State v Principal Immigration Officer, Ex parte Mo Xing Bo [1995] FJHC 30; Hbj0021j.1990s (9 February 1995)

IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION

ACTION NO. 21 OF 1990

STATE

v.

THE PRINCIPAL IMMIGRATION OFFICER
AND THE MINISTER FOR HOME AFFAIRS

EX-PARTE: MO XING BO

H.M. Patel for the Applicant
I. Tuberi for the Respondents

Dates of Hearing: 24th, 25th October 1994
Date of Judgment: 9th February 1995

JUDGMENT

The Applicant who claims to be a Fijian national applies for Judicial Review in the form of certiorari to quash the decision of the Principal Immigration Officer on or about the 18th of June 1990 purporting to cancel the Republic of Fiji Passport No. 278247 granted to the Applicant.

On the 20th of June 1990 Mr. Justice Jayaratne in granting the Applicant leave to apply for Judicial Review also ordered that the Minister for Home Affairs and the Principal Immigration Officer, their servants or agents be restrained from deporting the Applicant until further order of this Court.

Since leave was given the parties have delivered and answered interrogatories for their respective examination and I have heard sworn evidence limited to the question of the validity of the Fiji Passport issued to the Applicant at some date unspecified before the Applicant arrived in Fiji on 18th June 1990.

It is not disputed by the Respondents that the Applicant arrived in Fiji from the Republic of China on the 18th of June 1990 nor that the Applicant's Passport No. 278247 was taken away from him when he arrived at Nadi Airport nor that the Applicant was kept in custody on the night of 18th June 1990 and released the next morning. The Respondents have since refused to return the Applicant's passport to him and he now seeks Judicial Review of their decision to confiscate it and subsequently retain it.

The principal grounds on which the Applicant seeks relief are:

(a) that the Principal Immigration Officer or his servants or agents wrongfully arrested the Applicant upon his arrival at Nadi Airport;

(b) that the Principal Immigration Officer took irrelevant matters into account;

(c) that the Principal Immigration Officer acted arbitrarily, unreasonably and in bad faith;

(d) that the Principal Immigration Officer acted ultra vires the Immigration Act;

(e) that the Principal Immigration Officer denied the Applicant natural justice by denying him a right of hearing before ordering him to be deported.

The Applicant's case which he subsequently repeated in most respects before me in evidence is that he was born in Fiji on the 23rd of September 1959 in Raki Raki and resided there until he left with his parents for the Republic of China at the age of about five years. In sworn evidence before me the Applicant stated that he stayed in Raki Raki for one or two years after his birth but nothing hinges on this.

In answers to interrogatories sworn on the 13th of May 1994 the Applicant stated that a Birth Certificate was issued in his name by the Registrar of Births in Fiji and a copy was given to the Immigration Office before Fiji Passport No. 278247 was issued to him.

Later in answer to supplementary interrogatories the Applicant stated that he applied for his Fiji Passport No. 278247 while he was in China and obtained his Birth Certificate from a Chinese man called Mr. Wong who was his agent. He also said, and this is not denied by the Respondents, that he requested his solicitors to obtain a copy of his Birth Certificate but the Registrar of Births could not find it.

He also deposed in answers sworn on the 5th of July 1994 that he did previously hold Chinese Passport No. 1096626 which is no longer in his possession. He was then asked this question:

9. "Were you aware at the time of your application for a Fiji Passport that unless you renounce your Republic of China's citizenship you would not be granted a Fiji Passport?"
   

The Applicant's answer to that interrogatory is recorded as thus:

"That I was aware of the facts mentioned in question 9 of the interrogatories but, to my knowledge I was never a Citizen of China."

Interrogatory 10 of the interrogatories delivered on the 10th of June 1994 asks:

"Are you still a Citizen of the Republic of China?"

The Applicant's answer to that question sworn on the 5th of July is:

"That as to question 10 I honestly and verily believe that I was never a Chinese citizen."

The contradiction between the Applicant's answers I have just recorded which were sworn before a Commissioner of Oaths Mr. Edmund March and the statement in paragraph 11 of the Affidavit which the Applicant swore on the 20th of June 1990 again before Mr. March will be obvious.

Paragraph 11 of the Applicant's affidavit on that date is as follows:

"That I was a citizen of the People's Republic of China and while there applied for the issue to me of a Fijian Passport by virtue of the fact that I was born in Fiji and resided there until I left with my parents at the age of 5 or thereabouts. The source of my belief for this is my mother who I am informed and do verily believe gave birth to me in Fiji."

The jurat to this affidavit is also to be noted. It reads:

"Sworn by the said MO XING BO at Nadi )

after the contents hereof had been )

read over and explained to him the ) .......................

Chinese language. )

.............................

Edmund March

A Notary Public"

The jurat to the Applicant's answers to the interrogatories of the 13th of May 1994 is in similar terms.

The jurat to his answers to interrogatories of 5th July does not state that the contents had been read over and explained to him in the Chinese language before he swore the answers but I find as a fact that they were.

The Respondents' answers to interrogatories delivered by the Applicant which were sworn by John Tevita the Director of Immigration on the 10th of August 1994 state so far as relevant:

(1) Fiji Passport No. 278247 was issued to the Applicant by the Immigration Department.

(2) That when application for any Fiji Passport is made the Applicant is required to lodge with the application form documentary proof of the Applicant's citizenship.

(3) The Department of Immigration has no record whatsoever of an application received concerning Fiji Passport No. 278247 and there is no record of any Passport Officer receiving such an application form.

(4) Fees were collected by the passport office in Suva before Fiji Passport No. 278247 was issued.

(5) There is no record of any proof of citizenship supplied or received by the Passport Officer.

(6) There is no record of any Birth Certificate of the Applicant being attached to or accompanying the application for Passport No. 278247.

(7) The Department of Immigration has no Immigration file concerning an application for that passport.

(8) That the prescribed conditions necessary before a Fiji Passport can be issued are:

(i) Completed prescribed application form.

(ii) Birth Certificate.

(iii) Three (3) photographs and one to be certified by an authorised certifying officer.

(iv) Prescribed fee of $60.00.

(9) The decision not to return the passport to the Applicant was made by the Chief Supervisor.

I turn now to a brief consideration of the evidence given before me on the 24th and 25th October last.

The Applicant gave his evidence through a Chinese Interpreter Mr. Horton Lee. The Applicant repeated that he had applied for his Fiji Passport through his agent Mr. Wong in China and had paid Mr. Wong approximately $300.00 in fees.

In 1989 he had come to Fiji and had received his passport on arrival here. He had used the passport to travel to China on business in 1989.

In cross-examination he said that when he came to Fiji in 1989 he had come on a Chinese passport which was necessary when a person wanted to leave Mainland China. He said that a person had to be a Chinese citizen before he could get a Chinese passport and the Applicant was a Chinese citizen when he left China. He no longer had his Chinese passport because he had sent it back to China when he got his Fiji passport.

He said that Mr. Wong had explained to him that he could not have double nationality and should not have two passports. He also said that he applied for his Fiji passport while in China and had his birth certificate with him all the time until he gave it to Mr. Wong for the purpose of obtaining his Fiji passport.

He was asked that if what he said was true that he had his birth certificate all along with him how could he explain his answer that he had obtained his birth certificate in the first place with the help of his agent?

The Applicant replied that he had given his birth certificate to Mr. Wong to help him get his Fiji passport.

Counsel then referred him to his answer to interrogatory 5 sworn on the 5th of July 1994 which reads:

"That I managed to obtain my birth certificate in the first place with the help of the agent."

It was put to him that this evidence was contradictory and I noted that when the Applicant eventually answered counsel he did not answer the question directly but made a long statement the gist of which was that it had not been explained properly to him but he did not say by whom.

He was then asked what had become of his original birth certificate. The Applicant stated that he did not know where the original was; that when he had got his Fiji passport there was no birth certificate inside it but that the Applicant was so happy when he received the passport that he did not enquire about the absence of the birth certificate. He said he was happy because the passport shows that he was a Fiji citizen. In further answers the Applicant stated that he had never made any declaration renouncing his Chinese citizenship and that Mr. Wong had explained to him that he would have to renounce his other nationality before he could become a Fijian citizen but he should have renounced his Chinese citizenship. He then said this: "I realised the problem afterwards that I had first to renounce my Chinese citizenship before applying for a Fiji passport. I did not realise I had first to renounce my Chinese citizenship before applying for a Fiji passport."

It will be noted that these answers are completely different from the answers to interrogatories the Applicant swore on the 5th of July 1994 in answers to interrogatories 9 and 10 which I have quoted earlier. In his evidence before me the Applicant clearly admits that he was a citizen of China as he did when swearing his affidavit in support of his application for leave for Judicial Review. I have previously quoted paragraph 11 of that affidavit.

In his brief evidence before me at the hearing Wilisoni Vave who is now the Senior Assistant Secretary of Regional Development stated that in 1990 he was the Senior Immigration Officer Western and he remembers the Applicant arriving from China on an Air New Zealand flight in June 1990. He repeated the contents of an affidavit which he had sworn on the 27th of September 1990 opposing the Applicant's application for Judicial Review. In paragraph 13 of that affidavit Mr. Vave said:

"(i) I deny that the applicant was a citizen of the People's Republic of China. Fiji Citizenship Laws provide that the applicant is still a citizen of the People's Republic of China and not a citizen of the Republic of Fiji as a consequence of his failure to renounce his citizenship of China on attaining the age of 21 years."

He further deposed that:

"(b) On the 8th day of June 1989, the applicant entered Fiji on a Chinese passport number 1096626, on flight number 4. Computer records show that he was granted an entry visa valid for one month. Had the applicant's Chinese passport identified the applicant as having been born in Fiji, there would have been no need to obtain a visa. Fiji born persons are exempted from the requirement of having to obtain such permits, notwithstanding that they are not seeking to enter Fiji on a passport other than a Fiji passport. A copy of the relevant computer print out is annexed hereto and marked "A"."

I presume that the word "not" should be deleted from the 5th last line of this answer.

Before me Mr. Vave said that when the Applicant arrived at Nadi, because he was over 21 years old he was interested in how he acquired his Fijian passport because by Section 16 of the Citizenship Act Cap. 87 any person over the age of 21 is entitled to only one passport and to have only one nationality. He said when the Applicant was asked for his renunciation certificate he could not produce one.

In his submission on behalf of the Applicant his counsel made much of the fact that there was no dispute that Fiji Passport No. 278247 was issued to the Applicant and that certain criteria had to be met before a Fiji passport was issued to a person.

Counsel submitted that if the Applicant had complied with Section 2 of the Passport Regulations which is reproduced in the answer to interrogatory 15 sworn by John Tevita on the 10th of August 1994 the Immigration Authorities must have good reason to withhold a person's passport from him. Mr. Patel submitted they had not shown good reasons and the Applicant's passport had been withheld on mere suspicion.

In reply counsel for the Respondents relied on Section 16 of the Fiji Citizenship Act Cap. 87 which states that any citizen of Fiji who is also a national or citizen of some other country, who has attained the age of 21 years shall within 12 months of his attaining that age renounce the nationality or citizenship of the other country failing which he shall cease to be a citizen of Fiji. It follows, says counsel, and I agree, that as the Applicant had not renounced his Chinese citizenship which he should have done no later then 23rd of September 1981, he is not entitled to hold a Fiji passport.

I found the Applicant an unsatisfactory witness who has contradicted himself a number of times on oath as I have mentioned above. The onus is on the Applicant to satisfy the Court that the Respondents were not justified in taking and retaining the Applicant's Fiji passport when he arrived here on the 18th of June 1990. On the Applicant's admissions and on his affidavit sworn on the 20th of June 1990 I find he has been at all relevant times a citizen of the People's Republic of China. It is significant in my view that the Applicant did not call the one person who may have been able to assist the Court as to the circumstances in which the Applicant obtained his Fiji Passport No. 278247, Mr. Wong. This failure coupled with my assessment of the Applicant's credibility and the fact that he has not renounced his Chinese citizenship satisfy me that he is not entitled to a Fiji passport.

It follows therefore that I find the decision by the Respondents to seize his Fiji passport and not to return it to him was justified. The application for Judicial Review must therefore be dismissed. I order the Applicant to pay the Respondents' costs to be taxed if not agreed.

JOHN E. BYRNE
J U D G E

Legislation referred to in judgment:

Citizenship Act Cap. 87.
Passport Regulations Cap. 89.

No other legislation or authorities mentioned in argument.

HBJ0021J.90S