Kumar v Attorney General [2018] SBHC 46; HCSI-CC 341 of 2015 (26 April 2018)

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AJAY KUMAR (Claimant)	V	ATTORNEY GENERAL (Representing the Minister for Immigration) (1^st Respondent)
		ATTORNEY GENERAL (Representing the Director of Immigration) (2^nd Respondent)
		ATTORNEY GENERAL (Representing the Commander of Rove Correctional Services) (3^rd Respondent)

BETWEEN:	AJAY KUMAR	Claimant
AND:	ATTORNEY GENERAL ( Representing the Minister for Immigration)	First Respondent
AND:	ATTORNEY GENERAL (Representing the Director of Immigration)	Second Respondent
AND:	ATTORNEY GENERAL (Representing the Commander of Rove Correctional Service)	Third Respondent

Date of Hearing:	29^th January 2018
Date of Judgement:	26^thApril 2018

Firigeni R: for the Claimant
Apaniai. J & Poa. A: for 1^st, 2^nd, & 3^rd Respondents.

JUDGMENT

The Claimant, Mr Ajay Kumar, is a Fiji citizen. He is married to Joyce Neemia, a Solomon Islands citizen, on 21^st December 2010. He came to Solomon Islands with his wife in 2011 and was granted a visa for 2 years. That visa expired on 27^th January 2013. It was renewed for another two years and expired on 27^th January 2015. The first visa and the first renewal were made under the Immigration Act, Cap 60. By the time his second visa expired on 27^th January 2015, a new Immigration Act (the Immigration Act 2012) has come into force, thus the procedures relating to renewal of visas/residence permits also changed due to change in the law.

The Claimant’s resident permit expired on 27^th January 2015 but was not renewed by the Director of immigration due to what I understand to be issues related to the Claimant’s application for renewal. He was informed of the Director of Immigration decision and request to voluntarily depart the country before his application can be considered. The Claimant did not leave as advised subsequently the Minister for Commerce, Labour Industries and Immigration issued a deportation order against him. The order dated 13^th July 2015 and published in the Gazette, Legal Notice No.65 of 2015. It was served on the Claimant on 16^th July 2015. On the same day, he was arrested by Immigration Officers and placed in custody at Rove Correctional Centre. On the 23^rd July 2015, the Claimant file an application for a judicial review of the Minster’s action. Following the hearing of the application for judicial review, the Claimant was released the same day on conditions.

Following his release from detention at Rove Correctional Centre, the Claimant filed a claim against the Attorney General representing the Minister of Immigration, the Director of Immigration and the Commander of Rove Correctional Centre. By further amended claim filed on 29^th November 2016, he seeks the following reliefs;

(i) The Minister’s decision is null and void abinitio, ineffective, brought up and be quashed.

(ii) The Deportation Order LN: 65/2015, was unlawful ineffective and be brought up and quashed.

(vi) The admission and detention of the Claimant at the Rove Correctional Centre on Thursday 16^th July 2015 to Friday 24^th July 2015, was unlawful.

(vii) The refusal by the Commandant of Rove Correctional Centre to release the Claimant following Oder of the Court on the 23^rd day of July 2015, was unlawful.

(viii) Further remand of the Claimant by the Commandant of Rove Correctional Centre after 23^rd July 2015, was unlawful.

(e) The Director of Immigration to consider the Claimant’s application for renewal of his residence visa forthwith.

(f) Damages for kidnap, unlawful arrest, false imprisonment, unlawful admission to the Rove Correctional Centre, unlawful detention at the Rove Correctional Centre, to be assessed.

The defendants file an amended defence on 16 March 2017 and denied most of the claim and liability.

The Claimant, in his sworn statement and his oral evidence, stated that a week before his visa expired on 27^th January 2015, he went to the Immigration office and inquire about renewing his visa. He was told that the procedure had changed and told to apply for a new visa. He was given an application form to complete. He completed the form and gave it to Mr. Avieta. Claimant, in his evidence says, Mr. Avieta is the Immigration Department driver.

Sometimes later, he was told that the form he filled earlier was a wrong form. They also told him to get an original Police Clearance and Medical Report. It took him three weeks to get the documents. He then submitted the applications but sometimes later they came back and told him the fees had not been paid. It is not clear who, where or when he was told these things. I do not think it was at the immigration office because there is no evidence he had ever visited the immigration office apart from the visit a week before his visa expired. The only reasonable inference was that he had been dealing with Mr. Avieta but it is clear that Mr. Avieta is not an immigration officer as defined under section 2 of the Act, 2012. The Regulation stipulates an application for a visa to be given to an immigration officer.

In addition to the two questions raised as issues of contention, the Claimant’s claim very much hangs on whether he had lodged a valid application for a visa. The procedure for application for a visa are set out in section 8 of the Immigration Regulation 2013, section 7 of the Regulation provided the 7 standard requirements. For the purpose of this proceeding, I set out Standard Requirement 1 because apart from the additional requirements, it contains all requirements pertaining to all applications for a visa.

“ is an application form is prescribed for the visa in the circumstances that apply to the person;

the application fee prescribed in the Immigration (Fee) Regulation is paid; and

if there is a conversion of fees prescribed for the circumstances in which the application is made in the Immigration (fees) Regulation that conversion is paid;“

My view is that, an application for a visa could only be valid if all the requirements are complied with and the application bar does not apply to the applicant. If not, then the application would be invalid. The question therefore is, did the Claimant comply with the provisions of Regulation when he applied for the renewal of his visa and did the application bar applied to him or not.

The Claimant’s visa expired on 27^th January 2015, he did not lodged his application until 28^th April 2015 or sometimes thereafter because the evidence shows that he only paid the prescribe fee on 28^th April 2015. By then, the claimant has overstayed his visa for more than 90 days, hence, contravened section 10 of the Immigration Act and become an unlawful non-citizen. He had obviously been an unlawful non-citizen for more than 21 days, thus, the application bar stated in section 9 of the Immigration Regulation 2013 applied to him. In view of this, he has a duty to leave Solomon Islands as required under section 28(2) of the Immigration Act 2012 as he was unable to show that he was spared by section 28(3) of the Immigration Act 2012. His application therefore is invalid.

Mr Firigeni argued that Standard Requirement 5 does not apply to the claimant as shown in column 8 of the table under clause 7 of the Immigration Regulation 2013 because the Claimant’s application is for a Family relationship visa. The flaw in Mr. Firigeni’s argument is, there was no evidence that the Claimant had applied for a Family relationship visa and even if could be assumed or inferred that he had applied for a visa, there is no evidence that he had a valid application for a family relationship visa.

On 30^th April 2015 the Claimant’s wife, Joyce Neemia, wrote to the Director of Immigration seeking approval for the renewal of her husband’s residence permit. It can reasonably be inferred that the letter was a covering letter to the application for renewal of the Claimant’s residence permit.

By letter dated 28 May 2015, Principal Immigration Officer, Mr. Tovaki, informed the Claimant that he had overstayed his residence permit and his presence in the country was deemed unlawful and requested that he pay a fine of US $20 per day for the 90 days he had overstayed his residence permit. By the same letter, he was also informed that the Director of Immigration had asked him to leave the country before he consider his application for renewal of his residence permit. He was asked to voluntary leave the country or alternatively his deportation will be facilitated within 14 days of the letter.

Mr Kumar paid the fine on 5^th June 2015 but did not bother to leave the country although he was advice that his deportation will be facilitated within 14 days of the letter, one wonders if he preferred to be deported instead.

On 9^th June 2015, the Claimant’s wife, Ms. Joyce Neemia, wrote to the Minister of Commerce, Industries, Labour and Immigration seeking approval to waive the expired residence permit.

On 9^thJune 2015, Principal Immigration Officer, Mr Tovavaki, by letter advised Mr. Kumar that he has the right to appeal to the Minister for review of the decision of the Director of Immigration. I t took Mr. Kumar 4 weeks before he wrote to the Minister on 6^th July 2015 and requested the Minister to waiver the Director of Immigration request that he leave the country before his application for renewal of his residence permit is considered. Mr. Kumar’s request to the Minister was 18 days after the Minister personally wrote to him on 18^th June 2015, informing him that he had affirm the Director’s decision and further advise him to leave the country. Surprisingly, neither Mr. Kumar nor his wife, in their letters to the minister, ever stated why they want the minister to waive the legal requirement or give any reason why the Claimant could not leave the country voluntary as earlier requested by the Director and the Minster.

“In the exercise of the powers conferred on me by section 90(1) of the Immigration Act, (No.3 of 2012), I hereby affirm the decision of the Director of Immigration for you to leave the country. You are therefore advised to leave the (sic) as your presence contravenes section 28(1) of the Immigration Act, (No.3 of 2012)

Director of Immigration decision for you to leave the country hereby affirmed by the above decision. Thank you for your cooperation.”

The letter was personally signed by Hon. William Marau MP, Minister for Commerce, Industries, Labour and Immigration.

Mr. Kumar ignore the Minster’s letter and did not leave. Mr Kumar seems to think that he can lead the Minster by the nose

In view of the action taken by the Immigration officials and the Minister before he issued the deportation order, the Claimants assertion that the Minister and Director acted arbitrary as he has not given him an opportunity to make any representation before he made the deportation was untenable.

The reliefs sought hangs on the answers to the main issues of contention or questions which are set out immediately below. If they are answered in the negative then the reliefs sought may be granted, but if answered in the affirmative, they must fail.

The Director’s decision not to consider the Claimant’s application for a visa was conveyed to Mr.Kumar by Mr. Tovaki’s letter of 28^th May 2015. The Claimant did not comply with the request, or made any representation to the Director although he knew very well that he was living illegally in the country. The Attorney General, in his submission, correctly pointed out that since section 28(3) provides that an unlawful non-citizen need not leave Solomon Islands if 4 conditions are satisfied) one of which is that he had made an application for a visa), the necessary implication is that, under section 28(1) and (2), a person whose visa expires and has not applied for a visa before the expiry of the visa must leave Solomon Islands before making an application for a visa. I agree with the Attorney General’s submission, and in that respect, I believe that the Director was acting lawfully when he refused to consider the Claimant application and request him to voluntary leave the country before he consider his application. The Minster had considered the decision and upheld it. That is the Minister discretion and unless there is evidence that it was sham it cannot be interfered with.

The deportation order against the Claimant was dated 13^th July 2015, Legal Notice No.65 of 2015. That was more than 5 months after the Claimant has become an unlawful non-citizen by virtue of section 10 of the Immigration Act 2012. So was the deportation order made in accordance with the law? On face value, the answer is yes. The deportation order was gazetted in Legal Notice No.65/2015, it reads as follows;

“Under section 31 of the Immigration Act 2012, I order the deportation of AJAR KUMAR on the following grounds;

Mr Firigeni submits that there was no evidence on which the Minister could reach the conclusion that the Claimant is unlikely to voluntary departs Solomon Islands because he does not have the means to do so, hence, he submits that the Minster’s order was ultra vires and invalid. I find it hard to agree with that submission because in the circumstances, the Minister’s conclusion was a reasonable conclusion. The length of time he had been living illegally in the country despite a number of requests for him to leave the country was enough for the Minister to draw the inferences and come to that conclusion.

Even if the Minister’s conclusion was wrong, the deportation order is still valid for the reasons he stated in paragraph (a) of the order. Section 31(2) (b) of the Act went further and stated after the words, “it is reasonable to conclude that he is unlikely to voluntary depart Solomon Islands because he does not have the means to do,” the words, “or for any other reasons.” Basically this means that if the unlawful non-citizen does not leave the country because of any other reason, or for whatever reason the Minster can still make a deportation against the unlawful non-citizen. The Minster discretion to issue a deportation order is not restricted to the reason relating to the Claimant’s means only as stressed by Mr. Firigeni. That is what the Minister did in this case. I do not think the Minister has to investigate the reasons why the unlawful non-citizen is unlikely to voluntary depart Solomon Islands and give the unlawful non-citizen an opportunity to state the reasons why he does not voluntary depart Solomon Islands. In R-V-Leman Street Police Station; Ex Parte Venicoff (1976) 92 L.Q.R. 34, the Court of Appeal held that “an alien has no right to be heard before a deportation is made against him”

The Claimant and his wife had written to the Minister on two separate occasions after his visa was expired, if he had any genuine reasons why he was unable to leave Solomon Islands he and his wife had the opportunity to tell the Minster in their letters. The opportunity was always there. He cannot sleep on his right and complain later that he had not been given the opportunity to make a representation to the Minister. In fact, the Minister had done him a favour by personally writing to him and informing him that he had uphold the Director’s decision and further request him to voluntary leave the country. What else does he expect from the Minster? As I said earlier, it seems Mr. Kumar thinks he can lead the Minister by the nose.

The deportation order was served on the Claimant on 16^th July 2015. Mr. Kumar in his oral evidence stated that he was not served with the deportation order but was only asked to sign on a piece of plain paper. The evidence, however, shows that he had signed a document bearing the heading ‘DEPORTATION ORDER SERVICE’ served on him by Principal Immigration Officer, Mr. Lemech Vouva Tovavaki, on 16^th July 2015. Exhibit marked ‘CA8’ annexed to the sworn statement of Mr. Christopher Akosawa. I reject Mr. Kumar’s evidence that the deportation was not served on him.

The Claimant’s asserts that the deportation order was not signed by the Minister that assertion can easily be disposed of because as correctly submitted by the learned Attorney General, Mr. Apaniai, section 57 (2) of the Interpretation and General Provisions Act, Cap 85 provides that a copy of the Gazette containing any notice or publication is evidence of the tenor of notice or publication. That means that the publication of the Gazette is prima facie evidence that Minister had signed the order. The Claimant had not dispel this legal presumption, hence, his argument must be rejected.

The Claimant’s evidence both oral and sworn statements were unconvincing. I do not believe that he had lodged any earlier application as stated in his sworn statements and his oral evidence. It is not possible to do so without payment of the prescribed fee.

He stated in his evidence that he might have lost the receipt or that the Immigration Division had lost or misplaces his application with other documents including the receipt. If he had actually paid the fees and lodged his application, he could easily get a duplicate of his receipt from the Treasury Division to prove that he paid the fee rather than having to pay another fee on 28 April 2015. The inconsistency in his evidence makes it difficult for me to believe his evidence relating to the events which he said took place when he applied for the renewal of his visa.

The only reasonable inference was that if he had lodged any application, it would be on the date he paid the fee shown on the receipt, that is 28^th April 2015, if not, then later, however, no copy of the application was ever produced in court to support his claims.

One also wonders if he was serious and concern about renewing his visa, why can’t he just walk down to the Immigration office which I took judicial notice of, is just about four hundred meters away from the Tai movie shop, where he works rather than having to give his application to Mr. Avieta who by definition not an immigration officer under the Act

Mr. Firigeni also submitted that the Minister acted arbitrary when he made the order as he had not given the Claimant an opportunity to make any representation. The evidence showed otherwise. The responsible officers, and even the Minister, personally, wrote to him and inform him of the director’s decision and request him to leave the country voluntarily? My view is that there is no obligation on the Minister to do anything further. The Minister’s decision was an administrative decision made under powers delegated to him under the Immigration Act. They cannot be interfered with by the court unless the Minister decision was a sham but I see nothing wrong with the Minster’s actions to warrant any interference by this court.

I had considered the authorities referred to by counsel for the Claimant but I believe the case authority most relevant to the situation in the present case is Lopez –v- Attorney General (No2) [1993] HCBS 29, [1983] SILR 240, where Daly CJ summarised the law as follows, “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 to enter into a country with a permit unless those rights are conferred by written law,

Third that where that power was delegated by written law the authority to whom it is delegated must act in accordance with that power delegated by written law,

Fourth that the courts may hold invalid an exercise of a delegated power if it is a “sham”

Fifth, it is not for the court to enquire into the exercise of the power of the authority to which discretion is delegated in this field where there is no evidence that the exercise of the discretion was outside of the terms of the legislation.” I couldn’t agree more with his Lordship that was a profound summary of the law. (Emphasis mine)

Mr Firigeni took his argument further and submitted that the Minister action were harsh and not justifiable in a democratic country by virtue of section 13 of the Solomon Islands Constitution.

In Lopez v Attorney General (No.2) [1983 SILR 240 at page248 his Lordship Daly CJ went on to say “It may be argued that immediately one uses words such as ‘outside the terms of the legislation’ one brings into consideration the lines of cases which say that an exercise of discretion which is manifestly unreasonable or completely unfair is ultra vires exercise of power. The argument may have force. But the whole tenor of 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, then, in the absence of cogent reason to the contrary, the court will accept that averment”.

The question whether Minster making a deportation order against the Claimant is reasonably justifiable in a democratic society carries an objective test as stated in Pradmas v The State [1979] PNGLR 329. Considering the facts of this case including the fact that Claimant had been living illegally in the country for more than five months, his refusal to leave the country voluntary and that he had no valid application for a visa pending the decision of the Director of Immigration and all the surrounding circumstances I do not think the Minister, the Director of Immigration or the Commander of the Rove Correctional Center’s actions in any way can be regarded as harsh or not reasonably justifiable in a democratic society.

With regard to the Claimant’s detention, it was not unlawful because it was done under section 32 (1) of the Immigration Act 2012, it was a step taken to effect the Claimant’s deportation as there was a deportation order in force against him. A notice is required if a person is detained under section 35(1) on suspicion on reasonable grounds of being unlawful non-citizen. In the Claimant’s case there was a valid deportation order in force against him, hence, his detention is a necessary step taken to effect his deportation.

Mr. Firigeni also submits that the deportation order will affect the Claimant’s right to reside with his family, wife and children in Solomon Islands. He submits that the court should recognise the paramount importance of marriage and his wife’s rights and that the deportation would deprive the right of the Claimant to reside with his wife and children in Solomon Islands.

While his marriage is recognised, I see no merit in that argument. The Claimant is an alien and if he wishes to reside in Solomon Islands, he must comply with the country’s Immigration Laws. His right to reside with his family, wife and children is not taken away by the deportation order, he has a home and he has a choice of taking them with him to his country. As an alien, he can only reside in Solomon Islands as provided under the Solomon Islands Immigration Law, he cannot insist that he must live in Solomon Islands with his wife and children in contravention of the country’s immigration laws. To remain with his wife and children in Solomon Islands is not a right but a choice and a privilege which depends on him at the outset complying with the immigration law of this country. For him to insist, otherwise only goes to show that he may have ulterior motives for marrying a Solomon Islander, it maybe is a fake marriage used only to as a pretext to come and live in Solomon Islands.

For the wife to say that her right is violated by the deportation of her alien husband for breach of the country’s Immigration Law is tantamount to a woman who resides at Ngossi saying, ‘remanding her husband who is suspected of a criminal offence at Rove prison violates her right to live with her husband at their residence at Ngossi.’ I do not see any merit in that line of argument.

No right is conferred on an alien who is married to a Solomon Islands woman or man to enter and reside in Solomon Islands and certainly not at all licences to take for granted or breached the immigration laws of this sovereign country and then expect to receive preferential treatment. That is what Mr. Kumar was trying to do. But as Daly CJ stated in AG-v-Lopez [1983] SILR 240, “the state has a sovereign and unlimited power to restrict entry of aliens and expel or deport aliens.” I couldn’t agree more with his Lordship statement which reflects the correct position of law of this country and no doubt the position of the law of many other countries as well.

There is another issue not pleaded or covered in the submissions of counsel but it is an issue which I think should be a paramount consideration in any action against the Immigration Department as it affects liability. I am referring to section 91 of the Immigration Act 2012, which provided indemnity for the immigration officers. Section 91 of the Immigration Act 2012 states;

“No action shall be brought against the Ministry, officers, employees acting under the Ministry, including persons with delegated authority, for purposes of implementing this Act, shall not be subject to any action, liability, claim or demand for any matters or thing done or omitted to be done in good faith (whether negligently or not) in the performance or purported performance of any function or duty, or exercise or purported exercise of any power under this Act.”

Based on the conclusion reached in my discussion and considerations of issues pleaded in this claim, I will answer the two questions, “in the affirmative”. On that basis, the claim is dismissed and the Minster’s decision shall remain on foot, consequently all other reliefs sought are also dismissed.

High Court of Solomon Islands

Kumar v Attorney General [2018] SBHC 46; HCSI-CC 341 of 2015 (26 April 2018)