D5.11 Decision on application for warrant of commitment (claimant)

See also Immigration Act 2009 s 317AA

1. This instruction applies to a person who:
   1. A District Court Judge is satisfied is a claimant; and
   2. Is not subject to a mass arrival warrant under section 317A of the Immigration Act 2009.

2. On an application for a warrant of commitment under section 316 of the Immigration Act 2009 for a person who is a claimant, a District Court Judge: 

   1. 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; and 

   2. may in any other case, either: 

      • 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 that:
        • on the basis of the application and the information contained in it, the person poses a clearly articulated threat or risk; and
        • detention is reasonable in all the circumstances, proportionate, and the least restrictive measure necessary to manage that threat or risk; or
      • order the person’s release from custody on conditions under section 324F of the Immigration Act 2009, if not satisfied that detention is warranted.
3. In assessing whether a person poses a clearly articulated threat or risk, a Judge:
   1. may consider the person’s irregular entry into New Zealand; but
   2. must not be satisfied that the person poses a clearly articulated threat or risk solely on the basis that the person entered New Zealand irregularly.
4. In this instruction, threat or risk includes, without limitation, a threat or risk to:
   1. public order;
   2. public health; or
   3. security

Note: threat or risk to public order includes, in relation to a person and without limitation, a threat or risk of the person absconding for the purpose of avoiding compliance with the Immigration Act 2009, or failing to comply with that Act.

Effective 27/05/2026