Singh v Director of Immigration [2009] FJHC 357; HBC 213.2009 (16 September 2009)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 213 OF 2009

BETWEEN:

DOREEN SINGH (f/n RAJIT SINGH)
PLAINTIFF

AND:

DIRECTOR OF IMMIGRATION
FIRST DEFENDANT

AND:

THE ATTORNEY-GENERAL OF FIJI
SECOND DEFENDANT

Ms S Shah for the Plaintiff
Ms S Lavaci for the Defendants

DECISION

This is an application by the Plaintiff (the Applicant) seeking orders declarations and injunctions as a result of her name having been placed on the stop departure list by the First Defendant.

The application is by way of notice of motion dated 15 July 2009 and filed in the Court the following day. The application is supported by an affidavit sworn by Doreen Singh on 15 July 2009 and filed with the notice of motion.

It is noted that the application seeks orders declarations and injunctions in identical terms to the relief that is sought by the Plaintiff in her Writ of Summons issued on 16 July 2009 and filed on the same day.

The application was initially listed as an ex parte hearing although Counsel for the Defendants was present. Having read the affidavit material and after hearing Counsel for the Plaintiff I ordered that the application proceed on an inter partes basis and gave directions for the filing of further affidavit material.

The application came on for hearing on 5 August 2009 and was adjourned part heard to 10 August. On that day the parties made further submissions and the proceedings were again adjourned part heard to 12 August 2009.

It is necessary at this stage to consider the relief that is sought by the Plaintiff in her Notice of Motion. Section 15 of the State Proceedings Act Cap 24 would appear to have the effect of preventing the Court from considering whether injunctions should be granted. Since there was no submission on this point, I do not consider it appropriate to deal with the Plaintiff's application for injunctions against the Defendants.

The two declarations that are sought are expressed in extremely wide terms and are not necessary as interim or interlocutory relief. They relate to matters which might more appropriately be the subject of further consideration at the substantive hearing of the claim set out in the Writ.

At this state I propose to deal with the Plaintiff's application by considering whether the orders sought should be made on an interim basis.

The Plaintiff seeks the following order:

"1. An Order that the Applicant's name be removed from the Immigration Watch List forthwith

2. An order that the Applicant be at liberty to travel out of the jurisdiction as she is presumed innocent until proven guilty."

At the outset I should indicate that the orders sought do appear to overlap. In the event that I grant order 1 it would appear that order automatically is granted. Presumably one of the factors that would be considered in determining whether order 1 should be granted would include the presumption of innocence.

The Plaintiff wishes to have her name removed from the stop departure list so that she can travel to Australia to visit immediate family members in Australia.

The Plaintiff was issued with a three month's Visitor Visa by the Australian High Commission in Suva. The visa was granted on 2 July 2009. It is a single entry visa and the Plaintiff must not arrive after 2 July 2010.

Although the Plaintiff has stated in her affidavit that she had booked a return ticket to visit Australia between 16 July and 15 October 2009, it would appear that those plans were changed. It would also appear that the Plaintiff was formally informed that her name had been placed on the stop departure list by letter dated 3 July 2009. It was acknowledged by Counsel for the Plaintiff that the apparent urgency of the application no longer existed and that the Plaintiff had till 2 July 2010 to utilise her Visitor's Visa.

It is not in dispute that the Plaintiff's name has been placed on the stop departure list. Nor is it disputed that the Plaintiff's name has been placed on the stop departure list as a result of an allegation that she was involved in a fraudulent transaction that occurred in about May 2008 and involved her de facto partner at the time Mohammed Mukhtar Ahmed Maqbool (Mukhtar) and an employee of the Fiji Electricity Authority (FEA) by the name of Erami Tute.

The Plaintiff was employed by the ANZ Bank as a part time teller. The affidavit material does not indicate at which branch of the ANZ Bank the Plaintiff was employed as a teller. Her employment was terminated by the ANZ Bank on 11 May 2009. The termination of employment related to the misconduct of the Plaintiff concerning cheques presented for deposit and/or payment by/to members of Mukhtar's family or Mukhtar himself.

It is alleged that an FEA cheque in the sum of $8750 signed by Tute was paid into the Plaintiff's account. It is also not disputed that on the same day as the cheque was paid into the Plaintiff's account, $7000 was withdrawn through a withdrawal slip signed by Mukhtar. The Plaintiff acknowledges that he was her authorised agent for signing withdrawal slips for withdrawals from her account. The plaintiff has claimed that she knew nothing of this transaction. In addition, she does admit processing Mukhtar family cheques but was unaware that there was any fraud involved.

The fraudulent transaction first came to light in about March 2009 and a complaint was lodged by FEA with the Fiji Police on 3 April 2009. It is interesting that Mukhtar had managed to leave Fiji for Australia on 3 Apri1 2009 before a stop departure could be placed on him. He has not returned. It would appear that Mukhtar entered Australia with Permanent Residence status.

It is accepted that a caution interview was conducted by the police with the Plaintiff between 22 and 30 June 2009. It is alleged by Aiyaz Ali in his affidavit sworn on 29 July 2009 that the Plaintiff admitted to colluding and aiding Mukhtar in the course of the alleged fraudulent transactions.

There is no affidavit material before to indicate how far the investigations have moved forward nor as to when they might be completed. There is no indication from the police as to what is causing the delay in charging the Plaintiff with any offence pursuant to her alleged admissions in the caution interview.

The transcript of the caution interview was annexed to the affidavit of Aiyaz Ali sworn on 7 August 2009.

In the course of the interview the Plaintiff admitted her de facto relationship with Mukhtar that had commenced about four years earlier. She also admitted that she still communicated with him and she was aware that he was staying with his brother in Sydney.

In answer to question 41 the Plaintiff admitted that she had breached the policies, procedures and Code of Conduct of her former employer, the ANZ Bank.

The Plaintiff admitted having four bank accounts. There were two access accounts with ANZ Samabula. There was also a cheque account and a Progress Saver Account. Mukhtar had agent authority for one of the access accounts. She had opened this account on 15 April 2008 and Mukhtar had received his authority some time before 26 May 2008. She stated that funds given to her by Mukhtar and family and funds from her other accounts were deposited into this account.

It is interesting to note that in answer 53 the Plaintiff indicated that as early as 25 March 2009, Mukhtar, Tute and the Plaintiff were all aware that FEA had informed the ANZ Bank that the $8750 cheque was fraudulent. Mukhtar left Fiji on 3 April 2009.

The caution interview is lengthy and was conducted over a number of days. The Plaintiff has admitted playing a facilitating role in the transactions that resulted in a substantial amount of money being handed to Mukhtar by the Plaintiff during the course of her employment as an ANZ Teller. It is clear that the fraudulent transactions could not have been successfully accomplished without the Plaintiff performing her facilitating role.

The Plaintiff claims in the interview that she was unaware of the fraudulent nature of the transactions until the last or second last transaction.

There are a set of transactions that are of particular concern. The Plaintiff has admitted processing two FEA cheques that were marked not negotiable and were made payable to non-existent persons. The Plaintiff admitted paying out those cheques for the full amount and giving the entire proceeds to Mukhtar. The cheques were not endorsed pay cash and nor were they paid into any bank account. The cheques were paid out in cash by the Plaintiff upon presentation by Mukhtar to her at the ANZ Samabula. The Plaintiff knew or ought to have known that the fictitional payees did not have accounts at the bank.

It is the task of the Court to balance the protection afforded by the common law principle of the liberty of the subject on the one hand and the effective investigation by police of alleged criminal activity with a view to bringing alleged perpetrators to trial as quickly as possible on the other hand. The balance is usually exercised or applied in favour of the liberty of the subject.

In this case the liberty of the Plaintiff or her freedom of movement has been restricted in the sense that she is at the moment unable to utilise her visitor's visa to travel to Australia. She has not been deprived of her freedom to move within Fiji. In view of the extremely serious nature of the allegations and in view of the admissions made by the Plaintiff during the course of the caution interview, it seems to the Court that the balance is tilted slightly in favour of giving the police some further time to complete their investigations.

In her submission Counsel for the Plaintiff informed the Court that the Plaintiff is not required for further investigation. However there is no material in the affidavits to support that submission.

Under the circumstances the application is dismissed.

Costs of this application are costs in the cause.

W D Calanchini
JUDGE

16 September 2009
At Suva