Whalen-Holderbaum v Director of Immigration [2022] FJHC 7; HBJ11.2021 (10 January 2022)

IN THE HIGH COURT OF FIJI AT SUVA

CIVIL JURISDICTION

Miscellaneous Action No. 11 of 2021

IN THE MATTER of an application under order 54 rule 1 of the High Court Rules 1988

by Rachel Wailana Whalen-Holderbaum of Waisalima, Nakasaleka, Kadavu,

Company Director, for a Writ of Habeas Corpus

IN THE MATTER of an application under order 53 rule 3 of the High Court Rules 1988

by Rachel Wailana Whalen-Holderbaum of Waisalima, Nakasaleka, Kadavu,

Company Director, for leave to apply for Judicial Review

IN THE MATTER of a decision made on the 3^rd of April by the Permanent Secretary

for Immigration ordering the removal of Rachel Wailana Whalen-Holderbaum of

Waisalima, Nakasaleka, Kadavu, Company Director, from Fiji

IN THE MATTER of a decision by the Department of Immigration declaring Rachel

Wailana Whalen-Holderbaum of Waisalima, Nakasaleka, Kadavu, Company

Director, a Prohibited Immigrant

BETWEEN

RACHEL WAILANA WHALEN-HOLDERBAUM of Waisalima, Nakasaleka, Kadavu, Company Director.

APPLICANT

AND

THE DIRECTOR OF IMMIGRATION of 969 Rodwell Road, Suva.

FIRST RESPONDENT

AND

PERMANENT SECRETARY FOR THE OFFICE OF THE PRIME MINISTER,

SUGAR INDUSTRY AND IMMIGRATION of First Floor, New Wing

Government Buildings, 26 Gladstone Road, Suva

SECOND RESPONDENT

AND

MINISTER FOR NATIONAL SECURITY, DEFENSE & IMMIGRATION of

First Floor, New Wing Government Buildings, 26 Gladstone Road, Suva

THIRD RESPONDENT

AND

THE ATTORNEY GENERAL OF FIJI of Level 6, Suvavou House,

Victorial Parade, Suva

FOURTH RESPONDENT

Counsel : Mr. S. Fa for the Applicant

Ms. M. Faktaufon the Respondents

Date of Hearing : 20^th December 2021

Date of Ruling : 10^th January 2022

RULING

(On preliminary objections)

[1] The applicant filed this summons seeking the following orders against the defendants:

1. AN ORDER FOR THE ISSUE OF THE WRIT OF HABEAS CORPUS AD SUBJICIENDUM for the production of Rachel Wailana Whalen-Holderbaum who was on the 13^th of December 2021 taken and detained under the custody of the 1^st Respondent or other of his servants, agents, or employees, so that the High Court may then and there examine and determine whether such cause is legal;
2. AN ORDER OF CERTIORARI to quash the decision of the Second Respondent given on or about 3^rd of April 2020 to remove the Applicant Rachel Wailana Whalen-Holderbaum from Fiji;
3. AN ORDER under Order 53 Rule 3(8)(a) of the High Court Rules 1988 that the granting of leave is also to operate as a Stay of the decision of the Second Respondent until the final determination of the Applicant’s application for Judicial Review and that the status quo remain;
4. AN ORDER that the Applicant be released forthwith from custody of the Fiji Immigration Department and or servants or agents of the State pending the final determination of the Applicant’s application of Judicial Review;
5. A DECLARATION that the Applicant’s continued detention for about midday on Monday, 13^th of December 2021 by the officers of the Fiji Immigration Department and or servants or agents of the State is unlawful and unconstitutional;
6. A DECLARATION that the Second Respondent’s decision to remove the Applicant and ordering the Applicant to leave the country without first hearing the Applicant or allowing her to show cause as to why she should leave the country is in breach of the rules of natural justice;
7. A DECLARATION that the 1^st Respondent breached the rights of the Applicant by failing to disclose or provide or give sufficient notice for the reasons of her being a Prohibited Immigrant and or relying on irrelevant matters in reaching such decision;
8. AN ORDER under Order 53 Rule 8 of the said Rules directing the Second Respondent to make and serve on the Applicant a list of document s which are or have been in its possession custody power relating to any matter in question in these proceedings and to make and file an Affidavit verifying such list and to serve a copy thereof on the Applicant;
9. AN ORDER for costs and damages; and
10. AND any such further or other orders as this Honourable Court deems just and fair.

[2] Order 1 sought in the summons is for the issue of the writ of habeas corpus ad subjiciendum. This application was filed by the applicant 17^th December 2021 and requested it to be heard the same day. The learned counsel made submissions and the court refused order 1 sought in the summons. When the matter was mentioned before this court on 20^th December 2021 the learned counsel for the applicant informed court that the applicant had already been deported but the application for leave to apply for judicial review would be proceeded with.

[3] One of the preliminary objections raised by the learned counsel for the respondents was that the application for leave to apply for judicial review is out of time. The applicant in this application seeks an order of certiorari to quash the decision of the second respondent dated 03^rd April 2020 to remove the applicant form Fiji. Prior to this application the applicant had filed another application seeking leave to apply for judicial review and it was later withdrawn and dismissed on 17^th June 2020.

[4] Order 53 rule 4(2) of the High Court Rules 1988 provides:

In the case of an application for an order of Certiorari to remove any judgment, order, conviction or other proceeding for the purpose of quashing it, the relevant period from the purpose of paragraph (1) is three months after the date of the proceeding.

[5] The learned counsel for the applicant sought time to file written submissions of the preliminary issue and the court granted time as requested by him. However, he has not filed any submissions.

[6] On 3^rd April 2020 Permanent Secretary for Office of Prime Minister, Sugar Industry and Immigration issued warrant of detention and removal order of the applicant. The applicant in this application for leave to file for judicial review seeking an order of certiorari to have the order of removal of the applicant set aside. This application was filed on 17^th December 2021 which is more than one year and six months after the order sought to be challenged was made which is clearly out of time.

[7] Order 53 rule 4(1) provides:

(1) Subject to the provisions of this rule, where in any case the Court considers that there has been undue delay in making an application for judicial review or, in a case to which paragraph (2) applies, the application for leave under rule 3 is made after the relevant period has expired, the Court may refuse to grant-

(a) leave for the making of the application, or

(b) any relief sought on the application,

if, in the opinion of the Court, the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

[8] In this matter the delay on the part of the applicant in making this application is inordinate.

[9] Section 15 of the Immigration Act confers power on the 2^nd respondent to make orders to remove illegal immigrants from the country. The applicant was ordered to be deported on the basis that she was not a valid permit holder (Section 13(2)(a) of the Immigration Act 2003). If the court condones acts of this nature it will create a very unhealthy precedence that any immigrant whose permit has expired can come to court and challenge his deportation which will be detrimental to good administration.

[10] The applicant has already been deported and therefore, this application if continued, will be only of academic interest.

[11] In this matter I have noted that the affidavit in support has not been deposed to by the applicant or any other person with her authority. It has been deposed to by a solicitor of the law firm that represented the applicant in this application which he was not entitled to do in law. Affidavit is a statement of facts within the personal knowledge of the person who deposed it. There is nothing on record to show that the solicitor who deposed the affidavit in support had authority from the applicant.

[12] For the above reasons the court holds that there is no proper application before this court and it is liable to be struck out.

[13] Since the applicant has already been deported, the court will not make an order for costs of this application.

ORDERS

(1) The application seeking leave to apply for judicial review struck out.
(2) There will be no order for costs.

Lyone Seneviratne

JUDGE

10^th January 2022