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Regina v Takabea [1993] SBHC 81; HCSI-CRC 5 of 1993 (23 December 1993)

CRC - 5/93.HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No.5 of 1993 4

REGINA

-v-

TITE TAKABEA

High Court of Solomon Islands
(Palmer J.)

Criminal Case No.5 of 1993 4

Hearing: 4 October 1993
Judgment: 23 December 1993

R. B. Talasasa for Prosecution
J. Remobatu for the Defendant

PALMER J: The accused, Tite Takabea has been charged with the offence of unlawful presence in Solomon Islands, contrary to section 13 of the Immigration Act 1978 as read with section 18(1)(i) of the Immigration Act. The particulars of the offence related to the periods from the 1st of January 1989 to the 10th of June 1991 and from 31st December 1991 to date.

Section 13 of the Act reads:

“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 or he shall be deemed to be a prohibited immigrant.”

The facts briefly of this case are as follows. On the 21st of December 1986 the accused entered Solomon Islands. He was the holder of a Kiribati passport no. 000187. At that time he was about thirteen years old. He came in the company of Redley Lapo, a citizen of Solomon Islands. He was issued it seems with a visitors permit for 30 days, and then within that period, a student permit was subsequently obtained, enabling him to reside within the country for a further period of 12 months to the 31st of December 1987. Towards the end of 1987, a further extension was obtained, valid to the 31st December 1988. In that period the accused did his studies at the Betikama High School, and then transferred to KGVI School to continue with his studies. No further extensions were obtained by the accused.

For the whole of 1989 and 1990, no action seems to have been taken by the accused to have his permit extended. No action also seems to have been taken by the Immigration Department. By letter dated 10th June 1991 addressed to Mr. Redley Lapo, the accused was asked to leave the country voluntarily on the next available ship or aircraft. He was told that if he failed to leave, and did not lodge an appeal with the Minister of Commerce and Primary Industries, being the Minister responsible for immigration matters, within 14 days and a payment of $100.00, he would be liable to be deported out of the country. A copy of that letter is marked exhibit 18.

On the same date, 10th of June 1991, Mr. Redley Lapo filed an appeal against the decision of the Director of Immigration. There is evidence before me that on or about the 30th of July 1991, Mr. Lapo appeared in person before the Minister about his appeal.

By letter dated the 27th of August 1991 (exhibit 1), addressed to the accused, he was expressly told that the appeal lodged on the 10th of June on his behalf had been conditionally accepted.

The conditions imposed were as follows:

“(a) That the duration of the residency permit to be granted will NOT be later than nor exceed 31.12.91.

(b) That you are strongly advised to make all prior preparations and arrangements for your departure to your Country of origin before this date (i.e. 31st December 1991).

(c) That the Honourable Minister will not entertain nor consider any further application for residency permit from you thereon.”

By letter dated the 25th of October 1991, the Public Solicitor (Ag), wrote a letter to the Director of Immigration, (exhibit 2), asking that the Director, re-consider the decision to require the accused to leave the country. A response was made to that letter by the Director of Immigration under cover of a letter dated the 9th of December 1991. The contents of that letter basically state that no further extensions would be granted.

By letter dated the 14th of April 1992, the Public Solicitor, advised the Director of Immigration to proceed with the deportation order, as his client, the accused would not leave voluntarily. A response was made under letter dated 15th of April 1992 in which the accused was warned that deportation proceedings will be instituted against him within 14 days of the date of the letter.

What seems to have happened then was that the matter was referred to the Director of Public Prosecution for prosecution. The accused was subsequently charged on or about the 18th of September 1992 and appeared at the Central Magistrate’s Court on or about the 28th of September 1992.

The gist of the accused’s defence as submitted to this court by his counsel, Mr. Remobatu, is that the accused is exempted from holding a permit under section 7(1)(a) of the Immigration Act 1978.

That section reads:

“Subject to the provisions of this section, a person who satisfies the Principal Immigration Officer that he comes into any of the following categories shall be entitled to enter, reside or work in Solomon Islands from any place outside Solomon Islands without having obtained a permit under this Act-

a citizen of Solomon Islands and his children under the age of 18 years.”

Mr. Remobatu submits that as the accused is an adopted child of Mr. Lapo, a citizen of Solomon Islands, therefore, the accused should not be subject to the requirement for a permit. It is not disputed that if the accused had been legally adopted by Mr. Lapo, that there would not have been any problems about any permits. The problem which Mr. Lapo faces concerning such claims is that the accused seems to have been adopted by Mr. Lapo by arrangement between himself and the accused’s parents and relatives in Kiribati.

The adoption was not done here in Solomon Islands. The provisions of Schedule 3 at paragraph 3 therefore cannot be construed as extending to validate something which was done in a foreign soil. The relevant provisions of the Constitution on this point must in the first instance refer to customary law in existence and in application in Solomon Islands. Mr. Lapo was participating in a customary practice in existence and in application in Kiribati; not in Solomon Islands.

I am aware that there are Kiribati people living in Solomon Islands who are citizens of this country. However, unless such customary practice is performed within the shores of this nation, this court is not obliged to give legal effect to such customary practice in another country.

The only way it seems in which Mr. Lapo would be able to formalise the customary adoption which he says took place at Kiribati between him and the parents of the accused and his relatives is for him to commence proceedings for a legal adoption in Solomon Islands under the Legal Adoption Act of 1958 (UK). This is a fairly straightforward matter. Why he has never bothered to pursue such action right from the beginning is a matter that only he can answer satisfactorily. However, by not taking such steps, and not complying with the Immigration Laws of this country, has left him and the accused in this predicament. I might add that there is nothing to stop him from commencing such proceedings even at this point of time.

The submission by Mr. Remobatu that this court should take legal cognisance of the customary adoption performed in Kiribati by Mr. Lapo therefore must fail.

The second ground advanced by Mr. Remobatu is that there was a meeting held on the 30th of July 1991 in which the then Minister, Hon. Michael Maina had indicated to him that the decision not to allow the accused to reside in Solomon Islands could be reversed.

With due respect to this submission, it can be shortly disposed off on the basis that, irrespective of what the Minister said, it is clear that no decision to revoke the decision of the Director of Immigration was made on that day. It is very clear that not even a decision whatsoever was made by the Minister on that day. There is no letter, or directive whatsoever from the Minister to say that the accused could be given a permit, and any previous decisions revoked.

There is no evidence before me to say that the letter of the 27th August 1991 was not authorised by the Minister himself. There was only one appeal to the Minister, which he considered after a meeting with Mr. Lapo on the 30th of July 1991. That letter was written one month later, and therefore must have been done at the direction of the Minister. The second paragraph makes this very clear. I quote:

“I am pleased to inform you that the Honourable Minister had conditionally accepted your appeal against the decision of the Director of Immigration.”

In the second last paragraph, a reference was also made to the Minister again.

“By copies of this letter other relevant persons are hereby being notified of the Honourable Minister’s decisions. His decision is final and will not be challenged by way of any further appeal to him.”

One of the conditions imposed also made reference to the Minister, that he will not entertain nor consider any further application for residency permit thereon!

The contents of that letter could not be any clearer. The Minister had made his decision and that was the end of the matter.

A normal, reasonable person, on receipt of such a letter, if he suspects that something fishy is going on, would raise the matter immediately with the Hon. Minister, especially if he felt that the appeal would have been allowed. In this case, despite the receipt of that letter by Mr. Lapo, he did not even bother to check or make further queries.

With respect, this point is not really a defence at all.

The charge relates to two periods of time. The first period ran from the 1st January 1989 to the 10th of June 1991. I accept that throughout this period the accused had no permit. What is of significance however is that on or about the 18th of September 1991, the Minister consented to allowing the accused to remain in the country for the purpose of completing his education. So, although there has been an offence committed by the accused from the 1st of January 1989 to 10 June 1991, that had been waived by the granting of a temporary permit by the Minister. Accordingly, I do not consider it proper for the accused to be convicted of an offence during that period.

The period from the 1st January 1992 to the present time however is different. The accused does not fall within the class of persons exempted under section 7(1)(a) of the Immigration Act. Accordingly he is convicted of the offence of unlawfully present in the country.

(A.R. Palmer)
JUDGE