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Al-Ibraheim v Attorney General [2025] KIHC 82; Civil Case 49 of 2023 (7 November 2025)

IN THE HIGH COURT OF KIRIBATI
Civil Jurisdiction
Held at Betio


Civil Case No. 49 of 2023


Between:

Mohanad Shakir Abdulkarem Al-Ibraheim Plaintiff

And:

Attorney General

(in respect of the Minister for Foreign Affairs and Immigration) 1st Defendant
(in respect of the Director of Immigration) 2nd Defendant


Counsel: Mr. Titabu Tabane for the Plaintiff

Ms. Fuatino Noa for the Defendants


JUDGMENT


I. Introduction

  1. This case concerns a claim by the plaintiff, Mr. Mohanad Shakir Abdulkarem Al-Ibraheim, for damages arising from the issuance and attempted enforcement of a Removal Order and the retention of his passport by the defendants, the immigration authorities. The plaintiff alleges breaches of statutory duty, unlawful detention, and malicious prosecution.

II. Background

  1. The plaintiff entered Kiribati on 16 January 2020 on a visitor visa, which was denied extension on 11 February. A Removal Order was issued shortly thereafter under the repealed Immigration Ordinance (Cap 41). However, due to the onset of COVID-19 and associated travel restrictions, the order was not executed. The plaintiff remained in Kiribati under an interim visa granted in 2021, during which time his passport was intermittently retained. He was later prosecuted for alleged forgery but was acquitted.

III. Issues for Determination

  1. The Court is asked to determine:

IV. Submission

  1. Mr. Tabane, for the plaintiff, submits that:
  2. Ms. Noa, for the defendants, responds that:

V. Findings of Fact

  1. The Court finds the following facts established on the evidence:

VI. Legal Framework

  1. The Court’s analysis is guided by the following statutory provisions and common law principles, grouped thematically for clarity.

Statutory Provisions

(i) Immigration Law
Theme
Relevant Provisions
Summary
Removal Orders
  • Ordinance Cap 41, s.14(1) (“the Ordinance”);
  • Immigration Act 2019, ss.79, 81, 85, 137; Schedule 1, Clause 1(c) (“the 2019 Act”)
Removal orders may be issued upon conviction or final administrative determination of unlawful presence. Orders under the repealed Ordinance are preserved unless inconsistent with the 2019 Act. Execution must comply with procedural safeguards under s.81.
Interim Visas
  • Immigration Act 2019, s.53
Enables regularization of immigration status during extended stay.
Unlawful Presence
  • Immigration Act 2019, s.57
Defines unlawful presence as remaining without a valid permit.
Passport Retention
  • Immigration Act 2019, s.104(2)(f)
Permits seizure of a non-citizen’s passport for up to 30 days to facilitate deportation; further retention requires judicial authorization.
Transitional Procedures
  • Immigration Act 2019, Schedule 1, Clause 7
Allows transitional immigration procedures within three years of commencement to ensure orderly implementation.

(ii) Government Liability
Theme
Relevant Provision
Summary
Limitation Period
Imposes a strict one-year limitation period for tort claims against the Government, overriding general limitation statutes.

Common Law Principles: In Kiribati, while domestic precedent is limited, the common law principles highlighted below remain persuasive.

(i) False Imprisonment: Defined as unlawful restraint of liberty without legal justification. Key authorities:
(ii) Malicious Prosecution: Requires proof of (a) initiation of prosecution by the defendant, (b) termination in the claimant’s favour, (c) absence of reasonable and probable cause, and (d) Malice. Key authorities:
(iii) Breach of Statutory Duty: Requires proof of (a) a statutory duty owed to the claimant, (b) breach of that duty, and (c) resulting damage. Key authorities:
(iv) Emergency and Executive Discretion: Courts exercise restraint in reviewing executive action during emergencies. Key authority:
(v) Limitation and Retrospectivity: Procedural provisions may apply prospectively to preserved orders. Key authorities:

VII. Analysis and Consideration

  1. Having set out the statutory and common law framework governing removal orders, passport retention, and government liability, the Court now turns to the legal issues raised by the parties.

A. The Lawfulness of the Removal Order

The Law

  1. The Order dated 14 February 2020 was issued under section 14 of the Ordinance, which provided:

“The Minister may make an order directing that any person who has been convicted of the offence of being unlawfully present in Kiribati shall... be removed...”

  1. Section 14(2) further stated:

“An order made under this section shall be carried into effect in such manner as the Minister may direct.”

  1. The 2019 Act, which came into force in April 2020, repealed the Ordinance but includes a preservation clause in section 137. This section reads:

“Unless inconsistent with this Act, all regulations, orders or notices made or given under the repealed Act remain in force...”

  1. The 2019 Act also introduces new procedural safeguards for deportation, including:

Plaintiff’s Submission: Procedural Invalidity

  1. Counsel for the plaintiff, Mr. Tabane, contends that the Order is invalid on two grounds:

Defendants’ Submission: Substantive Validity and Continuity

  1. Counsel for the Defendants, Ms. Noa, argues:
    1. The Order remains valid under section 137, which preserves prior orders unless inconsistent with the new Act.
    2. The plaintiff’s unlawful presence was administratively determined following visa expiry and denial of extension, satisfying the substantive condition for removal.
    3. Section 14(1) should be interpreted purposively to include final administrative findings.
    4. Section 81 applies only to new orders, not preserved ones.

Interpretation of “Convicted”: Judicial or Administrative?

  1. The central issue is whether the term “convicted” in section 14(1) of the Ordinance refers exclusively to a judicial conviction, or whether it may encompass final administrative determinations of unlawful presence made by immigration authorities.
  2. The said term is not defined in the Ordinance or in the Interpretation and General Clauses Ordinance (Cap 46). Its ordinary legal meaning, however, denotes a formal finding of guilt by a court of competent jurisdiction, which not only aligns with the plaintiff’s submission but also reflects the constitutional separation between judicial adjudication and executive discretion.
  3. However, immigration law operates within a distinct statutory framework. It routinely empowers executive officials to make final determinations based on discretions regarding immigration status, including removal, without recourse to criminal prosecution. These determinations, while not punitive, often have significant consequences on liberty and residence. As such, they are typically subject to procedural safeguards and appeal rights and must be grounded in statutory authority. It is on this view that the Court is duty bound under its constitutional purview to oversee such usage of discretions.
  4. A strictly literal reading of “convicted” would obstruct the Ordinance’s core function: an effective and efficient immigration control. It would mandate prosecution of every immigration case even where unlawful presence is uncontested, clogging administrative processes and shielding overstayers from removal unless criminally charged, an outcome both impractical, absurd and legally incoherent. It could also lead to administrative paralysis.
  5. These consequences are precisely the kind of absurdity the Golden Rule guards against (see Grey v Pearson[1], Adler v George[2]). Likewise, the Mischief Rule empowers courts to interpret statutory language in a way that suppresses the mischief, here, administrative paralysis, and advances the remedial purpose of the law (see Heydon’s Case[3] and R (Jeyeantham) v Secretary of State for the Home Department[4]).
  6. Applying both rules, the Court adopts a purposive interpretation: the term “convicted” in section 14(1) includes final administrative determinations of unlawful presence, provided they are procedurally fair and subject to appeal.
  7. This interpretation preserves the Ordinance’s functionality while respecting constitutional safeguards. It also echoes the balances of constitutional fidelity with statutory pragmatism. In other words, it acknowledges the constitutional sensitivity of equating administrative findings with judicial convictions. A criminal conviction entails adjudication by an independent judiciary, governed by evidentiary standards and due process. Administrative determination, by contrast, reflects executive discretion and lacks the coercive force of a criminal judgment. This inherent distinction reflects comparative jurisprudence cautioning against executive encroachment on judicial determinations (see R (Evans) v Attorney General[5]), while recognizing the operational realities of immigration control.
  8. To conflate the two risks eroding the institutional distinction between executive and judicial functions. It may also dilute the procedural protections inherent in criminal adjudication. Therefore, the Court emphasizes that this interpretation must apply narrowly and conditionally: only final, procedurally fair, and appealable administrative determinations may be treated as functionally equivalent to convictions for the limited purpose of removal under section 14(1) of the Ordinance.

Preservation and Execution Under the 2019 Act

  1. Having resolved the interpretive question, and the rationale behind it, the Court now turns to the legal status and enforceability of the said Order.
  2. As the Ordinance, which the said Order was issued under, has been repealed, the next question would be whether the repealing law (the 2019 Act) made provisions for the survival of the Order.
  3. Section 137 of the 2019 Act provides that:

“Unless inconsistent with this Act, all regulations, orders or notices made or given under the repealed Act remain in force.”

  1. Clause 1(c) of Schedule 1 further confirms that:

“A person who... is subject to a removal order or deportation order under the former Act... continues to be subject to that order.”

  1. This Court finds that there is no evidence that the Order is inconsistent with the 2019 Act, hence by virtue of these provisions, the said Order is preserved, and it remains legally valid and enforceable to date.
  2. The provisions above, however, do not explicitly apply to procedures under the repealed Ordinance. Although clause 7 of Schedule 1 of the 2019 Act did anticipate that any procedures from the Ordinance to survive the transition should be promulgated within a 3-year period, there is no evidence that this has been carried out. Therefore, the procedures under the Ordinance, which the 2nd defendant seems to rely upon to give effect to the Order, are inapplicable; they are obsolete. Not only have they been repealed, but they have not been promulgated as expected. So, the crucial question is how could the Order be executed? Or better framed, what procedural framework governs the execution of the Order?

Procedural Retrospectivity and Section 81

  1. Mr. Tabane argues that since the procedures in the Ordinance are not preserved, the defendants are bound to comply with the procedures under section 18 of the 2019 Act.
  2. Ms. Noa, on the other hand, submits that section 81 of the 2019 Act applies only to new orders issued under the 2019 Act; it does not apply to the Order, even if preserved.
  3. While Ms. Noa’s submission is technically correct in terms of textual scope, it overlooks the well-established distinction between substantive and procedural retrospectivity.
  4. In fact, both counsels skipped this very important aspect. Nonetheless, as a Court of law, it is my obligation to give meaning and relevance to the law even if not argued by counsels.
  5. At common law, procedural rules may apply to future proceedings even if the underlying rights arose under repealed or superseded legislation, provided those rules do not retroactively alter the substantive legal position (see the reasoning of the House of Lords in Wilson and others v. Secretary of State for Trade and Industry[6], Maxwell v Murphy[7], Yew Bon Tew v Kenderaan Bas Mara[8] and Wilson v First County Trust Ltd[9]).
  6. The 2019 Act does not expressly provide for section 81 to apply to preserved orders, and there is no necessary implication of retrospective effect either. In the absence of such, the presumption is that section 81 governs only new deportation orders issued under the 2019 Act, which is in line with Ms. Noa’s point.
  7. However, courts have recognized that procedural provisions may apply to ongoing or future actions, even if the underlying right or order arose under repealed legislation. In the case of International Finance Trust Co Ltd v New South Wales Crime Commission[10], though focused on natural justice, the High Court of Australia reinforced this principle that procedural rules are essential to the integrity of court processes and must be applied, even if the underlying substantive law has changed[11].
  8. The key distinction lies between substantive retrospectivity, which are presumptively impermissible, and procedural retrospectivity, which are often permissible.[12]
  9. Section 81 clearly regulates the procedure for deportation execution. It does not alter the substantive basis for removal; it governs the way removal powers are exercised, specifically, by requiring the issuance of a deportation liability notice, the provision of reasons, and the communication of appeal rights. These are procedural safeguards and nothing else; they are not new liabilities. As such, section 18 is procedural in nature. On this view, its application to the preserved Order would not offend the presumption against retrospectivity provided it does not alter the substantive basis of the power itself.
  10. Given that there is no evidence that clause 7 of Schedule 1 of the 2019 Act has been complied with, this now creates a regulatory gap. Because of this gap, this Court is now compelled to find ways to harmonize the preserved Order with the procedural safeguards introduced by the 2019 Act. It must, however, be noted that this harmonization is, in no way, an act of judicial innovation, but a necessary response to this regulatory gap. It will ensure statutory continuity without compromising procedural fairness and affirms that legality is measured not solely by preservation but by adherence to the rule of law.
  11. Accordingly, the Court finds that section 81 applies prospectively to the execution of the Order. Its application does not offend the presumption against retrospectivity, as it does not disturb the validity of the underlying Order, but merely regulates the process by which it may be enforced. On this conclusion, the defendants must therefore comply with section 81 before executing the Order. Any attempt to enforce the Order without adherence to section 81 is ultra vires and legally ineffective.
  12. I therefore agree with Mr. Tabane that when the defendants decide to enforce the Order in the future, strict compliance with section 81 is a must.

Determination

  1. The Court determines as follows:

Conclusion

  1. This Court finds that the Order was properly issued and is valid, as the term “convicted” applies also to the administrative decisions of the defendants. It remains valid, despite the repeal of the Ordinance; however, its execution must comply with section 81 of the 2019 Act.
  2. This conclusion will not only harmonize continuity between the repealed Ordinance and the repealing Act (2019 Act) which is anticipated under its transitional provisions but will also maintain procedural fairness throughout the execution process, while upholding the constitutional distinction between executive discretion and judicial adjudication.

B. Lawfulness of Passport Retention

The Law

  1. Section 104(2)(f) of the 2019 Act introduces a procedural safeguard to prevent indefinite passport retention. It provides:

“An immigration officer may seize a passport for up to 30 days to facilitate deportation. Retention beyond this period requires judicial authorization.”

  1. This section introduces a time-bound procedural safeguard to ensure that document retention does not become indefinite or arbitrary. Nonetheless, the Court in Vanuatu Ferry[13] caution when reviewing executive action during emergencies.
  2. Although the Order against the plaintiff was issued under the repealed Ordinance, the retention of his passport occurred predominantly after the commencement of the 2019 Act in April 2020. Accordingly, there is a presumption that section 104 of the said Act governs the legality of such retention from that date onward.
  3. As noted earlier, clause 1(1)(c) preserves the legal effect of removal orders but does offer transition of enforcement procedural mechanisms from the Ordinance. Enforcement actions, such as passport retention, are procedural in nature and must conform to the 2019 Act now governing deportation.
  4. As also discussed earlier, the absence of promulgated procedures under clause 7 of Schedule 1, heighten the imperative for judicial oversight to ensure that legacy enforcement actions, such as passport retention, do not circumvent the procedural protections now embedded in the 2019 Act.
  5. To assess compliance with section 104(2)(f), the Court applies the following structured test:

Plaintiff’s Submission: Unlawful Retention and Procedural Breach

  1. Mr. Tabane argues that the 2nd defendant unlawfully retained the plaintiff’s passport for a period exceeding four years without court authorization, in breach of section 104(2). He relies on the following factual matrix:
  2. Mr. Tabane contends that the defendants’ justification in facilitating the plaintiff’s deportation, cannot override the statutory time limit. He characterizes the retention as procedurally defective and substantively oppressive, particularly given the plaintiff’s willingness to depart Kiribati voluntarily.

Defendants’ Submission: Lawful Purpose and Practical Necessity

  1. Ms. Noa contends that the retention of the passport was lawful and necessary to facilitate the plaintiff’s removal. She submits:
  2. Ms. Noa contends that the plaintiff lived freely, accessed financial services, and was not materially restrained. The retention, though extended, was conducted in good faith and in pursuit of lawful removal.

Findings and Analysis

  1. The evidentiary record confirms that the plaintiff’s passport was retained intermittently over a multi-year period to facilitate his deportation. While the passport was returned upon request at times, no judicial authorization was obtained for retention beyond the statutory 30-day limit under section 104(2)(f) of the 2019 Act. No application for such authorization was made either.
  2. COVID-19 and logistical constraints initially justified temporary derogation, but these factors did not excuse continued non-compliance once pandemic conditions subsided. The absence of judicial authorization beyond the statutory limit therefore constitutes a procedural breach, notwithstanding operational challenges.
  3. Applying the structured test, the Court finds that while the retention was undertaken to facilitate deportation, it exceeded the statutory 30-day limit and lacked judicial authorization.
  4. COVID-19 justified short-term derogation, but not the prolonged retention. Ms. Noa’s reliance on good faith cannot override statutory compliance, as affirmed in Vanuatu Ferry[14] and Doody[15].” Post-pandemic, there is no emergency to justify the continued non-compliance; operational necessity does not count. As such, the defendants require judicial authorization to justify further retention of the passport and since there is none, this is a breach of section 104(2)(f) of the 2019 Act.
  5. This breach transcends technicality. It implicates core principles of legality, proportionality, and executive accountability, underscoring that procedural safeguards are not mere symbolic, decorative or optional; they are essential mechanisms that uphold justice, legality and accountability.
  6. Nonetheless, the evidentiary records show that the plaintiff was not physically detained and remained at liberty in Kiribati under an interim visa. It is also clear that the passport was intermittently accessible upon request, undermining any suggestion of total deprivation. There is no indication that the retention was punitive, malicious, or intended to restrain the plaintiff’s liberty beyond what was operationally necessary to facilitate removal.
  7. Although the plaintiff has not established any quantifiable loss or damage directly attributable to the unlawful retention, such as financial hardship or interference with legal entitlements, the procedural violation remains legally significant and ought to be acknowledged. As affirmed in R (Walumba Lumba and another) v Secretary of State for the Home Department[16], unlawful detention may justify declaratory relief or nominal damages even absent actual harm. Such relief serves as a symbolic vindication of statutory safeguards and reinforces the principle that procedural compliance is not a mere formality but a cornerstone of lawful administration.

Conclusion

  1. The Court finds that the initial retention of the passport was lawful under section 104(2)(f) for the first 30 day, however, the extended retention beyond 30 days was a breach due to lack of judicial authorization. Nonetheless, the retention was intermittent, proportionate, and undertaken in operationally challenging circumstances. The plaintiff’s liberty was not materially impaired from the defective retention.
  2. Accordingly, the Court grants the following declaratory relief, not merely as a technical finding but as a principled affirmation of the statutory safeguards that protect individual liberty:
  3. This declaration serves as a symbolic vindication of the procedural architecture embedded in the 2019 Act, reaffirming that legality is not measured solely by intent or outcome, but by adherence to the rule of law. Procedural safeguards are not discretionary, they are the legal infrastructure of lawful administration, and must be respected even amid operational complexity.

C. False Imprisonment

The Law

  1. False imprisonment is a common law tort defined as the unlawful restraint of a person’s freedom of movement without lawful justification. It does not require physical confinement; constructive restraint, such as preventing departure or controlling movement, may suffice if it amounts to total deprivation of liberty.
  2. Judicial interpretation has clarified the essential elements of the tort, which are:
  3. In Meering[17], the Court held that awareness of restraint is not important; it is sufficient that the person is, in fact, prevented from leaving. In Bird[18], the court established that restraint must be total, not partial or conditional. In R (Bizimana)[19], the Court accepted that immigration control measures could amount to detention where they effectively prevent departure. In R (Hemmati)[20], the court emphasized that procedural safeguards are essential to lawful detention under immigration powers. The High Court of Australia in NZYQ[21] similarly affirmed that administrative detention, even without physical custody, may constitute unlawful restraint if not authorized by statute.
  4. The tort is actionable per se, meaning that proof of damage is not required. However, the restraint must be complete and unlawful; inconvenience[22], delay[23], or administrative error[24] does not constitute false imprisonment unless it results in total deprivation of liberty.
  5. In the immigration context, courts have recognized that passport retention or visa cancellation may amount to constructive detention if it prevents departure or coerces compliance. However, such measures must be assessed in light of statutory powers, proportionality, and the impact on the claimant’s liberty.[25]

Plaintiff’s Submission: Constructive Detention

  1. Counsel for the plaintiff, Mr. Tabane, relies on the following factual matrix to support the claim of constructive detention:
  2. Synthesizing these points, Mr. Tabane contends that the defendants’ failure to comply with statutory safeguards rendered the restraint unlawful and actionable under the tort of false imprisonment.

Defendants’ Submission: No Detention, No Liability

  1. Ms. Noa strongly contests the claim of unlawful detention. She submits that the plaintiff’s liberty was not restrained in law or fact. In support of this position, she highlights:
  2. In light of these facts, Ms. Noa argues that the plaintiff’s liberty was not unlawfully restrained and that any procedural breach did not result in compensable harm.

Findings and Analysis

  1. Having considered the factual circumstances and applicable legal principles, the Court turns to the question of whether the plaintiff was constructively detained within the meaning of the tort of false imprisonment. In doing so, the Court adopts the following threshold test to determine whether the plaintiff’s liberty was unlawfully restrained:
  2. Applying this test to the facts, the Court makes the following findings:

Conclusion

  1. In summary, while the plaintiff’s liberty was affected by administrative conduct, it was not restrained to the degree required to establish false imprisonment. Constructive detention demands a complete and unlawful deprivation of freedom, not intermittent administrative delay or procedural defect. On the facts, the plaintiff retained access to his passport, lived freely under an interim visa, and faced no continuous or absolute barrier to departure.
  2. Accordingly, the claim for false imprisonment is dismissed.

D. Malicious Prosecution

The Law

  1. Malicious prosecution is a narrowly confined tort, requiring the claimant to establish four cumulative elements, as affirmed in Hicks v Faulkner[26], Glinski v McIver[27]and more recently in Willers v Joyce[28]. Failure to establish any one defeats the claim. The elements are:
  2. The burden of proof lies with the claimant. Courts must exercise particular caution before attributing malice to prosecutorial or executive conduct, especially where institutional roles are distinct.
  3. The tort does not directly engage immigration legislation, but the administrative context, particularly the plaintiff’s immigration status and the retention of his passport, was shaped by instruments issued under the Ordinance. Clause 1(1)(c), Schedule 1 of the 2019 Act preserves the legal effect of removal orders issued under the former Act. However, such preservation does not extend to criminal proceedings initiated in reliance on administrative determinations.

Plaintiff’s Submission: Alleged Malice and Lack of Cause

  1. Counsel for the plaintiff, Mr. Tabane, submits that the 2nd defendant instigated criminal proceedings against the plaintiff by reporting him to police for allegedly forging a travel ticket. He relies on the following factual matrix:
  2. Synthesizing these points, Mr. Tabane contends that the prosecution was not only baseless but vindictive, intended to punish the plaintiff for his assertive conduct and to justify the Removal Order.

Defendants’ Submission: Procedural Referral and Good Faith

  1. Ms. Noa, for the defendants, denies any malicious intent. She submits that the 2nd defendant’s actions were administrative in nature and made in good faith. In support of this position, she highlights:
  2. In light of these facts, Ms. Noa argues that the referral was made in good faith and that there is no evidence of improper motive or abuse of process.

Findings and Analysis

  1. To assess liability, the Court examines each element of the tort of malicious prosecution in turn.

Conclusion

  1. Malicious prosecution requires four cumulative elements. Here, only favourable termination is satisfied. The 2nd defendant did not initiate the prosecution; his referral lacked direction or influence over the decision to charge. The referral was procedural, not prosecutorial.
  2. There was no absence of reasonable cause. The 2nd defendant held a genuine belief, and law enforcement deemed the matter charge-worthy. Mistaken but honest belief supported by some factual basis defeats this element.
  3. This case illustrates the doctrinal rigour required to establish liability under this tort. Malicious prosecution is not a vehicle for relitigating acquittals or challenging administrative decisions absent compelling proof of abuse. While the Court acknowledges the reputational and emotional toll of criminal proceedings, such consequences do not, in themselves, establish tortious liability.
  4. Further, the institutional roles of the defendants must be respected. The Minister and the Director of Immigration are not prosecutorial authorities. Their statutory functions relate to immigration control, not criminal enforcement. Absent clear evidence of overreach or improper influence, the Court must uphold the separation of powers between administrative and prosecutorial functions.
  5. The claim for malicious prosecution is therefore dismissed.

E. Breach of Statutory Duty

The Law

  1. To establish a claim for breach of statutory duty, the plaintiff must prove the following cumulative elements:
  2. Where no statutory duty is found, the Court may consider whether a common law duty of care arises under the test in Caparo Industries plc v Dickman[40]:
  3. This common law duty arises only where the statute is silent or does not preclude liability. In the public law context, courts must also consider whether the statutory scheme confers a private right of action and whether the alleged breach arises from discretionary or operational conduct.[41]

Plaintiff’s Submission: Breach by Both Defendants

  1. Counsel for the plaintiff, Mr. Tabane, submits that both defendants breached statutory duties under the immigration laws. He relies on the following factual matrix:
  2. Synthesizing these points, Mr. Tabane contends that these failures, both procedural and discretionary, amount to breaches of statutory duty, causing financial loss, emotional distress, and prolonged involuntary stay in Kiribati.

Defendants’ Submission: No Breach, Lawful Discretion

  1. Ms. Noa, for the defendants, denies any breach of statutory duty. She submits that all actions taken were lawful, discretionary, and conducted in good faith. In support of this position, she highlights:
    1. The Order was issued lawfully under section 14(2), and preserved by section 137 of the 2019 Act.
    2. The plaintiff’s visa had expired, and he was unlawfully present, satisfying the substantive condition for the issuance of the Order.
    1. The interim visa regularized the plaintiff’s status, and the refusal of a work permit was within lawful discretion.
    1. Passport retention was necessary for deportation facilitation and conducted in good faith.
    2. Section 53(2) affirms that interim visas are discretionary; section 15 prohibits employment for persons unlawfully present.
    3. The delays in executing the Order were due to COVID-19 restrictions, international clearance requirements, and the plaintiff’s Iraqi nationality, not administrative neglect.
  2. Ms. Noa further invokes section 6 of the 2010 Act, which exempts the Government from liability for discretionary acts and actions taken in good faith.

Findings and Analysis

  1. Having considered the parties’ submissions, the Court proceeds to assess liability under both statutory and common law frameworks.
  2. The Court finds that the statutory provisions the plaintiff invoked above do not create actionable private duties as they confer discretionary powers on the Minister and immigration officers, subject to administrative oversight.
  3. Having found no statutory breach, the Court now consider whether a common law duty of care arises independently by applying the Caparo test:

On the one hand, the harm the plaintiff alleges are evidently both foreseeable and directly linked to the defendants’ exercise of statutory powers. The plaintiff was subject to administrative decisions affecting his liberty, employment, and ability to depart Kiribati. These decisions had immediate and personal consequences, establishing a strong proximity.

However, fairness in public law is not solely concerned with the gravity of the plaintiff’s harm. It must also account for the nature of the statutory scheme, the role of discretion, and the institutional competence of the Court. Immigration law is inherently discretionary, involving complex policy judgments, resource allocation, and international coordination. Imposing a private duty of care on the immigration authorities exercising lawful discretion risks judicializing policy decisions and undermining the flexibility required for effective immigration control.

Moreover, the statutory framework expressly excludes liability for discretionary acts and good faith conduct. Section 6 of the 2010 Act codifies this immunity, reflecting a legislative choice to shield public authorities from tortious claims arising from lawful discretion. To impose a duty of care in this context would be to override that legislative intent and expose the Government to liability for conduct it is expressly permitted to undertake.

The Court acknowledges that it must also consider the alarming effect of liability. If immigration officers and ministers were subject to tort claims for every discretionary decision, it could deter robust enforcement, delay operational decisions, and distort the balance between individual rights and collective governance.

In sum, while the plaintiff’s harm is foreseeable and proximate, the imposition of a duty of care would be inconsistent with the statutory scheme, disruptive to institutional discretion, and contrary to the public interest. It is therefore not fair, just, or reasonable to impose such a duty on the defendants in this context.

  1. Accordingly, no common law duty of care arises under Caparo either.
  2. As regards to damages, section 6(2) of the 2010 Act expressly excludes liability for:
  3. The Court also notes that the plaintiff’s claims for damages exceed the statutory cap under section 5 of the 2010 Act, which limits liability to $50,000 in tort actions.

Conclusion

  1. In summary, the statutory provisions invoked confer discretionary powers but do not impose enforceable duties of care. The defendants acted within lawful discretion and in good faith. No breach of statutory duty or common law duty of care is established. Even, if there has been any breach, the Government is immune under section 6 of the 2010 Act.
  2. Accordingly, the claim for breach of statutory duty is dismissed.

F. Limitation Period

The Law

  1. The limitation period for tort claims in Kiribati is governed by two statutory sources:

“Notwithstanding any provisions of the Limitations of Actions Act, any claim for torts against the Government must be instituted within one year from the date such claim arise.”

  1. This provision imposes a strict one-year limitation period for tort claims against the Government, irrespective of the longer period under the Limitation Act 2002. The High Court has, in several cases[42], affirmed that section 7 of the 2010 Act imposes a strict one-year limitation period for tort claims against the Government, overriding general limitation statutes.
  2. The cause of action arises when the alleged tort is complete or the damage is suffered[43]. Continuing wrongs may extend the accrual date only where the tortious conduct is ongoing and not merely the consequence of a completed act. Equitable doctrines such as fraud, concealment, or legal disability may suspend or extend limitation, but only where pleaded and substantiated.
  3. In Letang v Cooper[44], the Court emphasized that where the essence of a claim is tortious, limitation must be assessed under the relevant tort framework, not disguised as another cause of action. This principle reinforces the need for precision in characterizing claims and identifying accrual dates.
  4. Where multiple acts are alleged, courts must identify the operative act that gave rise to the cause of action. Continuing wrongs may extend the limitation period only where the tort is ongoing and not merely the consequence of a completed act.

Plaintiff’s Submission: Statute-Barred Claims

  1. Counsel for the plaintiff, Mr. Tabane, submits that the claim is not time-barred. He argues that:
    1. The torts alleged, false imprisonment, malicious prosecution, and breach of statutory duty, arose from a continuing course of conduct;
    2. The retention of his passport and enforcement of the Order persisted until his departure from Kiribati in 2023;
    1. The emotional and financial harm continued throughout this period;
    1. The claim was filed in early 2024, within one year of the final act of restraint;
    2. Alternatively, the limitation period should be equitably extended due to the exceptional nature of the case and his lack of access to legal representation.
  2. Synthesizing these points, Mr. Tabane contends that the claim either falls within the one-year window or warrants equitable extension.

Defendants’ Submission: Statute-barred Claims

  1. Ms. Noa, for the defendants, submits that the claim is statute-barred under section 7 of the 2010 Act. She argues that:
  2. In light of these facts, Ms. Noa contends that the claim is time-barred and must be dismissed.

Findings and Analysis

  1. The Court now turns to the statutory framework and factual chronology to determine whether the claim is statute-barred.
    1. Applicability of Section 7
      • Section 7 of the 2010 Act expressly overrides the general limitation period in the Limitation Act. For tort claims against the Government, the applicable period is one year from the date the claim arises, which is affirmed in the case of Angiraoi v Attorney General[45].
      • The Order was issued in 2015, and the passport retention began in 2016. These acts are discrete and identifiable. The plaintiff’s visa status was regularized in 2021, and the claim was filed in 2024.
      • The Court finds that the operative acts giving rise to the alleged torts occurred more than one year before the claim was instituted. Accordingly, the claim is prima facie statute-barred under section 7.
    2. Continuing Wrong Doctrine
      • The doctrine of continuing wrong applies only where the tortious conduct is ongoing, not where the effects of a completed act persist. In this case, the administrative acts were completed within defined periods. The plaintiff’s inability to depart was influenced by external factors, including COVID-19 restrictions and later on from international clearance delays.
      • The Court finds that the defendants’ conduct does not constitute a continuing wrong. The administrative acts were completed, and any ongoing hardship was incidental, not constitutive of a continuing tort.
      • As discussed earlier under the False Imprisonment section of this judgment, this Court had found that the claim for false imprisonment is not made out.
    1. Equitable Extension
      • Equitable extension of limitation under common law requires proof of fraud, concealment, or legal disability. The plaintiff does not plead any of these grounds. Lack of legal representation, while unfortunate, does not constitute a legal disability under the Act.
      • The Court finds no basis to extend the limitation period on equitable grounds.

Conclusion on Limitation Period

  1. Under section 7 of the 2010 Act, all tort claims against the Government must be brought within one year of the cause of action arising. This statutory limitation overrides general limitation principles and reflects a deliberate legislative policy to constrain governmental liability.
  2. The plaintiff commenced proceedings on 28 September 2023. Accordingly:
  3. The Court has reviewed these timely claims on their merits and finds that:
  4. Accordingly, while certain procedural breaches are established, no compensable tort has been proven within the limitation period.

VIII. Summary of Findings

  1. Having considered the pleadings, evidence, statutory framework, and applicable common law principles, the Court now summarizes its findings:
    1. Lawfulness of the Removal Order
      • The Order dated 14 February 2020 is valid under section 137 of the Immigration Act 2019.
      • The term “convicted” in section 14(1) of the repealed Ordinance includes final administrative determinations, provided they are procedurally fair and appealable.
      • Execution of the Order must now comply with section 81 of the 2019 Act.
  2. Lawfulness of Passport Retention
  3. False Imprisonment
  4. Malicious Prosecution
  5. Breach of Statutory Duty
  6. Limitation Period

IX. Order of the Court

  1. For the reasons set out above, the Court orders as follows:
    1. Declaration – Removal Order Execution
      • The Court declares that the Removal Order dated 14 February 2020 remains valid under section 137 of the Immigration Act 2019.
      • Execution of the Order must comply with section 81, including issuance of a deportation liability notice and provision of appeal rights.
      • The defendants are directed to ensure compliance with section 81 prior to any enforcement action.
    2. Declaration – Passport Retention
      • The Court declares that retention of the plaintiff’s passport beyond 30 days without judicial authorization was procedurally unlawful.
      • The 2nd defendant is ordered to obtain judicial authorization for any future retention exceeding 30 days, in accordance with section 104(2)(f).
      • Compliance must be effected within 30 days of this judgment.
    3. Dismissal of Claims
      • The plaintiff’s claims for false imprisonment, malicious prosecution, breach of statutory duty, and damages are dismissed.
      • Claims arising prior to 28 September 2022 are statute-barred.
    4. Costs
      • No order for costs.

Dated this 7 November 2025.


Hon. Aomoro T. Amten
JUDGE OF THE HIGH COURT


[1] (1857) 6 HL Cas 61
[2] 1964 AC 7, 1 All ER 628
[3] (1584) 3 Co Rep 7a; 76 ER 637
[4] [1999] EWCA Civ 3010
[5] [2015] UKSC 21
[6] [2003] UKHL 40
[7] (1957) 96 CLR 261
[8] [1983] 1 AC 553
[9] [2003] UKHL 40
[10] (2009) is [2009] HCA 49
[11] See also Hamnett v Essex County Council [2014] EWHC 246
[12] see In Re Athlumney [1898] UKLawRpKQB 163; [1898] 2 QB 547, Wilton UK Limited v John Shuttleworth and others [2017] EWHC 2195 and Maxwell v. Murphy (1957) 96 CLR 261.
[13] Vanuatu Ferry Ltd v Republic of Vanuatu [2024] VUCA 17
[14] Vanuatu Ferry Ltd v Republic of Vanuatu [2024] VUCA 17
[15] R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531
[16] [2011] UKSC 12
[17] Meering v Graham-White Aviation Co Ltd (1920) 122 LT 44
[18] Bird v Jones (1845) 7 QB 742
[19] R (Bizimana) [2012] EWCA Civ 414
[20] R (Hemmati) [2018] EWCA Civ 2122
[21] NZYQ v Minister for Immigration [2023] HCA 37
[22] See Bird v Jones (1845) 7 QB 742
[23] See Bird v Jones (1845) 7 QB 742
[24] See R v Governor of Brockhill Prison, ex parte Evans (No 2) [2001] 2 AC 19
[25] See R. v Governor of Durham Prison Ex p. Singh [1984] 1 W.L.R. 704
[26] (1878) 8 Q.B.D. 167
[27] [1962] AC 726
[28] [2016] UKSC 46
[29] [1996] AC 74
[30] [2009] 3 SCR 339
[31] [2013] HCA 17
[32] [2013] HCA 17
[33] [1994] 1 WLR 992
[34] [2009] 3 SCR 339
[35] [2007] NSWCA 95
[36] [2000] 1 AC 419
[37] [1989] 2 SCR 170
[38] [1995] 3 All ER 353
[39] [1982] AC 173.
[40] [1990] 2 AC 605
[41] For example, see Dunsmuir v. New Brunswick 2008 SCC 9, 1 SCR 190
[42] See for exampleo Tekeang v Attorney General [2013] KIHC 2, Angiraoi v Attorney General [2018] KIHC 42, Tebano v Attorney General iro The Republic [2024] KIHC 8
[43] See Pirelli General Cable Works Ltd v Oscar Faber & Partners [1983] 2 AC 1, Nykredit Plc v Edward Erdman Group Ltd (No 2) [1997] 1 WLR 1627
[44] [1965] 1 QB 232
[45] [2018] KIHC 42

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