Pedras v Prime Minister [2014] TOSC 18; CV 36 of 2014 (12 August 2014)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU'ALOFA REGISTRY

CV 36 of 2014
[and CR 64 of 2014]

BETWEEN:

ANTONE THOMAS PEDRAS
Plaintiff

AND:

1. PRIME MINISTER
2. DEPUTY PRIME MINISTER
3. PRINCIPAL IMMIGRATION OFFICER
Defendants

L. M. Niu SC for the Applicant
'A. Kefu SC (Ag. Attorney General) for the Respondents

JUDGMENT

[1] The Plaintiff, who is a citizen of the United States of America entered Tonga on about 16 January 2014. It appears that he was granted the usual 1 month visitor's visa. Shortly thereafter he applied for a two year residence visa and submitted his passport to the Immigration Division of the Ministry of Foreign Affairs for processing.

[2] The Court was told that in November 2000 the Plaintiff married a Tongan subject Ane Koloi by whom he has two children now aged 15 and 13. Prior to their arrival in Tonga the Plaintiff and his family had been living in New Zealand for about two and a half years.

[3] In March 2013, the Plaintiff applied for registration as a Tongan subject. He relied on Section 2 of the Nationality Act (Cap 59-as amended) which provides as follows:

"The following persons shall be deemed to be Tongan subjects-

(a) –
(b) –
(c) –
(d) any non-Tongan who marries a Tongan provided that he -
(i) lodges a written declaration with the Minister of Foreign Affairs that he wishes to assume Tongan Nationality; and
(ii) takes the oath of allegiance prescribed by this Act; and
(e) – "

[4] The oath of allegiance is set out in Section 14 of the Act and "shall be sworn before the Prime Minister or, if authorized in writing by the Prime Minister, a Minister or a diplomatic or consular officer". It is accepted that the Plaintiff has not in fact taken the oath of allegiance.

[5] On 2 May 2014 the Ministry of Foreign Affairs received a Diplomatic Note Verbale from the Embassy of the United States of America in Suva Fiji. Although the exact contents of the note were not disclosed to the Court its effect was to request the Tonga Government to "consider the removal of the Applicant from Tonga by way of deportation, expulsion or other lawful means under domestic law" (affidavit of the Third Defendant dated 25 July 2014). Attached to the Note were certified copies of several documents including:

(i) An indictment filed in September 2013 in the U.S District Court, Central District of California, Southern Divison, charging the Plaintiff with wire fraud;

(ii) A warrant for the Plaintiff's arrest dated 5 December 2013;

(iii) A photograph of the Plaintiff; and

(iv) A copy of the relevant pages of a US passport issued to the Applicant on 29 April 2014 valid until 14 May 2014 and good only for return to the United States before the date of its expiry.

[6] According to paragraph 4 of the same affidavit, the Note also advised Foreign Affairs that the passport previously held by the Plaintiff (the passport submitted by him to Foreign Affairs for the processing of his citizenship application) had been cancelled.

[7] On 5 May 2014 the Director of Public Prosecutions sent a memorandum to the Acting Prime Minister. A copy is Annex A to an affidavit of Viliami 'Unga Fa'aoa, Deputy Police Commissioner, sworn on 19 May 2014 and filed in CR 64 of 2014. The Director sought the following:

(i) Consideration of the information supplied in the Note Verbale; and
(ii) A decision, pursuant to Section 8 (2)(g) of the Immigration Act, that the Applicant was an undesirable immigrant.

[8] Section 8 of the Immigration Act (Cap 62) as relevant to this application reads as follows:

" 8 (1) Any person who –

(a) –
(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 hereinafter expressly provided, his entry into or presence in the Kingdom shall be unlawful.

(2) the following persons are members of the prohibited classes -

(a) any person who, not being exempt, is not the holder of a valid permit issued under the provisions of this Act;

(b) to (e) -

(f) a person who has been convicted by a court in any country outside the Kingdom for an offence which –

(i) is punishable by death or imprisonment for a term of not less than two years in the country of conviction; or

(ii) -

and has not received a free pardon;

(g) any person who, in consequence of information received from any source deemed by the Prime Minister to be reliable, or from any government, through official or diplomatic channels, is deemed by the Prime Minister to be an undesirable immigrant;

(h) to (j) –

(3) the burden of proof that any person is not a prohibited immigrant shall lie upon that person.

[9] On 5 May 2014, after considering the memorandum sent to him by the DPP, the 2nd Defendant issued a declaration that the Plaintiff was an undesirable immigrant within the meaning of Section 8 (2)(g) (Exhibit B to the third Defendant's affidavit). On the same day the Third Defendant issued a removal order in respect of the Plaintiff. A copy of the order is Exhibit C to the same affidavit. Principally, it requires the Commissioner of Police to detain the Plaintiff and to place him on the next available connecting direct flight to the United States.

[10] On 6 May an application for habeas corpus was filed (CR 64/14). In a supporting affidavit of even date the Plaintiff deposed that he had been taken into custody on 5 May and that he was detained at the Central Police Station prior to being flown out of Tonga at 4:00pm on the same day.

[11] On 7 May the Plaintiff, his counsel and Mr. Kefu appeared before me. Mr. Corbett, who was then acting for the Plaintiff, informed the Court that his client wished to exercise his right to appeal to the Prime Minister against the removal order (see Section 23). Mr. Kefu consented to a stay of the removal order to allow the appeal to be heard. Bail was opposed and after being told that arrangements were being made to accommodate the Plaintiff more suitably, he was remanded in custody.

[12] On 19 May the passport issued to the Plaintiff on 29 April together with his wife's green card was handed to the Court. I then granted bail subject to residential and reporting conditions and understand that he was released from custody on the same day.

[13] On 21 May the Plaintiff appealed to the Prime Minister against the removal order. A copy of the appeal is Exhibit A to the affidavit of 'Aholatu Palu, acting Chief Secretary and Secretary to the Cabinet dated 25 July 2014. The grounds of appeal were:

(1) the Plaintiff is a Tongan citizen;
(2) the removal order was invalid; and
(3) the Extradition Act (Cap 22) rather than the Immigration Act should have been applied to the request received from the Embassy.

Mr. Niu requested an oral hearing of his client's appeal.

[14] On 23 May the appeal was dismissed. A copy of the notice of dismissal is Exhibit B to Mr. Palu's affidavit. The ground on which the appeal was dismissed may be set out in full:

"(1) The appellant is currently wanted in the USA to stand trial in a US Federal Court on four counts of wire fraud;

(2) The appellant's US passport has been revoked by the United States of America government;

(3) The appellant is not a Tongan subject as he has not satisfied and completed the requirements required under Section 2(d) of the Nationality Act;

(4) The declaration made by the Acting Prime Minister made under Section 8 (2)(g) of the Immigration Act on 5 May 2014 was valid and lawful because the appellant is a fugitive from the law of the United States of America.

(5) The Extradition Act does not apply in this case because the United States Government has not submitted to the Tongan Government an extradition request under Section 7 of the Extradition Act;

(6) The removal order issued by the Principal Immigration Officer on 5 May 2014 as a result of a declaration made by the Acting Prime Minister on 5 May 2014 is sufficient to satisfy section 23 (1) of the Immigration Act".

[15] On 26 May the Plaintiff filed an application for leave to move for judicial review of the removal order of 5 May. In the Statement of Claim the Plaintiff sought a declaration that the order was null and void together with certiorari to quash the order. Additionally, he sought an injunction to stay his removal until further order. He also sought damages of $14000 for unlawful imprisonment.

[16] In his Statement of Claim the Plaintiff pleaded (paragraph 6) that the Defendants should not have resorted to the Immigration Act but should have complied with the requirements of the Extradition Act. In paragraph 7 it was pleaded that the Section 8 (2) declaration was wrongful and unlawful. In paragraphs 8 to 12 it was pleaded that the removal order was invalid for want of compliance with the provisions of the Act and that the Plaintiff should have been afforded an opportunity to be heard before a finding was made under Section 8 (2)(g) and before the removal order was made. In paragraphs 14 to 17 it was pleaded that the Plaintiff should have been given a third opportunity to be heard before his appeal was dismissed. In paragraph 19 it was pleaded:

"The Plaintiff, irrespective it his nationality, is entitled to equal protection of the laws of Tonga as he is within the jurisdiction of Tonga and he prays for such protections forthwith".

[17] On 22 July 2014 leave to move for judicial review was granted by consent. The undertaking of the Solicitor General not to remove the Plaintiff from the jurisdiction was extended until further order. Bail was extended on the same terms. The hearing of the review was set for 29 July. On 25 July a Statement of Defence was filed. The Defence sought dismissal of all the claims. In particular, it was denied that the Immigration Act was wrongly relied upon, it was denied that the provisions of the Immigration Act had been wrongly applied, it was denied that the Plaintiff had a right to an oral hearing at any stage before his removal and it was pleaded that the procedures actually followed had sufficiently satisfied the requirements of natural justice.

[18] The hearing took place on 29 July. Both counsel filed helpful written submissions for which I am grateful. It was agreed that the claim for damages would await the outcome of the application for the prerogative orders. It is not now necessary to set out the submissions of counsel in full. Briefly Mr. Niu submitted:

(a) The procedure followed by the Defendants had deprived the Plaintiff of his right to natural justice;
(b) Sections 8(2), 11(2) and 11(4) of the Immigration Act had been misapplied; and
(c) The Plaintiff should have been presumed to have been innocent as required by Section 46 of the Evidence Act;

[19] Mr. Kefu submitted:

(a) that there was no breach of the Immigration Act;

(b) alternatively, if there was a breach it was merely technical and did not undermine the Plaintiff's rights;

(c) that the refusal to grant the Plaintiff an oral hearing did not amount to a denial of natural justice;

(d) that the Extradition Act had no relevance to this application;

(e) that the grant of relief in judicial review was in any event discretionary;

(f) that the grant of relief in the circumstances of this case would be detrimental to good administration and would not ultimately avail the Plaintiff.

[20] On 30 July, after the conclusion of the hearing, and without seeking the leave of the Court, Mr. Niu filed additional submissions. Although I did not reject these submissions, the filing of submissions after the conclusion of the hearing should be avoided, not least because the other party is given no opportunity to reply. In his additional submissions, Mr. Niu suggested:

(1) that the Second Defendant had breached the Plaintiff's constitutional rights by deeming him to be an undesirable immigrant; and

(2) that the failure by the Third Defendant to cancel the Plaintiff's permit as required by Section 11(2) vitiated the removal process.

Consideration of the issues.

A – Common Law

[21] The Plaintiff, a citizen of the United States, at common law, has no right to enter Tonga or to remain in the Kingdom except by leave of the Crown (see Schmidt v Secretary of State, Home Affairs [1969] 2 Ch 149, 168). If he has obtained a right to enter the Kingdom then that right expires on the day his permit expires. He has no legitimate expectation to have his permit renewed and the refusal to renew his permit may be decided by the Secretary of State without giving any reasons.

[22] In the present case it appears that the original monthly permit given to the Plaintiff has expired without renewal. At common law, therefore, the position now is that he is within the Kingdom unlawfully.

[23] The Crown, exercising its royal prerogative has the right to expel an alien and send him home whenever his presence in the country is deemed not to be conducive to public good. Incidental to this right it can arrest the alien, detain him and put him aboard a ship or aircraft bound for his own country (R v Governor of Brixton Prison ex parte Soblen [1963] 2 QB 248, 300).

B – The Immigration Act

[24] The Immigration Act (Cap 22) is intituled "An Act to make better provision for the control of Immigration". It was enacted in 1969. In Section 6 the Common Law position is restated:

" (1) No person other than a citizen of the Kingdom shall enter the Kingdom unless –

(a) He is in possession of a valid permit lawfully issued to him under the provisions of this Act; or

(b) He is exempted from the provisions of this Section under the provisions of Section 7 of this Act.

(3) No person shall remain in the Kingdom after the expiry or cancellation of his permit".

The Act also creates several offences including:

"6 (3) Any person who contravenes the provisions of this Section shall be guilty of an offence against this Act".

Section 7 is not relevant to these proceedings.

[25] Although I was not supplied with the passport used by the Plaintiff to enter the Kingdom it appears clear that the monthly permit endorsed upon it will long ago have expired. In these circumstances, he is no longer the holder of a valid permit and therefore Section 8 (2)(a) applies with the result that, by virtue of Section 8 (1)(b) he is a prohibited immigrant whose presence in the Kingdom is unlawful.

[26] The main focus of Mr. Niu's attention on Section 8 was not on Section 8 (2)(a) but on Section 8(2)(g). As has been seen, he submitted first, that resort to Section 8(2)(g) was unlawful given that the matters alleged against the Plaintiff did not meet the Section 8(2)(f) threshold. Since Section 8(2)(f) requires a conviction to be entered, how could a mere indictment (with the attendant presumption of innocence) suffice to establish an alternative ground, Section 8(2)(g)?

[27] I do not accept this argument. In my view, Section 8(2)(g) is much wider in its scope than Section 8(2)(f) and extends to any conduct which in the opinion of the Prime Minister leads him to the belief that the alien's continued presence in the Kingdom is undesirable. That conduct may be conduct which has resulted in serious criminal charges being laid or may even include conduct which, though legal overseas, is not now acceptable in Tonga. In the words of Donaldson MR in R v Home Secretary ex parte Cheblak [1991] 1WLR 890,900: "suspicion of involvement in serious crime, a long criminal record or other antisocial behavior" will suffice.

[28] Mr. Niu suggested that the Plaintiff should have been afforded a hearing before the Prime Minister reached the decision to deem him undesirable. I disagree. It is clear from Soblen's case(315,316) and from Cheblak's case (910) that the power to order deportation following such a decision being reached is:

"exercisable if the Secretary of State deems that person's deportation to be conducive to the public good. Such a power is one which, it seems to me, confers upon the Secretary of State a discretion limited only by the requirement that he must act in good faith".

In this case there is nothing to suggest that the Prime Minister did not so act.

[29] Mr. Niu next suggested that the removal order purportedly made under the provisions of Section 23 was invalid since section 12 (1) had not been enlivened by any cancellation of the Plaintiff's permit or declaration that his presence in the Kingdom was unlawful as provided for in Sections 11(1) or 11(2). While close examination of the provisions of the Act suggests that Mr. Niu may have a point, I am satisfied that it cannot avail the Plaintiff.

[30] Section 11 (1) does not apply to the Plaintiff since it is not part of the Crown's case that he entered the Kingdom under false pretenses. Section 11 (2) does not apply because it appears clear that the Plaintiff's visitor's permit had expired by 5 May 2014. In these circumstances, the unlawfulness of the Plaintiff's situation was the result of his continued presence in the Kingdom after the expiry of his permit not its cancellation.

[31] While Section 12 provides that a person shall not remain in the Kingdom after a Section 11 cancellation or declaration, there is nothing in the Section to prevent the operation of common law which, as already seen, is to the effect that an alien whose presence is not authorized by a permit to remain in the Kingdom is within the Kingdom unlawfully (also provided for by Section 6(2) of the Act).

[32] Although the statutory removal power contained in Section 23 is dependent on Section 12 having come into operation, it does not exclude the common law power to remove an unlawful immigrant. Furthermore, as pointed out by Mr. Kefu, Section 23 is the only Section in the Act which provides for the removal of immigrants who, after lawfully entering the Kingdom have become unlawful immigrants. Were Mr. Niu's argument to be accepted, it would lead to the absurd and illogical result that persons whose presence had become unlawful otherwise than by exercise of the Section 11 powers (eg by virtue of Section 6 (a) or Section 8 (1)(b) ) could not lawfully be removed from the Kingdom. Statues should not be construed in this way (see Bennion Statutory Interpretation 2nd Edn. Sections 314, 315 and 316).

C – The right to be heard.

[33] Mr. Niu submitted that the Plaintiff had a right to be heard (i) before he was deemed to be an undesirable immigrant (ii) on his appeal under Section 11 (4) and (iii) on his appeal under Section 23 (2) of the Act. No argument was addressed to the appeal provisions contained in Section 30 and in particular to the effect of Section 30 (3). I have already dealt with (i) and take the view that Section 11 (4) does not apply since no cancellation or declaration was made under Sections 11(1), (2) or (3). As to (iii) it has been seen that the Plaintiff appealed to the Prime Minister on 21 May.

[34] Mr. Niu's submission was that the Plaintiff was entitled to the oral hearing that he requested in his appeal. I disagree. A right of appeal against the exercise of a statutory authority does not imply a right to make oral representations (Local Government Board v Arlidge [1915] AC 120) and a failure to permit an oral hearing to take place does not lead to the inevitable conclusion that the appellant has been unfairly treated. While it is not doubted that the Prime Minister has a duty to act fairly (O'Reilly v Mackman [1983] UKHL 1; [1983] 2 AC 237, 279) the 'standards of fairness are not immutable" (Doody v Secretary of State for Home Affairs [1993] 3WLR 154,168 and see also, R v Home Secretary ex parte Hosenball [1977] 1WLR 766).

[35] In the present case, Mr. Niu filed a four page appeal against the removal order. He was given total freedom to advance whatever facts or matters he wished on behalf of his client. He did not deny that the Plaintiff had been indicted, that there was a warrant for his arrest or that his passport had been cancelled. After those representations had been considered by the Prime Minister he was advised that the appeal had been rejected and why. Mr. Niu did not specify any matters which he wished to place before the Prime Minsiter but which he was prevented from doing. In my opinion, it has not been shown (with one reservation to which I shall return) that the procedure followed was unfair.

D – Use of the Immigration rather than the Extradition Act.

[36] While Soblen's case has been overtaken by developments in administrative law, it is nevertheless still useful when considering the argument advanced by Mr. Niu. In the words of Denning MR:

"The law of extradition is one thing; the law of deportation is another".

[37] I do not think that a detailed exegisis of all the differences between the two Acts is now required. It is sufficient to point out (a) that the Extradition Act applies to Tongans and non-Tongans alike whereas the Immigration Act only applies non-Tongans and (b) that the primary purpose of the Immigration Act is to remove undesirable aliens from the Kingdom whereas the purpose of the Extradition Act is to surrender an alleged criminal to the requesting country.

[38] It is important carefully to compare the powers given to the Principal Immigration Officer under Sections 21 on the one hand and Sections 23 and 24 on the other. In the former Section (which has no application to the facts of this case) the Principal Immigration Officer has power to return the alien to his place of embarkation or the country of his birth or citizenship. In my opinion Sections 23 and 24 do not include this power and neither can an expelled alien be forced to return to his country following his departure.

[39] In my view, in theory at least, the Plaintiff, if unsuccessful in challenging the order for his deportation will satisfy the requirements of the Immigration Act by leaving the Kingdom by whatever means are available to him. The difficulty that he faces is that his passport, valid for general travel, has been revoked. It seems that he has no other travel document and that all that the United States government is prepared to issue him with is a one-way passport good only for travel to the United States. It is almost certain, in these circumstances, that his deportation will have the effect that he will be forced to return to the United States, not by reason of being extradited to the United States but by reason of the fact that no carrier is likely to accept him for travel, without a visa, to any other destination. This, however, does not mean that the deportation is a disguised extradition which does not comply with the stringent requirements of the Extradition Act. As Denning MR said in Soblen's case, 305:

"The fact that the applicant was a wanted criminal in the eyes of the United States, and the fact that the United States asked for him does not take away the power of the Home Secretary to make a deportation order. I see no ground for attributing to the Home Secretary anything in the nature of a sham or want of bona fides or any unlawful or ulterior motive".

E – The Presumption of Innocence.

[40] Mr. Niu suggested that the order for the removal of the Plaintiff violates the presumption of innocence embodied in Section 46 of the Evidence Act. As the location of this rule suggests, the presumption is primarily evidential. Were this not the case then persons charged with serious crimes could not be detained in custody pending their trial. In Cheblak's case (supra) at page 907 Lord Donaldson discussed the tension between civil liberties on the one hand and national security on the other. This, he explained, may require a wholly innocent man who has a real grievance at having been detained in prison pending his trial to accept his misfortune as part of the price of citizenship in a society in which the rule of law prevails. Mr. Niu's submission fails.

F – The Constitution of Tonga – Clause 10.

[41] Mr. Niu suggested that Clause 10 of the Constitution forbade punishment being imposed before conviction and sentence. While this is so, detention before trial and conviction are accepted as not constituting "punishment" within the meaning of the Clause. The Immigration Act specifically allows the detention before removal of unlawful immigrants. I was not told whether an application for bail had been made pursuant to Section 24. As has already been seen, the Plaintiff was released on bail as soon as his replacement passport and the passports of his dependents had been handed to the Court. I can find no breach of Clause 10 in this case.

G – Reservation

[42] The only reservation that I have about the procedure laid down by the Immigration Act is that by virtue of Section 4 the Prime Minister is given power to issue directions to the Principal Immigration Officer, by Section 8 (2) the Prime Minister is given the power to deem undesirability, the appeal from a Section 11 cancellation or declaration is to the Prime Minister and the appeal against a removal order is also to the Prime Minister. While in the present case there is nothing to show that the Prime Minister acted except in the utmost good faith, a procedure which allows an appeal from a decision of a person to that same person is unsatisfactory. Tonga is, of course, a very small country and a proliferation of expensive appellate tribunals is to be avoided. In my view, however, appeals to the Prime Minister (or indeed to Cabinet) are now somewhat outdated and should, I respectfully suggest be looked at again.

[43] It will be remembered that the prerogative remedies sought by Mr. Niu are entirely discretionary. While the procedures followed in this case were not entirely flawless I am satisfied that the Plaintiff has been treated fairly. I do not find that he has discharged the onus placed upon him by Section 8(3) of the Act. In these circumstances I decline to declare the removal order null and void, to order it to be quashed or to restrain the Principal Immigration Officer from proceeding with the Plaintiff's removal from the Kingdom. In the circumstances, the claim for damages for unlawful imprisonment must also be dismissed.

Result:

The Plaintiff's claim (and the application for habeas corpus) is dismissed with costs to be taxed if not agreed.

DATED: 12 August 2014
CHIEF JUSTICE

E. Takataka
8/August/2014.