State v Minister for Home Affairs, Immigration & National Disaster Management of Fiji, Ex parte Yan Hua [2005] FJHC 736; HBJ18R.2005S (9 May 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. HBJ 18R OF 2005S

BETWEEN

STATE

V.

MINISTER FOR HOME AFFAIRS, IMMIGRATION & NATIONAL
DISASTER MANAGEMENT OF FIJI

EX-PARTE:

YAN HUA & HSU CHENG WEI

Counsel for the Applicants: Abhay K. Singh: Messrs A.K. Singh Law
Counsel for the Respondents: H.M. Rabuku: Attorney-General’s Chambers

Date of Ex-Tempore Ruling: 9 May, 2005
Time of Ex-Tempore Ruling: 11.00 a.m.

EX-TEMPORE RULING

This is the Applicants Motion to stay the Minister for Home Affairs, Immigration & National Disaster Management of Fiji’s decision to remove or deport the 2^nd Applicant Hsu Cheng Wei (a minor) until the hearing and/or determination of the judicial review. The 1^st Applicant Yan Xiu Hua has already been removed out of this jurisdiction pursuant to the exercise of the Minister’s powers under S.15 of the Immigration Act.

The application is made on behalf of the Applicants, by one Joji Bakoso who describes himself as the guardian and next of friend of the 2^nd Applicant.

When the matter came before me on 22 April, 2005 I ordered that in addition to affidavits to be filed, that the 2^nd Applicant (a minor) be made available to the Director of Social Welfare and that a report of the Director be prepared and filed into Court before or on 3 May 2005.

In the intervening period, Joji Bakoso, the “guardian and next of friend” to the 2^nd Applicant, is in prison after having being found guilty of certain criminal offences in the Magistrates Court. The Director of Social Welfare whereupon took it upon himself to assume the care of the child, although I am told by the Director of Social Welfare that an Interim Care Order had been sought and granted from the Juvenile Court and to be reviewed on 12 May, 2005. For the time being, the 2^nd Applicant is in the care of the Director.

The Question of Locus Standii

The initial question is whether Mr Joji Bakoso has locus to bring the action on behalf of the Applicants. In respect of the 1^st Applicant, who is out of jurisdiction, there is no evidence before to this Court to say that Mr Bakoso has the authority or the capacity to act on behalf of the 1^st Applicant. Affidavits in support can only be sworn by the Applicant in person. That which has been filed into Court is sworn by Mr Bakoso.

In respect of the 2^nd Applicant ( a minor), the application is made by Mr Bakoso “as a guardian and next of friend.” A guardian who possess the legal capacity to act for an infant can only derive such authority if sanctioned and appointed by the Courts (S.16 (1) (e) of the Magistrates Court Act (Cap. 14), SS. 18 and 22 of the High Court Act (Cap.13)). Mr Bakoso, quite clearly has not sought nor obtained the legal authority to act on behalf of the 2^nd Applicant and bring this proceedings.

Under the circumstances, the Application of Stay made by Mr Joji Bakoso, must fail, on the ground that he does not possess the legal capacity to bring the action on behalf of both the Applicants.

There remains however the all important issue of the interest of the 2^nd Applicant. As a minor without guardian, she is presently under the care of the Director of Social Welfare. There is before this Court, an application by the Minister for a variation of the interim order for stay, that would allow the removal of the 2^nd Applicant to join her mother, the 1^st Applicant. The affidavit of the Chief Executive Officer of the Ministry for Home Affairs in support, exhibits a letter of authority from the 1^st Applicant to one John Low of Suva, a friend of the 1^st Applicant, to arrange the travel arrangements of the 2^nd Applicant to enable her to rejoin her mother back in China.

While this Court is fully aware of the powers vested in the Minister to remove any person from Fiji, the Court has a duty to ensure that the exercise of such powers are done, with due regards to the rights and the welfare of the individual as guaranteed under Constitution. This is especially so in the case of a minor as in this instance.

The 2^nd Applicant is a child of aged 10 years 9 months. She was born and grew up in Fiji. She has unfortunately become an innocent victim of circumstances and events that, as she told the Director of Social Welfare in the Report before the Court, she does not fully comprehend. She has been caught in the glare of publicity that surround her mother’s removal and both the media and certain individuals have unfortunately used her plight for their own ends. She for the moment remains very much on her own, alone without relative. It is I believe the duty of this Court to ensure that the well being of the child is protected at all times even as her future is being contemplated.

It is submitted that the circumstances of this case merits my exercising the powers of the State as parens patriae. The nature of this jurisdiction is described by Lord Brandon of Oakbrook in the House of Lords decision in In re F [1990] AC1, at p.57 thus:

“This is an ancient prerogative jurisdiction of the Crown going back as far perhaps as 13^th Century. Under it the Crown as parens patriae had both the power and the duty to protect the persons and property of those unable to do so for themselves, a category which included both minors (formerly described as infants) and persons of unsound mind (formerly described as lunatics or idiots).”

Lord Denning M.R. in re In re L (an infant) [1968] PD 119 said of this inherent jurisdiction of the Court of Chancery, at p.156:

“It derives from the right and duty of the Crown as parens patriae to take care of those who are unable to take care of themselves...”

This jurisdiction is inherited by Courts through the operations of sections 18 and 22 of the Supreme Court (now High Court) Act. In Sachin Deo v. Brij Bhan Singh & Or. Civil Appeal No. 18 of 1991, Scott J. (as he then was) said of the inherited jurisdiction that (at p.4):

“In exercising jurisdiction in this matter this Court does so by virtue of Sections 18 and 22 of the High Court Act (Cap. 13) ... It exercises the jurisdiction which has been exercised by the Court of Chancery from the time immemorial. It is a paternal jurisdiction, a judicially administrative jurisdiction in virtue of which the High Court is put to act on behalf of the State as being the guardian of all the infants in place of the Parent as if it were the parent of the child thus superceding the natural guardianship of the parent ....”

In this case the Director for Social Welfare has obtained an interim care order from the Magistrates Court which has placed the 2^nd Applicant in the custody of the Director. The Director’s Report, submitted to the Court, states that the 2^nd Applicant is in good health and continues to attend school on a daily basis.

The claim for judicial review, the substantive action in this proceedings is against the Minister’s decision to remove the 2^nd Applicant from Fiji. It is important, I believe, that the claim is dealt with appropriately by the Court, as it would in all other cases. This means allowing the claim to run its course, or as otherwise determined by the Court. To do so, the 2^nd Applicant must be given the legal capacity to continue her action. While a care order places the Director of Social Welfare in a position of loco parentis and thereby having the legal right as would a parent, the powers he inherits are merely statutory and emphemeral in nature. The Director must, where necessary, apply for an extention after a period of 3 months. In my view such authority as emanating from a care order is clearly inadequate for the purpose of the 2^nd Applicant pursuing her action. Such powers need to be supplemented and the only empowerment provisions are those available to this Court under Sections 18 and 22 of the High Court Act. Under the circumstances, I make the following orders.

(1) That the 2^nd Applicant be and is hereby made a Ward of this Court until further Order.

(2) The custody of the child is in the meantime to remain with the Director of Social Welfare.

(3) The Director for Social Welfare will become Guardian and next of kin for the purpose of the present proceedings.

I make further order that the 2^nd Applicant shall not be removed from this jurisdiction unless with the approval of this Court.

Costs in the cause.

J. Jitoko
JUDGE

At Suva
9 May 2005