime ban.

[Bluewaters2812]

Originally Posted by pdf27

The phrase is "there will not be, or there is unlikely to be, a craft available to take the person from New Zealand". Given that it's the middle of winter and this guy has been storing pot plants and driftwood on deck, plus it's a pretty small boat and looks scruffy then it isn't at all unreasonable for the immigration officer to believe it may not be seaworthy. We also don't know what the OP has told NZ immigration - he may have tried to claim he couldn't leave yet (he must have had a reason to overstay long enough to qualify for deportation).

In any case, the person with that authority is a judge if he's being imprisoned and by my reading of the act anything else is at the sole discretion of the immigration officer.
What I **THINK** has happened is that they've told him to get his boat inspected and fixed if necessary, with the threat that if he doesn't they'll arrest him and apply to the local district court judge for a warrant of commitment based on his vessel not being seaworthy.

Since he isn't in NZ legally, this is almost certainly legit - and the fact that he has overstayed his visa on a scruffy-looking yacht in winter would probably be enough to persuade most non-nautical judges. If the judge isn't an experienced seaman, what standard are they going to apply? The most obvious one would be that applying to New Zealand yachts.
Remember that a court isn't going to take "but they won't let me leave" very seriously as an argument if you've already overstayed by a significant period of time...

A judge can only issue an order based on evidence. The immigration officer is neither qualified nor has the authority to make the determination as to the seaworthiness of the vessel. Being scruffy looking does not render a sailing vessel unseaworthy. One needs more objective evidence than an immigration officers opinion, especially as he is not qualified or authorised to "force" a seaworthiness inspection. What he does have, is the right to detain the OP and deport him. Nothing more.

[Bluewaters2812]

Originally Posted by pdf27

Odds are he'll also be blacklisted from entering NZ (and possibly Australia - they have a customs union don't they?) for a period of time. For most countries this is 10 years, the US it's 5 and in some cases you'll get a lifetime ban.

Yep, and I agree that he should be blocked from re-entering if he has played games and overstayed his welcome. Best they give him his boat and tell him to get the hell out of NZ waters. If he doesn't, then detain him and deport him.

[ternmarine]

Originally Posted by scoobert

so where is the photo of the boat?
how sure are you it does not need repair?
i'll take a free survey too while they are at it! lol
sucks you may have to leave your boat there and go home, on your dime i assume. hope you have a nice cash reserve. i would fly to LA, get another free boat and sail back, just to be a jerk. :P

Bristol27.com » Hull # – Alexandra

[scoobert]

Originally Posted by pdf27

Odds are he'll also be blacklisted from entering NZ (and possibly Australia - they have a customs union don't they?) for a period of time. For most countries this is 10 years, the US it's 5 and in some cases you'll get a lifetime ban.

yes, i didnt get to the 309 part.
makes me feel better then.
looks as if he overstayed his visa (he didnt mention that part),
and now they can do as they please. i think i will take my 45' yacht there someday, and see all the sheep there is to see.... is there really anything else there?

i am sure i could use it as a stepping stone from Easter island to japan thou...