Chetty v Director of Immigration [2009] FJHC 356; HBC0185.2009 (12 August 2009)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. 185 OF 2009

BETWEEN:

NARENDRA SWAMY CHETTY
PLAINTIFF

AND:

DIRECTOR OF IMMIGRATION, MINISTRY OF IMMIGRATION
OF THE REPUBLIC OF FIJI ISLANDS
FIRST DEFENDANT

AND:

ATTORNEY-GENERAL OF FIJI
SECOND DEFENDANT

Mr S Sharma for the Plaintiff
Ms S Levaci for the Defendants

DECISION

This is an application by the Plaintiff for:

"... an Order that leave be granted to the Plaintiff to leave the jurisdiction of this Honourable Court as there is existence of a stop departure against the Plaintiff issued by the Director of the Immigration on a complaint by Fiji National Provident Fund."

The application was by way of originating Summons. In support of the application the Plaintiff made an affidavit on 30 June 2009. The Defendants filed an answering affidavit made by Nemani Vuniwaqa, the Director of Immigration, on 9 July 2009. The Plaintiff did not file a reply affidavit.

The background to the application may be stated briefly. The Plaintiff had been employed by Natadola Bay Resort Limited for about three and a half years. He resigned on 11 June 2009 as he had been granted a work permit by the New Zealand Government. The work permit is valid up to 5 February 2010. The Plaintiff's wife has also been granted a similar work permit.

As a result of a complaint made to the First Defendant by the Natadola Bay Resort Limited, the Plaintiff's former employer, a stop departure order was placed against the Plaintiff. The Plaintiff wants the stop departure lifted so that he can join his wife who resides in New Zealand and commence employment in that country with a travel company as an administrative officer. The Plaintiff claims that he is unaware of the reason for the complaint to the First Defendant although he does state that the stop departure is based on a frivolous and vicious complaint that has no merit.

The reason for the Plaintiff being placed on the stop departure list is revealed in the affidavit made by the First Defendant. It would appear that the Plaintiff was placed on the stop departure list on 27 May 2009 as a result of verbal instructions received from the Prime Minister's office. That instruction was in turn based on a verbal request made by the Chief Executive Officer of Natadola Bay Resort Limited. The verbal complaint was confirmed in a letter dated 12 June 2009 from Natadola Bay Resort Limited to the Prime Minister's office.

On 5 June 2009 the Plaintiff had attempted to travel to New Zealand but was initially stopped as a result of the stop departure placed on 27 May 2009. However, as a result of representations made to the First Defendant, the Plaintiff was issued with documentation to enable him to travel to New Zealand for a job interview and to visit his wife.

Whilst in New Zealand the Plaintiff telephoned the First Defendant to confirm that he had been successful for the job interview and was returning to Fiji. The Plaintiff did return to Fiji, knowing full well that there was a stop departure placed on him.

It would appear that following his return to Fiji, a report was lodged at the Sigatoka Police Station on 6 July 2009 by Natadola Bay Resort Limited Board Secretary Josaia Sadole.

The stop departure direction that was placed against the Plaintiff remains in force up to the present time. In an affidavit sworn by Mosese Nababea on 9 July 2009 and filed in civil action No. 202 of 2009 it is claimed that due to the magnitude of the irregularities, forensic accountants/internal account auditors engaged by Natadola Bay Resort Limited may require a minimum of 12 to 14 weeks to analyse all transactions conducted by the Plaintiff.

There is no affidavit material before me to indicate what progress has been made by the police in investigating the allegations that were the subject of the report made on 6 July 2009. Although the investigation has only been underway for a relatively short period, the Plaintiff has not yet been charged with any offence. In fact there is no material before me to suggest that he has been interviewed. There are no admissions made by the Defendant in his affidavit. Although the Plaintiff has not been arrested or charged, his liberty in the sense of his freedom of movement has been affected. He is not free to leave the country.

It cannot be doubted that "it is in the public interest that a person suspected of having committed a criminal offence should be brought before a court of law without undue delay" (per Hickie J in Christopher John Surendra Singh -v- Commander Viliame Naupoto and Others unreported civil action No. 199 of 2008 delivered 4 July 2008 at page 13).

The issue is one of striking a balance between the common law protection of the personal liberty of the subject and the need to allow police officers to efficiently investigate criminal allegations.

In Williams v R [1986] HCA 88; (1986) 161 CLR 278 Mason and Brennan JJ (as they then were) concluded that at common law the balance was to be decided in favour of the liberty of the subject. During the course of their joint judgment, at page 296 they stated:

"The jealousy with which the common law protects the personal liberty of the subject does nothing to assist the police in the investigation of criminal offences. .... Nevertheless, the balance between personal liberty and the exigencies of criminal investigation has been thought by some to be wrongly stuck.... But the striking of a different balance is a function for the legislature, not the courts. The competing policy considerations are of great importance to the freedom of our society and it is not for the courts to erode the common law's protection of personal liberty in order to enhance the accuracy of law enforcement."

Although the facts in the Williams case (supra) are different from the present application, the principles that the High Court applied in that case are equally applicable to the present case. The fact is that the Plaintiff's freedom of movement has been restricted by the stop departure order placed against him by the first Defendant. The subsequent restriction on his ability to travel to New Zealand has prevented him taking up employment pursuant to a work permit granted by the New Zealand Government.

The Plaintiff should be allowed to leave Fiji to take up employment in New Zealand.

However, there is another matter involving the Plaintiff that is also before me. In Civil Action No. 202 of 2009, Natadola Bay Resort Limited has commenced proceedings against the Plaintiff in relation to matters that are alleged to have occurred during the course of his employment with that company.

In his affidavit filed in those proceedings the Plaintiff has admitted that he owes an amount of $2781.39 arising out of a personal loan agreement between the parties.

For the reasons that are stated in the decision in those proceedings, I have granted a restraining order against the Plaintiff and directed that he surrender his passport to the Chief Registrar. That order is to remain in force until the Plaintiff has complied with two conditions that are set out in the decision.

As a result, so far as the present proceedings are concerned, I direct that the Director of Immigration lift the stop departure against the Plaintiff and allow the Plaintiff to leave Fiji upon certification by the Chief Registrar that the Plaintiff has provided to the company a full statement of assets as required by my orders and also that the Plaintiff has provided a security in the sum of $2781.39 by way of surety or bond.

W D Calanchini
JUDGE

12 August 2009
At Suva