IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

BRENDA HATILIA
Claimant.

AND:

ATTORNEY GENERAL
1st Defendant.
(Representing the Director of Immigration)

AND:

ATTORNEY GENERAL
2nd Defendant.
(Representing the Minister)

For the claimant: D. Hou (Public Solicitor).
For the 1st and 2nd Defendants: S. Banuve (Solicitor General).

Date of hearing: 4 September 2014.
Date of judgment: 13 October 2014.

JUDGMENT

Apaniai PJ

Introduction.

1.	The claimant is from Kwara'ae, Malaita Province. She is the wife of Mr. Jayantha Arachilage Rajapaksha ("Rajapaksha"). They got married at the Central Magistrates Court in Honiara in 2009. They are currently living with their two infant children at Lungga estate, east of Honiara. They say they want to live permanently in Solomon Islands and raise their children in Solomon Islands.

2.	The husband, Mr. Rajapaksha, is a citizen of Sri Lanka. He came to Solomon Islands in 2007 and worked as a chef at the Taj Mahal restaurant which was then owned by another Sri Lankan by the name of Mr. Nihal Seneviratne ("Seneviratne"). Rajapaksha is a specialist in Sri Lankan cuisine.

Rajapaksha's entry into Solomon Islands.

3.	It was Seneviratne who brought Rajapaksha into Solomon Islands. Seneviratne paid not only for Rajapaksha's airfare to come to Solomon Islands, but also for his other expenses such as residence and work permits and other allowances which had assisted Rajapaksha settle down in Solomon Islands upon arrival. No issue has been raised that Rajapaksha's entry into Solomon Islands in 2007 was anything but a valid entry.

4.	On 22 January 2009, the claimant and Rajapaksha got married at a civil ceremony at the Central Magistrates Court in Honiara. Again, no issue has been raised in regards to the validity of the marriage.

5.	In or around April 2010, the working relationship between Seneviratne and Rajapaksha had deteriorated. This led to the termination of Rajapaksha's employment at Taj Mahal in or about 12 May 2010 when Seneviratne purchased a one-way ticket for Rajapaksha to go on leave back to Sri Lanka. Rajapaksha did not travel to Sri Lanka on that date. Instead, he went and lived with the claimant at Lungga.

6.	On 18 May 2010, presumably at the instigation of Seneviratne, the Commissioner of Labour ("Commissioner") cancelled Rajapaksha's work permit back-dating the effective date of cancellation to the 10 May 2010.

Rajapaksha's 'prohibited immigrant' status.

7.	On 2 June 2010, the Director of Immigration ("Director") issued a letter cancelling Rajapaksha's residence permit with effect from 25 May 2010. By operation of law, Rajapaksha became a prohibited immigrant with effect from 25 May 2010 and, therefore, by virtue of section 14 of the Immigration Act, he became liable to deportation under the Deportation Act (Cap. 58).

8.	It is important to bear in mind that at the time of cancellation of Rajapaksha's work and residence permits, Rajapaksha and the claimant were already married and had been living together as husband and wife for almost a year and half.

9.	Despite the cancellation of Rajapaksha's residence permit on 2 June 2010, the Director again issued a three-months' visitor's visa to Rajapaksha on 21 October 2010. This followed an application for a visitor's visa by Rajapaksha dated 26 September 2010. That visa was later cancelled before the expiry date of 20 January 2011. According to the Immigration Department, the reason for the cancellation of the visa is that it was issued erroneously. Upon cancellation of the visitor's visa, Rajapaksha, again, became a prohibited immigrant.

Rajapaksha's deportation order.

10.	On 7 March 2011, a deportation order was issued against Rajapaksha. It seems that the reason for the deportation order was simply because of Rajapaksha's "prohibited immigrant" status due to the cancellation of his visitor's visa and not because of any criminal conduct on his part or of any other conduct on his part which might be seen as prejudicial to the peace, order and good government of Solomon Islands.

11.	That deportation order was, however, quashed by a decision of this court delivered on 22 July 2011 in Civil Case No. 39 of 2011. Despite the quashing of the deportation order, Rajapaksha has not yet been issued with a residence permit to date. He is still in the country, presumably, pending the determination of the present proceeding.

12.	In quashing the deportation order, Justice Chetwynd remarked at paragraph 31 of the judgment that the decision to quash the deportation order should not be seen as precluding the Minister from issuing either a fresh declaration under section 11(2)(f) of the Deportation Act (that Rajapaksha is an undesirable immigrant) or under section 4 of that Act (that Rajapaksha is an undesirable person).

Application for residence permit.

13.	Following that judgment, the claimant had written to the Director on 23 July 2011 requesting that a residence permit be issued to Rajapaksha to enable him reside in Solomon Islands on the basis of her marriage to Rajapaksha. No reply was ever made to that letter. Instead, the Director issued a letter on 24 August 2011 requesting Rajapaksha to voluntarily leave Solomon Islands within 14 days failing which he would be declared an "undesirable immigrant" which would eventually lead to a deportation order.

14.	Following the Director's letter of 24 August 2011, the claimant's solicitor had also written to the Director on 1st and 30th September 2011 requesting that the Director issue a residence permit to Rajapaksha on the ground of his marriage to the claimant. Again, no replies were ever received to those letters.

The claim.

15.	Fearing that her husband might be deported, the claimant filed this claim on 14 November 2011 seeking the following remedies:-

[1]	A declaration that the refusal by the Director of Immigration and his servants and agents (First defendant) in collaboration with the Minister of Commerce, Industries, Labour and Immigration (Second Defendant) to grant a residence permit to the claimant's legal husband and the purported plans to make a Deportation Order against the claimant's said husband on the grounds of being an undesirable person and prohibited immigrant pursuant to sections 11(1)(b) and 11(2)(f) of the Immigration Act (Cap. 60) and, section 4(d) of the Deportation Act (Cap. 58) is unlawful and is not a reasonably justifiable measure within the context of a democratic society and thereby contravenes her fundamental right to reside with her husband in Solomon Islands pursuant to section 14(1) and section 14(3)(c) of the Constitution of Solomon Islands as read in conjunction with the "protection of the privacy of her home" in section 3(c) of the Constitution and the protection against inhuman and degrading treatment by virtue of section 7 of the Constitution;

[2]	A Mandatory Order that the First Defendant considers and grants a residence permit based on the marriage of the claimant to her legal husband Mr. Jayantha Arachilage Rajapaksha;

[3]	Further and other orders as the court deems meet;

[4]	Costs.

16.	On 16 August 2012, this court initially struck out the claim on the ground that the claim is res judicature. However, the claimant successfully appealed that decision to the Court of Appeal which allowed the appeal and directed this court to proceed with the hearing of the claim.

17.	At the initial hearing on 28 August 2014, Mr. Hou of counsel for the claimant sought leave to amend paragraph [1] of the remedies sought. Leave was granted and the amended paragraph [1] now reads:-

"[1]	A declaration that the refusal by the Director of Immigration and his servants and agents (First defendant) to grant a residence permit to the claimant's legal husband is unlawful and/or not a reasonably justifiable measure within the context of a democratic society and thereby contravenes her fundamental right to reside with her husband in Solomon Islands pursuant to section 14(1) and section 14(3)(c) of the Constitution of Solomon Islands ".

18.	It is important to make it clear at the outset that this is not a claim challenging the constitutionality of any of the provisions of either the Immigration Act or the Deportation Act nor is the claimant asserting that her husband, Mr. Rajapaksha, who is an alien, has absolute right to reside in Solomon Islands without a residence permit by reason of their marriage.

19.	The claim is simply a challenge to the constitutionality of the Director's refusal to grant a residence permit to Rajapaksha and the requirement for Rajapaksha to leave Solomon Islands.

Claimant's submission.

20.	The case for the claimant, as I understand it, is that the refusal by the Director to issue a residence permit to Rajapaksha and the requirement for him to leave Solomon Islands circumscribe her fundamental and unqualified right (as a citizen of Solomon Islands) to freedom of movement guaranteed under section 14(1) of the Constitution. It was submitted on her behalf that if her husband is compelled to leave Solomon Islands, her right to reside in Solomon Islands is directly affected. She argues that her freedom of movement is determined by what happens to her husband for if the husband leaves she has no choice but to accompany her husband out of Solomon Islands in order to secure and maintain the marital relationship.

Defendant's submission.

21.	The defendant, on the other hand, argues that the claimant has not established that her right to reside with her husband in Solomon Islands has been breached. He submits that the argument by the claimant, that her right to reside in Solomon Islands would be contravened if she was forced to leave in order to be with her husband in Sri Lanka given that she prefers living in Solomon Islands, is a combination of three substantive rights which are separate. These are freedom of movement, right to privacy and right to family life. He submits that none of these rights have been breached. He explains the reasons why he says that these rights have not been breached. Other points raised by the defendant will be canvassed later.

Issues.

22.	I have considered the submissions made on behalf of the claimant and the defendant. They raise a morass of legal arguments ranging from the meaning of 'reasonably justifiable in a democratic society', the proper approach to interpretation of constitutions, Crown immunity, the Wednesbury principle, marriage ideals and so on. I do not think the question whether the Director's refusal to grant a permit is, or is not, a reasonably justifiable measure within the context of a democratic society requires any serious discussion in this case.

23.	I think the real issue in this case is simply one of constitutional interpretation, that is, whether the refusal by the Director to issue a permit to the claimant's husband is a violation of the claimant's freedom of movement guaranteed under section 14(1) of the Constitution.

Powers of a state in regards to aliens.

24.	However, before turning to that issue, it is important to appreciate the legal position relating to the powers of the state in relation to Rajapaksha, an alien, who was allowed initially to enter and reside in Solomon Islands. It has long been established that in international law sovereign states have the right to regulate the entry of aliens into their territory and that the reception of aliens is a matter of discretion and that every state is, by reason of its territorial supremacy, competent to exclude aliens from the whole, or any part, of its territory. As stated by Lord Atkinson in Dominion of Canada v Cain:

"One of the rights possessed by the supreme power of every state is the right to refuse to permit an alien to enter that state, to annex what conditions it pleases to the permission to enter it and to expel or deport from the state, at pleasure, even a friendly alien especially if it considers his presence in the state opposed to its peace, order and good government, or to its social or material interests."

25.	As stated in the Zimbabwean case of Bhatti & Another v Chief Immigration Officer & Another ("Bhatti"),:-

"To hold that an alien absolutely cannot be deported from Zimbabwe if they are married to, or are children of citizens is to completely ignore the complex relationships and responsibilities that both national and international law impose on the aliens themselves, the state of origin and residence and the citizens of the state of residence, which one author has expressed thus:-

'The admission of aliens into a state immediately calls into existence certain correlative rights and duties. The alien has rights to the protection of the local law. He owes a duty to observe that law and assumes a relationship towards the state of his residence sometimes referred to as "temporary allegiance".

26.	The above statement was quoted with approval, and applied, in another Zimbabwean case of Nomsa Jonasi-Ogundipe v Chief Immigration Officer & Minister of Home Affairs and the Attorney General ("Nomsa") where the deportation of a Nigerian citizen ("Samson") who got married to a Zimbabwean wife, the claimant, was upheld by the court on the ground that Samson had breached the duty imposed on an alien to observe the laws of his host country and had conducted himself in a manner incompatible with the good order of the state. Therefore his conduct constituted a threat to public order which justifies his deportation despite his marriage to a Zimbabwean citizen.

27.	In that case, Samson had entered Zimbabwe on a visitor's visa and had overstayed his visa by five years. He and his wife had consistently lied to the Immigration authorities in regards to Samson's application for residence permit and other matters relating to his illegal stay in Zimbabwe until it was discovered that he had been illegally residing in Zimbabwe. He was then declared a "prohibited immigrant" and deported. His wife then applied for an order of mandamus to compel the Immigration Department to issue Samson with a residence permit on the ground of her marriage to Samson arguing that a refusal to issue a permit amounts to an infringement of her constitutional freedom of movement and right not to be expelled from Zimbabwe. The court rejected the application holding that, despite Samson's marriage to the applicant, his presence in Zimbabwe was opposed to the peace, order, good government of Zimbabwe and to its social or material interests. The court held that Samson had defied the laws of Zimbabwe by staying for a period in excess of five years without a valid residence permit and, in doing so, had breached the duty imposed on an alien to observe the laws of his host country and had thereby involved himself in conduct which is incompatible with the good order of the state. He cannot defy the law and call upon the same law for his protection.

28.	These principles still hold true in Solomon Islands today. Applying the principles to the present case, it is clear that Rajapaksha is not immune from deportation (even if married to the claimant) if the state considers that his presence in Solomon Islands is opposed to peace, order and good government, or to the social or material interests of Solomon Islands.

Freedom of movement – section 14(1) Constitution.

29.	However, this case is not about the right of the state to deport Rajapaksha, but about the claimant's freedom of movement as guaranteed under section 14(1) of the Constitution in the event that her husband is required to leave Solomon Islands. Section 14(1) provides as follows:-

"14.- (1) No person shall be deprived of his freedom of movement, and for the purposes of this section the said freedom means the right to move freely throughout Solomon Islands, the right to reside in any part of Solomon Islands, the right to enter Solomon Islands and immunity from expulsion from Solomon Islands.

30.	It is clear that the rights protected under section 14(1) are fourfold, that is, (i) the right to move freely throughout Solomon Islands, (ii) the right to reside in any part of Solomon Islands, (iii) the right to enter and leave Solomon Islands, and (iv) immunity from expulsion from Solomon Islands.

31.	It is those rights which the claimant says would be breached in relation to her if no permit is granted to Rajapaksha. She argues that if Rajapaksha is not issued with a permit and is required to leave, there are two options available to her. The first is to remain in Solomon Islands and let Rajapaksha return to Sri Lanka. This will likely result in the breakup of their marriage. The second is to accompany Rajapaksha out of Solomon Islands, thereby, securing and maintaining their marital relationship. She and Rajapaksha prefer the latter option. The impediment, however, is the alien status of Rajapaksha and the refusal of the Director to issue him with a residence permit. She urges the court to adopt an interpretative approach to section 14(1) of the Constitution that will give her a full measure of her rights and freedoms under that section without causing a breakup of her marriage.

Approach to interpretation of the Constitution.

32.	I think there is force in her argument. A long line of authorities have established the principle that constitutional provisions need to be interpreted differently from other statutory provisions. Such provisions must be interpreted widely, generously and purposively.

33.	In Minister of Home Affairs & Another v Collins MacDonald Fisher & Another, it was said that a constitution is a document sui generis requiring special rules of interpretation. It requires principles of interpretation of its own, suitable to its character without necessary acceptance of all the presumptions that are relevant to legislation of private law. At p. 328, Lord Wilberforce said:

"The provisions protecting human rights and freedoms call for a generous interpretation avoiding what has been called "the austerity of tabulated legalism, suitable to give the individual the full measure of the fundamental rights and freedoms".

34.	A similar view was expressed by Lord Diplock in Thornhill v AG of Trinidad & Tobago where he said:

"The provisions contained within the Fundamental Rights chapter were not described with particularity that would be appropriate to an ordinary Act of Parliament nor are they expressed in words that bear precise meanings as terms of legal art. They are statements of principles of general breadth and generality, expressed in the kind of language more commonly associated with political manifestos or international conventions."

35.	In Attorney General v Whiteman, Lord Wright MR said:

"It is true that a constitution must not be construed in any narrow and pedantic sense. The words used are necessarily general, and their full import and true meaning can often be appreciated when considered, as the years go on, in relation to the vicissitudes of fact which from time to time emerge. It is not that the meaning of the words changes, but the changing circumstances illustrate and illuminate the full import of that meaning."

36.	In Dow v Attorney General, Aguda JA said:

"The constitution is the supreme law of the land and it is meant to serve not only this generation but also of generations not yet born. It cannot be allowed to be a lifeless museum piece; on the other hand the courts must continue to breathe life into it from time to time as the occasion may arise to ensure the health, growth and development of the state through it. ... We must not shy away from the basic fact that whilst a particular construction of a constitutional provision may be able to meet the designs of the society of a certain age such a construction may not meet those of a later age. … I conceive it that the primary duty of the judges is to make the constitution grow and develop in order to meet the wider and larger human society governed by acceptable concept of human dignity. "

37.	On the basis of the interpretative approaches outlined above, it has been said that when determining the validity of statutory restrictions on constitutional rights and freedoms, the court must apply an interpretative approach that serves and protects those rights and freedoms. This will involve interpreting the constitutional provisions generously in favour of giving the individual a full measure of his rights and freedoms and interpreting them strictly or narrowly, as far as the language permits, against any interference with those rights and freedoms. The words 'fundamental', 'basic' or 'constitutional', when used in relation to freedoms and rights, are expressions recognized by the courts to say that the rights or freedoms in question are of particular importance that there is a presumption that Parliament does not intend to abrogate such rights and freedoms.

38.	I agree with those statements. Thus, the question is, would it amount to a deprivation of the claimant's freedom of movement guaranteed under section 14(1) of the Constitution if her husband is compelled to leave Solomon Islands whereby she would have no choice but to accompany her husband out of Solomon Islands in order to secure and maintain the marital relationship?

Marriage – a guide to interpretation.

39.	No one would deny the importance of marriage and the need to maintain marital relationships. As stated by Gubbay CJ, in Rattigan & Others v Chief Immigration Officer of Zimbabwe & Others:-

"Marriage is a juristic act sui generis. It gives rise to a physical, moral and spiritual community of life – a consortium omnis vitae. It obliges the wife and husband to live together for life (more realistically, for so long as the marriage endures) and to confer sexual privileges exclusively upon each other. Conjugal love embraces three components: (i) eros (compassion); philia (companionship); and agape (self-giving brotherly love). The duties of cohabitation, loyalty, fidelity and mutual assistance and support, flow from marital relationship. To live together as spouses in community of life, to afford each other marital privileges, and to be ever faithful are the inherent commands that lie at the very heart of marriage. Marriages are almost invariably entered into by parties who have deep affection for one another and who intend to devote the remainder of their lives together. Although the condition of marriage does not, as a concept of law, make the spouses one flesh – una caro – it none the less embodies the obligations to found a home, to cohabit, to have children and to live together as a family unit. It is the most fundamental institution known to mankind – the first step from barbarism and the true basis of human progress. ... Marriage is one of the basic rights of man, fundamental to our very existence and survival."

40.	That principle still holds true today. It seems to me, therefore, that a claim, as in the present case, by a wife (married to an alien husband) of infringement to her freedom of movement is to be determined in the light of the institution of marriage in so far as she claims that her freedom was circumscribed by disabilities placed on her alien husband. The freedom of movement by the wife is determined by what happens to her husband for in order to secure and maintain the marital relationship she would have to accompany the husband. To prohibit the husband from residing in Solomon Islands, and so disable him from living with his wife in a country of which she is a citizen and to which she owes allegiance, is in effect to undermine and devalue the protection of freedom of movement accorded to the wife as a member of the family unit. The wife has a right to reside in Solomon Islands and has the right to have her husband reside with her in Solomon Islands. In other words, the husband is entitled to reside with his wife in Solomon Islands so long as the husband's residence is not prejudicial to the rights of others or the public interest.

41.	The present case is not one where Mr. Rajapaksha has been accused of any criminal conduct or of any conduct which makes his presence in Solomon Islands opposed to peace, order and good government, or to the social or material interests of Solomon Islands. His status as a "prohibited immigrant" is one which occurred by operation of law on the basis of the cancellation of his residence permit which resulted from his termination as an employee of Taj Mahal. Prior to the Director's letter dated 24 August 2011 requesting Rajapaksha to voluntarily leave Solomon Islands within 14 days, the claimant had written to the Director requesting that a residence permit be issued to Rajapaksha. That request was not granted.

Decision - refusal to grant permit unconstitutional.

42.	Giving section 14(1) of the Constitution a generous and purposive interpretative approach as described above, I think there can be no other conclusion than that to prohibit an alien husband from residing in Solomon Islands and so disabling him from living with his wife in the country which the wife is a citizen and to which she owes allegiance is, in effect, to undermine and devalue the protection of freedom of movement accorded to a wife as a member of her family unit.

43.	In my view the refusal by the Director to issue a residence permit to Rajapaksha and the request that Rajapaksha leave Solomon Islands within 14 days contravenes the claimant's freedom of movement guaranteed under section 14(1) of the Constitution.

Application for mandamus.

44.	Unfortunately, that is not the end of the matter for the claimant has also sought an order of mandamus to compel the Director to issue a residence permit to Rajapaksha. The defendant opposes the granting of mandamus. In his submission, counsel for the defendant says that I should not accept the request. He submits that to do so this court would be changing the law.

45.	I understand the defendant's submission to be that the Immigration Act has conferred upon the Director a discretionary power to grant or not to grant permits and therefore the court has no power to direct the Director how to exercise that discretion.

46.	With respect, I do not agree with that submission. The law on this issue is clear. The applicable principle is that as expounded in M v Home Office where Lord Woolf who delivered the judgment of the court, and with who the other Law Lords agree, said at p. 29:-

"... where a duty was imposed by statute for the benefit of the public upon a particular Minister, so that he was under a duty to perform that duty in his official capacity, then orders of prohibition and mandamus were granted regularly against the Minister".

47.	That principle was approved in Murphy v Attorney General. In the present case, the Director has been given a complete discretion under section 8 (as read with section 12) of the Immigration Act whether or not to issue permits to foreigners who enter the country. Such discretion, however, must be exercised according to law. Where the discretion is not exercised according to law, it becomes an abuse of discretion and mandamus will lie to ensure that the discretion is exercised according to law.

Mandamus granted.

48.	In the present case, I find that the refusal by the Director to issue a residence permit to Rajapaksha and the request that he leave Solomon Islands within 14 days contravene the claimant's freedom of movement guaranteed under section 14(1) of the Constitution. That means the Director's exercise of discretion in refusing to issue a permit to Rajapaksha and requiring him to leave Solomon Islands within 14 days is not according to law. The result is that mandamus will lie to ensure that the Director issues a permit to Rajapaksha.

Orders.

49.	The orders of the court are:-

[1]	Grant a declaration that the refusal by the Director of Immigration to issue a residence permit to Rajapaksha and the request that he leave Solomon Islands within 14 days contravenes the claimant's freedom of movement guaranteed under section 14(1) of the Constitution;

[2]	Grant order of mandamus to the Director of Immigration to issue a residence permit to Rajapaksha within 30 days from the date hereof;

[3]	The 1st and 2nd defendants shall pay the costs of the claimant on standard basis to be taxed if not agreed.

THE COURT

J. Apaniai
Puisne Judge