Keppel v Attorney-General of Fiji [1998] FJHC 16; HBM0099j.1998s (13 February 1998)

Fiji Islands - Keppel v The Attorney-General of Fiji - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

HABEAS CORPUS ACTION NO. 0099 OF 1998

BETWEEN:

:

RAPHAEL KEPPEL
Applicant

AND:

THERNEY GENERAL OF FIJI
Respondent

Mr. P. Howor the Appe Applicant Mr. S. Kumar for the Respondent

REASONS FOR JUDGMENT

In this application Kasenita Raluve Keppel seeks the immediate relea her husband Raphael Kepl Keppel ('Mr. Keppel') and his two sons from an earlier marriage, Lars and Gunnar Keppel (jointly referred to as 'the Keppels').

The application for Writs of Habeas Corpus Ad Subjiciendum in respect of the Keppels was filed on the 10th of February 1998 and listed to be heard on Thursday 12th February when Mr. S. Kumar of the Solicitor General's Chambers appeared for the respondent to oppose the release of the Keppels. He called Mr. Mohammed Yunus s/o Mohammed Yusuf a Principal Immigration Officer to explain the circumstances of the Keppels arrest and detention.

Mr. Yunus testified that Mr. Keppel was first granted a permit to enter, reside and work in Fiji pursuant to Section 8(1) of the Immigration Act Cap. 88 ('the Act') sometime in 1989 after F.T.I.B. approval had been granted to Mr. Keppel for him to start a publishing project in Fiji. The initial permit was valid for a period of 3 years. Mr. Keppel's sons who were both under 21 years at the time, were granted permits co-extensive with their father's pursuant to Immigration Direction No. 6(2).

Mr. Yunus to his credit, frankly admitted that Mr. Keppel in his application for a permit had disclosed a prior conviction in West Germany for an offence of being involved in an illegal protest against nuclear weapons and had further disclosed that he had been sentenced to imprisonment for a term of 3 1/2 years but was released after serving 28 months.

Section 11(2) of 'the Act' defines the categories of 'prohibited classes' for immigration purposes and para. (f) includes in that class:

"any person who has been convicted by a court in any country outside Fiji of any offence which if committed in Fiji would be an offence, for which he has been sentenced to ... imprisonment for a term of two years or upwards and has not received a free pardon."

On Mr. Keppel's own admission therefore he clearly belonged to a 'prohibited class'. Despite that Mr. Keppel was granted a 3 year work permit under Section 8(1) of 'the Act' and his permit was subsequently renewed on 29.3.93 for a period of a year and thereafter for a further 3 years to expire on 12.1.97.

For the sake of completeness it should be recorded that Mr. Yunus stated that after Mr. Keppel disclosed his conviction a request was sent to the Special Branch seeking confirmation but no response was ever received to that request nor did the Immigration Department consider following-up on its request either at the time or when extensions were subsequently sought and granted to the Keppels in March 1993 and December 1994 respectively.

In my considered view there having been no material non-disclosure by Mr. Keppel regarding his prior conviction and sentence, his original work permit cannot be said to have been obtained by fraud or misrepresentation. The fact that the Immigration authorities did not consider it sufficiently important to verify the information provided by the applicant either before granting and then subsequently extending Mr. Keppel's permit suggests to my mind that any disqualification on that score had been waived by the exercise of an over-riding discretion on the part of the Permanent Secretary.

Having said that it is at least correct that prior to the institution of judicial review proceedings there was in existence a 'Removal Order' (Ex. 3) in respect of Mr. Keppel issued on the 23rd September 1997. In the case of his sons however, their 'Removal Orders' and detention warrants (Exs. 4 & 5) were not issued until the 26th January 1998 almost a fortnight after the conclusion of the hearing of proceedings before Pathik J. It is still unclear why these latter orders and warrants were considered necessary especially as Mr. Yunus himself agreed that the Department had always considered that the immigration status and fate of the sons was inextricably linked to that of their father Mr. Keppel.

In respect of all three (3) 'Removal Orders' however, it is common ground that neither their existence or contents were ever notified or communicated to the Keppels or their legal representative. Section 15(1) of 'the Act' which authorises the issuance of a 'Removal Order' clearly envisages '... service of the order on such person' and the pre-printed 'Removal Order' Form itself makes provision in its body for service of the order on the person ordered to be removed.

Mr. Kumar did not concede the necessity to serve a 'Removal Order' on the person sought to be removed and in doing so appears to have over-looked the requirement of Section 11(3) that:

"... an immigration officer (who) makes a removal order in respect of any person on the ground that such person is a prohibited immigrant ... shall, if so requested by such person inform him of the class of prohibited immigrant ... which in the opinion of the immigration (such person) is a member."

One is tempted to ask rhetorically how can a person who is subject to a 'Removal Order' request such information, let alone, challenge the legality of such a draconian measure, if he does not know of its existence and there is no corresponding duty cast on the Immigration Department to serve the 'Removal Order' on that person?

Be that as it may, prior to his work permit expiring on 12.1.97 Mr. Keppel sought a further extension. Many months later his application was finally rejected in a letter dated 15th September 1997 signed by Mr. Yunus (Ex. 2). The letter also gave the Keppels 7 days to leave the country.

A few weeks later in October 1997 Mr. Keppel issued proceedings in HBJ 32 of 1997 seeking leave to issue an application for judicial review of the above-decision rejecting his application for an extension of his work permit.

In that application besides seeking various Declarations and an order for Certiorari, Mr. Keppel expressly sought:

"(f) An Order that the leave shall operate as a stay on the decision of the Minister for Justice and Home Affairs.

(g) An Order that the leave shall operate as a stay of execution and the status quo should remain."

On 11th November 1997 in a 9 page written decision Pathik J. "(found) without even hearing the judicial review ... that a procedurally wrong approach had been adopted in this case" and granted Mr. Keppel leave to issue judicial review proceedings. Unfortunately his lordship made no order granting a stay of proceedings and Mr. Yunus frankly admits that, in the circumstances, the Immigration Department was perfectly entitled to proceed to the detention and removal of the Keppels.

To continue with the narrative. On the 1st December 1997 the substantive application for judicial review was heard by Pathik J. and final written submissions were provided on the 14th January 1998. The matter now awaits the judgment of Pathik J. who unfortunately is presently away on vacation leave.

Or. 53 r.3(8) of the High Court Rules 1988 provides:

"Where leave to apply for judicial review is granted, then:

(a) if the relief sought is an order of prohibition or certiorari and the Court so directs, the grant shall operate as a stay of the proceedings to which the application or until the Court orders otherwise;

(b) if any other relief is sought, the Court may at any time grant in the proceedings such interim relief as could be granted in an action begun by writ."

Mr. S. Kumar for the respondent forcefully and forthrightly argued that in the absence of any direction from the Court that the grant of leave shall operate as a stay of proceedings, the Immigration Department was perfectly within its lawful rights to arrest, detain and remove the Keppels out of Fiji insofar, as since the rejection of Mr. Keppel's extension application on 15.9.97, their continued presence in the country without a valid permit must be considered unlawful.

Counsel frankly accepted however that a 'stay order' would have legitimised the Keppel's continued stay in this country not because it would constitute a permit under 'the Act', but because it would be a contempt of the Court's order to seek to remove the applicants pending the final determination of their application for judicial review.

In R. v. Secretary of State for Education and Science ex-parte Avon County Council (1991) 1 ALL E.R. 282 Glidewell L.J. in affirming the court's power to grant a stay of proceedings in an application for judicial review said at p.286:

"An order that a decision of a person or body whose decisions are open to challenge by judicial review shall not take effect until the challenge has finally been determined is, in my view, correctly described as a stay."

More recently in a case bearing greater similarities to the present Pain J. in Judicial Review No. 25 of 1995 Victor Kaisiepo v. Minister of Immigration in an unreported decision delivered on 8.2.96 rejecting an argument that the Court had no power to order a stay of a Ministerial decision rejecting the applicant's application for a work permit, said at p.16:

"I consider that this Court should follow the House of Lords decision in M. v. Home Office [1993] UKHL 5; (1994) 1 A.C. 377 and accept that the Court has jurisdiction to grant injunctions, including interim injunctions against ministers and other officers of the State in judicial review proceedings. In those circumstances it is immaterial whether or not a stay under Or. 53 r.3(8) is tantamount to an injunction. A stay can be granted and, even if it is tantamount to an injunction, the Court's jurisdiction is not negated by Section 15 of the Crown Proceedings Act (Cap. 24).

Accordingly the Court has jurisdiction to grant the stay sought by the applicant in this case. The question is whether in all the circumstances, it ought to be granted.

In my view the balance of convenience clearly favours the applicant. If a stay of the implementation of the respondent's decision is not granted, the applicant will be removed from Fiji. This will impose considerable inconvenience and hardship for him and his family, more so if the application for judicial review be successful. Indeed, his removal may effectively nullify his ability to proceed with the application. It has not been suggested that the granting of a stay will in any way prejudice the respondent. The status quo should be maintained by the granting of a stay until the application for judicial review has been determined."

(See also: per Lyons J. in Lautoka HBJ 12 of 1995 Francisco Cantila v. The Director of Immigration.)

Mr. Kumar forcefully submits however that no stay order was granted or directed in this case by Pathik J. and since there was an application for such an order, by implication it must have been rejected.

By the same parity of reasoning Mr. Howard for the Keppels argues that in the absence of any indication in Pathik J's judgment that he had directed his mind to the stay order requested and given the absence of a clear refusal of a stay, the matter remained extant and could be granted by the Court even at this late state and in the present application. I agree.

Furthermore, as I understood Mr. Kumar's submissions, the fact that the substantive application for judicial review has been heard and judgment is pending does not alter the lawfulness of the Immigration Department's actions in arresting, and detaining the Keppels with a view to their ultimate removal from the Court's jurisdiction.

I cannot agree with such a submission which if allowed would fundamentally alter the 'status quo' pending the judgment of Pathik J.

In R. v. Secretary for State ex-parte Muboyayi (1991) 4 ALL E.R. 72 Lord Donaldson M.R. in affirming the suitability of an application for a Writ of Habeas Corpus in that case said at p.78:

"it is clear law, that where the power to detain is dependent upon the existence of a particular state of affairs ('a precedent fact') and the existence of that fact is challenged by or on behalf of the person detained, a challenge to the detention may be mounted by means of an application for a writ of habeas corpus under Order 54, even if there are alternative procedures available."

and later at p.81 the learned Master of the Rolls said:

"The Court should not permit a would-be immigrant to be compulsorily removed from its jurisdiction if he has sought the protection and assistance of the court and the result would be to render any subsequent order quashing a decision to refuse leave to enter less effective."

In the present case it is a 'precedent fact' that before a 'Removal Order' may be made against anyone, his presence in the country must be, 'under the provisions of the Act, unlawful'.

Mr. Kumar with the benefit of hindsight argues that upon Mr. Keppel being advised that his extension application was unsuccessful, his continued presence in the country thereafter was, 'unlawful'. Mr. Yunus for his part testified that the Permanent Secretary had formed the view that Mr. Keppel was an 'undesirable immigrant' pursuant to Section 11(2)(g) of 'the Act' and for that reason his application was refused and his continued presence was considered 'unlawful'. It is the Permanent Secretary's opinion that matters.

In that regard Section 11(2)(g) is only applicable 'prior to entry into Fiji or within one year thereafter'. It is common ground that the 'information' which prompted the Permanent Secretary to act was not available until 1997 i.e. seven (7) years after Mr. Keppel had entered the country. Quite plainly the Section could not be invoked to render 'unlawful' Mr. Keppel's continued presence in the country.

Even if I accepted Mr. Kumar's argument the fact remains that Mr. Keppel in lodging an application for judicial review of the decision refusing an extension of his work permit '... has sought the protection and assistance of the Court' and his removal from Fiji pending the final determination of the Court, 'would ... render any subsequent order quashing the (refusal to extend) less effective'.

Taylor L.J. was even more trenchant in his judgment when he said at p.90 ibid.:

"It would be a mockery of justice if an applicant for asylum, refused entry, threatened with removal and possible return to the country he fears, could be granted leave for judicial review but be flown out of the country before his case be determined. Should his fears prove well founded it would be little comfort to his relatives to hear that his application for judicial review had been allowed posthumously ...

It is therefore essential that the Courts should provide against its determination being made in vain. Two principle procedures to achieve this end have been suggested. First the grant of a stay ... on the administrative proceedings flowing from his removal directions would seem the simplest and most logical way of preserving the status quo pending the Court's determination. ... If a stay cannot be granted, then I see no reason why habeas corpus should not be available to transfer the custody of the applicant from the control of the immigration authorities to the control of the Courts. ... The basis for the use of habeas corpus in this context would be that, although the detention was not presently shown to be unlawful, the issue of its legality was before the Court on the ground shown by the grant of leave to be arguable. The Court must inherently have the power to prevent its decision from being pre-empted by administrative action ... I see no reason why, in the changed circumstances of the 1990s and especially in immigration cases involving applicants entering and being removed from the jurisdiction the roles of these two remedies should not be reversed so as to provide habeas corpus in aid of certiorari."

In the present circumstances I am more than satisfied that his Court has the power through a Writ of Habeas Corpus, and the duty, to maintain the 'status quo' until the final determination of the applicant's challenge of the decision not to extend his work permit.

The maintenance of the 'status quo' of a 'sub judice' matter is a fundamental requirement of the due administration of justice and any conduct which is calculated to prejudice that requirement or undermine the public confidence that it will be observed borders on contempt of court and is punishable as such. (See: M. v. Home Office op. cit. at p.405 where the relevant Minister's contempt was said to be that he:

"interfered with the administration of justice by completing the removal from the Court's jurisdiction and protection of a litigant who was bringing proceedings against him."

For the foregoing reasons a stay of proceedings was granted in Judicial Review HBJ 32 of 1997 until final judgment and the Keppels were ordered to be released forthwith.

D.V. Fatiaki
JUDGE

At Suva,
13th February, 1998.

Hbm0099j.98s