Lopez v Attorney-General (No 2) [1983] SBHC 29; [1983] SILR 240 (26 September 1983)

[1983] SILR 240

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 87 of 1983

LOPEZ

-v

ATTORNEY-GENERAL (NO.2)

High Court of Solomon Islands
(Daly C.J.)
Civil Case No. 87 of 1983

26th September, 1983

Administrative law - judicial review - alien - deportation -declaration as undesirable immigrant - discretion - show cause proceedings before magistrate - security matters, disclosure of:

Facts

The Applicant, an alien, was declared by the Minister of Police and Justice to be an undesirable immigrant under section 11(2) (f) of the Immigration Act, 1978 on the 29th July, 1983. Subsequently a notice was served upon the Applicant under section 5(1) of the Deportation Act, 1978 requiring him to show cause before a magistrate why a deportation order should not be made against him. At the proceedings before the magistrate the reasons for making the declaration were put in issue and evidence was heard, inter alia, from the Minister who made the declaration. In his report the magistrate dealt in detail with the declaration and offered his opinion on whether the Applicant should be deported. On the 12th September 1983 the Minister made a deportation order against the Applicant. The Applicant brought proceedings for an order of certiorari to quash the order. In his affidavit giving his reasons for making the deportation order and at the hearing before the magistrate the Minister stated that there were security reasons for making the order which he refused to disclose as to do so was not in the public interest.

Held:

1. The court on such proceedings did not sit as a Court of Appeal against the decision of the Minister or report of the magistrate.

2. The cases showed: (a) that the state had a sovereign and unlimited power to restrict entry of aliens and expel or deport aliens; (b) that an alien acquires no ‘rights’ by entry into a country with a permit unless those rights are conferred by a written law; (c) that where the power is delegated by written law, the authority to whom it is delegated must act in accordance with that law; (d) the courts may hold invalid an exercise of a delegated power if it is a “sham”, that is for an unauthorised purpose, and may go behind an order lawful on its face for that purpose; (e) it is not for the courts to enquire into the exercise of the powers of the authority to whom a discretion is delegated in this field where there is no evidence that the exercise of the discretion was outside the terms of the legislation.

3. The Immigration Act 1978 gave the Minister a wide discretion to make the declaration and provided no procedure for review. A person declared a prohibited immigrant was, by virtue of section 11(1) of that Act unlawfully in Solomon Islands. The proceedings under section 5 of the Deportation Act were to show cause why a Deportation Order should not be made and were not a procedure to challenge a declaration made under the Immigration Act. The proper procedure for such a challenge was by way of prerogative order in the High Court. Therefore the magistrate should not have heard matters to challenge the declaration which was lawfully made and valid until set aside by a court of competent jurisdiction.

4. Section 5(6) of the Deportation Act required the magistrate to set out his “findings of fact and his conclusion ... of law...” His expression of opinion was not a finding of fact or conclusion of law and it was therefore not within the powers of the magistrate to offer an opinion. In any event the Minister had a wide discretion to make a deportation order “having regard to the findings of fact and conclusions of law as stated in the report” (Section 5(7) and it was open to him to form a different conclusion to that of the magistrate in the exercise of his discretion. The exercise of the discretion to deport in this case was bona fide and on a proper basis and not open to challenge.

5. In relation to security matters, a statement by a Minister that they should not be disclosed in proceedings such as this must be accepted in the absence of a suggestion of bad faith. The Minister was entitled to take security matters into account even if they were not disclosed. (R. -v- Home Secretary ex p. Hosenball (1977) 1 W.L.R. 766 followed).

Other cases considered:

R -v- London Transport Executive ex p. Greater London Council (1983) 2 All E.R. 258
A.G. for Canada -v- Cain [1906] UKLawRpAC 37; (1906) A.C. 542
R -v- Leman Street Police Station Inspector ex p. Venicoff (1920) 2 K.B. 72
r -v- Brixton Prison (Governor) Ex p. Soblen (1962) 3 All E.R. 641
Schmidt -v- Secretary of State [1968] EWCA Civ 1; (1969) 1 All E.R. 904
Re Marles’ Application (1958) E.A. 153
R -v- Secretary of State for Trade Ex p. Anderson Strathclyde (1983) 2 All E.R. 233

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

Daly CJ:

The Applicant Joseph Henry Gregory LOPEZ moves the court to issue an order of certiorari to bring up and quash a deportation order made by the Minister of Police and Justice on the 12th day of September 1983 (“the deportation order”) that the Applicant should leave and thereafter remain out of the Solomon Islands.

The Applicant is engaged in the logging and milling business. The papers before me do not reveal the Applicant’s nationality but it is sufficient for present purposes to say that he is an alien. On 16th December 1982 the Appellant was granted a work permit under section 68(4) of the Labour Act which enabled him to work for “Kayuken Pacific Limited, Nauri Bay, East Makira” as “Managing Director, overall control and management of the Company logging and milling operations.” I take it that a permit to enter and reside was also issued under section 8 of the Immigration Act 1978 (“the Immigration Act”) but I have not been referred to it. In any event the Applicant entered Solomon Islands and engaged in the logging and milling business. There was discussion of an amended work permit being issued in 1983 but it seems clear that the Applicant did not receive it. As the amendment did not affect the material part of the original work permit which was the alleged restriction to Nauri Bay, East Makira, it does not seem to me of great importance. The Applicant sought himself an amendment to his work permit so that he could move to Honiara but that amendment was never made.

In July 1983 it became apparent that the authorities were taking action to remove the Applicant from Solomon Islands. In that month the Applicant was served with a declaration dated 20th June, 1983 that he was an undesirable immigrant. This declaration was subsequently revoked and plays no part in these proceedings.

However on the 29th July, 1983 a further declaration was made that the Applicant was an undesirable immigrant within the meaning of section 11(2) (f) of the Immigration Act and this declaration (‘the 29th July declaration’) forms the basis of subsequent proceedings. By letter accompanying the declaration the Applicant was requested to leave Solomon Islands within the next two weeks. He did not do so and on 12th August 1983 he was served with a notice under section 5(1) of the Deportation Act, 1978 (“the Deportation Act”) requiring him to show cause before a magistrate on 13th August 1983 why a deportation order should not be made against him. This notice was subsequently amended. These proceedings (“the show cause proceedings”) took place on 13th, 17th, 20th and 24th August 1983. On the 2nd September 1983 the magistrate addressed a report (“the report”) to the Minister of Police and Justice. On the 12th September 1983 the deportation order was made against the Applicant by the Minister. These proceedings to bring up and quash that order were commenced by ex parte summons on the 13th September 1983. The same day leave was granted to proceed after hearing counsel for both parties.

At the outset of the hearing on the 22nd September 1983 an attempt was made to “amend”, and I put the word in inverted commas advisedly, to include an application to bring up and quash the 29th July declaration but that application was not pursued and the present proceedings remain in the terms contained in the original statement accompanying the application for leave with an amendment only to the grounds of application to allege that the deportation order should be quashed as the Minister acted “ultra vires by wrongfully exercising his discretion in making a deportation order against the Applicant contrary to the findings of fact and conclusions of law reached by the Chief Magistrate”. Expressed shortly the point argued by counsel for the Applicant was that the Minister was bound by those findings and conclusions and had no discretion at all. In argument counsel also took a further point which was not contained as such in the grounds for relief and that was that the Minister in deciding to make the deportation order also took into account matters not contained in those findings and conclusions which he was not entitled to do. These matters related to security. Counsel for the Attorney General raised no objection to this point being taken and I have considered it, de bene esse, although it seems to me that Order 61 rule 5(1) of the High Court (Civil Procedure) Rules precludes such a point being taken where it is not set out in the grounds. That Rule reads so far as is relevant:-

“and no grounds shall ... be relied upon or any relief sought at the hearing of the motion or summons except the grounds and relief set out in ... statement (accompanying the application for leave)”

Before turning to a consideration of the main point taken by the Applicant it maybe helpful to refer to the correct approach to be adopted by this court on an application of this kind. First, I must emphasize that this court does not sit as a court of appeal against the decision of the Minister or the report of the magistrate. If an administrative decision is made within the perimeters of the law and in accordance with the procedures laid down by the law then it is not for this, or any other court, to say that that decision should be quashed or altered on the ground that it does not accord with the views of the court. In using the word “law” in this context I do not restrict it to the written law under which the discretion is exercised as, over the years, the courts have come to imply in written laws granting wide discretions certain duties and obligations. As one judge recently said, authorities invested with discretionary powers “must not exercise their powers arbitrarily or so unreasonably that the exercise of the discretion is clearly unjustifiable.” (Kerr L.J. in R. v. London Transport Executive ex parte Greater London Council (1983) 2 All E.R. 258 at page 262). It has been argued by counsel for the Attorney General that in this case the court does not even have the limited powers to which Kerr L.J. refers when he later says in the same judgment:-

“If an authority misdirects itself in law, or acts arbitrarily on the basis of considerations which lie outside its statutory powers, or so unreasonably that its decisions cannot be justified by any objective standard of reasonableness, then it is the duty and function of the courts to pronounce that such decisions are invalid when these are challenged by anyone aggrieved by them and who has the necessary locus standi to do so.”

The submission of counsel is that once the court is satisfied in this case that the Minister complied with the statutory procedure and acted within his statutory powers then it is not for this court to consider whether the exercise of the discretion was ‘wrongful’ that is whether it was manifestly unreasonable or arbitrary. In so submitting counsel bases himself upon what he suggests are the exceptional nature of the powers relating to immigration and deportation of aliens.

This submission is of importance for two reasons. First if the powers in relation to immigration and deportation are exceptional, then the legislation which deals with those powers should be construed against that background. Second, the submission must obviously bear on the powers of the court in considering the exercise of the discretion by the Minister.

The basic principle on the subject of the legal position of aliens is set out in the Privy Council case of the A.G. for Canada v. Cain [1906] UKLawRpAC 37; (1906) A.C. 542 at page 546 where Lord Atkinson says:-

“One of the rights possessed by the supreme power in every state is the right to refuse to permit an alien to enter that state, to annex what conditions it pleases to the permission to enter it, and to expel or deport from the State at pleasure, even a friendly alien especially if it considers his presence in the state opposed to its peace, order and good government, or to its social or material interests.”

It is, of course, common practice, as demonstrated by that case, for these powers to be delegated by statute to particular authorities and for those statutes to set limitations upon the exercise of that delegated power. To that extent the wide ranging extent of the original power may, in the hands of another, be more limited. But that the powers are still wide can be seen from the case as R. v. Leman Street Police Station Inspector ex parte Venicoff (1920) 2 KB 72. In that case a deportation order was made by the British Home Secretary against an alien under the Aliens Restriction Act 1914 on the basis that it appeared to the Home Secretary “that the applicant was a man against whom it was conducive to the public good that a deportation order should be made”. The Earl of Reading C.J. said at page 78:-

“Turning now to the statute, art. 12, and the deportation order made under it, I have no doubt that it is not for us to pronounce whether the making of the order is or is not conducive to the public good. Parliament has expressly empowered the Secretary of State as an executive officer to make these orders and imposed no conditions.”

The main point in that case was, was the Home Secretary under an implied duty to hold an inquiry before making the order? The court held he was not. At page 80 the Lord Chief Justice said:-

“I therefore come to the conclusion that the Home Secretary is not a judicial officer for this purpose, but an executive officer bound to act for the public good, and it is left to his judgment whether upon the facts before him it is desirable that he should make a deportation order. The responsibility is his.”

It must be observed that the legislation in that case was emergency legislation enacted in wartime and continued thereafter but there was no element of wartime emergency in the particular case.

As to the right of hearing before a deportation order is made this case was followed in R. v. Brixton Prison (Governor) Ex Parte Soblen (1962) 3 All E.R. 641 Although Lord Denning in the Court of Appeal reserved his position about right of hearing after the order is made and before execution (at page 659). On the powers of the court in relation to deportation orders Stephenson J. at first instance summarized the effect of the earlier authorities in this way at page 655 (the first conclusion concerns a matter not relevant):-

“.... secondly, the Secretary of State in making the deportation order is acting as an executive and not as a judicial officer, and the power of so acting has been delegated to him by Parliament; thirdly, that courts cannot review or interfere with his discretion, exercised either under art. 20 or under art. 21 of the Aliens Order, 1953, or act as a court of appeal from him and substitute its decision for his as to how he should exercise his powers, or inquire into the way in which or the grounds on which he has exercised his discretion, provided that it appears that he has purported to exercise those powers under and in accordance with the Aliens Order or, as I should prefer to put it in the words of Lord Reading, C.J. (32) “... provided that he has used them in a lawful way in accordance with the Act””

In the Court of Appeal Lord Denning M.R. said at p. 661:-

“It is open to these courts to enquire whether the purpose of the Home Secretary was a lawful or unlawful purpose. Was there a misuse of power or not? The courts can always go behind the face of the deportation order in order to see whether the powers entrusted by Parliament have been lawfully exercised or not.”

Donovan L.J. considered that it was open to the court to decide whether a deportation order was “a sham” and Pearson L.J. without deciding the question in law proceeded to consider, and rejected (in common with the other was “a sham”. Thus the full submission of counsel for the Home Secretary that the Court was unable to go behind the face of a valid order was not accepted.

In Schmidt v. Secretary of State [1968] EWCA Civ 1; (1969) 1 All E.R. 904 the Court of Appeal had before it the rather different problem .of an alien seeking a declaration that a refusal of an application to stay was unlawful and void.

Of the Minister’s powers Lord Denning M.R. said at page 908:-

“I think the Minister can exercise his power for any purpose which he considers to be for the public good or to be in the interests of the people of this country. There is not the slightest ground for thinking that the Minister exercised his power here for any unauthorised purpose or with any ulterior motive. The Minister’s purpose was clearly disclosed in the statement which he made in the House of Commons. He thought that the practices of these people, these scientologists, were most harmful to our society, and that it was undesirable in the interests of the people of this country that alien students of scientology should be allowed to stay any longer or that any new ones should be allowed to come in. That purpose was entirely justifiable: It was exercised by the Home Secretary in the interests of the ordinary people of this country; and I do not think we should admit any doubt to be thrown on its validity.”

Widgery L.J. based his judgment on the factor that as the alien had no right to renewal of his permit “there is no obligation on the Home Secretary to give reasons which are consistent with the legislation or to act fairly or to do any of the other things for which counsel has contended in this case.” (page 911). However I should add that the learned Lord Justice (as he then was) drew a distinction between that situation and deportation orders when he went on:-

“Of course, very different considerations may arise on the making of a deportation order. An alien in this country is entitled to the protection of the law as is a native, and a deportation order which involves an interference with his person or property may raise quite different considerations; but a deportation order is not the matter with which we are concerned and I forebear to say more about it.”

In making these obiter dicta the learned Lord Justice did not refer to the earlier cases and accordingly I treat the words with some reservation. It is clear, indeed, that they were so intended to be treated.

The authorities have also been reviewed in the Papua New Guinea case of Premdas v. Independent State of Papua New Guinea (1979) PNGLR 329. Prentice C.J. at page 340 states that the Venicoff and Soblen decision (ab.cit) (plus the Kenyan case of Re Marles’ Application (1958) E.A. 153) illustrate that rights “were not in question when deportation of aliens was being considered and that the procedures therein involved not judicial but administrative functions.” With this statement I respectfully agree.

In summary, the law would seem to me to provide first, that the State has a sovereign and unlimited power to restrict entry of aliens and expel or deport aliens. Second, that an alien acquires no ‘rights’ by entry into a country with a permit unless those rights are conferred by a written law. Third, that where that power is delegated by written law the authority to whom it is delegated must act in accordance with that law. Fourth, that the courts may hold invalid an exercise of a delegated power if it is a “sham” that is for an unauthorized purpose, and may go behind an order lawful on its face for that purpose. Fifth, it is not for the courts to enquire into the exercise of the powers of the authority to whom a discretion is delegated in this field where there is no evidence that the exercise of the discretion was outside the terms of the legislation.

It maybe argued that immediately one uses words such as ‘outside the terms of the legislation’ one brings into consideration the line of cases which say that an exercise of a discretion which is manifestly unreasonable or completely unfair is an ultra vires exercise of power. This argument may have force. But the whole tenor of the decisions to which I have already referred is that in the field of immigration and deportation, once the Minister or other authority has averred that he has exercised his powers for what are in his view good reasons, even though he does not state them or there is a suggestion that there might also be other reasons (see Soblen’s Case ab. cit), then, in the absence of cogent reasons to the contrary, the courts will accept that averrment. In other fields of administration the courts have been more reluctant to accept such an assertion. But because of the exceptional nature of the sovereign power of the state where immigration and deportation are concerned, the lack of formal rights of the alien, the concept of immigration as a “privilege” (see Re Marles’ Application (1958) E.A. 153 at p. 161) and the difficulty of courts in considering what is in the public interest in such an area, the judiciaries of other countries have drawn back from taking a more positive role in examination of the exercise of discretion by the appropriate authority. That lead is, in my judgment, one which should be followed by this Court. It must, I consider, also be accepted that the legislation of Solomon Islands has been drafted with these considerations in mind.

What is that legislation? It is the Immigration Act, 1978 and Deportation Act 1978. I must immediately say that I have found this legislation to be clumsy and difficult to follow. The two Acts, as we shall see, are interrelated but in a most confusing manner use the same expressions with different meanings. The procedures set out in the Acts have clearly in this case led those concerned into some difficulties and I am not, in view of the form of the legislation, at all surprised.

The 29th July declaration was made under section 11(2) (f) of the Immigration Act that provides that a person is a member of a “prohibited class” if he is –

“any person who prior to his entry in Solomon Islands or within one year thereafter in consequence of information received from any Government, through official or diplomatic channels, or from any other source deemed by the Minister in his discretion to be reliable, is declared by the Minister in his discretion to be an undesirable immigrant:”

The effect of being a member of a prohibited class is set out in section 11(1) which reads:-

“11. (1) Any person who -

(a) is not a person entitled to enter Solomon Islands without a permit under the provisions of section 7)1); and

(b) is a member of any of the prohibited class as defined in subsection (2)of this section,

shall be a prohibited immigrant and, save as otherwise hereinafter expressly provided, his presence in Solomon Islands shall be unlawful, notwithstanding any permit he may hold.”

Thus it will be seen that a person who is a prohibited immigrant is unlawfully in Solomon Islands. For the sake of completeness I should also refer to section 11(3) which provides that “the burden of proof that any person is not a prohibited immigrant shall lie upon that person”.

The next stage is contained in section 14 of the Immigration Act. This provides:-

“14. Any person who is a prohibited immigrant or a member of a prohibited class shall be dealt with in accordance with the procedure for making a deportation order under the provisions of the Deportation Act unless such person voluntarily places himself aboard the first available ship or aircraft leaving Solomon Islands and consents to remain in police custody during the interim.”

Apart from the problem of understanding why “prohibited immigrant” and “member of a prohibited class” are included separately this section is not free from difficulty. First, it is mandatory; in other words there is no discretion whether or not to start the ‘process for deportation in the absence of voluntary departure. Secondly it is not clear at what stage of “the procedure for making a deportation order under the provision of the Deportation Act” in the case of the prohibited immigrant is to be commenced. Considering this provision in favour of the liberty of the individual one would say at the earliest possible stage.

However when one turns to the Deportation Act it is unhelpful. Section 4 gives the Minister a discretion to make a deportation order in respect of certain persons, one of whom is “a prohibited immigrant”. Unfortunately the definition of the expression in section 2 of the Deportation Act is completely different from that in the Immigration Act. In the absence of cross reference and in the light of the fact that the Immigration Act incorporates no discretion as to deportation of a prohibited immigrant, section 4 seems to me to be irrelevant to the present case. It, in fact, provides a separate basis for deportation to the basis used in the present case.

So one turns to section 5 which does indeed set out the procedure for making a deportation order. Because this section is crucial to this case I shall set it out in full omitting only subsection (2) which, because it uses the words of description as defined in the Deportation Act itself, cannot refer to the Applicant who is an Immigration Act prohibited person.

“5. (1) In any case where it is intended to make a deportation order under the last preceding section, a notice signed by or under the authority of the Minister shall be served upon the person charged specifying the facts alleged against him with sufficient particulars as to give him reasonable information of the grounds upon which it is alleged that the order may be made against him under this Act, and requiring him to show cause before a magistrate at a time to be stated in the notice, why such order should not be made against him.

(3) Every witness whose evidence may be required before the magistrate in proceedings taken under this section shall be issued with a summons at the instance of a police officer or a person charged and any such witness who fails to appear shall be dealt with in the manner provided for in the Criminal Procedure Code.

(4) The Attorney General may certify to the magistrate hearing the proceedings under this section or the person charged may request such magistrate that it is desirable that the proceedings be held in camera, and the magistrate shall thereupon direct that the public shall not have access to, or be or remain in, any room, building or place in which such proceedings are taking place during the hearing thereof.

(5) A barrister and solicitor may appear with the person charged, as his legal representative.

(6) The magistrate, after considering the evidence adduced before him and making such further investigations as he may consider to be desirable, shall make a report to the Minister setting out his findings of fact and his conclusions on any questions of law involved.

(7) On receipt of a magistrate’s report, the Minister may, in his discretion, having regard to the findings of facts and any conclusions of law as stated in the report, make a deportation order.”

It will immediately be observed that the first part of subsection (1) is inappropriate to the Immigration Act procedure but no doubt should be adapted to enable a notice to be served on an “Immigration Act prohibited person”.

That was done in this case and thereafter an endeavour was made to follow the procedure set out in section 5. Immediately difficulties were experienced. The first notice to show cause merely specified as “grounds upon which it was alleged that an order may be made against” the Applicant that –

“you are a prohibited immigrant under the provision of the Immigration Act 1978 and thus making your presence in Solomon Islands unlawful under section 11(1) (b) of the said Immigration Act”

It was also said that the Applicant had been requested to leave within two weeks and failed to do so. However, at the urging of the magistrate, as I understand it, this notice was amended to add a paragraph alleging “facts and particulars” which consisted of allegations that the Applicant conducted negotiations without authority and in breach of section 5B (1) of the Forest and Timber (Amendment) Act 1977; that he was in breach of his work permit; that he was in breach of policies of the National Investment Council and disrespectful to provincial authorities. As it turned out when the Minister gave evidence these reasons were similar to, but not identical with, the reasons for making the 29th July declaration with the addition of security reasons.

The first question that arises is, was that amendment necessary or desirable? The answer to that question must lie in a close consideration of the terms of section 5(1) of the Deportation Act with such essential modifications as to give it real meaning in relation to an Immigration Act prohibited immigrant. The first observation one must make is that the Applicant already was a prohibited immigrant and remains one in law until the declaration made under section 11(2)(f) of the Immigration Act is revoked or quashed by a court of competent jurisdiction. As a result “his presence in Solomon Islands shall be unlawful” (section 11(1) of the Immigration Act). Clearly unlawful presence in a country must be a ground for deportation from that country, as section 11 of the Immigration Act, with its mandatory provisions requiring initiation of deportation procedures, indicates. This unlawful presence is also subject of criminal sanctions. Section 18(1)(i) of the Immigration Act makes it an offence punishable by a fine not exceeding one thousand dollars or to imprisonment for three years or both such fine and imprisonment to be “unlawfully present within Solomon Islands”.

Turning then to section 5 (1) of the Deportation Act the notice to be served must specify “the facts alleged against (the Applicant) with sufficient particulars as to give him reasonable information of the grounds upon which it is alleged that an order may be made against him under this Act”. The particulars then must relate to the grounds for deportation. Those grounds were simple. They were that “as a result of the 29th July declaration the Applicant was unlawfully in Solomon Islands.”

What more needed to be said? The declaration was valid on its face. The Immigration Act provides no appeal against that declaration nor does it give a right to make representations in relation to it and the authorities to which I have referred confer no such right at common law. I am not to be taken as saying that a declaration of this sort cannot be challenged. Proceedings for certiorari or a declaration can be brought in this court and, upon the established legal principles, this court would decide whether the declaration of the Minister should be allowed to stand. What, however, I do hold, is that section 5(1) does not give a right of challenge to the validity or merits of a declaration made by a Minister under section 11(2)(f) of the Immigration Act and it is most undesirable that a procedure be adopted that gives the impression that it does.

This view is strengthened when one continues to read section 5(1) which -provides that the notice should require the Applicant “to show cause before a magistrate ... why (a deportation order) should not be made against him.” (In fact the terms of section 5(1) would strictly require that the words in parenthesis should be “a deportation order under the last preceding section”, that is section 4, however, this is a modification necessary to give meaning to the section in this context). Thus the burden is thrown squarely upon the Applicant to show cause why the order should not be made. As the burden to prove that he is not a prohibited immigrant is also on the Applicant he would, in the circumstances of this case, have had great difficulty in challenging his unlawful presence. .Had he endeavoured to do so by way assailing the validity of the 29th July declaration the proper course would have been for the magistrate to indicate that he had no jurisdiction to set aside that declaration but that application, if so advised, might be made to the High Court. The magistrate could then proceed to hear what the Applicant said about the order of deportation as such.

I am also reinforced in this view that the proceedings took a wrong turn from the outset by what followed thereafter. What appears to have happened is that the Minister was put to proof of his reasons for making the declaration of 29th July, 1983. The merest glance of section 11(2) (f) would show why this is not an appropriate procedure at all. That paragraph is couched in terms that make it clear that it is a matter entirely for the discretion of the Minister whether he should declare a person to be an undesirable immigrant. Indeed the word “discretion” is used twice, once to make it clear that the Minister can rely upon information which otherwise might be regarded as somewhat flimsy. This is, in my judgment, the category of power in relation to which courts have time and time again said they would not seek to evaluate the reasons of the Minister where he had used his powers apparently within the law. For an investigatory and reporting body, albeit consisting of a judicial officer, to set about that evaluation without the clearest possible statutory powers is, in my judgment, not only undesirable but contrary to the clear implication of the Act when read in the context of the powers of the executive in relation to such matters.

I note that in the report the magistrate does in fact, say that section 5 expressly provides that “the Court can examine the exercise by the Minister of Police and Justice of his discretionary power under section 11(2)(f)”. (para 23). I have been unable to discover the provision to which reference is made. Nor have counsel. The references to judgments concerned with the principles applying to judicial review on applications for prerogative orders which the magistrate makes in the same paragraph do not assist. Perhaps the initial difficulty sprang from the magistrate referring to himself as “a court” and then equating himself to a court on judicial review.

I must say I sympathize with the magistrate who was faced with a provision intended to deal with the making of an order under section 4 of the Deportation Act where factual circumstances of some complexity must be established whereas here the factual circumstances had already been established by the Minister when he made the 29th July declaration. However the only course which can be satisfactorily adopted in a case where statutory provisions are unfamiliar, and perhaps unfortunately worded, is to remind oneself again and again of their terms. The purpose of the proceedings under section 5(1) is for the Applicant to “show cause why a deportation order should not be made against him”. The magistrate is to consider the evidence adduced and after further investigation if he considers it desirable he makes a report “setting out his findings of fact and his conclusions on any question of law involved.” In this case, in my judgment, had the proceedings gone ahead on the basis of the original notice, as they should, the report would have been brief. It would have stated as a fact that the Applicant was subject to a declaration that he was an undesirable immigrant made by a Minister on 29th July 1983; that, at the date of hearing the declaration continued to exist; and that the Applicant remained in the country. As a conclusion of law the Magistrate would have found that the Applicant’s presence in Solomon Islands was unlawful. The magistrate could have also found facts as to the Applicant’s business interests and his reasons advanced for remaining in the country. On this narrow ground the Minister would have been entirely entitled to make the deportation order after, of course, having regard to the terms of the report.

However there are other matters canvassed in the report and I shall consider the arguments by counsel based upon the report as now before the court.

Counsel for the Applicant relies upon a number of views expressed in the report and in particular the final conclusion that the magistrate expressed as to whether it was fair and proper to make an order to deport the Applicant. Apart from the question the magistrate’s power to consider whether the declaration of 29th July should have been made, there remains the question of whether the magistrate was competent, in the legal sense, to offer his opinion to the Minister. An opinion of a tribunal making a report, it is trite to say, is neither a finding of fact nor a conclusion of law. Findings of fact and conclusions of law are all the magistrate is empowered to provide in his report by section 5(6). This is a sensible provision for, at the risk of being over-repetitious, the forming of an opinion in the area of immigration and deportation is a matter for a Minister. Sometimes bodies are given power of review. Not so in our legislation. Here the Minister is presented with the facts as found by the magistrate and the magistrate’s conclusions of law; no doubt on the basis that this will be done with a clarity and percipience which will assist the Minister in performing his difficult functions in deciding what is in the public interest. I therefore find that the report should not have contained expressions of opinion by the magistrate and it was entirely open to the Minister to disregard those opinions.

This finding places counsel for the Applicant in difficulty in that his main point was that the Minister was required to follow the findings of the magistrate, that is, that he was bound by them and bad DO discretion to act otherwise. It was no doubt to avoid such an argument that Parliament in section 5 of the Deportation Act restricted the magistrate expressly to findings of fact and conclusions of law. Even were I to find that the magistrate was competent to offer his opinion, I would not be able to accede to counsel’s argument. Section 5(7) is, in my judgment, clear. Read in the context of the Act as a whole and against the legal background to which I have already referred the subsection confers upon the Minister a discretion to act as he sees fit. The words “in his discretion” can have no other meaning. When a submission of this kind is made the result must depend upon the exact terms of the legislation under consideration. However a similar submission was made in relation to U.K. legislation in R. v. Secretary of State for Trade ex parte Anderson Strathclyde (1983) 2 All E.R. 233 where a minister had declined, contrary to the conclusions of the majority of a statutory commission, to prohibit a merger. A declaration was sought that the Minister was bound by those conclusions. The court declined to grant the declaration holding on the true construction of the legislation that “the Secretary of State has a complete discretion whether to make any order or whether to make no order at all” (Per Dunn 1.J. at p. 241). I would reach a similar conclusion as to the true construction of section 5, and in particular section 5(7), of the Deportation Act and hold that the Minister has a complete discretion whether to make a deportation order or not to make the order. The Minister must have regard to the magistrate’s report; the Deportation order recites that he has done so. Indeed the Minister has filed an affidavit in which he gives in detail his reasons for reaching a different opinion to that of the magistrate. I am grateful to him for his courtesy in so doing. No one has suggested that those reasons are other than bona fide or that they are outside the terms of the minister’s statutory functions. It is entirely for the Minister to make up his own mind on a proper basis. That is his prerogative.

I say on a “proper basis” as there is one matter which remains for consideration. Counsel for the Applicant submits that the Minister was wrong in taking into account “security reasons” for deportation which were not revealed to the Applicant. What happened was that the Minister who made the declaration of 29th July was called to give evidence before the magistrate as to his reasons for making that declaration. During the course of his evidence he said that there were security reasons for making the order but he declined to give further particulars. In the report, the magistrate, for the obvious reason that he knew nothing about it, did not do more than say “no cognizance can be taken of the security reasons in the present proceedings.” The present Minister in his affidavit as to the reasons for making the deportation order deposes that security reasons are one of the bases upon which he reached the conclusion that the order should be made. Again no particulars are given. Counsel submits that the Minister should not have had regard to these security reasons as they were not dealt with in detail in the report of the magistrate.

It is obvious that deportation matters can have a security aspect and equally obvious that it is desirable that some aspects of security should not be revealed other than to those who must know of them to perform their functions on behalf of the state. Courts in other countries have taken the view that there is a greater public interest in maintaining the confidentiality of security matters than in providing full opportunity to a person the subject of deportation proceedings to challenge what is said against him. In R. v. Home Secretary ex parte Hosenball (1977) 1 W.L.R. 766 the Home Secretary referred a deportation order to an independent advisory committee to which the applicant was entitled to make representations. The ground of the deportation order was that it was in the interests of national security. Particulars were sought of this ground but the Home Secretary declined to provide them. A hearing was held and a deportation order made. The applicant applied to quash the order as there had been a refusal to supply him with particulars of the allegations which he had to meet and, thus, he contended, a breach of the rules of natural justice. Lord Widgery C.J. in the Divisional Court said at page 773 having discussed the rules of natural justice:-

“Thus, the rules are flexible and must be adjusted to a particular case. That at once draws attention to the fact that this is a case in which issues of national security are raised, and one can go through the authorities and find almost literally dozens of cases in which it has been recognized over the years that where matters affecting public security are in issue, and where the responsible minister has certified that in his opinion the matters should not be disclosed, then they will not be disclosed.”

and at page 774:-

“In my judgment, there being no allegation that the Secretary of State acted in bad faith, we are bound to accept that he is the person who must decide whether particular matters are fit for disclosure or not when national security is involved. We do not know what the basis of his objection was in any sort of detail, and we are bound, having no alternative, to accept what he says when, through his representative, he swears that he has formed the opinion that no matter can safely be disclosed beyond those already included.”

A strong Court of Appeal (Denning M.R. Geoffrey Lane, Cumming Bruce L.JJ) upheld this decision in robust terms, each judge stating that where there was a choice between the interests of national security and the interests of fairness to an alien, it was the latter which had to suffer (see pp. 783, 784 and 787).

In this case there is no suggestion of bad faith on the part of either Minister and in those circumstances this Court is bound to accept the one Minister’s statement on oath and another Minister’s deposition that it is not in the interests of security that the matters under consideration be revealed.

Counsel’s argument was that, that being the case, the Minister should not have taken these matters into account in making the deportation order. I do not accept that argument. It is because the Minister is the one man who is fitted to weigh these matters that they are not put before a court or the magistrate in the show cause proceedings. The Minister clearly must take them into account. The Minister has a complete discretion to make the deportation order or not and, as long as he has regard to the report of the magistrate, there is nothing in section 5(7) of the Deportation Act which requires him to restrict himself to the contents of that report or matters revealed in the show cause proceedings. Indeed when one considers section 5(6) one observes that the magistrate himself is entitled to make “further investigations” in addition to considering the evidence adduced which would imply that the magistrate is not bound to act judicially, in the strict sense, but may go beyond matters developed in the hearing. This, too, may be an indication that Parliament did not intend, in this difficult field, to impose strict rules of fairness but to enable those with different ,functions to look at matters in the round having given the Applicant a full opportunity to say what he wished to say. I therefore find that the points raised as to security matters, even if they were properly before me, do not assist the Applicant.

I have spent some time on the legal principles involved in this case because this is the first such case to come before this court. I must now return to the facts. As far as the 29th July declaration that the Applicant was an undesirable immigrant is concerned there can be no dispute that the Minister had power to make that declaration within his wide discretion. It remains valid until set aside by a court of competent jurisdiction or revoked by the Minister. The magistrate heard, and dealt with, a number of matters which were really in mitigation of the reasons for making that declaration. I do not think he should have done so once faced by a declaration valid on the face of it. The legal result of that declaration was that the Applicant was unlawfully in Solomon Islands. Even taking into account those matters in mitigation there were still ample grounds for the Minister to make the declaration. Equally when the new Minister came to consider the report there were ample grounds on which he could proceed to make the deportation order. I should emphasize that, dealing with the deportation order alone, and that is the order with which this Court is concerned, each one of the reasons rehearsed by the Minister is in itself a reason which he is entitled to consider within the terms of his function to act in the public interest of the people of Solomon Islands. It then follows that if, for example, the Minister should not have considered security reasons, and I do not so hold, there remains grounds for making the deportation order within the exercise of his discretion. There is, and can be, no suggestion, of bad faith or that that order is a “sham”. Indeed it is clear from his affidavit that the Minister has given the matter full and proper consideration. Whether this Court, or the magistrate hearing the show cause proceedings, would have reached a different conclusion (and I do not for one moment suggest this Court would have come to a different conclusion) is irrelevant. The decision is one for the Minister. He has made it on proper grounds after following the proper procedure and that decision is unassailable in this court.

It follows that the application for certiorari is refused and the deportation order against the Applicant must take effect.