Shung Wong v Attorney General [2018] SBHC 104; HCSI-CC 366 of 2012 (14 December 2018)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Shung Wong v Attorney General
Citation:
Date of decision:	14 December 2018
Parties:	Patrick Shung Wong v Attorney General, Minister of Commerce, Industries, Labour and Immigration, Director of immigration
Date of hearing:	1 October 2018
Court file number(s):	Civil Case 336 of 2012
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona PJ
On appeal from:
Order:	(1)Grant quashing order by removing into the High Court the Director’s Order cancelling the Claimant’s permit to enter and reside (“the residency order”) in Solomon Islands dated 11th July 2012; and hereby quash such cancellation. (2)Grant quashing order by removing to the High Court the Director’s purported “restriction order” dated 11th July 2012 restricting the Claimant’s entry into Solomon Islands; and hereby quash such order. (3)Grant quashing order by removing into the High Court the Minister’s purported declaration dated 12th July 2012, that the Claimant was an undesirable immigrant and hereby quash such declarations. (4)Grant quashing order by removing into High Court the Minister’s purported declaration, dated 29th August 2012, that the Claimant was a prohibited immigrant’ and hereby quashing such declarations. (5)Grant declaration order declaring the Claimant’s residency permit issued by the Director dated 2rd October 2008, is current, valid and subsisting to 15th August 2013 and effective for all proposes in accordance with its terms, of which such date has now being overdue. (6)Grant mandatory order compelling the Director within 10 days to notify all air carriers that the said restriction order has been quashed and that the Claimant is permitted to travel to Solomon Islands up until 15th August 2013, of which date has now being overdue. (7)A penal notice attach to seek mandatory and prohibiting orders. (8)Damages to beach of statutory duty are to be assessed. (9)Interest on damages assessed at the rate of 5% per annum calculated on daily rates from 26th July 2012 until payment. (10)Costs of and in connection with this action to be taxed if not agreed. (11)Interest on any costs at the rate of 5% per annum from the date of this order until payment, calculated on daily rates accruing upon any part of such costs as remain unpaid.
Representation:	Mr A. Rose for the Claimant Mr S. Banuve for the first to the third Defendant
Catchwords:
Words and phrases:
Legislation cited:	Companies Act, Immigration Act, Deportation Act, Immigration and Labour Act, Civil Procedure Rule
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 336 of 2012

PATRICK SHUNG WONG
Claimant

v

ATTORNEY GENERAL
First Defendant

MINISTER OF COMMERCE, INDUSTRIES, LABOUR AND IMMIGRATION
Second Defendant

DIRECTOR OF IMMIGRATION
Third Defendant

Date of Hearing: 1 October 2018
Date of Ruling: 14 December 2018

Mr A. Rose for the Claimant
Mr S. Banuve for the first to third Defendant

DECISION ON CLAIM FOR JUDICIARY RREVIEW

FAUKONA J: is a claim for judicial review filed on 12^th September 2012. The major cause of action is to review the decision made by the Director of Immigration on 11/7/2012 cancelling the Claimant’s permit to enter and reside in Solomon Islands.

2. The second act for determination is to review the Minister of Commerce, Industries, Labour and Immigration’s decision declared on 12^th July 2012, that the Claimant is on undesirable immigrant. And again to review the decision made by the same Minister who declared on 29^th August 2012, that the Claimant was a prohibited immigrant.
3. The Claimant is a citizen of Australia. He had invested in five companies in Solomon Islands which were incorporated under the Companies Act. The Claimant was appointed as Director and Shareholder in Russell Islands Plantation Estates Limited (RIPEL) and Levers Solomon Limited (LSL).
4. The Claimant was also appointed as Director of Pacific Management Services (SI) Limited and International Comtrade & Shipping (SI) Ltd. And was a sole Director and Shareholder of Patrick Wong (Consultancy Services) Ltd which was incorporated on 3^rd April 2012. Those investments were approved under the Foreign Investment Act 2005.
5. Patrick Wong (Consultancy Services) Ltd (PWCL) stands out as the most significant because it was this company that the Claimant was granted work permit on 5^th April 2012 to work as a director responsible for daily activities management and business advice.
6. PWCL was issued with certificate of registration on 30^th March 2012. It was in fact incorporated on 3^rd April 2012. After it was incorporated, the Claimant was issued with a work permit on 5^th April 2012, two days later.
7. Prior to June 2008, the Claimant travelled regularly to Solomon Islands for business in short term under visitor’s permit. At that time he did not possess a residency permit.
8. On 20^th June 2008, the Claimant filed an application for permit to enter and reside in Solomon Islands in accordance with S.80€ of the Immigration Act. A permit was granted and issued on 19^th August 2008 which will expire on 19^th August 2010. That permit was subsequently replaced by a new residency permit dated 20^th October 2008 which will expire on 15^th August 2013.
9. Attach to the work permit were conditions. One of which was (d) attested that the Claimant shall not engage in any employment without the consent of the Commissioner of Labour.
10. On 5^th April 2012, the Claimant obtained a work permit issued by the Commissioner of Labour. That would entitle him to work for Patrick Wong (Consultancy) limited which basically engaged in “business advisory”.
11. From facts adduced by the Clamant, on the date the work permit was issued, PWCL had yet to commence operation which will employ the Claimant. It did not have an office address either, other than its registered office address, and had yet to open a bank account in Solomon Islands. No business license was yet issued by the relevant authority. Generally the company was yet to carry out its business activities. It is immaterial weather the company had started operation or not. The relevant point is that the Claimant was issued with work permit to for PWCL.
12. On 5^th June 2012, following the issuant of the work permit, the Director of Immigration wrote to the Clamant requesting him to apply for a new residency permit within 14 days. At that time the Claimant’s residency permit was still valid and current, and was yet to be expired.
13. The Director’s reasons for supporting his decision were twofold. One that the effect of a new residency permit must be in consistence with the new work permit. Secondly, the letter required the Claimant to leave the country while his application was considered.
14. The Claimant did not submit a new application, but instead replied by a letter of 8^th June 2012 outlining the reasons why he thought the Director’s request was improper.
15. On 22^nd June 2013, the Claimant travelled to Australia for personal reasons. Whilst being away, a letter of 11^th July 2012 signed on behalf of the Director cancelled the Claimant’s residency permit. Based on that, the Claimant’s presence in Solomon Islands was unlawful. That in the Director’s view imposed a “restriction order” preventing the Claimant’s re-entry into Solomon Islands with effect from the date of the letter, and which such restriction will remain in effect until lifted by the Director.
16. On 12^th July 2012, the Minister by S.11 (2) of the Immigration Act, by an extraordinary Gazette published as Legal Notice No. 57 declared the Claimant as undesirable immigrant and his re-entry into Solomon Islands was unlawful.
17. No reason or ground for such action was given, despite several requests by the Claimant’s Counsel through letters.
18. On the outset it appears the Counsels are in contentment as to the Immigration officer who signed the letter on 11^th July 2012, cancelling the Claimant’s residency permit on behalf of the Director. It is therefore contemplated with assent, that the officer was one which falls within the meaning of Immigration Officer as spell out in S.(2) of the Act, who was appointed under s.3 including the Principal Immigration Officer. The position of the Principal Immigration Officer as appears in the Act is equivalent to the Director of Immigration or other officer of equivalent level.

Request to apply for a new residency permit:

19. The letter of request, desiring the Claimant to submit a new application for residency permit, whilst the old one was still valid, ought to be examined thoroughly. In other words, has such requirement contemplated under the Immigration Act which must be done with fourteen (14) days?
20. One of the reasons stated in the letter was so that the residency permit be aligned or consistent with the work permit which was just granted. It ought to be questioned what was in the Director’s mind when he uttered the words “align” or “consistent?” There was no exact meaning or practical meaning of the words. In a difficult circumstance, perhaps inference can be drawn without any presumptive effort.
21. What could possibly flood the mind of the Director was, so that two permits could expire on the same date, on 5^th April 2014, when the work permit expired.
22. Alternatively, the Director could have perceived that in such circumstances, one which he could exercise discretion under s.8 (1) of the Act to issue a permit, particularly where subsection (a) applies, that is, when the prerequisite of grant of work permit had been done as a supportive reason.
23. There is optimum distinction in the exercise of discretion mandated by s.8 (1) (a) of the Act. That provision in my opinion only applies to new application for residency permit, and it is one structured as pre-requisite requirement. In the event work permit had been determined, did not preclude the exercise of discretion the Director enjoys, the Director must still exercise discretion as mandated.
24. I noted the reason considered by the Director was different from any of the conditions attached to Mr Wong’s residency permit, neither was it within s.8(3) as amended in 1998. The question is was the Director, in his actions, falls within the law, as recognised in the exercise of his discretion which reasonableness and fairness ought to be foreseen.
25. The Counsel for the Crown argues that initially the Claimant’s residency permit had one of the conditions that he must not engage in employment. And further argues since a work permit had been obtained, therefore necessitated a review of his residency permit.
26. However, Counsel had rightly submitted that any such employment must be granted with the consent of the Commissioner of Labour. As it intends the condition needed to be removed.
27. The question to peruse in a letter about the change of condition automatically or administratively has form the regime, or would it require legal process by submitting a new application so that the “employment condition” be omitted from the regime of conditions.
28. I do not seem to read any statutory provision that will cater for those changes, in particular, where the residency permit is valid and current.
29. Similarly, was the process applied when the second residency permit was granted to the Claimant? This is important to verify the consistency. However, there is no evidence from both sides as to what exactly had actually happened; was there any new application filed for the extension? No idea.
30. If the Director so concern about consistency in adopting formal application in order to adjust the condition of the residency permit, then that should be maintained, hence evidence of previous dealing must be made available to the court to proof consistency. In the absence of evidence, and good reasoning, any prospect of alignment is not provided by law. In any event, there can be no doubt the Director exercising his discretion und sections 8(1) and 12 of the Immigration Act.
31. Practically, if the Director preferred to exercise discretion in other areas apart from application for a new permit required in s.8(1)(a), then there is no need to advice the Claimant to leave Solomon Islands because his residency permit was still current at that time. To do so is contrary to law, and the Director has no power to exercise discretion in that circumstance Therefore the Director obviously acted outside statutory powers conferred upon him.
32. It ought to be noted, the Claimant may not be an excellent investor as contemplated of him. All his business undertaking, by then, had gone into chaos and disarray. That may be a conceal reason. Without speculation a failed foreign investor ought to be rendered respect in dealing with his case. When it comes to immigration issues pertaining to grant and cancellation of permits, authorities must comply with the relevant Acts and diligently exercise statutory powers provided by those Acts.
33. By acting outside of the statutory provisions is causing havoc, inconvenience and prejudice to the rights of the Claimant. Therefore I must determine the Director has breached his statutory powers under the Immigration Act.

Breach of Statutory power by the Minister:

34. Two months after the Claimant was issued with a work permit by the Commissioner of Labour, the Director of Immigration served the Claimant with a letter dated 5^th June 2012 requesting him to apply for a new residency permit. No application was submitted by the Claimant; hence, the Director then cancelled the Claimant’s residency permit on 11^th July 2012.
35. Follow on from those brief events, the Minister for Labour and Immigration then declared the Claimant as “undesirable immigrant” with effect from 12^th July 2012, affirmed by Supplementary Gazette, Legal Notice No. 57 dated the same day.
36. On 29^th August 2012, another Supplementary Gazette was issued by the same Minister declaring the Claimant as a “prohibited immigrant”. The Minister relied on S.11 (2) (f) of the Immigration Act declaring the Claimant as “undesirable immigrant” and S.11 (2) (g) for declaring the Claimant as “prohibited immigrant”.
37. There is no doubt the Minister has discretion to declare a person undesirable immigrant under s.11 (2) (f) upon receipt of information from wide source; including the Director of Immigration or a Government Officer.
38. In respect to prohibited class of immigrant under S.11 (2) (g), for a person to be classified as prohibited immigrant, the Minister must first declare by order that person falls under the category of prohibited immigrant. With no doubt the Minister assumed such responsibility.
39. It does not end there, s.14 of the Act stated that a person who is a prohibited immigrant shall be dealt with in accordance with procedure for making 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.
40. By making the two declarations of the Claimant as being undesirable and prohibited immigrant, the Minister, though had discretion had failed to complete the process. He did not proceed to comply with S.14 of the Immigration Act to resume to deportation procedures for the deportation of the Claimant.
41. By merely purporting in making declarations is not enough. The Minister had failed to fully comply and complete the procedures as required by the Deportation Act.
42. The section he relied on in making the declarations do not operate in isolation or of their own. They are processes which provided basis for actual framing of the deportation order. In this case there is no evidence that the Claimant was issued with deportation order. There is no evidence the processes related to grant of a deportation order was fully complied with.
43. In both declarations made by the Minister there were no reasons given for such acts. The two provisions the Minister relied on did not expressly stated that the Minister must give reasons, but in the interest of justice, the Claimant ought to know the grounds the Minister relied on. The decisions to make declaration may be discretionary but it must be fair and must be decided on its merits.
44. For failure to comply with the law in declaring the Claimant as an undesirable immigrant and prohibited immigrant, I decided on the balance of probability the Minister was wrong for not complying fully with relevant provisions of the Immigration and Labour Acts. His decision in doing what he did was null and void.

Delay:

45. In a claim for judicial review of executive or legislature decision, or action, “delay” as one of the requirements under R15.3. 18(c) which the Claimant must offer some proof, or explanation supported by evidence, why delay in making the claim.
46. Normally such issue is raised at the pre-trial conference stage. Whether delay is raised at that stage or not, it can also be raised at trial; there is no harm in doing so.
47. In the current case, the Claimant filed his claim for judicial review on 12^th September 2012. To review the Director of Immigration’s decision cancelling his residency permit on 11^th July 2012, and the Director’s restriction order made on the same date.
48. The review claim is also to review the Minister’s decision declaring the Claimant as undesirable immigrant on 12^th July 2012, and declaring the Claimant as prohibited immigrant on 29^th August 2012.
49. Rule 15.3.8 expressly stated a claim for quashing order must be made within 6 months; it is a mandatory provision without any exception or option. Placing the above facts in perception, where can delay be identified? Decisions and declarations are made between 11^th July 2012 and 29^th August 2012. This claim was filed on 12^th September 2012 against decisions and declarations, two months after the first decision was made. The claim indeed was filed in time and there was no delay at all.
50. There was also an appeal filed by the Claimant against the Director of Immigration’s decision to cancel the Claimant residency permit. That appeal was filed on 21^st August 2012. Since filing of the appeal it was not heard until today. So where the delay does lie? In fact there is no delay at all. The appeal to the Minister was filed on time and this claim was filed in time as well.

Infringement of public law by third Defendant:

51. The third defendant denied infringement of any public law. The notion of liability under any public law emerged from reliefs (11) and (12) of the Claim. Damages claim for breach of statutory duty to be assessed, if successful, a 5% interest is added.
52. The nature of such relief is appropriate where the Claimant had suffered prejudices and inconveniences which can be valued, together with actual loss suffered for breach of duty. Loss in this sense can be monetarily valued.
53. At this stage, in my opinion, it is premature to discuss any public law that provides for claim for damages. However, the most notorious one could be a claim under the law of tort. The basis of such argument would arise when quantum of damages are assessed, if the claim is successful.
54. I will reserve any further discussion on any breach of public law until appropriate time.
55. Meantime I am satisfied on the evidence as adduced before this Court on the balance of probability. That both the Director of Immigration and the Minister of Commerce, Industries, Labour and Immigration had breached their statutory duties in dealing with the Claimant’s case cancelling his residency permit without good reason, and declaring him as undesirable immigrant and prohibited immigrant. I must therefore grant the relief sought and allow the claim to succeed.

ORDERS:

(1) Grant quashing order by removing into the High Court the Director’s Order cancelling the Claimant’s permit to enter and reside (“the residency order”) in Solomon Islands dated 11^th July 2012; and hereby quash such cancellation.
(2) Grant quashing order by removing to the High Court the Director’s purported “restriction order” dated 11^th July 2012 restricting the Claimant’s entry into Solomon Islands; and hereby quash such order.
(3) Grant quashing order by removing into the High Court the Minister’s purported declaration dated 12^th July 2012, that the Claimant was an undesirable immigrant and hereby quash such declarations.
(4) Grant quashing order by removing into High Court the Minister’s purported declaration, dated 29^th August 2012, that the Claimant was a prohibited immigrant’ and hereby quashing such declarations.
(5) Grant declaration order declaring the Claimant’s residency permit issued by the Director dated 2rd October 2008, is current, valid and subsisting to 15^th August 2013 and effective for all proposes in accordance with its terms, of which such date has now being overdue.
(6) Grant mandatory order compelling the Director within 10 days to notify all air carriers that the said restriction order has been quashed and that the Claimant is permitted to travel to Solomon Islands up until 15^th August 2013, of which date has now being overdue.
(7) A penal notice attach to seek mandatory and prohibiting orders.
(8) Damages to beach of statutory duty are to be assessed.
(9) Interest on damages assessed at the rate of 5% per annum calculated on daily rates from 26^th July 2012 until payment.
(10) Costs of and in connection with this action to be taxed if not agreed.
(11) Interest on any costs at the rate of 5% per annum from the date of this order until payment, calculated on daily rates accruing upon any part of such costs as remain unpaid.

THE COURT.
..................................
JUSTICE R. FAUKONA
PUISNE JUDGE