|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of Fiji |
IN THE HIGH COURT OF FIJI
[WESTERN DIVISION] AT LAUTOKA
CIVIL JURISDICTION
CIVIL ACTION NO:HBM 6 & HBJ 4 OF 2015
BETWEEN:
LIUDMYLA STREKALOVA of Melitopol, Ukraine
FIRST PLAINTIFF/APPLICANT
AND:
LIUDMYLA STREKALOVAof Melitopol, Ukraine
As next best friend of OLEKSANDER STREKALOV a minor.
SECOND PLAINTIFF/APPLICANT
AND:
MINISTER FOR IMMIGRATION, NATIONAL SECURITY AND DEFENCE of 26Gladstone Road, Suva
FIRST DEFENDANT/RESPONDENT
AND:
DIRECTOR OF IMMIGRATION
SECOND DEFENDANT/RESPONDANT
AND:
ATTORNEY GENERAL OF FIJI
THIRD DEFENDANT/RESPONDANT
Before : Hon. Mr. Justice S.S.Sapuvida
Counsels : Ms. Tabuaduadua for Plaintiff
Ms. Lee (AG's Office) for Defendants
Date of hearing : 16 April 2015
Date of Ruling : 24 April 2015
RULING
Immigration Law - Prohibited Class – Jurisdiction of the Court to grant leave to apply for Judicial Review Ex-Parte - Non Genuine Visitor – Notice to Prohibit Landing – Habeas Corpus - Do visitors who are refused entry into Fiji at the Port of Entry have the Right to apply for Judicial Review?
- Richard Krishna Naidu v Attorney General [1999] FJCA 55; Abu0039u.98s (27 August 1999)
- Keppel v Attorney General of Fiji [1998] FGHC 16; HMB0099j.1998s(13 February1998)
- In re Gillespie [1987]FJSC 21; [1987] 33 FLR 111(22 September 1987)
- Francisco Cantiia v The Director of Immigration[ High Court,1997 2 January]HBJ 12/95L
- State v Minister of Immigration, ex parte Kaisiepo [1996]FJHC 177; [1996] 42FLR 26
- State v Director of Immigration, ex parte Thomas[1993] FJHC 130; [1993] 39 FLR 34(26 February 1993)
- Salami v Mackellar (no 2) 1977 HCA 26; (1977) 137 CLR 396 (11 May 1977)
- Chapter 5 of the Annexure 9, to the Convention on International Civil Aviation- ICAO- International Standards and Recommended Practices
Legislation.
- Immigration Act 2003; s 9(1), 9(6) s 13(1)(b)and 13(2)(g)(j)(k),s15(5), s58.
- Immigration Act (Amendment Promulgation No.3 of 2008)s 2, s 3.
- Crown Proceeding Act, Section 15.
- Order 53 rule 8 of the High Court Rules 1988(HCR).
- Order 53 rule 3(3)(i) of the HCR; and
- Order 54 of the HCR.
History of the Cause.
1. The Applicants/Plaintiffs (hereinafter referred to as the Applicants) are citizens of Ukraine. They arrived at the Nadi international
Airport via a Korean Air flight from Seoul, Korea on the 31 March 2015. Upon their arrival at the Nadi Airport they were questioned
by Fiji Immigration Officials and refused entry into the Fiji Islands on the basis that they allegedly had insufficient funds and
were non-genuine visitors.
2. They were then transported to the Grand Melanesian Hotel and were detained in the custody of the Fiji Immigration until 3 April 2015.
3. On 2 April 2015 the Applicants through their Solicitors filed the following applications in the High Court of Fiji Western Division at Lautoka, seeking the Orders of this Court thereon;
(A) EX-PARTE NOTICE OF MOTION (APPLICATION FOR ISSUE OF WRIT OF HABEAS CORPUS AD SUBJICIENDUM)
The Applicants under this prayed for;
(i). The within writ of habeas corpus ad subjiciendum is issued out of the High Court on 2nd April 2015 for the production of the bodies of Liudmyla Strekalova of Melitopol, Ukraine and of Oleksandr Strekalov, a minor being taken and detained under the custody of the Minister for national Security and Defence or other of his servants agents or employees having their custody, together with the day and cause of their being taken and detained by whatsoever name they may be called therein, that the High Court may then and there examine and determine whether such cause is legal, and have the Minister for immigration National Security and Defence or other of his servants, Agents or employees having their custody there, then the within writ.
(ii) The Defendants forthwith release and free from their custody the restrained/detained persons being Liudmila Strekslova of Melitopol, Ukrainand of Oleksander Strekalov a minor until the final hearing of this matter.
(iii) That by virtue of Section21(5) of the Constitution of the Republic of Fiji that the applicants are lawfully in Fiji and are not liable to be expelled from Fiji except pursuant to an order of a court or a decision of the Minister responsible for immigration on a ground prescribed by law;
(iv) That, by virtue of Section 9 of the Constitution of the Republic of Fiji the Applicants are wrongfully detained in breach of their rights to liberty;
(v) That by virtue of Section 13 of the Constitution of the Republic of Fiji the Respondents have denied the applicants their rights as detained persons including but not limited to the right to communicate with a legal practitioner, the right to be informed in a language they understand, the right to challenge the lawfulness of the detention, the right to communicate with and be visited by their partner;
(vi)That, the Applicants have been wrongfully detained by immigration officers since 31 March 2015.
(vii) Cost of this application be borne by the Respondents on an indemnity basis.
(B). EX-PARTE SUMMONS (LEAVE TO APPEAL FOR JUDICIAL REVIEW)
The Applicants under this prayed for;
(i) The First and Second Plaintiffs be given leave to apply for judicial review proceedings.
(ii) That the First and Second Plaintiffs be released immediately from the custody of the first and second Defendants and be free to move around Fiji without any interferences from the first and second Defendants and /or their employees and /or their agents and/or their servants pending the hearing and decision of the Judicial review and Habeas Corpus application; and
(iii) The cost of this application be in the cause.
(iv) That the decision of the Immigration Department and /or the first and second Respondent Defendants/ to detain and deport the applicants made on 31st March 2015 be stayed until further orders of the Court.
4. This Court having observed the nature of reliefs sort by, and having considered the urgency of the remedies prayed for in the Application above, allowed the Counsel for the Applicants to support their application initially in ex-parte.
5. The Counsel for the Applicants at the hearing pleaded that the Applicants did not know why they were detained and to be deported by the Immigration officials at the Nadi Airport, and they were not informed in a language that they understand, and not informed reasons for their detainment in accordance with Section 13(1) of the Constitution of the Republic of Fiji.
6. The Counsel for the Applicants, when inquired by the Court at the ex-parte hearing also stressed and orally submitted the fact that the Applicants are legally enriched and entitle to enjoy the rights conserved by the Constitution of the Republic of Fiji since they are in the territory of Fiji.
7. It was also noted by this court from the caption of the Notice of Motion, and the Affidavit in support of the same, that one of the detainees, i.e.; the second Applicant/Plaintiff is a minor, aged 9.
8. This Court then having found at that instant, of any communication to the Respondents could not have been taken place, and the matter could not have been taken up inter-parte, due to the time bar, the very limited time between the time of filing the Motion and the time of proposed repatriation of the Applicants by the immigration officials in the following morning, the Court compelled to make an immediate decision in order to avoid any injustice being caused to the Applicants.
9. Then, having satisfied with the submissions made by the Counsel for the Applicants, and the facts revealed in the affidavit of Andrew Michael Womersley of 23 Karana Drive, Warrnambool, Victoria, 3280, Australia, and the Supplementary Affidavit of Anastasia Shipitsyna(Russian Translator) filed on 2nd April 2015, and having given due regard to the legal principles enunciated mainly in the case of Keppel v Attorney General(supra), it was the opinion of this Court, that the reliefs sort by the Applicants needed to be dealt with carefully, and expeditiously to maintain the status quo and to avoid any infringement of their rights and/or to avoid any injustice caused to the Applicants, and thus, the Court made the Orders on 2 April 2015 as prayed for by the Applicants in their EX-PARTE NOTICE OF MOTION (APPLICATION FOR ISSUE OF WRIT OF HABEAS CORPUS AD SUBJICIENDUM and, EX-PARTE SUMMONS (LEAVE TO APPEAL FOR JUDICIAL REVIEW and the same were caused to be served on the Respondents.
10. The Court made the following Orders
i. That the first and second plaintiff is given leave to apply for judicial review proceedings.
ii. That the first and second plaintiffs be released immediately from the custody of the first and second defendants and be free to move around Fiji without any interferences from the first and second defendants and/or their employees and/or their agents and /or their servants, pending the hearing and decision of the judicial review and habeas corpus application.
iii. That the Applicants to produce security for costs of FJD $ 10,0000/= (Ten Thousand Dollars) in the name of the cause for the unconditional appearance of the Applicants before the Court. The security is to be furnished before the Order is served on the Respondents.
iv. The person who submits the security for cost must surrender a true copy of his passport /identification document to the Registry of the Court.
11. This Court making the Orders of above nature in ex-parte, relied upon the principles enunciated in the case of Keppel v Attorney General of Fiji (supra) on an application for the release of the Applicants (though the facts in the Keppel Ruling were not identical to the present case) held, among other things, sighting what Lord Donaldson M.R. said In R v Secretary for State ex-parte Muboyayi (1991) 4 ALL E.R. 72 in affirming the suitability of an application for a Writ of Habeas Corpus at page 78;
"it is clear law, that where the power to detain is dependent upon the existence of a particular state of affairs ('a particular 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 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."
12. Therefore, this Court allowed the Applicants' ex-parte application for both Judicial Review and Habeas Corpus, in the light of preserving their Rights at the initial stage of the cause.
13. The Cause was adjourned to the 7th April 2015 for the returnable of notice to the Respondents.
14. On 7th April 2015, the Application was opposed by the State Counsel for the Respondents and urged Court that they be given 14 days to file their Affidavit in opposition and the matter was adjourned for 21st April 2015. The opportunity was also taken by the Applicants Counsel at this time to seek permission of the Court to add/include a relief/order which had already been granted in favor of the Applicant on 2nd April 2015, and yet, the same had not been printed & included in the papers served to the Respondents, by omission or by mistake, and later on the same day, it was allowed by this Court to correct it and include in the Orders made on 2 April 2015.
The Issue to be decided by this Ruling
15. The Respondents filed a Motion and an Affidavit in Support of JoneLedua, dated 8th April 2015, in order for variation and/or setting
aside of Orders originally made ex-parte by this Court on 2nd April 2015 and on the 7th April 2015 in favor of the Applicants.
Can the Court grant leave to apply for judicial review ex-parte
"This approach is appropriate when the application for leave is considered with or without a hearing. Although the rules now provide that the application is not required to be dealt with ex parte, we consider that an opposed determination inter partes should still be the exception rather than the rule. In the normal course, the application for leave should be dealt with on the papers. Otherwise there is a risk that there will in effect be two hearings (and possibly two appeals), a process which will delay the final resolution, increase the costs and occupy additional court time. Also, there is an understandable temptation for the Judge to determine the central issue at a stage when all the evidence may not be before the court, and that issue may not have been full (sic)argued. Indeed for these reasons, good arguments can be advanced in support of the proposition that leave should not be required at all. It is not in New Zealand, in Scotland, noe in at least some if not all States in Australia. If an application is brought that is frivolous, vexatious, or irresponsible, or by a person who cannot possibly have the slightest interest, an opposing party can always move to have the application struck out."
The section 13 The Immigrating Act 2003 has been amended by Immigration Act (Amendment) Promulgation No.3 of 2008.
Section 13 is now amended as follows by:
Section 2 of the amendment Act No.3 of 2008;
"2. Section 13(2) of the Immigration Act 2003 is amended in paragraph (g) by adding the following paragraph at the end after "Fiji Islands;" in the last line:
"Provided that and notwithstanding anything contained in this Act, the decision of the Minister made under this paragraph shall be final and conclusive and shall not be questioned or reviewed in any court."
"Part 4 - PROHIBITED IMMIGRANTS
Persons who are prohibited immigrants
13.(1) A person who-
(a) is not a person entitled to enter the Fiji Islands without a permit under section 9; or
(b) is a member of a prohibited class by virtue of subsection (2),
is, subject to subsections (3) and (4), a prohibited immigrant and the person's entry into or presence in the Fiji Islands is unlawful.
(2) The following persons, if they are not citizens, are members of the prohibited class-
(a) a person who, not being an exempted person, is not the holder of a valid permit;
(b) a person in respect of whom a deportation order under Part 7 or a removal order under section 15 is in force;
(c) enters the Fiji Islands by virtue of Part 5;
(d) a person who-
(i) refuses to submit to an examination by a registered medical practitioner after being required to do so under section 5(1)(e) or to undergo any test or examination which the practitioner requires; or
(ii) is certified by a registered medical practitioner to be suffering from a contagious or infectious disease, or from a mental disease or disorder, that makes the person's presence in the Fiji Islands dangerous to the community;
(e) a person who has been convicted by a court in another country of an offence which if committed in the Fiji Islands would be an offence that carries a minimum penalty of imprisonment of 2 years or more (including life imprisonment) or a minimum fine of $5,000 or more, and has not received a free pardon;
(f) a person who has arrived in the Fiji Islands as a stowaway;
(g) a person who prior to or after entry into the Fiji Islands, as a result of information received from any country through official or diplomatic channels, or from any other source the Minister considers reliable, is deemed by the Minister to be a person who is or has been conducting himself in a manner prejudicial to the peace, defence, public safety, public order, public morality, public health, security or good government of the Fiji Islands;
(h) a person who is in the course of deportation or compulsory removal from any other country;
(i) a person who is a member of any class of persons declared by the Minister, by order in the Gazette, to be a prohibited class for the purposes of this section;
(j) a member of the family, and any dependant of, a prohibited immigrant, unless the Minister in his discretion declares in writing that the member or dependant is not a member of the prohibited class;
(k) a person who, at the time of entry into the Fiji Islands, is unable to show that he has the means of supporting himself and his family and any dependant or that the person has a permit to work in the Fiji Islands or who is likely to become a pauper or charge on the public;
(l) a person who is a member of a terrorist group as defined under Part 5;
(m) an asylum seeker whose claim has been refused or a refugee whose status has been cancelled under Part 6.
(2) Notwithstanding subsection (1), a person whose permit has been cancelled or whose request for the extension or variation of a permit has been refused does not become a prohibited immigrant until-
(a) the Minister makes a decision on an appeal made under section 58; or
(b) the end of the 21st day after the day on which notice of the cancellation or refusal was given to the person, whichever is the later.
(3) A person who enters the Fiji Islands in order-
(a) to be tried by a court of competent jurisdiction;
(b) to serve a sentence of imprisonment; or
(c) to be detained in lawful custody for any other reason, is not a prohibited immigrant and may enter and remain in the Fiji Islands without a permit for so long, but only for so long, as is necessary for the purpose."
(emphasis above is mine to draw the attention of the relevant part of the Section before it was amended)
"Part 8 - APPEALS
Appeal to Minister
58. (1) In this section 'reviewable decision' means a decision of the Permanent Secretary-
(a) refusing to issue, extend, or vary a permit under section 9;
(b) attaching conditions to a permit under section 9(2);
(c) cancelling a permit under section 11; or
(d) refusing a claim or cancelling a refugee status under Part 6.
(2) When a reviewable decision is made, a person affected by the decision who is dissatisfied with it may, within 21 days after the day on which it was made, or within any further period the Minister (either before or after the expiration of the 21 days) allows, appeal to the Minister for a review by the Minister of the decision.
(3) An appeal under subsection (2) must-
(a) be in writing;
(b) set out the grounds of the appeal;
(c) be accompanied by the prescribed fee; and
(d) be lodged with the Director of Immigration.
(4) Upon receipt of an appeal, the Minister must review the reviewable decision and must within 21 days make a decision-
(a) affirming it;
(b) varying it; or
(c) setting it aside and making a new decision in substitution for it.
(5) An appeal to the Minister must be accompanied by the prescribed fee unless the fee is waived under the regulations.
(6) The Permanent Secretary must notify the appellant of the Ministers decision as soon as practicable after it is made.
(7) Section 31 of the Interpretation Act may apply to an appeal under this section. "
" 3. Section 58 of the Immigration Act 2003 is amended by adding the following new sub-section after sub-section (7):
"(8) No appeal shall lie from decision made by an Immigration officer acting in accordance with the directions of, or instructions given in respect of any particular case by, the Minister."
(emphasis mine)
40. The immigration Officials then have followed the guidelines recommended by the Chapter 5 of the Annexure 9, to the Convention on International Civil Aviation- ICAO- International Standards and Recommended Practices as confirmed by the Affidavit of JoneLedua
41. At this point of time the Applicants were in an International border and the actions of Immigration Officials should be to follow the said guidelines.
42. The immigration Officials having found, decided, and concluded that the Applicant is a "Non Genuine visitor" the notice to Prohibit Landing was served to Vili of Korean Airways. (marked annexure JL 2
43. Proviso 5.3 of the ICAO regulates that in a case of similar nature, the contracting State is required to notify in writing as soon as possible that the person in found inadmissible, and this notification can be paper, electronic form or email. The service of the same is to be effected to the aircraft operator (5.5) or escorting officer (5.6). The aircraft operator shall remove the inadmissible person to, (a) the point where he/she commenced journey or (b) to any place where he/she admissible (5.11). There is no requirement for service of the notice to the applicant. There is no requirement as well in the Convention to state that the applicant has to be informed of the reasons for being found inadmissible.
44. However, the Applicants in this case were accorded by the service of a Russian Translator, Anastasia Shipitsyna whose supplementary Affidavit was filed by the Applicant in support of their case where she confirms the fact that she explained that visa was refused. The reasons for refusal were also explained to the Applicant by the Translator.
45. When the facts are as such, and the Regulations are properly followed by the Immigration Officials then there is no duty either by Immigration Act or common Law requiring reasons to be given.
46. The case would have been different if, the Applicants were once allowed to land and then refused further stay in Fiji.
47. This argument was taken up in the case of State v Director of Immigration (supra) where by the Court held that the Director of Immigration is required to give the applicant an opportunity to make a representations he may wish to make regarding the proposed cancellation of his residency permit (entry to Fiji had been approved) and then only to take a decision in the matter after considering such representations. The distinction was made between the exercise of duties at the border and those who had been permitted to enter the country. It was the view of Justice Faitaki, that generally the immigration officers arenot bound by the rules of natural justice and need not give reasons for their decisions at the border.
48. Therefor this Court is of the firm view that the Applicants cannot challenge the decision of the Immigration Officials by which declared them to be inadmissible at the border and prohibited to land in Fiji.
49. For the aforesaid reasons, following are the Orders
(a) The Notice of Motion dated 8 April 2015 filed by the Respondents for variation and/or setting aside of Orders of this Court made on 2 April 2015 and 7 April 2015 is hereby allowed.
(b) The Application for Habeas Corpus and the Application for Judicial Review filed by the Applicants against the Respondents are struck out and dismissed with cost summarily assessed at FJD$ 5000. 00 (Five Thousand Fiji Dollars).
(c) The Applicants should report to the Director of Immigration within 24 hours of this order.
(d) The Director of Immigration is at liberty to take suitable action regarding the stay of the Applicants in Fiji.
(e) If the Applicants are found in default of the Order (c) above, the bond for security for cost furnished by the Surety, which is FJD $ 10,000.00 (Ten Thousand Fiji Dollars)shall be confiscated.
(f) Once the Applicants comply with the Orders of this Court, the balance FJD$5000.00 can be released to the surety.
S. S. Sapuvida
Judge
At Lautoka
24th April, 2015
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJHC/2015/287.html
