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Manasau v Attorney General [2014] SBHC 83; HCSI-CC 332 of 2013 (8 September 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona J)

Civil Case No. 332 of 2013

BETWEEN:

IOANE KELI MANASAU
Claimant

AND:

ATTORNEY-GENERAL
Defendant
(Representing Director of Immigration)

Date of Hearing: 11th August 2014
Date of Decision: 8th September 2014

Mr M. Tongarutu for the Claimant
Mr D. Damilea for the Defendant

DECISION ON CHAPTER 15 CONFERENCE.

Faukona J: The Claimant is an indigenous Melanesia Fijian who filed an amended claim for judicial review on 4th December 2013. The Claimant seeks a number of quashing orders related to directives issued by Director of Immigration on 17th July 2013 for him to leave Solomon Islands, and also concerning Deportation Order and Declaration of Undesirable Immigrant signed by the Immigration Minister on 19th August 2013. Other major order related to reinforcement of a hand written minute by the Minister, which constitutes revocation of the cancellation by the Director of Immigration on 17th July 2013. On the outset, it is prudent to note that there is no amended defence filed in response to the amended claim filed on 4th December 2013. Virtually this pre-trial conference proceeding is heard prematurely.

2. In a judicial review claim, and as a preliminary matter, the Claimant must satisfy the Court that he has fulfilled the requirements in R.15.3.18. There are four in all. Should the Court is not satisfied on one ground the Court may decline to hear the claim and strike it out.

3. In this case, it would appear the Counsels have agreed there is no argument regarding requirements under R15.3.18 (b)–(d). The only element that appears to be controversial is paragraph (a) which states that the Claimant must have an arguable case.

4. Mr D. Damilea submits that there are controversial decisions made by the Director of Immigration and the Minister for Immigration. As such there ought to be some consultations to resolve the ambiguities.

5. I noted from the materials before me that direction to cancel permit to enter and reside was made by a letter dated 17th July 2013 by the Director of Immigration. Consequent to that a deportation order was made and was gazetted on 21st August 2013. On the same date but under Legal Notice 64 the Minster for Immigration declared the Claimant as undesirable immigrant.

6. In consequent to directions to cancel permit to enter and reside, the Claimant therefore appeal to the Minster for Immigration on 31st July 2013 pursuant to Section 17(1) of the Immigration Act. At that time when the appeal was filed no deportation order was yet gazetted.

7. Whilst waiting for the Minister to exercise his powers independently and impartially, to consider and determine the appeal, there was material evidence that he was under pressure from within Government and private circles. His decision to revoke was not a self-inclination, but a manifestation reflected in his minute note on Mr Atueta Balekana's undated letter requesting revocation. That minute note later materialised in a letter the Minister wrote to the Defendant on 10th June 2014 that he finally decided to revoke Deportation Order and a Declaration of undesirable immigrant. That I assume must be the decision on appeal. The question is when will the revocation order gazetted?

8. There are issues concerning the action by the Minister but this case concerns the review of the action and direction by the Director of Immigration who is a party to these proceedings. If the claim by the Claimant is to review the directives given by the Director of Immigration, that has already being dealt with by way of appeal and a revocation order made by the Minister to that effect. So what issue more is left for this court to consider. There are no proceedings filed against the actions and decision by the Minister.

9. Further, there may be some procedural issues. One is whether the appeal to the Minister complied with requirements of the Act. This has been raised in defence. However, defence need not to satisfy the court that it has an arguable case. It is the responsibility of the Claimant according to the Rules.

10. The issue of non-service of the Deportation order and the Declaration of Undesirable Immigrant upon the Claimant is irrelevant because the appeal has been heard and the Deportation Order together with Declaration of undesirable immigrant has been revoked.

11. The issue on definition of the words "undesirable immigrant" as defined by Section 2 of the Deportation Act is not relevant as well. The decision on appeal has made it clear that by revoking the order and declaration mean the Claimant is not an undesirable immigrant any more.

12. So what actions and decision which the Claimant seeks to review. There is almost none. I find to proceed further is a waste of time. What the Claimant sought as reliefs has been granted by successfully appealing to the Minister who revoked the directions, deportation order and the declaration on appeal. I therefore see fit to strike out the claim. There being no arguable case left.

13. In regards to other issues concerning further employment by the Claimant is something to be sorted out by the Immigration authorities as well.

Orders.

1. Claim for judicial review strike out. No arguable issue discloses to enable the court proceed to the second stage, hearing of a claim for judicial review.

2. Cost in the cause.

The Court.