Lau v Commissioner of Police [1994] FJHC 43; Hbc0478j.91s (4 May 1994)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. HBC0478J.91S

Between:

ANGELA LAU aka LIU XIN
Plaintiff

-and-

THE COMMISSIONER OF POLICE
1st defendant
THE ATTORNEY GENERAL
2nd defendant

Mr. G. Phillips for Plaintiff
Ms. Kennedy for Defendants

RULING

On the 5th November, 1989 the plaintiff was detained at Nadi International Airport and her Fiji Passport No. 278248 was impounded by an Immigration Officer in the exercise of powers conferred on such an officer pursuant to Section 7 of the Passports Act (Cap 89).

The passport was subsequently handed over to police authorities who were then investigating a number of cases involving allegations of obtaining Fiji Passports by unlawful means and detailed enquiries were conducted into the circumstances surrounding the issuance of the plaintiff's Fiji passport.

In this latter regard a plain statement was recorded from the plaintiff on 30.08.90. She was also interviewed under caution by D/Cpl 1469 Waisea Tabakau the investigating officer and although no charges were laid against the plaintiff her Fiji passport was not released despite several written requests on her behalf by 2 firms of Solicitors.

Finally on 1st October 1991 the plaintiff issued an originating summons seeking various declarations concerning the legality or otherwise of the continued retention of her Fiji Passport No. 278248 by the authorities and also seeking its immediate return and an undisclosed sum in damages.

Very simply the plaintiff's claim is that she is a Fiji Citizen by birth, had properly applied for a Fiji Passport through an 'agent in Hong Kong' and had been properly issued with a valid Fiji Passport No. 278248.

The defendants on the other hand dispute that the plaintiff is a Fiji Citizen and therefore is not entitled to apply for or receive a Fiji Passport, alternatively, they claim that the plaintiff has lost her Fiji Citizenship by 'operation of law' in so far as she had not renounced her Chinese Citizenship which the defendants claim she possessed at the time she applied for and obtained a Fiji Passport.

Learned counsel for the plaintiff in her written submissions however appears to have confined them to the legality of the continued detention of the plaintiff's passport by the authorities without clearly addressing the more fundamental question raised by the defendants as to the legal entitlement (in any) of the Plaintiff to a Fiji Passport. Indeed this latter aspect appears to have been assumed on the basis of the issuance of a Fiji Passport to the plaintiff by the relevant authority which is a 'non sequitur'. In the circumstances I have found the cases cited by learned counsel for the plaintiff of little if any assistance.

I can now move directly to examine the law applicable to this matter. In so far as it is relevant for present purposes by Section 23 of the Constitution 1990 -

"Citizenship of Fiji may be acquired by -

(a) birth;"

and Section 3(1) of the Passport Act (Cap 89) provides:

"The Passport Officer shall, upon application made to him in the appropriate form, issue to any citizen of Fiji who satisfies such conditions as may be prescribed, a passport in the appropriate form."

(my underlining)

This is reinforced by Regulation 5 of the Passport Regulations which in turn provides:

"5. Passports shall be issued to Citizens of Fiji applying therefor if all the conditions prescribed for the issue of passports have been met. Such passports shall be valid and current for a period of 10 years in the first instance."

(my underlining)

From the above it is clear that only a "citizen of Fiji" is legally entitled to apply for, be issued with and, in my view, retain a Fiji Passport.

Furthermore having regard to the requirement of Regulation 2 the 'onus' of proving one's citizenship of Fiji in order to qualify a person to apply for and obtain the issuance of a Fiji Passport rests fairly and squarely on the applicant to furnish sufficient "documentary proof" as to satisfy the relevant authority.

In this regard bearing in mind the definition of a "passport" in Section 2 of the Passport Act (Cap 89) to the effect inter alia that it "... purports to establish the identity and nationality or citizenship of the holder...", I am firmly of the opinion that the possession of a Fiji Passport is inconclusive proof that the holder thereof is a "citizen of Fiji".

I am fortified in my view by the 'proviso' to Regulation 4 (1) of the Passport Regulations, whereby a child under 16 years of age may be included in his or her parent's Fiji Passport, which reads:

"Provided that such inclusion shall not of itself confer any right to Fiji citizenship."

Needless to say it begs the 'issue' raised by the defendants to point to the plaintiff's Fiji Passport as proof of her Fiji Citizenship. Quite simply it is not nor is it a recognized method by which Fiji citizenship may be acquired.

Be that as it may this Court it constrained by the nature of the declarations sought by the plaintiff to examine more closely the exercise of the powers conferred upon the relevant authorities under Section 7 of the Passport Act (Cap 89).

That section reads: (so far as relevant)

"7 (1) It shall be lawful for the Passport Officer any immigration or police officer to take and retain possession of any passport in any case where he has good reason to believe that the passport is in the wrongful possession of any person, or that the passport ... has been obtained by means of any false or misleading representation or of any statement that is false or calculated to mislead in a material particular."

The question that arises naturally from the wording of the Section in the present context is: Does the relevant officer have 'good cause to believe' that the plaintiff is not a 'citizen of Fiji'?

In this regard the plaintiff's primary affidavit contains the following bare assertions:

"1. THAT I am a Fiji Citizen and holder of Fiji Passport No. 278248 and

"3. THAT I am informed and verily believe that I was born in Nadi on the 14th of May 1960 and left Fiji for China with my parents (both of whom are now deceased) when I was three or four years old. I ... applied through an agent in Hong Kong for a Fiji Passport. I signed the necessary application forms to obtain a Fiji passport which passport I collected in Hong Kong before arriving in Fiji on the 28th of September 1989."

I use the term "bare" advisedly because no Fiji birth certificate or relevant Nadi hospital records were annexed to the plaintiff's affidavit nor has any attempt been made to explain their absence or what enquiries (if any) were conducted to locate them. No effort has been made to identify the so-called 'agent in Hong Kong' nor have any details been provided as to when? and what? "documentary proof" (if any) was supplied by the plaintiff to the 'agent' so as to establish her Fiji citizenship when she applied for a Fiji Passport.

These matters are made all the more essential since on the plaintiff's own admission she had lived most of her life in China and was and holder of a valid Chinese Passport which she had used to enter Fiji.

I accept however that some 'details' are provided in the plaintiff's police statement and caution interview record but even such 'details' as are provided were, if I may say so, exceedingly vague, evasive and inconclusive.

In the circumstances it is not at all surprising that the Director of Immigration and the police investigating officer both dispute and disbelieve the plaintiff's claim to Fiji citizenship acquired by birth.

Their disbelief however is not based upon the plaintiff's original application for a Fiji Passport (which papers are "missing" from the relevant Department of Immigration files) rather, they arise from other immigration documents lodged by or on behalf of the plaintiff. These include a Visa Application Form; a Visitor's Arrival Card; and an Application for Extension of Visitor's Permit Form.

Before examining those documents however a brief reference may be made to the statement of an officer of the Births, Deaths and Marriages registry who states:

"At the request of Waisea Tabakau I have ... also checked through index for the years 1960 - 1967 for the registration of one ANGEL LAU which I could not find. I have checked under Father's and Mother's Names as well and because there was no Registration number quoted I could not establish whether ANGEL LAU has been earlier registered. The registration of ANGEL LAU is untraceable."

It is also necessary in order to better understand the documents to briefly set-out the chronology of dates and events in so far as these may be gleaned from the papers place before the Court. They are:

(1) On 27.04.89 Fiji Passport No: was issued in the name of Angel Lau;

(2) A month later on 30.05.89 an Application for Visa form was lodged for the plaintiff and a temporary entry visa for a single journey to Fiji was approved and endorsed on the form the same day by the "Passport Officer, Suva, Fiji."

(3) Four (4) months later on 28.09.89 the plaintiff arrived in Fiji on board an Air New Zealand flight from Tokyo and was given a Visitors permit "valid for ONE MONTH only unless extended." (See: Visitor's Arrival Card);

(4) On 10.10.89 an Australian Visa No: H724583 was endorsed on the plaintiff's Fiji Passport No: 278248

"For single travel before 30th November, 1989 for stay 03 days subject to grant to entry permit on Arrival.";

(5) On 23.10.89 a Chinese Multiple Entry Visa No 8P/682 was endorsed on the plaintiff's Fiji Passport;

(6) On 26.10.89 an Application for Extension of Visitors Permit form was lodged by the plaintiff with the Immigration Department in Suva and on the same day her visitor's permit to remain in Fiji was extended for a further 2 months to: 28/12/89;

In respect of steps (1), (2), (3) and (6) (above) it is common ground that the plaintiff used her Chinese Passport No: 1043690 and where relevant on the Immigration documents and forms submitted she had entered her "Place of Birth" as: "China" and her "Nationality" or "Country of Citizenship" also as "China."

Equally clearly, in (4) and (5) (above) in order to obtain her Australian and Chinese Visas the plaintiff used her Fiji Passport No: 278248 although at the time she had in her possession a valid Chinese Passport for which her application for an extension of her Fiji visitor's permit had yet to be lodged.

If I may say so the 'selective use' by the plaintiff of her Chinese and Fijian Passports which on her own admission she had in her possession before leaving China and for some time after arriving in Fiji raises the gravest suspicions even on the most unsuspecting mind.

In this regard too her answers where asked in her caution interview are equally evasive and unconvincing. For instance, when asked why? she had not disclosed her Fiji Passport to the immigration officials on her arrival at Nadi Airport she replied:

"A 97: "No use, use two (2) passports."

If I may say so the answer completely evades the question asked and conveniently ignores the obvious ease with which a Fiji citizen carrying a Fiji Passport may enter and reside in this Country when compared with a Chinese citizen travelling on a Chinese Passport.

Section 6 of the Immigration Act (Cap 88) contains a blanket prohibition against any person entering Fiji from a place outside Fiji without a valid permit unless such person is exempted under the provisions of Section, and under Section 7 (1) (a) a "citizen of Fiji" and his unmarried children under 21 years of age are exempted, as is: "any person born in Fiji who is not a citizen of Fiji ..." [See: Section 7 (2) (b).]

Needless to say even the plaintiff would be presumed to know the law that a Fiji citizen returning to this country and possessed of a valid Fiji passport would not need any visa or permit to enter or return to Fiji unless of course the passport had no record of a previous departure from the country by the citizen and that raises questions as to how? and when? he or she left the country or came to be in possession of a Fiji passport.

In Reg v Home Secretary exp. Zamir [1980] UKHL 14; (1980) AC 930, Lord Wilberforce in discussing the duty owed by a person arriving in the UK and seeking leave to enter, said at P 950:

"At the very lowest, an intending entrant must not practise a deception; it has over and over again been decided, and the correctness of these decisions is incontestable, that deception vitiates the permission to enter. It is clear on general principles of law that deception may arise from conduct, or from conduct accompanied by silence as to a material fact. It can be no answer to a claim that such deception has occurred to say that no question was asked: ... In my opinion an alien seeking entry to the UK owes a positive duty of candour on all material facts which denote a change of circumstances since the issue of the entry clearance. He is seeking a privilege; he is alone, as to most such matters, aware of the facts: the decision to allow him to enter, and he knows this, is based upon a broad appreciation by immigration officers of a complex of considerations, and this appreciation can only be made fairly and humanely if, on his side, the extract acts with openness and frankness."

Clearly the plaintiff's answers when viewed in that context feel well short of her 'duty of candour' and in my view amounted to a 'deception'.

I further note the plaintiff was not asked why? she had chosen to use her Fiji Passport when applying for the Australian Visa instead of her Chinese passport which she had earlier used to enter Fiji, and one can only wonder why? being the holder of a valid Fiji Passport the plaintiff should find it necessary, whilst in Fiji, to seek an extension of her Fiji Visitor's Permit whilst at the same time using her Fiji Passport to obtain an Australian Visa unless she intended to falsely perpetrate a dual identity that she was a Chinese Citizen (to the Australian Authorities).

And why? if that was not intended would a Chinese citizen or for that matter a Fiji Passport holder travel thousands of miles to Fiji merely to apply for an Australian Visitor's Visa which could be applied for or obtained in Hong Kong or even China.

Equally the two Chinese Visas entered in the plaintiff's Fiji Passport at a time when she clearly was in possession of a valid Chinese Passport raises similar 'suspicions' which unfortunately she was never asked to explain.

In similar vein it is unfortunate that the plaintiff was not pressed to explain why? she had returned her Chinese Passport when it was not due to expire until '28.07.93'? unless it had served its purpose and the plaintiff intended thereafter to assume a new identity armed with her Fiji Passport. In any event her answer:

"A 100: No more Chinese Passport so I am no more Chinese citizenship"

is quite revealing as to her 'attitude' towards her 'citizenship' and its relationship to her passport.

This brings me to the alternative issue raised by the defendants that the plaintiff (if she ever acquired it) had lost her Fiji citizenship by "operation of law." In this regard reference has been made to the provisions of Section 28 (3) of the Constitution 1990 which provides under the heading Avoidance of Dual Citizenship:

"(3) A citizen of Fiji by birth shall not forfeit his Fiji citizenship if, within 12 months of the commencement of this constitution or within 12 months after he attains the age of 21 years (whichever is the later) he renounces the citizenship or nationality of any other country which he may possess."

(See: also the provisions of Section 16 of the Fiji Citizenship Act (Cap 87) to the similar effect). In the absence of such renunciation Subsection (1) of Section 28 provides:

"(1) ... a person shall forfeit forthwith his Fiji citizenship if he acquires or retains the citizenship or nationality of a country other that Fiji."

In the plaintiff's case having been born on the 14th May 1960 she turned 21 years on 14th May 1981 long before the commencement dated of the 1990 Constitution which was the 25th July 1990. Accordingly the plaintiff's '12 month period' within which she was required to renounce her Chinese citizenship or nationality began to run from 25th July 1990 and expired on 24th July 1991 under the Constitution, and between 14th May 1981 and 14th May 1982 under the Fiji Citizenship Act (Cap 87).

In this regard in her affidavit in reply the plaintiff deposes:

"7. THAT as I was not a Chinese citizen there was no need to renounce my Chinese citizenship for the purposes of the Constitution of the Sovereign Democratic Republic of Fiji 1990. Further that prior to the promulgation of the said Constitution I have returned to the authorities in China all travel documentation and personal records in my custody."

Why? the plaintiff would have taken the latter action is not explained, but in any event, such action without more is wholly insufficient in my view to divest the plaintiff of her Chinese citizenship or nationality.

Furthermore pursuant to Section 10(1) of the Passport Act (Cap 89):

"... no person ... shall leave or enter Fiji unless he is in possession of a valid passport issued by or on behalf of the Government of a country of which he is a national or citizen to the satisfaction of the Passport officer or an immigration officer."

That the plaintiff's Chinese Passport was considered such a valid document when she was permitted to enter Fiji cannot now be doubted. Nor in my view can it be doubted that in presenting her Chinese Passport to the immigration officials at Nadi Airport the plaintiff herself accepted and represented that it was "a valid passport issued by the government of a country of which (she) is a national or citizen."

Accordingly if one accepts the plaintiff's denial of her Chinese citizenship and nationality, then the very strong inference is raised 'ex post facto' that is presenting her Chinese Passport at Nadi Airport on arrival the plaintiff knowingly 'practised a deception' on the immigration officer in obtaining permission to enter Fiji.

In any event the burden of proving her renunciation of "the citizenship or nationality of any other country which (she) MAY possess", within the 12 months given, lies fairly and squarely on the plaintiff to establish. This she has completely failed to do. Certainly her contradictory answers (A98 to A101) in her police interview would not have assisted her credibility in this regard.

Be that as it may I have not the slightest doubt that the relevant authorities in Fiji had 'good reason to believe' and did in fact believe that Fiji Passport No: 278248 was "in the wrongful possession" of the plaintiff and accordingly I hold that they are entitled to "retain possession" of the passport.

The plaintiff's originating summons is dismissed with costs to the defendants to be taxed if not agreed.

(D. V. Fatiaki)
JUDGE

At Suva
4th May, 1994

HBC0478J.91S