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Hatilia v Attorney General [2013] SBCA 3; Civil Appeal Case 26 of 2012 (26 April 2013)

IN THE SOLOMON ISLANDS COURT OF APPEAL


NATURE OF JURISDICTION
Appeal from Judgment of the High Court of Solomon Islands Civil Case No. 456 of 2011 (Palmer CJ)


COURT FILE NUMBER:
Civil Appeal Case No. 26 of 2012


DATE OF HEARING:
15 April 2013


DATE OF JUDGMENT:
26 April 2013


THE COURT:
Goldsbrough, President
Sir Gordon Ward, JA
Mwanesalua, JA


PARTIES:
Brenda HATILIA (Appellant)

-V-

Attorney General (First Respondent) &
(Second Respondent)


ADVOCATES:
Appellant:
Respondent:
Hou for Appellant
Banuve for Respondent


KEY WORDS:
...............................


EX TEMPORE/RESERVED:
Reserved


ALLOWED/DISMISSED:
Allowed


PAGES:
1-10

JUDGMENT OF THE COURT


  1. This is an appeal against a decision of the High Court delivered on 7 May 2012 wherein a claim brought by Brenda Hatilia (the appellant) was struck out pursuant to rule 9.75(c) of the Solomon Islands Courts (Civil Procedure) Rules 2008, ("the Rules").
  2. The claim before the High Court sought a declaration that the refusal by the Director of Immigration in collaboration with the Minister of Commerce, Industries, Labour and Immigration to grant a residence permit to her husband was unlawful and/or not a reasonably justifiable measure within the context of a democratic society and thereby contravened the claimant's fundamental right to reside with her husband in Solomon Islands pursuant to section 14 (1)and 14 (3) (c) of the Constitution of Solomon Islands as read in conjunction with the protection of privacy of her home found in section 3 (c) of the Constitution.
  3. In addition, the claimant seeks a mandatory order that the Director of Immigration grant a Residence Permit to her husband.
  4. The factual background to the application begins with the arrival in Solomon Islands of the man Jayantha Arachilage Rajapaksha in 2007 who intended and indeed did take up an offer of employment as a cook in a local restaurant. He and the claimant began a relationship in September 2007 when she was also employed at those same premises. They married on 22 January 2009. There is one child of the union who in November 2011 was two months old. There is no suggestion anywhere in these proceedings that the marriage was or is anything other than legitimate.
  5. Proceedings in the High Court did not begin with this claim but an earlier set of claims disposed of in HC SI 39 of 2011. That civil case itself was a consolidation of actions brought by the husband of the present Appellant (wherein he challenged an order for his deportation (HC SI 512 of 2010)) and by the present Appellant wherein she raised the question of her Constitutional right to protection from inhuman and degrading treatment under section 7 of the Constitution.
  6. That consolidated action resulted in a decision of Chetwynd J delivered 22 July 2011. In that decision the quashing of the Deportation Order appears to have been confirmed. The present Appellants' claim, though, seems not to have met with the same degree of success. The claim brought by the present appellant was based on the effect that the deportation of her husband would have on her and her family life. She claimed that the deportation of her husband would amount to inhuman and degrading treatment of her, a citizen of the Solomon Islands, such inhuman and degrading treatment being proscribed treatment within the Constitution of Solomon Islands.
  7. At paragraph 35 of his judgment, Mr. Justice Chetwynd remarked that the claim was not based on any other right to be found within the constitution in particular noting that it was not brought as an alleged infringement of the right to freedom of movement under section 14 of the constitution. He went on to consider cases determined by Gubbay CJ in Zimbabwe when the same issues had arisen under the equivalent of the Solomon Islands section 14.
  8. The relevance of the judgment of Mr. Justice Chetwynd becomes apparent when one considers the strike out application for it forms the basis of that application. In that application the Respondent Attorney General applies for an order that the matter be struck out as constituting an abuse of process. The specific grounds on which the application is founded are five in number. They are:-

Prospective Breach


  1. The appellant's husband as a result of the decision in 39 of 2011 is no longer the subject of the deportation order made against him. No indication has been given by the respondent as to what steps may be taken in respect of her husband in the future although it seems that her husband is in receipt of a letter from the respondent inviting him voluntarily to leave the jurisdiction. That letter from the Director of Immigration sets out what the Respondent regards as the correct position and concludes by inviting the Appellant's husband to leave the country voluntarily. It was written about one month after the decision 39 of 2011 and so was not overtaken but followed that decision.
  2. In the letter dated 24 August 2011 the husband of the Appellant is asked to leave the Solomon Islands within 14 days and sets out the Respondent's position that her husband becomes or remains a prohibited immigrant.
  3. In the event that a decision is made to deport him under the relevant legislation he is entitled to seek a judicial review of that order and may do so within seven days of the order being made. It is for this reason that the respondent suggests in their application that adequate means for redress would be available to both the appellant and her husband in the event of any subsequent deportation order being made.
  4. In finding against the respondent on these two grounds in his decisions on strike out the Chief Justice found that coming to court alleging prospective breaches should not amount to an abuse of process. Respectfully we agree with that decision. In addition, the Chief Justice notes the protection afforded to the couple under the relevant legislation in the event a new order is made. Whilst there may be some doubt as to the effectiveness of the protection in practice, in theory it still exists. The position will change to strengthen that protection when new legislation presently awaiting commencement is brought into force. Presently, however, given the previous haste with which some persons the subject of deportation orders have been dispatched from the jurisdiction before the seven day period for review has expired, the protection may be described as more illusory than real. Under the new legislation the relevant authorities are required to wait until that seven day period ends, whereas presently they are not so required.
  5. Later in this judgment, we return to the question of prospective breach to consider a different aspect of that same notion.


The requirement for leave


  1. Under the Civil Procedure Rules a claim for prospective breach of a constitutional right requires leave of the court. No leave has been sought in this instance. It does not appear to be part of the case for the respondent that the failure to seek leave amounts to an abuse of process but in the alternative the respondent maintains that if leave were to be sought it should be refused. In dealing with that point the Chief Justice agreed that leave ought to be sought as he regarded the Constitutional question as a prospective breach. In our view the proper approach to that is to hear an application for leave rather than consider an application to strike out based on the failure to seek leave. When originally made, of course, the application required no leave as there was then a Deportation Order in force. It should, in our view, not be fatal to her case that a procedural step has been overlooked in the present circumstances.
  2. It is perhaps worth noting at this stage that her position will be quite different and certainly not at the prospective breach stage if and when the 2012 Immigration Act is brought into force. Then, given the present circumstances, her husband will be under a duty to leave the country as an unlawful non-citizen and she may well face a criminal charge of harbouring him.

Crown Proceedings Act


  1. The Chief Justice did address the question of a mandatory order as against the Director of Immigration and found in favour of the appellant in that regard. There is no complaint in respect of that with which we, respectfully, agree.


Res Judicata


  1. Ground five of the application to strike is based on the notion that the question of constitutional redress was properly and finally determined in Civil Case 39 of 2011. In determining that ground the Chief Justice notes the remarks of Mr. Justice Chetwynd in the earlier judgment from which it is clear Mr. Justice Chetwynd did consider the constitutional question and clearly ruled against the appellant. There can be no question in our view that this indeed was the case. However, the question remains as to whether Mr. Justice Chetwynd was entitled to consider and finally determine the constitutional question as he did given the material before him and the decisions made by counsel for the appellant.
  2. If the issue was indeed properly before Mr. Justice Chetwynd the matter is res judicata. We have considered the conclusions of the Chief Justice and can find no fault in his exposition of the relevant principles and the way in which he applied them. If these issues were not properly before Mr. Justice Chetwynd, in our view, the questions remain open and no final determination has been made which can be said to raise the question of res judicata.
  3. What is it that suggests the matters were not properly before Mr. Justice Chetwynd when he made his decision to dismiss the claim brought by the appellant? It is the material from counsel for the appellant who submits that, following submissions by counsel for the respondent on procedural issues, he withdrew the constitutional question and thereafter made no further oral submissions on the point.
  4. In his affidavit, counsel for the appellant terms this a 'conditional withdrawal' of the question. In the light of that he maintains that when the court purported to determine those very questions it fell into error. The error, he submits, was in making a determination without having heard full submissions on the question. Both counsel now appearing before this court were themselves before the Chief Justice and indeed before Mr. Justice Chetwynd and it is therefore a matter of regret that there is no concurrence between them of what took place at the earlier hearing.
  5. In his judgment, the Chief Justice concludes that the issues were raised and considered by Mr. Justice Chetwynd. He supports that finding with the statement:- "I do not think the decision of the court could be any clearer."
  6. Respectfully we agree with the Chief Justice when he states that the decision of the court could not be any clearer. We are left wondering, however, whether consideration of the written judgment of the court assists in determining what submissions were made by counsel in the matter prior to the court retiring to consider its decision.
  7. In particular, we note with some concern the finding of Mr. Justice Chetwynd in relation to the similarities existing between the present section 14 of the Constitution of Solomon Islands and the amended Constitution of Zimbabwe. On a simple reading of that material it appears to be a mistaken interpretation of the words of the relevant legislation. That leads to the possible inference that the court did not benefit from submissions from counsel on those important questions. Counsel for the respondent in his own submission makes the point that he was brief on the Constitutional question before Mr. Justice Chetwynd. Counsel for the appellant seeks to persuade this Court that he made no submissions before the court after the procedural objection had been taken.
  8. In his judgment the Chief Justice suggests, given his finding that the court did make a determination of the Constitutional questions, the proper course to have been an appeal. That course, it seems to us, presents its own peculiar difficulties which, perhaps, were not drawn to the attention of the Chief Justice. Those peculiar difficulties arise as in significant part, the Appellant, or more correctly, her husband, was successful before Mr. Justice Chetwynd. The deportation order made against the husband was quashed. It is difficult to see how an appeal against that decision would be an appropriate remedy.
  9. It may be that the decision to consolidate the matters was a poor decision in that the rights of the husband and those of his wife were based on different considerations. His rights were as against the order made in deportation proceedings whereas her rights, if any, arise from the constitutional protection afforded to citizens by the Constitution itself. Whatever the merits of the order to consolidate the proceedings, the effect would be to make an appeal against only part of the decision a difficult course.
  10. There is a further aspect to the res judicata question and this arises as a direct result of the position taken by the Respondent following the decision to quash the Deportation Order. That is not a view shared by this Court but it nevertheless requires consideration. It may well be argued, given the stance taken by the Crown on the Deportation Order, that after the Deportation Order had been quashed there was no live issue remaining before the court and any remarks purportedly made to determine a Constitutional issue by the Court were made obiter.
  11. This is no more than accepting the Respondent's view that absent a deportation order there is nothing other than a prospective breach remaining. Again, this is not the view taken by this Court and as alluded to above certainly will not be the position under the new legislation still to be brought into force. If not to begin the deportation process again, one wonders what the point of the letter of 24 August 2011 was?
  12. The question of the constitutional right of a citizen spouse married to a non-citizen to enjoy a family life with that spouse in the country of their citizenship or at least the citizenship of one of them is a most important question. It is a question that requires determination after full and informed debate. It raises fundamental constitutional issues and, in our view, it would be wrong to permit a decision based on less than proper argument to survive scrutiny.
  13. Quite what took place at the hearing before Mr. Justice Chetwynd is now consigned to history, a history that lacks precise detail but relies instead on recollection. In trying to determine the just route to follow in this case, to meet the Justice of the case, we take all of the above matters into account. To err in favour of the appellant will result in a full hearing and no more than that. To err in favour of the respondent on this appeal could cement in precedent a decision not properly made.
  14. A decision to strike out other than on the merits of a case is often only indicated in the clearest of circumstances. We do not believe that these circumstances give rise to anything of particular clarity.
  15. This appeal is allowed. The decision to strike out is quashed. The matter is remitted to the High Court for the hearing to continue.

............................................................................
Justice Edwin Goldsbrough
President


............................................................................
Sir Gordon Ward, JA
Member


............................................................................
Justice Mwanesalua, JA
Member

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