Rajapaksha v Attorney General [2011] SBHC 189; HCSI-CC 39 of 2011 (22 July 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 39 of 2011

BETWEEN:

JAYANTHA ARACHILAGE RAJAPAKSHA
First Claimant

-And-

BRENDA HALITIA
Second Claimant

-And-

ATTORNEY GENERAL
(Representing Minister of Commerce Industries,
Labour & Immigration)
First Defendant

-And-

ATTORNEY GENERAL
(Representing Director of Immigration)
Second Defendant

Mr Hou, Public Solicitor, for the Claimants
Mr Banuve for the Defendants

Date of Hearing: 27th May 2011
Date of Judgment: 22nd July 2011

Judgment

1. Sometime in 2007 the First Claimant ("Mr Rajapaksha") started working for a business in Honiara. He was employed as a chef specialising in Sri Lankan cuisine. According to his erstwhile employer ("Mr Seneviratne")^[1] in the beginning he was a good worker. Unfortunately the relationship between employer and employee started to sour. The reasons are largely irrelevant although both claimants seem to want to make something of the deteriorating relationship. Mr Rajapaksha met a local girl and formed a romantic association with her. The girl in question is the Second Claimant ("Ms Halitia"). In January 2009 they married^[2].

2. In April 2010 the working relationship between Mr Rajapaksha and Mr Seneviratne had reached breaking point. Again reasons are put forward but again I have to say that they are, for the purposes of this judicial review, largely irrelevant. Mr Seneviratne says he arranged a holiday back in Sri Lanka for Mr Rajapaksha. It is not disputed that he gave Mr Rajapaksha a one way ticket to Colombo, and about US$900.00. Mr Rajapaksha did not board the aircraft but instead went to live with Ms Halitia at Lungga, East Honiara. Sometime thereafter Mr Seneviratne received a telephone call from Mr Rajapaksha saying he had returned from Sri Lanka. By that time Mr Seneviratne was aware that there had been no holiday in Sri Lanka and that Mr Rajapaksha had never boarded the aircraft and left Honiara. When Mr Rajapaksha did not return to work Mr Seneviratne wrote to the Director of Immigration^[3]. That letter started a chain of events which culminated in the attempted deportation of Mr Rajapaksha and the issue of these proceedings.

3. It should be mentioned that civil case 39 of 2011 is a consolidation of two cases. The first in time was 512 of 2010. Those proceedings challenged the deportation of Mr Rajapaksha and asked for his release from detention. His Lordship the Chief Justice heard applications on 20th December 2010 and made orders which stayed the deportation and released Mr Rajapaksha from detention. Separate proceedings were then commenced by way of judicial review. The two cases were consolidated on 10th March 2011.

4. I am considering the orders sought in the amended claim for judicial review and amended claim for enforcement of the protective provisions of the Constitution which were filed on 25th February 2011. Nothing turns on the point that those claims were filed before the consolidation of the two cases. The claims in the earlier case were effectively dealt with by the Chief Justice's orders in December and the only outstanding issue is one of costs. That question can be adequately dealt with in the consolidated case.

5. Mr Rajapaksha asks the court to quash the deportation order and other declarations made by the Minister of Commerce, Industries, Labour and Immigration ("the Minister"). The basis of the claim is set out in paragraphs 1(i) to 1(iv). Ms Halitia seeks a declaration that the purported deportation of Mr Rajapaksha was a contravention of her rights under the Constitution in that it amounted to inhuman and degrading treatment taking into account the convention on the Elimination of All Forms of Discrimination against Women, commonly referred to as CEDAW. The separate claims by Mr Rajapaksha and Ms Halitia must be looked at independently although they are of course closely interrelated.

6. Looking at Mr Rajapaksha's claim, many facts are agreed. There is no dispute Mr Seneviratne lodged an application for a work permit for Mr Rajapaksha. The court has not been given a copy of the application nor has it seen a copy of the permit that resulted from the application. It is not stated explicitly by any party but it is implied, and seems to be accepted, by all concerned that the work permit restricted Mr Rajapaksha, to working as a chef at the Taj Mahal restaurant. In any event a work permit was granted. Again, what happened next is implied in what has been stated by all concerned, namely that Mr Rajapaksha was granted a permit to enter and reside in Solomon Islands on the basis of the work permit in accordance with the provisions of section 7 of the Immigration (Amendment) Act (No. 9 of 1998) ("the amended Act") which amended section 8 of the "original" Immigration Act [Cap. 60].

7. I am a little confused by references in the amended Act to section 68 of the Labour Act [Cap. 75]. As far as I can ascertain the relevant section in the Labour Act is section 37 and the Act is in fact Cap. 73. I note the copy provided in the Defendants' book of authorities comes from the PacLII website and whether there is a misprint in the PacLII copy or in the actual Act, or whether there has been an amendment to the Labour Act is not a conundrum that has been addressed. In any event, there is no dispute that if Mr Rajapaksha had a valid work permit he could have been lawfully granted a permit to enter and reside. There is no dispute that when he first arrived in Solomon Islands Mr Rajapaksha had a work permit and had been granted proper and lawful authority to live here. There is no real dispute his initial right to enter and his subsequent right to reside in Solomon Islands, in the absence of any other application to the Director of Immigration, were dependant on his possession of a valid work permit.

8. There is no dispute matters came to a head in April. There are differing reasons offered to explain the events in April but they have no real bearing on this application. It is agreed Mr Rajapaksha stopped working at the Taj Mahal and Mr Seneviratne wrote to the Commissioner of Labour^[4]. As a result of that letter Mr Rajapaksha's work permit was cancelled^[5]. Mr Rajapaksha does not argue the Commissioner of Labour was wrong to cancel the work permit he simply says he was of informed of the cancellation. Whilst both Mr Rajapaksha and Ms Halitia say they were living "openly" at Lungga there is no evidence they officially notified either the Commissioner of Labour (or the Director of Immigration) of any residential or correspondence address until much later. There is evidence that the Enforcement Unit of the Director of Immigration's office made desultory efforts to contact Mr Rajapaksha but the timescale involved is unclear.

9. The Commissioner of Labour copied his letter (addressed to Sol-Lanka Pty Ltd) cancelling the work permit to the Director of Immigration^[6]. The Director of Immigration cancelled Mr Rajapaksha's residence permit^[7]. By operation of law it was unlawful for Mr Rajapaksha to remain in Solomon Islands and he became a prohibited immigrant^[8]. That appears to be the plain effect of section 13. Mr Rajapaksha had a residence permit that allowed him to enter and reside in Solomon Islands, it was cancelled. The section says;

"It shall be unlawful for any person to remain in Solomon Islands after the expiration or cancellation of any permit issued or deemed to be issued to or in respect of him under this Act unless he is otherwise entitled or authorised to remain in Solomon Islands under this Act and he shall be deemed to be a prohibited immigrant."

Thus, from 25th May 2010 at the earliest but more likely from 2nd June 2010 (the date of the letter from the Director of Immigration at page 61 of the Court Book) Mr Rajapaksha was a prohibited immigrant.

10. However, under section 13 Mr Rajapaksha's status changed. The reason for the change is the proviso contained in the section. The exact date is somewhat uncertain. An application was made by Ms Halitia on behalf of Mr Rajapaksha for a residence permit^[9]. There is no evidence a residence permit was granted. A second letter was written, this time by Mr Rajapaksha^[10]. He asks for a visitors permit pending a decision on the earlier request for residence. Rightly or wrongly (see Mr Moffat Berry Kepalu's memo of 14^th December 2010 at page 65 of the Court Book) a visitor's permit was issued. Mr Kepalu says at one time it was issued in August but more likely from the evidence available it was in October 2010 and its effective date was 2nd October 2010^[11]. From that date Mr Rajapaksha was "otherwise entitled or authorised to remain in Solomon Islands" under provisions of the amended Act and he could no longer be deemed to be a prohibited immigrant under section 13. His visitors permit was subsequently cancelled and that was probably on 14th December 2010.

11. In the meantime Mr Rajapaksha was declared an undesirable immigrant. The Gazette Notice and the reasons why are set out in a sworn statement filed on 7th March 2011 from the then Minister of Commerce, Industries, Labour and Immigration Mr Elijah Doro Muala^[12]. The Minister acted under the powers and provisions set out in section 11(2)(f) of the amended Act as amended. Section 11 begins:-

"11.-(1) Any person who-

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

(b) is a member of any of the prohibited classes 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. "

The section then goes on in subsection 2 to say:-

"(f) any person who prior to his entry in Solomon Islands or any period 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;"

12. Mr Rajapaksha challenges the Ministers exercise of the discretion set out in section 11. That is the essence of the First Claimant's case. The challenge is mounted on several fronts but is possible to separate them into two distinct areas. First, he says the Minister did not give him a proper and fair hearing prior to the exercise of discretion, that the Minister took into account irrelevant matters and that the Minister acted "unreasonably, arbitrarily or in bad faith". Secondly he says the Minister failed to take account of his right to apply for a residence permit following his marriage to Ms Halitia and the Minister also failed to take into account his legitimate expectations. The first deals with what might be termed as the ordinary Wednesbury principles; the second adds an additional element arising from the marriage. Whilst they are to be taken as a whole when considering the claim it is convenient to look at them separately. Before doing so it is necessary to look at the effect of the Ministers decision.

13. Mr Rajapaksha is undeniably a person who needs a permit granted under section 7 to enter Solomon Islands. He is not a citizen of Solomon Islands nor is he a person whom comes under any of the other categories set out in section 7 as being exempted from needing a permit. When the Minister made the declaration pursuant to section 11(2)(f) (that Mr Rajapaksha was an undesirable immigrant) Mr Rajapaksha automatically became a prohibited immigrant in accordance with section 11(1) and the visitors permit granted to him was of no effect. The Minister did not need to make any separate declaration about Mr Rajapaksha's prohibited immigrant status or to cancel the visitors permit, those things resulted by operation of law. That is relevant in this case because if First Claimant is successful in his challenge to the Ministers decision or declaration under section 11(2)(f) he no longer is a prohibited immigrant. Unfortunately, for reasons that will hopefully become obvious later, even if he is successful it may not dispose of the deportation order.

14. As mentioned above (paragraph 12) Mr Rajapaksha challenges the section 11(2)(f) declaration on what might be seen as the Wednesbury principles. As Counsel for Mr Rajapaksha says in his submissions, the courts have set out the circumstances where they may intervene and set aside, or otherwise declare unlawful, the exercise of administrative discretion. The principles were set out in the case from which they get their name, Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223; [1947] 2 All ER 680 CA. The operation of the principles where a person's liberty is concerned was explored in the UK immigration case of Bohar Singh Khera Appellant and Secretary of State for the Home Department Respondent and Salamat Ullah Khawaja Appellant and Secretary of State for the Home Department Respondent. In that case Lord Scarman expressed the principle thus;

"Courts will not intervene to quash the decision of a statutory authority unless it can be shown that the authority erred in law, was guilty of a breach of natural justice or acted "unreasonably." If the authority has considered the matters which it is its duty to consider and has excluded irrelevant matters, its decision is not reviewable unless so absurd that no reasonable authority could have reached it. The principle excludes the court from substituting its own view of the facts for that of the authority."

As he explains,

"Such exclusion of the power and duty of the courts runs counter to the development of the safeguards which our law provides for the liberty of the subject. The law has largely developed through the process of habeas corpus. "

The rationale behind the principle was expressed by Lord Atkin in Liversidge v. Anderson [1941] UKHL 1; [1942] AC 206 namely, "that in English law every imprisonment is prima facie unlawful and that it is for a person directing imprisonment to justify his act." In Eshugbayi Eleko v. Government of Nigeria [1931] UKPC 37; [1931] AC 662, 670, Lord Atkin also said:

"In accordance with British jurisprudence no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a court of justice. And it is the tradition of British justice that judges should not shrink from deciding such issues in the face of the executive. "

15. From the comments above it might be supposed that the protection is only afforded to those persons who are British subjects, or here in Solomon Islands, Solomon Islands citizens, that is those who are in the country legally. Lord Scarman disposes of that proposition in these words,

"..does our law's protection extend to aliens and non-patrials? There is a suggestion that because an alien is liable to expulsion under the royal prerogative and a non-patrial has no right of abode, it is less difficult to infer a Parliamentary intention to deprive them of effective judicial review of a decision to infringe their liberty. "

He answered the question by saying,

"Habeas corpus protection is often expressed as limited to "British subjects." Is it really limited to British nationals? Suffice it to say that the case law has given an emphatic "no" to the question. Every person within the jurisdiction enjoys the equal protection of our laws. There is no distinction between British nationals and others. He who is subject to English law is entitled to its protection. This principle has been in the law at least since Lord Mansfield freed "the black" in Sommersett's Case [1772] EngR 57; (1772) 20 St. Tr. 1. There is nothing here to encourage in the case of aliens or non-patrials the implication of words excluding the judicial review our law normally accords to those whose liberty is infringed."

There is nothing in Solomon Islands law to suggest that it is any different in this jurisdiction.

16. Against the rights of an alien, someone who is not a citizen, there must be balanced the rights of the State. The State's position is clear. A former President of our Court of Appeal expressed it in this manner,

"In international law the principle has long been established that sovereign states can regulate the entry of aliens into their territory. Even as late as 1955 the eighth edition of Oppenheim's International Law, at pp 675 - 676, para 314 stated that. "The reception of aliens is a matter of discretion, and every state is by reason of its territorial supremacy competent to exclude aliens from the whole, or any part, of its territory". Earlier, in Attorney General for the Dominion of Canada v Cain [1906] UKLawRpAC 37; [1906] AC 542 at 546, the Privy Council in the speech of Lord Atkinson decided:

"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: Vattel, Law of Nations, book 1, s 231; book 2, s 125"

This principle still applies subject to any treaty obligation of a state or rule of the state's domestic law which may apply to the exercise of that control. The starting point is thus in my view that the United Kingdom has the right to control the entry and continued presence of aliens in its territory"^[13].

In this jurisdiction Lord Atkinson's view was adopted by Daly CJ in the Lopez case^[14]. There can be no doubt that the Sovereign State of Solomon Islands has the right to control who can enter and/or remain within its borders.

17. As was recognised in Lopez, the power to regulate immigration can be delegated. It has been so delegated in this country. It has been delegated to the Minister and to the Director of Immigration. What they can or cannot do is regulated by statute. The Minister in exercising his discretion under section 11(2)(f) was using powers delegated to him by statute, namely the amended Act. However, from what has been set out previously the exercise of those delegated powers, even if they are seen as "supreme powers", is subject to scrutiny by the court:

18. In Lopez Daly CJ says,

"... 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."

I do not subscribe wholeheartedly to that view. The later UK cases, as set out earlier, have established that there is no real difference between the courts exercise of its review jurisdiction in immigration cases and that in other areas of administrative law. In the UK many cases concern the Immigration Act 1971. It was a far more extensive piece of legislation than our own amended Act. It provided for appeals procedures on many aspects of its operation. There are no corresponding procedures in our amended Act (except and unless, as will be seen later, a deportation order is issued). That being so I believe the courts has a duty to "not shrink from deciding such issues in the face of the executive". In addition our Act has been amended and it is no longer certain that "the legislation of Solomon Islands has been drafted with these considerations in mind". In any event I believe the disquiet felt by Daly CJ can be alleviated by the way such cases are decided, by reference to where the burden of proof lies and by what standard of proof is required.

19. On the burden of proof the correct approach is as set out in Khawaja;

"The initial burden is upon the applicant. At what stage, if at all, is it transferred to the respondent? And, if it is transferred, what is the standard of proof he has to meet? It is clear from the passages cited from Lord Atkin's opinions in Liversidge v. Anderson [1941] UKHL 1; [1942] AC 206 and Eshugbayi Eleko v. Government of Nigeria [1931] UKPC 37; [1931] AC 662 that in cases where the exercise of executive discretion interferes with liberty or property rights he saw the burden of justifying the legality of the decision as being upon the executive. Once the applicant has shown a prima facie case, this is the law."

On the standard of proof and, after exploring the uncertainty in the law, Lord Scarman says;

"My Lords, I would adopt as appropriate to cases of restraint put by the executive upon the liberty of the individual the civil standard flexibly applied in the way set forth in the cases cited: and I would direct particular attention to the words of Morris L.J. already quoted. It is not necessary to import into the civil proceedings of judicial review the formula devised by judges for the guidance of juries in criminal cases. Liberty is at stake: that is, as the court recognised in Bater v. Bater [1951] P. 35 and in Hornal v. Neuberger Products Ltd. [1957]1 QB 247, a grave matter. The reviewing court will therefore require to be satisfied that the facts which are required for the justification of the restraint put upon liberty do exist. The flexibility of the civil standard of proof suffices to ensure that the court will require the high degree of probability which is appropriate to what is at stake."

"Accordingly, it is enough to say that, where the burden lies on the executive to justify the exercise of a power of detention, the facts relied on as justification must be proved to the satisfaction of the court. A preponderance of probability suffices: but the degree of probability must be such that the court is satisfied. The strictness of the criminal formula is unnecessary to enable justice to be done: and its lack of flexibility in a jurisdiction where the technicalities of the law of evidence must not be allowed to become the master of the court could be a positive disadvantage inhibiting the efficacy of the developing safeguard of judicial review in the field of public law."

20. Applying the foregoing to the agreed facts of this case it is clear that Mr Rajapaksha has a prima facie case in so far as the declaration under section 11(2)(f) is concerned. It is for the Minister to justify the exercise of his discretion in the manner he did. In other words, could he rely on what he was told and was the information given to him sufficient to be able to say his decision was a fair one or one the Minister, given his position and responsibilities, could reasonably make. It is submitted on behalf of Mr Rajapaksha that the Minister could not rely on the information from the Director because it was not from a foreign Government and did not come through diplomatic channels. That argument must fail. It is clear from the Act the Minister can rely on any information from any source and the only proviso is the Minister should turn his mind to the reliability of the source. There can be no doubt from the evidence the Minister relied on information from his staff. It would be a nonsense to say he could not reasonably rely on his staff to provide him with accurate reliable information. In any event, so far as the cancellation of the work permit and the subsequent cancellation of the residence permit are concerned, the information he received and relied on was factually correct.

21. The main difficulty for the Minister is the erroneous information about the June "escape" from Henderson. Clearly that information was wrong. There is evidence of a flight that had been arranged in June, it is exhibited to one of Mr Kepulu's sworn statements and is found at page 63 of the court book. There is no evidence that the arrangement was ever made known to the Claimants. It is also clear Mr Kepulu has confused the flight arranged in June with the one arranged in April^[15]. The parties agree Mr Seneviratne arranged the earlier flight and they also agree Mr Rajapaksha did not take that flight. He sets out the reasons why in his sworn statement filed 14th February 2011^[16].

22. It is convenient now to turn to second area referred to in paragraph 12 above, the issue of the marriage, before returning to a consideration the Ministers exercise of discretion. It is submitted on behalf of the First Claimant that he had a de facto right of residence based on his marriage. It is also submitted that it is common knowledge that marriage is a ground open to any alien or non-citizen to rely on in applying for a residence permit in most countries around the globe. No authority is put forward to support these submissions. It is probably correct to say marriage to a citizen of a country by an alien is a ground for applying for residence but that is far from saying it is a guarantee. Far from it, most countries do not automatically allow an alien spouse to have rights of residence. Solomon Islands certainly doesn't.

23. In the early 1980's there were several cases in Solomon Islands on that specific point. They are reported in the 1983 Solomon Island Law Reports^[17]. Both cases turned on the construction of section 7(1) of the Immigration Act and in particular 7(1)(a) which read, "(a) any citizen of Solomon Islands and his family under the age of 18 years". Both the Magistrate, who heard the Faulkner case, and the Chief Justice, who heard the Muller case, decided that "family" included a wife or husband. That meant an alien wife or husband of a citizen was entitled to enter Solomon Islands and to live and/or work here without a permit. The Act was amended, apparently from the side note, in 1986. Section 7(1)(a) now reads, "(a) any citizen of Solomon Islands and his children under the age of 18 years". The only conclusion that can be drawn from the amendment is that Parliament deliberately removed the automatic right of an alien spouse to have free entry into and the right of residence in Solomon Islands.

24. Despite that, the fact of the Claimants' marriage does have a bearing on the Ministers exercise of his discretion. There is no evidence he was informed of the marriage. In fact his sworn statement says he was only informed of the cancellation of the residence permit (following cancellation of the work permit) and the "escape" from Henderson in June. On the evidence before the Court he was not in possession of all the relevant information. His officers were but, from his evidence, they did not pass it on and it did not bear on the exercise of his discretion. If he had been in possession of all the information he may well have made a different decision. The Minister also took into consideration erroneous information about the supposed escape in June. Had he known the correct facts he might have made a different decision. In the circumstances it is right this court quashes the declaration by the Minister published by Gazette Notice dated 18th November 2010 and directs him to reconsider the matter on the basis of the full and correct information available about Mr Rajapaksha.

25. It is suggested that the declaration should be quashed on the basis that Mr Rajapaksha did not have the opportunity to put his case to the Minister. There is no requirement in the Act for the Minister to do that. Indeed it might be impossible for the Minister to allow representations, for example, a person unlawfully in the Solomon Islands may be doing his level best to evade contact with the authorities. There is an element of that in this case because whilst the Claimants may have visited the Immigration Department they did not respond to requests from the Enforcement Unit. I make no finding on that particular point except to say, in passing, had the Claimants co-operated and had the Minister given Mr Rajapaksha the chance to put his side of the story forward, this case may never have arisen. That the Minister did not have the opportunity to hear the other side is not something that can be solely laid at his door.

26. The First Claimant also seeks to quash the deportation notice. It should be pointed out the deportation notice pre-dates the declaration that the First Claimant was an undesirable immigrant. The former is dated 8th November 2010, ten days before the declaration. The Minister could not rely on a declaration that had not been made. The end result is that at the date of the deportation notice Mr Rajapaksha was not a prohibited immigrant. As set out in paragraph 10, his prohibited immigrant status under section 13 had lapsed because he had been granted a visitors permit. That was still valid as at 8th November. Nor was he subject to the declaration that he was an undesirable immigrant which would automatically render him a prohibited immigrant.

27. Nonetheless, the Minister could still issue the deportation order because it was, on the face of it, based on the assertion the First Claimant was an undesirable person. The Deportation Act (as amended) allows the Minister to issue a deportation notice in four situations. They are set out in section 4. They are if a person has been convicted, if he is an undesirable person, if he is destitute or if he is a prohibited immigrant. An undesirable person is not the same as an undesirable immigrant (under section 11(2)(f) of the amended Act). The latter is not defined whereas the former is. If the Minister wants to rely on section 4(b) of the Deportation Act he does not need to make a declaration under section 11(2)(f) of the amended Act. Logically, a person declared to be an undesirable person under the Deportation Act could also be declared an undesirable immigrant under the amended Act but there is no need to do so. If a person is first declared an undesirable immigrant under section 11(2)(f) the Minister can rely on section 4(d) of Deportation Act because such a declaration, as has been seen earlier, automatically renders the person a prohibited immigrant.

28. On the face of it then, the deportation order was saying the Minister had declared Mr Rajapaksha to be a person who was or had been conducting himself in a manner prejudicial to the peace, defence, public safety, public order, public morality, public health, security or good government of Solomon Islands^[18]. The facts alleged which gave the Minister grounds to issue the deportation order have to be set out in the order with sufficient particulars as to give the person against whom the order is issued reasonable information as to why the order has been made. The, apparently, crucial fact relied on by the Minister is set out in paragraph 5 of the order. It says "That as a result of you being declared an undesirable person under section 11(2)(f) of the Immigration Act, you are hereby issued with this deportation order...". The deportation order is clearly defective. At the risk of boring the reader, an undesirable person is not the same as an undesirable immigrant. A declaration that someone is an undesirable person is made pursuant to section 4 of the Deportation Act and by reference to the definition in section 2. A declaration that someone is an undesirable immigrant is made pursuant to section 11(2)(f) of the amended Act. Apart from the fact that the section 11(2)(f) declaration had not apparently been made at the time of the deportation order, the facts set out in the order could not by any stretch of the imagination give rise to a reasonable decision that Mr Rajapaksha was an undesirable person as defined by section 2 of the Deportation Act.

29. There is a distinction between to two different statuses. The reason for the distinction is not known. It raises the presumption, about which thank goodness I do not have to make any decision, that a section 4(b) declaration could be made against any person (e.g. even a citizen of Solomon Islands) whereas a section 11(2)(f) declaration can only be made against a person not entitled to enter Solomon Islands without a permit (i.e. an alien).

30. The deportation order issued and dated 8th November 2010 must be and is hereby quashed.

31. There is nothing in this judgment that should be seen as precluding the Minister from issuing either a fresh declaration pursuant to section 11(2)(f) or making one under section 4(b). Any fresh declarations would be subject to review by the Court. A bare section 11(2)(f) declaration would be subject to judicial review. If the section 11(2)(f) declaration led to the issue of a deportation order pursuant to section 4(d) it (and the order) would be subject to the review provisions set out in section 5 of the Deportation Act. A declaration under section 4(b) on its own would be similarly subject to review under section 5.

32. Turning to Ms Halitia's application, there is no suggestion she is going to be deported. Whilst that is quite clear from the pleadings it is a point worth making. Her claim is based on the effect that Mr Rajapaksha's deportation would have on her, presumably on the basis that she remained in Solomon Islands although that is not said as such. The deportation order having been quashed is there need for the Court to consider the application? The way the claim is framed means the answer to that question is yes.

33. Ms Halitia claims the deportation of her husband would, insofar as it affects her, be inhuman and degrading treatment. She refers to the Convention on the Elimination of all Forms of Discrimination Against Women ("CEDAW"). Solomon Islands, according to the United Nations website, acceded to the convention on 6th May 2002. Whether this is a mistake on the website and the actual date was, as Mr Hou says, 5th June 2002 is neither here nor there. The fact is there has been accession by Solomon Islands. That means the Solomon Islands Government must ensure that domestic law carries into effect all that is set out in the convention. Ms Halitia argues that the deportation of her husband would interfere with her right to freely choose a spouse and to enter into marriage with her free and full consent. It is difficult to see how that argument can succeed. Her evidence^[19] is that it was her, "personal choice" to marry Mr Rajapaksha and that she, "made the decision". It is quite clear from her evidence generally she was, before the marriage took place, aware of her husband's status as a foreign national living and working in Solomon Islands by virtue of a work permit and a residence permit. The deportation of her husband might mean she would have to choose to leave with him or remain in Solomon Islands on her own pending an application by him for residence, but the executive act of deportation did not interfere with her right to marry whomsoever she chose. There is no suggestion she would be treated any differently "before the law"^[20]. The situation would be the same if she were a man and had married a woman who was to be deported. I have not been referred to, neither can I find, any provision in the amended Act which discriminates between the sexes. The decided cases in this jurisdiction (Lopez, Faulkner and Muller) referred to earlier support that view.

34. There is possible discrimination between the sexes in the Citizenship Act [Cap. 57]. It says, in section 7 of the Act dealing with an application for Citizenship;

(3) Subject to subsection (5), where, in his application, a male applicant requests that-

(a) his wife (not being a citizen);

(b) any child of his named in the application; or

(c) both his wife and any such child,

shall become a citizen by naturalisation, any person to whom the application so relates shall become such a citizen when, pursuant to the application, the applicant becomes a citizen by naturalisation.

(4) Where in an application made under this subsection-

(a) a citizen requests that his wife shall become a citizen by naturalisation; or

(b) a wife of a citizen requests that she shall become a citizen by naturalisation;

and as a result of such inquiries as the Commission may cause to be made, the Commission is satisfied that the female person to whom the application so relates-

(i) was married to that citizen in accordance with law or custom of Solomon Islands, before the application was made;

(ii) is not living apart from that citizen under a decree of court or a deed of separation;

(iii) is, on the date of the application, and has been, during the period of two years immediately prior to that, ordinarily resident in Solomon Islands,

(iv) satisfies the conditions specified in paragraphs (b) to (i) (inclusive) of subsection (2); and

(v) in the case of an application made by such female person, that her husband consents to the grant of citizenship to her by naturalisation, the Commission may grant the application but otherwise shall refuse it:

In other words, the wife and/or child of a man who applies for Citizenship is covered by his application and if a male citizen marries an alien or non-citizen she can apply for citizenship after two years instead of the usual 10 years. There is no similar provision for a male alien who marries a female citizen. However, the Citizenship Act has no bearing on this case in so far as it relates to Ms Halitia's claim. This is not a review of any decision or application before the Citizenship Commission.

35. Nor is this a claim based on an infringement of any other Constitutional rights. In some East African Countries (Zimbabwe, Botswana and Malawi) deportation of an alien spouse was considered to be an infringement of the citizen spouse's right to freedom of movement (See section 14 of the Solomon Islands Constitution). However, following amendment of the Constitutions in those countries (in particular Zimbabwe) so that they mirrored the provisions already in ours, later cases have found against citizen spouses. The particular constitutional amendment added to those other constitutions was almost exactly the same as ours at sections 14(3)(c), (d), (e) and (f).

36. For the reasons detailed above the Second Claimant, Ms Halitia, fails in her claim that the purported deportation of her husband constituted inhuman and degrading treatment. The claim is dismissed.

37. As for costs, the First Claimant, having succeeded in his claim, must be allowed his costs and they should be paid by the Defendants. The Defendants should pay the costs of the First Claimant in this case and in Civil case 512 of 2010. However, I appreciate that the costs of the Second Claimant are in those costs as well. As she is not entitled to her costs the Defendants shall only pay 66% or two thirds of the costs in Civil case 39 of 2011 but all of the costs in 512 of 2010. The Second Claimant should pay the Defendants costs in this case but the order made above will take that into account. The costs are to be taxed on a standard basis if not agreed.

Chetwynd J

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^[1] See sworn statement of Nihal Seneviratne filed 5th May 2011
^[2] See exhibit JAR3 to the sworn statement of First Claimant filed 14th February 2011
^[3] See exhibit MBK1 annexed to sworn statement of Moffat Berry Kepulu filed 3rd March 2011
^[4] See exhibit NS 1 annexed to the sworn statement of Nihal Seneviratne filed 5th May 2011 (page 88 of the Court Book)
^[5] See exhibit NS 2 ibid (Page 90 ibid)
^[6] Page 60 of the agreed Court Book
^[7] Page 61 ibid
^[8] Section 13 of the Immigration Act as amended.
^[9] See the letter at page 35 of the Court Book
^[10] See page 101 ibid
^[11] See page 107 ibid
^[12] Pages 76 to 81 inclusive ibid
^[13] Per Lord Siynn of Hadley in R (on the application of Saadi) v Secretary of State for the Home Department [2002] UKHL 41
^[14] Lopez v. Attorney General (No.2) [1983] SILR 240
^[15] See page 50 of the court book
^[16] See page 18 ibid
^[17] R v. Faulkner (No. 1) [1983] SILR page 273 and Muller v. Attorney General [1983] 259
^[18] Section 2 of the Deportation Act and the definition of undesirable person.
^[19] See her sworn statement filed 16th February 2011 (at page 30 of the court book)
^[20] See Article 15 1. CEDAW