Muller v Attorney-General [1983] SBHC 24; [1983] SILR 259 (17 November 1983)

[1983] SILR 259

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 113 of 1983

MULLER

v

ATTORNEY-GENERAL

High Court of Solomon Islands
(Daly C.J.)
Civil Case No. 113 of 1983

17th November 1983

Immigration - wife of Solomon Island citizen over 18 years whether ‘prohibited immigrant’ - section 7(1)(a) Immigration Act. 1978 - certiorari - Deportation Orders.

Facts:

The Applicant was a female non-Solomon Island citizen aged over 18 years. She was married to a Solomon Islands citizen but that marriage was dissolved on 20th October, 1983. On 26th October 1983 a deportation order was made against the Applicant. The same afternoon she married another Solomon Islands citizen. The deportation order was not revoked. The Applicant applied for certiorari to bring up and quash the deportation order.

Held:

1. Whether or not the Applicant was entitled after her second marriage to enter and reside in Solomon Islands depended on the true construction of section 7(1)(a) of the Immigration Act 1978 which exempted "any citizen of Solomon Islands and his family under the age of 18 years". Section 2 of the Act provided that "family" means, wife and children under the age of eighteen years". Reading these two provisions together and having regard to their context in the Act the true construction was that the exemption included all wives of whatever age and children under the age of eighteen years. Further, to talk in terms of wives over eighteen and under eighteen smacks of absurdity. The Applicant was therefore entitled to enter and reside without a permit and was not a prohibited immigrant.

2. Even though the Deportation order was valid when made, as the underlying declaration of status was now untrue, the Court had power to bring up and quash the order.

Cases referred to:
Re Application by the Minister for Western Provincial Affairs (1983) SILR 141

For Applicant: A. Radclyffe
For Respondent: J. Apaniai

Daly CJ: This is an application by TIKORO MULLER ("the Applicant") for an order of certiorari to bring up and quash a deportation order made against her under the Deportation Act 1978 by the Honourable Minister of Police and Justice on 26th October 1983. There are two grounds of the application and I shall for the present restrict myself to ground (a) which raises an interesting question of statutory interpretation.

In order to appreciate the point one must consider briefly some of the background facts. The Applicant is not in her own right a Solomon Islands citizen but she was married to a Solomon Islands citizen. That marriage come to an end by a decree absolute of divorce made on 20th October, 1983. On 26th October 1983 the Minister made the Deportation Order: the same afternoon, after service of the order upon her, the Applicant married Stephen Muller, a Solomon Islands citizen. The Applicant is aged over 18 years. I should perhaps add that the Applicant is due to give birth to the child of Stephen Muller at the end of November, 1983. The proceedings in this Court were commenced on the 31st October 1983.

Ground (a) seeks relief as "the Applicant is not a prohibited immigrant under the Immigration Act 1978 in that she is exempt under section 7(1)(a) Immigration Act 1978 from the need to have a permit to enter and reside in that she is married to a Solomon Island citizen".

The reason why there is a reference to 'prohibited immigrant' is because the Deportation Order commences with the following recital: -

"Whereas TIKORO VAENGALIEI MARORONGA MARIKI LAURA, an alien, is a member of the prohibited class under section 11(2)(a) of the Immigration Act 1978 in that she is a person who, not being exempt, is not the holder of a valid permit issued under the said Immigration Act 1978: and whereas by virtue of section 11(1) of the same Act, the said TIKORO VAENGALIEI MARORONGA MAKIRI LAURA has become a prohibited immigrant."

It is accepted by the Applicant that this recital was correct at the moment when the Deportation Order was signed but it is submitted by the Applicant that supervening events have now rendered it incorrect. I must return to the sequence of events later as the Respondent takes a point in relation to them but the first matter for consideration is, is the Applicant at this time a member of a prohibited class under section 11(2) (a) of the Act? That question in this case resolves itself as, is the Applicant exempt as a person entitled to enter Solomon Islands without a permit under the provision of section 7(1)1 Thus it is necessary to consider whether the Applicant falls within the categories of person described in section 7(1) (a) which is the only provision which can be said to apply to the Applicant. This section provides: -

"7(1) Subject to the provisions of this section, a person who satisfies the Principal Immigration Officer that he comes into any of the following categories shall be entitled to enter, reside or work in Solomon Islands from any place outside Solomon Island without have obtained a permit under this Act -

(a) any citizen of Solomon Islands and his family under the age of 18 years,"

Counsel for the Applicant submits that the Applicant as the wife of a Solomon Island citizen is a member of "his family under the age of 18 years". The Respondent argues that she is not. Each rely upon their own interpretation of the words and endeavour to perform the difficult task of reconciling them with the terms of section 2 of the Act. This provides that ""family" means wife and children under the age of eighteen years". I am grateful to counsel for their submissions on this interesting point.

First, let me adopt the approach commended by this court in Re Application by the Minister for Western Provincial Affairs (Reported at page 14) when it said at page [sic]: -

"The only proper approach to any problem of construction is first to read the words used in their context. If the words have a natural and ordinary meaning then the words should be given that meaning. If that is to be called a "literal approach" I do not consider it to be outdated; the functions of a court in any case of interpretation is to decide the meaning of words. The intent and purpose of the legislature is expressed in those words. What other "approach" can there be but "literal"? There may be scope where the words do not have a natural and ordinary meaning or where the words are ambiguous or where the natural and ordinary meaning reveals that something has been omitted (pace Lord Diplock) for a court to apply one or other of what have been called "rules of construction". But the starting point is always the words themselves and these "rules of construction" are merely common sense and judicial experience (if there is any distinction) applied to the task of giving a meaning to words where the draftsman has, in the view of a court, failed adequately to convey a natural and ordinary meaning that is consistent with the context in which the words are used."

The difficulty is initially, what are the words used and how should they be arranged? It is common ground that the word "family" in paragraph 7(1)(a) must be given a meaning restricted by the definition in section 2 as otherwise one would in each case have to conduct an enquiry as to whether, for example, a cousin was in the 'family' of a Solomon Island citizen. Accepting that as the correct approach and using the definition contained in section 2, paragraph 7(1)(a) would read: -

"any citizen of Solomon Islands and his wife and children under eighteen years of age under the age of 18 years:"

One of these references to age would, at first sight, seem to be tautologous. But the case for the Respondent is that neither reference is tautologous. He submits that the words "under eighteen years of age" (that is in the definition lifted from section 2) qualify only the word 'children' and therefore if the word 'family' was left as defined in section 2 all wives of whatever age would be included in the exemption.

But, he goes on, the additional words "under the age of 18 years" (that is the words in paragraph 7(1)(a) itself) qualify both "wife and "children" and therefore a wife under the age of 18 years is exempt but a wife over that age is not. With respect, I fail to understand why one should make such a distinction. Why, if in the definition section the age qualification only relates to children, does it become necessary in the body of the Act when dealing with 'family' (the word subject of definition) to relate the age qualification to both wife and children? On a common sense basis there would seem no reason whatsoever for differentiating between a wife over 18 years and a wife under 18 years and in one's endeavour to give words a fair, natural and ordinary meaning one must obviously give, unless constrained to do otherwise, to the words a meaning that accords with common sense. Or to put the matter the other way around: one must avoid an absurd meaning.

I agree with counsel for the Applicant that to talk in terms of wives over eighteen and under eighteen smacks of absurdity.

But counsel for the Respondent stoutly maintains that the terms of the Act do constrain me to give this meaning to the words. He points to the fact that in subsequent paragraphs of subsection 7(1) and in the proviso the word "family" is used by itself without any restriction as to age (see paragraph (a) and (b)). This he submits leads to the conclusion that the words "under the age of 18 years" were deliberately inserted in paragraphs (a) and (b) and must therefore be taken to have an additional meaning. Granted that this might well be so, one is still left with the difficulty as to what that meaning is to be.

The submission of counsel for the Applicants that the words are a reiteration of the qualification in relation to children is borne out by consideration of paragraph (b) in which the same words are used.

This paragraph provides: -

"(b) until the 7th day of July 1980 any person who is entitled to apply to be registered as a citizen of Solomon Islands under the provisions of section 21(1) of the Constitution and the family of such person under the age of 18 years;"

The intention of that paragraph is clearly to enable persons who are entitled to apply for registration under section 21(1) of the Constitution to remain in the Solomon Islands until the period for application for such registration expires. When one turns to section 21(1) of the Constitution, as read with section 20(4), one sees that an applicant can include in his application "his wife and minor children" and those persons also became registered as citizens. 'Minor' is not defined but as the Interpretation Act 1889 of the U.K. applies to the Constitution (see section 144(3) Constitution) then the U.K. age of 18 years of majority would be applicable. It therefore follows that to give the words "under the age of 18 years" the meaning urged by the Respondent would result in a conclusion that Parliament intended all wives over the age of 18 years of persons who were entitled to be registered as citizens under section 21(1) of the Constitution either to leave Solomon Islands until the registration was effected or obtain a permit to remain whereas their husbands and children under eighteen who were in exactly the same position were entitled to remain without a permit. A moment's consideration would reveal that to give the words the meaning urged by the Respondent would achieve an absurd result that cannot have been intended by the legislature as that result would not effect their obvious intention to protect the position of persons entitled to registration.

If the words 'under the age of 18 years' in paragraph (b) cannot be given the meaning suggested by the Respondent in that paragraph then my view that to give them that meaning to paragraph (a) produces strains upon a literal interpretation of the words in their context and upon one's common sense, is reinforced by the consideration that elsewhere these words are not given that meaning by the legislature itself. I do not consider that the omission of the words elsewhere produces a strong enough argument as to the meaning to be given to them in paragraph (a) to allow me to accede to the argument for counsel for the Respondent, particularly when it is a point about a detailed question of draftsmanship in an Act which has a section 7(1) but no section 7(2) and when, on any view, paragraph (c) of section 7(1) is unnecessary, providing as it does that a person who qualifies for citizenship under section 20(1)(b) of the Constitution and thus gains citizenship at Independence Day gets a second right to reside other than that contained in paragraph (a).

I have no hesitation in concluding that, on the ordinary canons of construction, paragraph (a) of section 7(1) of the Act should be read as including any citizen of Solomon Islands, his wife of whatever age and his children under the age of eighteen years. As on the undisputed evidence the Applicant is within one of these categories then, in my judgment, she is not a prohibited immigrant at this moment in time and has not been since her marriage on 26th October, 1983.

However that is not an end of the matter as counsel for the Respondent submitted that as the order itself was made some hours before the marriage, this Court should in these proceedings declare the order valid and allow enforcement proceedings to take place. At that stage the Applicant could, if she wished, says the Respondent, return to court and apply in other proceedings to quash the enforcement of the order. I find this to be a point entirely devoid of merit, but if it is technically correct it is my duty to accede to it.

In my judgment, to sever a Deportation Order from its enforcement is impossible both in commonsense and in law. Once the Deportation Order is made on the basis of a certain status it carries in its train a restriction of the civil liberties of the individual against whom it is in force. Section 7(2) of the Deportation Act 1978 provides: -

"7(2) A person against whom a deportation order is in force may be detained in such manner as may be directed by the Minister and may be placed on a ship or aircraft about to leave Solomon Islands and shall be deemed to be in lawful custody whilst so detained and until the ship or aircraft leaves Solomon Islands."

In the submission of the Respondent, the Applicant would continue for the rest of her life properly described in the words of that section as "a person against whom a deportation order is in force" (unless of course the deportation order was revoked by the Minister) no matter that she became exempt or, indeed, eventually, a citizen of Solomon Islands. In my judgment the proper approach to a Deportation Order is to regard it as imposing a status on an individual based upon a number of conditions, one being, as in this case, that the Applicant is a prohibited immigrant. If she ceases to be a prohibited immigrant the foundation of the status disappears and so, in my judgment, should the Deportation Order. Whether valid at the date it is made or not, if it subsequently established that the basic condition in law as recited in the order has ceased to exist, this court has power to declare that the original order be quashed.

This power I now exercise and allow the application to bring up and quash the Deportation Order made on 26th October, 1983 against the Applicant. It is unnecessary therefore for me to consider the question raised by Ground (b). Costs to be the Applicant's.