Tongzi Zang v Attorney General [2012] SBHC 27; HCSI-CC 82 of 2012 (3 April 2012)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 82 of 2012

BETWEEN:

TONGZI ZHANG
Claimant/Applicant

AND:

ATTORNEY-GENERAL
Defendant/Respondent
(Representing the Minister for Commerce, Industries, Labour and
Immigration, the Director of Immigration
and all immigration Officers)

Date of Hearing : 3 April 2012
Date of Ruling : 3 April 2012

J Sullivan and Eran Soma for the Claimant
J Muria (Jr) for the Defendant

RULING

This is an application by the Claimant for the following orders:

1. The Claimant have leave to amend this application in terms set out herein.
   

1A. The Claimant have leave to join the Attorney General representing the Commandant of Rove Correction Centre as an additional defendant.

1B. The Claimant have leave to further amend the Claim to claim by way of alternative relief a Writ of Habeas Corpus.

2. The Detention Order of the Honourable Elijah Doro Muala, Minister for Commerce, Industries, Labour and Immigration made on 23 March 2011 and published by Extraordinary Gazette No. 15 on that date, purportedly made under section 6 (1) of the Deportation Act (Cap. 58), directing that the Claimant be detained at the Rove Correctional Centre, be stayed until judgment or further order of this court, including any appeals arising therefrom.

3. A consequential mandatory order, pursuant to s.6 (2) of the Deportation Act, directed to the Commandant of Rove Correctional Centre to release the Claimant forthwith from custody.

3A. In the alternative, a Writ of Habeas Corpus directed to the Commandant of Rove Correctional Centre be issued pursuant to Rule 15.3.22 requiring him to bring the Claimant into the Court in order that he be released.

4. An interim injunction pursuant to Rule 15.3.5 prohibiting the Minister, the Director of Immigration, all immigration officers from taking any further steps for the detention or deportation of the Claimant until judgment or further order.

5. The first conference pursuant to Rule 15.3.16 shall be on a date to be fixed by the Registrar, being a date not less than 10 clear days from the date when the same issues from the Registry to the advocates for the Claimant for service on the Defendants.

6. The Claimant to file and serve any further sworn statement in support of his Application within 14 clear days of the making of this order.

7. The Defendant file and serve any sworn statements in response not less than two (2) clear days prior to the return date for the first conference.

8. The costs of and in connection with this application be costs in the cause;

9. Such further or other order as to this Honourable Court may seem meet.

RULING

1. The Applicant is Tongzi Zhang. He is a Citizen of the People's Republic of China. He entered Solomon Islands on 17 July 2007 on a visitor's permit which was extended twice. On 29 October 2009 he was granted a work permit and a permit to enter and reside and worked for Pubaka Buyers Enterprises as a quality control officer.
   
2. Prior to expiration of such permit on 15 October 2009, he obtained foreign investment approval from the Registrar of Foreign Investment to conduct his own business in Solomon Islands under the name of Haizhen Trading Limited ("HTL"). As a result, he applied for and was granted amendment to his previous work and residence permits. On 12 December 2008, he was issued with a work permit and a residential permit both of which were subsequently renewed on 14 December 2010.
   
3. HTL initially engages in buying and exporting of Marine products such as beche-de-mer, shark fine and trochus. It has now ceased busying and exporting beche-de-mer in December 2009. The Applicant holds 90% of the shares in the company. The other 10% of shares is held by Daojun Chen, who is also a Chinese citizen who lives in China.
   
4. On 29 July 2010 he pleaded guilty to false declaration contrary to section 212 and concealing goods contrary to section 214 of the Customs and Excise Act (Cap. 121). He paid a total fine of $12,000.00 at the Magistrate Court. He paid both fines on 29 July 2010. These offences related to HTL's attempted export of bech-de-mer in April 2010. HTL paid a total compounded penalty of $300,000.00 on fisheries offences and the charges against it were withdrawn.
   
5. As a result of his conviction, his residence permit was initially cancelled by the Director of Immigration ("the Director") on 12 August 2010. He appealed against the cancellation of his residence permit to the Minister for Immigration and Labour on 16 December 2010. His appeal succeeded, and was communicated to him by letter dated 1 October 2010. In that same letter he was warned that he would be deported if he were to be convicted of any further offence.
   
6. The Applicant has not committed any further offences. After the success of his appeal, he renewed his work and residence permits which would expire on 12 December 2012. However, on 18 October 2011 the Director had cancelled his residence permit again on the ground of his convictions on 29 July 2010. He was informed of that by letter, which he received on 25 July 2010. He made a second appeal to the Minister of Immigration & Labour against the second cancellation of his residence permit, but he has not received any response from the Minister.
   
7. On 1 March 2012, he was served with a notice to leave Solomon Islands voluntarily within 14 days or be deported. At the same time he was also served with an order made by the Minister on 31 October 2011 under the Immigration Act (Cap. 60) declaring him to be an "undesirable immigrant" together with a deportation order under the Deportation Act (Cap 50) ("the Act") to have him deported.
   
8. Both the declaration and the deportation order were published in Solomon Islands Extra Ordinary Gazette No. 86 on 1 November 2011 and the deportation order being legal Notice No. 73 of 2011. It took four months for the declaration and the deportation order to be served on him. He felt that he had been unfairly treated.
   
9. The Court heard submissions from the Solicitors for the Applicant and Defendant. The Applicant is currently remanded at Rove Correctional Centre. Counsel for the Defendant submits that such remand is merely for administrative purposes and punitive. I do not share that view because in the end the Applicant would be deported. The Applicant has a pending case against the Defendant for judicial review in court. He should be given an opportunity to be heard on his case. As indicated earlier a deportation order has been served on the Applicant. The court would exercise its discretion under section 6 (2) of the Deportation Act (as amended) to release the Applicant from custody forthwith to proceed with his case as provided by law.
   
10. In conclusion the court will grant the orders sought in this application.
    

Order 1: Grant orders sought in this application.

2: Costs in the cause.

THE COURT