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Emery v Attorney General [2026] SBHC 24; HCSI-CC 146 of 2020 (10 March 2026)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 146 of 2020

BETWEEN:

MARK CHRISTOPHER EMERY
Claimant

AND:

ATTORNEY GENERAL
(Representing the Director of Immigration)
First Defendant

AND:

ATTORNEY GENERAL
(Representing the Minister for Commerce, Industries, Labour and Immigration)
Second Defendant

AND:

ATTORNEY GENERAL
Third Defendant

Date of Hearing: 21 November 2025
Date of Judgment: 10 March 2026

Counsel:
Mr. J Taupongi for the Claimant
Mr. B Jamakolo for the First, Second and Third Defendant

Lawry; PJ

JUDGMENT

PROCEDURAL HISTORY

1. These proceedings were commenced by Claim filed on 23 March 2020, by which the Claimant challenges the cancellation of his Long-Term Employment Visa by the Director of Immigration and the contemporaneous declaration of the Minister that the cancellation decision was non-reviewable on national interest grounds. The Claim seeks declaratory relief, orders quashing both decisions, and consequential relief restraining the Claimant’s removal from Solomon Islands.
2. The impugned decisions were made on 4 March 2020. The cancellation letter records that the Director cancelled the Claimant’s visa pursuant to s 21 of the Immigration Act 2012, and that the decision was taken following the advice of the Minister. On the same date, the Minister issued a written declaration under s 88 stating that review of the decision would be contrary to the national interest.
3. Shortly after the Claim was filed, the Court granted interim relief ex parte on 23 March 2020 staying execution of the cancellation decision and restraining deportation pending determination of the proceedings. Those interim orders had the practical effect of permitting the Claimant to remain in Solomon Islands while the legality of the impugned decisions was litigated.
4. The proceedings thereafter progressed in the ordinary course of judicial review litigation. Sworn evidence was filed on behalf of both parties addressing the Claimant’s immigration status, the events in Western Province said to justify cancellation, and the administrative process leading to the impugned decisions.
5. The matter ultimately proceeded to hearing on that affidavit evidence supplemented by oral testimony from witnesses called by both parties, including officers of the Immigration Department and a representative from the Companies Registry. No complete transcript of the oral evidence was produced, although the substance of that evidence was recorded in counsel’s notes and reflected in the parties’ written submissions.
6. Prior to the hearing, the parties filed a document entitled Agreed Facts and Issues, filed on the 20 November 2024. That document narrowed the matters in dispute. The Agreed Facts also recorded subsequent developments relevant to the Claimant’s presence in Solomon Islands pending resolution of the proceedings, including the grant of a special purpose visa and later renewal of his work permit. While those matters did not determine the legality of the impugned decisions, they formed part of the procedural context in which the litigation was conducted.

ISSUES FOR DETERMINATION

7. Although the parties’ arguments were framed in different ways across the pleadings and submissions, the questions which ultimately fall for determination may be stated as follows.
8. First, whether the factual circumstances relied upon by the Defendants were capable of constituting a breach of the conditions attaching to the Claimant’s long-term employment visa, and whether such a breach was established on the evidence.
9. Secondly, whether the Director of Immigration lawfully exercised the power of cancellation under s 21 of the Immigration Act 2012. This requires consideration not only of whether a statutory ground existed, but also whether the Director exercised the discretion independently on the material before him or whether the decision was dictated, fettered, or otherwise influenced by ministerial intervention.
10. Thirdly, whether the Minister lawfully exercised the power under s 88 of the Act to declare the decision non-reviewable on national interest grounds, including whether that power was invoked in accordance with its statutory purpose and on a rational evidentiary foundation.
11. Fourthly, whether the cancellation decision, the Minister’s declaration, or both were affected by denial of procedural fairness or by reliance on matters not properly established on the evidence.
12. These issues overlap to some extent. In particular, the question whether a breach of visa conditions was established bears directly upon the legality of both the Director’s exercise of power and the Minister’s invocation of the national interest provision. It is therefore convenient to consider the factual foundation first before turning to the legality of the respective decisions.

EVIDENCE

13. The evidence before the Court consisted of sworn statements, documentary exhibits annexed to those statements and oral testimony given by witnesses at trial. The documentary and oral material are closely intertwined, as the oral evidence largely concerned the interpretation, reliability, and legal significance of the documentary record and of the administrative process reflected in it.
14. The Claimant relied upon sworn statements dated 23 March 2020 and September 2024. In those statements he deposed to his immigration status, his employment with Western Star Pty Ltd, and his involvement in the enforcement of a High Court possession order in Western Province. He asserted that his role was confined to assisting in the execution of that order, denied undertaking employment for any person other than his sponsor, and denied engaging in activities outside the scope of his visa. He further stated that he was not notified of any allegation or given an opportunity to respond prior to cancellation of his visa.
15. The Defendants relied primarily upon the sworn statements of Mr Arnold Horesi and Mr Peter Talisman Poqebatu, officers of the Immigration Department. Mr Horesi’s statement set out the Department’s chronology of events, including receipt of a complaint from Western Province, ministerial involvement in directing investigation, preparation of an investigation report, and the subsequent cancellation of the visa and declaration of non-reviewability.
16. Mr Poqebatu’s statements addressed both the investigation process and the Claimant’s immigration status following cancellation. His evidence confirmed that the investigation arose from a complaint and that a minute was prepared recording the findings and recommended course of action.
17. Central to the documentary record is the investigation minute prepared within the Immigration Enforcement Unit in February 2020. That document records the circumstances of the Claimant’s involvement in Western Province and, importantly, recommends that a show cause notice be issued to him and that cancellation be withheld pending his response.
18. The minute is supported by the original document in evidence, including contemporaneous handwritten annotations. The document therefore serves not only as a record of the investigator’s assessment of the complaint material but also as a record of the internal administrative process and its subsequent development.
19. In particular, the minute recommends that the Claimant be served with a 14-day show cause notice and that cancellation action be withheld pending his response. The recommendation reflects a staged decision-making process in which the Claimant’s explanation would be considered before any final adverse decision was taken.
20. The same document bears handwritten annotations directing or urging a more immediate and decisive outcome. While the minute itself contemplates a show cause process, the annotations reflect an escalated approach, including directions in substance to proceed to cancellation and removal. Those annotations are material to the Court’s assessment of how, and at what level, the administrative process moved from investigation to immediate cancellation.
21. The subsequent cancellation letter dated 4 March 2020 records that the visa was cancelled immediately and expressly states that the decision was taken following the advice of the Minister.
22. Read together, the investigation minute (with its recommendation to issue a show cause notice and withhold cancellation) and the cancellation letter (recording immediate cancellation following ministerial advice) reveal a marked departure from the investigative recommendation. That departure is central to the Court’s assessment of whether the Director acted on a proper evidentiary foundation, whether procedural fairness was afforded, and whether the Director’s discretion was exercised independently.
23. That documentary contrast also underscores a further difficulty: the material then driving the process was not shown to have been tested by a complete investigative inquiry, and the decision-makers were not shown to have had the benefit of a fair and accurate account of the Claimant’s position before the course shifted to immediate cancellation. In that sense, the record permits the possibility that the Minister’s involvement (and the Director’s subsequent action) proceeded on an incomplete or inaccurate factual footing.
24. On the same date, the Minister issued a written declaration stating that review of the cancellation decision would be contrary to the national interest, referring to the Claimant’s involvement in enforcement proceedings in Western Province.
25. The declaration was issued contemporaneously with the cancellation decision and relies upon the same underlying factual narrative. The proximity in time, and the overlap in the stated factual foundation, are relevant to the Court’s evaluation of whether the statutory sequence contemplated by the Act was followed and whether the exceptional power under s 88 was invoked on a rational basis.
26. Police correspondence produced by the Claimant provides contextual material concerning the events in Western Province. That correspondence records that the enforcement of the possession order was executed by the Deputy Sheriff and police pursuant to the Court’s order and characterises the dispute as a civil matter.
27. The documentary record was tested through cross-examination of the witnesses. In cross-examination, Mr Poqebatu accepted that his investigation was conducted largely from his office in Honiara based on documents received and that he did not personally interview witnesses in Western Province. He acknowledged that other officers may have conducted enquiries there but was unable to produce any written report from them. He further accepted that the minute he prepared identified only one substantive finding, that the Claimant had been involved in “domestic affairs” in Western Province, and that other allegations later mentioned in his sworn statement were not contained in the original investigative findings.
28. In circumstances where the investigation was accepted to have been undertaken largely from Honiara, without identified first-hand interviews in Western Province and without production of any contemporaneous field report, the Court cannot be satisfied that the allegations said to found the decision-making were verified. That evidentiary deficiency bears directly on whether inaccurate or overstated allegations may have found their way into the material ultimately relied upon at decision-maker level.
29. He also confirmed that the minute recommended a show cause notice and accepted that no such notice was issued prior to cancellation.
30. The Deputy Registrar of Companies gave oral evidence concerning the corporate registration of Western Star Pty Ltd. His evidence focused on the significance of the company’s recorded business sector and whether that classification limited the activities of the company. While he maintained that a company should operate within its registered sector, his evidence did not establish that the Claimant’s activities necessarily constituted employment outside the scope of his sponsorship.
31. In cross-examination, the Deputy Registrar accepted that the foreign investment approval issued to Western Star Pty Ltd listed a number of permitted activity divisions, including security and investigation activities. While he maintained that the company ultimately registered in the tourism sector, he was unable to identify any statutory provision or regulatory consequence rendering activities outside that sector unlawful, nor any instance in which a company had been deregistered on that basis. His evidence therefore did not establish that the Claimant’s involvement in enforcement of a court order necessarily constituted employment outside the scope of his sponsorship or visa conditions.
32. The oral evidence therefore served primarily to test the reliability of the investigation, the completeness of the factual basis relied upon by the Department, and the inference that the Claimant’s activities amounted to a breach of visa conditions.
33. Taken as a whole, the evidentiary record demonstrates that the administrative decision-making process was driven principally by documentary material generated within the Department, that the investigation relied largely on complaints and limited enquiry, and that the procedural step identified within the Department itself, the issuing of a show cause notice, was not implemented.
34. It also follows that, to the extent serious allegations were communicated upward within the Department, the Court has no adequate basis to conclude they were the product of a properly tested investigative process. This is not to make any finding as to the subjective state of mind of the Minister or the Director; rather, it identifies a structural risk that decision-makers were required to act on allegations that had not been properly checked against primary material or the Claimant’s account.

AGREED FACTS

35. The parties filed an “Agreed Facts and Issues” document, file-stamped 20 November 2024, which sets out a number of matters of background and chronology that were not in dispute and, in doing so, narrows the issues requiring determination.

The Claimant’s identity, immigration status, and employment authorisations

36. It is agreed that the Claimant is an Australian citizen. It is also agreed that, prior to the impugned cancellation, the Claimant held a Long-Term Employment Visa No. 2329/15, which was renewed on 13 November 2019 and was due to expire on 10 November 2021. In addition, it is agreed that the Claimant held a Work Permit No. 04103/2019, which was renewed on 10 November 2019 and was likewise due to expire on 10 November 2021.
37. These agreed matters establish that, as at November 2019 and into early 2020, the Claimant held facially valid permissions to reside and work in Solomon Islands, subject to compliance with any conditions attaching to those permissions (a matter that becomes relevant to Issue 1).

The Western Province land litigation and enforcement activity (CC 409/15)

38. A substantial part of the factual context concerns enforcement proceedings in the High Court, Civil Case No. 409 of 2015, relating to a parcel of land in Gizo described in the Agreed Facts as Parcel 97-005-10. The Agreed Facts record that in CC 409/15:
    1. a default judgment was entered on 2 February 2016; and
    2. an enforcement order was made on 15 June 2016 authorising the Sheriff to provide vacant possession to the successful party (including power to remove structures and occupants).
39. It is further agreed that the Sheriff later attempted enforcement but was unable to complete it, and that a new enforcement order was then made on 21 January 2020, again directing vacant possession and authorising the removal of persons and structures, with police assistance if required.
40. The Agreed Facts then record that, following this renewed enforcement order:
    1. the Deputy Sheriff was authorised to enforce the order;
    2. the Claimant served the order on the Police Commander;
    100. the enforcement was carried out over the period 19 to 26 February 2020; and

Vacant possession was delivered on 28 February 2020.

41. The Court notes one apparent date anomaly in the Agreed Facts: the service of the enforcement order on the Police Commander is recorded as occurring on 26 January 2024, which does not sit comfortably with the agreed sequence of enforcement activity occurring in February 2020 and with the visa cancellation on 4 March 2020.
42. No party suggested that the year “2024” formed part of the true chronology. I treat it as an evident typographical error within an otherwise coherent agreed timeline. The precise date of service is not, in any event, determinative of the legal issues, but the agreed enforcement sequence and timing are material as background to the cancellation decision.

The cancellation decision and the Minister’s “non-reviewable” declaration

43. The parties agree that on 4 March 2020:
    1. the Director of Immigration cancelled the Claimant’s long-term employment visa pursuant to s 21(1)(a) of the Immigration Act 2012; and
    2. the Minister declared the decision non-reviewable pursuant to s 88 (and the Agreed Facts record the matter as engaging s 90(2) as well).
44. These agreed matters fix the date of the impugned decisions and the statutory provisions said to have been invoked, even though the parties dispute whether those powers were lawfully exercised.
45. It is also agreed that these proceedings were filed on 23 March 2020 and that, on that date, the Court (Higgins J) made interim orders (ex parte) staying execution of the cancellation decision and restraining deportation pending further order or judgment.

Subsequent immigration status arrangements (post-cancellation)

46. The Agreed Facts further record subsequent immigration arrangements relevant to the Claimant’s presence in Solomon Islands pending litigation.
47. It is agreed that the Claimant was issued with a Special Purpose (Court) Visa on 11 August 2023, expiring on 10 August 2024, and that no further special purpose visa application had been made as at the time the Agreed Facts were filed.
48. It is also agreed that the Claimant’s work permit was renewed on 10 November 2023 and was valid until 10 November 2025.
49. (Those matters were the subject of additional evidence and argument as to their practical effect, but their existence and dates are not in dispute.)

Matters treated as effectively undisputed though not framed as “agreed”

50. Although not all background matters were expressed in the Agreed Facts as “agreed”, the documentary record and the manner in which the trial was conducted mean that certain further propositions are not genuinely controversial and may be treated as common ground for the purposes of structuring the judgment, namely:
    1. the cancellation and non-reviewability decisions were made in the immediate aftermath of the February 2020 enforcement activity in Western Province; and
    2. the parties’ competing cases focus on whether the Claimant’s involvement in that enforcement activity amounted to conduct inconsistent with visa conditions and whether the statutory decision-makers acted lawfully in consequence.

MATTERS NOT PROVED / EVIDENTIARY GAPS

51. While the parties agreed a substantial background chronology, the evidentiary record reveals a number of important gaps and uncertainties bearing directly on the legality of the cancellation decision and the reliability of the investigation upon which it was said to rest.

Absence of direct evidence of employment outside sponsorship

52. he Defendants’ case rests centrally on the proposition that the Claimant’s involvement in Western Province amounted to employment outside the scope of his authorised sponsorship or otherwise constituted a breach of visa conditions.
53. However, the evidence does not disclose any direct proof of an alternative employment relationship. No contract, payment record, sponsorship document, or other primary evidence was produced demonstrating that the Claimant was employed by any person other than his approved sponsor. The allegation is advanced largely by inference from his presence and involvement in enforcement activity rather than by evidence of employment or remuneration.
54. This absence of primary evidence is material, given that the statutory power to cancel the visa depended upon proof of non-compliance with visa conditions.

Absence of witness evidence from the Western Province investigation

55. The Immigration Department’s investigation was said to have involved enquiries in Western Province conducted by another officer. In cross-examination, Mr Poqebatu accepted that he conducted the investigation largely from his office in Honiara based on documents received. He stated that another officer had undertaken enquiries in Gizo but was unable to produce any written report from that officer setting out the findings of those enquiries.
56. No sworn statement was produced from that officer, and no contemporaneous report of any interviews in Western Province was tendered. The absence of this material is significant because the alleged breach of visa conditions depended upon factual circumstances occurring in Western Province, yet the Court has not been provided with primary evidence from those said to have investigated those events on the ground.

Limited scope of the investigation findings

57. The investigation minute prepared within the Immigration Enforcement Unit identifies only one substantive finding, namely that the Claimant had been involved in “domestic affairs” in Western Province. In cross-examination, Mr Poqebatu accepted that other allegations later referred to in his sworn statement, including matters relating to hospitality operations and other activities, were not contained in the original investigative findings and were not part of the minute he prepared.
58. This discrepancy suggests that the factual basis for the cancellation decision was narrower than later asserted and that subsequent justifications relied on material not contained in the original investigation.
59. The significance of that discrepancy is not confined to forensic weight. It means that allegations later advanced in justification of the impugned decisions may not have been part of the verified investigative outcome at all. To the extent those later allegations were conveyed as established matters to the Minister and/or the Director, they carried an obvious capacity to mislead as to the true position.

Absence of the recommended show-cause process

60. The investigation minute recommended that a show-cause notice be issued to the Claimant and that cancellation be withheld pending his response. It is common ground that no such notice was issued.
61. The documentary record contains no show-cause notice, no invitation to respond, no proof of service of any such notice, and no record of any consideration of a response from the Claimant prior to cancellation.
62. Nor is there any document demonstrating that a conscious decision was made to dispense with the recommended show-cause process on lawful grounds, such as urgency justified by an express statutory exception. In the absence of such material, the record is silent as to why the safeguard identified by the investigators was not implemented.
63. A show-cause process would ordinarily serve an important corrective function: it requires allegations to be particularised, tested against the person’s response, and either confirmed, refined, or abandoned. Its absence here increases the likelihood that allegations remained untested and may have been presented to the decision-makers in a form that did not reflect the true position.
64. The handwritten annotations on the investigation minute suggest escalation toward immediate cancellation and removal. However, the record does not identify with precision the author(s) of all annotations, the capacity in which they were made, or the documentary pathway by which those annotations were translated into the cancellation decision. That uncertainty bears on the weight to be placed on the claim that the cancellation was the product of an independent Director-level assessment.

Uncertainty as to the evidential basis of the ministerial decision

65. The documentary record shows that the cancellation decision was taken “following the advice of the Minister”, and that the Minister’s declaration relied on the Claimant’s involvement in Western Province enforcement events.
66. However, the evidence does not disclose the precise material placed before the Minister at the time the decision was made. No comprehensive ministerial brief, submission, or evidentiary dossier was produced demonstrating the factual material relied upon in forming the national interest assessment. This absence makes it difficult to determine whether the Minister’s decision rested on verified evidence, untested allegations, or considerations external to the statutory criteria.
67. In those circumstances, and given the investigative gaps already identified, it is not possible to exclude the real possibility that the Minister was acted upon by allegations that had not been properly investigated or were inaccurately conveyed. Had the verified position been put before the Minister, the statutory assessment under s 88 may not have been approached on the same footing.
68. The absence of a ministerial brief is particularly significant given that the investigative recommendation contemplated a show-cause process and withholding cancellation. Where the record shows a move from that recommendation to immediate cancellation and a contemporaneous national-interest declaration, the Court would ordinarily expect to see the material put before the Minister and the basis on which the exceptional mechanism under s 88 was considered necessary. The evidentiary record does not supply that material.
69. The consequence is that the Court is not in a position to make any positive finding that the Minister was furnished with a balanced and accurate evidentiary account, including the investigators’ own recommendation to withhold cancellation pending a response. The absence of that material bears directly on the legality of the process, and also explains why the Court should be cautious about attributing the error to anything other than the defective informational foundation on which the decision-making proceeded.

Limited contemporaneous evidentiary foundation

70. Taken as a whole, the investigation relied principally upon:
    1. a complaint originating in Western Province;
    2. a small number of supporting documents; and
    100. limited enquiry conducted from Honiara.
71. The record does not reveal a structured investigative process involving witness interviews, evidentiary assessment, or a reasoned evaluation of competing accounts before the cancellation decision was made. This evidentiary context is material to the Court’s evaluation of whether the statutory powers were exercised on a proper factual basis.
72. Where a decision of this seriousness is taken on the back of complaint material and limited enquiry, without the discipline of witness interviews, primary evidence and a process allowing the affected person to respond, there is an appreciable risk that inaccurate allegations will be treated as established facts. That risk is not theoretical in this record, given the later emergence of allegations not contained in the original investigation minute.
73. These gaps do not merely affect the weight of the evidence. They bear directly on whether the statutory preconditions for the exercise of power were established and whether the decision-making process itself was lawful.

FINDINGS OF FACT

74. Having considered the entirety of the evidence, including the agreed chronology, the documentary record, the sworn statements, and the oral testimony testing that material, I make the following findings of fact.
75. The Claimant’s status and activities prior to cancellation:
    1. I find that, as at early 2020, the Claimant held a valid long-term employment visa and work permit authorising him to reside and work in Solomon Islands subject to compliance with visa conditions. Those matters are established by the Agreed Facts and are not in dispute.
    2. I further find that the Claimant was present in Western Province in February 2020 in connection with the enforcement of a High Court order for vacant possession in Civil Case No. 409 of 2015. That enforcement activity and its timing are recorded in the Agreed Facts and were not seriously contested at trial.
    100. The critical factual question is whether the Claimant’s involvement in that enforcement activity constituted employment outside the scope of his sponsorship or otherwise a breach of visa conditions.
    4. On the evidence before the Court, I am not satisfied that it did.
    5. The Defendants’ case on this issue rests largely on inference rather than direct proof. No documentary evidence was produced demonstrating that the Claimant was employed by any person other than his approved sponsor. There is no evidence of remuneration, contractual engagement, or formal sponsorship by another entity.
    6. The oral evidence did not fill that gap. The Deputy Registrar of Companies’ testimony addressed the classification of the sponsoring company’s business sector but did not establish that the Claimant himself was engaged in employment outside his sponsorship.
    7. I therefore find that, although the Claimant’s involvement in the enforcement proceedings is established, the evidentiary record does not demonstrate that his conduct amounted to a breach of visa conditions.
76. The nature and scope of the immigration investigation:
    1. I find that the investigation leading to the cancellation decision was initiated following a complaint originating in Western Province and was conducted primarily within the Immigration Department in Honiara.
    2. Mr Poqebatu accepted in cross-examination that his investigation was conducted largely from his office on the basis of documents received and that he did not personally interview witnesses in Western Province. He indicated that enquiries may have been undertaken by another officer, but no written report from that officer was produced and no sworn statement from that officer was tendered.
    100. I therefore find that the investigation relied on limited documentary material and did not involve comprehensive first-hand inquiry into the events said to justify cancellation.
    4. I further find that the internal investigation minute identified only one substantive finding, namely that the Claimant had been involved in “domestic affairs” in Western Province. That finding did not itself determine whether visa conditions had been breached.
77. The recommended procedural course:
    1. I find that the investigation minute expressly recommended that a show-cause notice be issued to the Claimant and that any cancellation decision be withheld pending his response.
    2. That recommendation demonstrates that, at the investigative stage, the Department did not treat cancellation as automatic or inevitable and recognised that the Claimant should be afforded an opportunity to respond.
    100. I find that this recommended procedural step was not implemented. No show-cause notice was issued and the Claimant was not invited to respond before the cancellation decision was made.
    4. I further find that the contemporaneous handwritten annotations on the investigation minute reflect a shift toward an immediate cancellation outcome. Those annotations are consistent with a process in which the investigative recommendation was overtaken by a directive or instruction to cancel and remove.
    5. Although the evidence does not permit a complete reconstruction of every step in the internal decision pathway, the documentary sequence, recommendation to show cause and withhold cancellation, followed by immediate cancellation “following the advice of the Minister”, and a same-day non-reviewability declaration, supports the inference that the outcome was reached without implementing the recommended safeguard and without allowing the Claimant’s response to be considered.
78. The cancellation decision:
    1. I find that the Director cancelled the Claimant’s visa on 4 March 2020 and that the cancellation letter expressly records that the decision was taken following the advice of the Minister.
    2. I find that the combination of ministerial involvement preceding cancellation, the absence of the recommended show-cause process, and the immediate implementation of cancellation indicates that the decision was reached after ministerial involvement and without any documented reconsideration of the investigator’s recommendation by the Director.
    100. Rather, I find that the documentary sequence demonstrates that ministerial involvement preceded the cancellation and that the investigator’s recommended process was not implemented before the decision was made.
79. The Minister’s declaration:
    1. I find that the Minister’s declaration that the decision was non-reviewable was made on the same date and relied on the Claimant’s involvement in the Western Province enforcement events as its foundation.
    2. The evidentiary record does not disclose the full material placed before the Minister when making that determination. No comprehensive ministerial brief or evidentiary dossier was produced.
    100. I therefore find that the Minister’s declaration was based on the same limited factual foundation as the cancellation decision itself.
80. Put differently, the Court’s concern is not that the Minister necessarily acted unreasonably on the material actually provided, but that the material was not shown to be the product of a proper investigative process and was not shown to present the verified position. The absence of a demonstrated evidentiary foundation means that the Minister’s decision-making was exposed to the risk of factual error.
81. Opportunity to respond:
    1. I find that no show-cause notice was issued to the Claimant before cancellation.
    2. I find that the Claimant was not informed, before 4 March 2020, of the substance of the allegations relied upon to justify cancellation.
    100. I find that the Claimant was not invited to provide any response, and no response from him was considered, before the cancellation decision was made.

APPLICABLE LAW
The statutory framework

82. The impugned decisions in this matter were made under the Immigration Act 2012. The Act establishes a scheme regulating entry, residence, and employment of non-citizens in Solomon Islands and allocates distinct functions to the Director of Immigration and to the Minister.
83. Two statutory powers are directly engaged in this case:
    1. the power of the Director to cancel a visa; and
    2. the power of the Minister to declare a decision non-reviewable on national interest grounds.
84. Each power must be exercised within the limits imposed by the Act and in accordance with the ordinary principles governing the exercise of statutory discretions.

The Director’s power to cancel a visa

85. Section 21 of the Immigration Act provides the Director with power to cancel a visa in specified circumstances. Relevantly, s 21(1) empowers the Director to cancel a visa where the Director is satisfied that grounds exist under the Act or regulations to justify cancellation, including where the visa holder has failed to comply with conditions attaching to the visa.
86. The section confers a discretionary power. It does not mandate cancellation upon mere allegation of breach. The Director must be satisfied on a proper factual basis that the statutory preconditions are met before exercising the power.
87. Because the section confers the power on the Director, it follows that the Director must exercise the discretion personally and independently. While the Director may obtain advice or information from others, the decision must ultimately be the Director’s own. A decision made because another authority requires or directs it is not a lawful exercise of the statutory power.
88. Further, nothing in s 21 excludes the operation of procedural fairness. In the absence of clear statutory language to the contrary, a person whose visa is liable to cancellation is ordinarily entitled to be informed of the substance of the allegation against him and given a reasonable opportunity to respond before an adverse decision is taken. This requirement is particularly strong where the decision exposes the person to removal from the country and loss of employment.
89. The Act and accompanying regulations provide that long-term employment visas are granted subject to specified conditions, including that the holder work only for the approved sponsor and in accordance with the terms of the approval.
90. Where cancellation is sought on the basis of breach of such conditions, the Director must be satisfied, on evidence, that the visa holder has in fact engaged in conduct inconsistent with those conditions. Mere suspicion or inference unsupported by primary evidence will not suffice to ground a lawful cancellation decision.

The Minister’s power to declare a decision non-reviewable

91. The Minister’s declaration in this case was said to be made pursuant to s 88 of the Immigration Act, read together with the review provisions in s 90. Section 88 empowers the Minister to declare that a decision is not reviewable where the Minister considers that review would be contrary to the national interest. The provision operates as an exceptional mechanism permitting departure from the ordinary statutory framework of review.
92. Because s 88 removes a safeguard otherwise available to persons affected by administrative decisions, it must be construed and applied with care. The power is not at large. The Minister must genuinely address the statutory criterion, whether review would be contrary to the national interest, and must do so on the basis of material capable of rationally supporting such a conclusion.
93. Although SMM Solomon Ltd v Axiom KB Ltd [2016] SBCA 1 arose in a different statutory context, it is directly applicable here because the Court of Appeal there articulated principles of statutory construction and procedural fairness of general application to Solomon Islands legislation affecting rights and interests. In particular, the Court held that when interpreting provisions said to remove or limit fairness, courts should not proceed by rigid reliance on inclusio unius or by inferring exclusion from silence; rather, if Parliament intends to limit or remove rights, that intention must be stated clearly and interpretation proceeds on the assumption Parliament intends to act fairly.
94. In that same analysis, the Court of Appeal rejected the “reversed” reasoning that asks whether Parliament has sufficiently revealed an intention not to exclude procedural fairness. The correct inquiry is whether the legislature has sufficiently revealed an intention to exclude fairness.
95. 86. The Court of Appeal further proceeded on the footing that persons directly affected by an adverse public decision may reasonably expect procedural fairness, and that while fairness may be excluded by statute, exclusion requires clear indication.
96. Those principles bear with particular force upon s 88, because it removes the ordinary avenue of review: absent unmistakable statutory language, the Court will not lightly construe a power as authorising decision-making that is immune from ordinary fairness requirements.

Relationship between the Director’s and Minister’s powers

97. The Immigration Act establishes a structured allocation of functions between the Director and the Minister. The primary administrative power to grant, refuse, or cancel visas is conferred on the Director, while the Minister’s role arises only in relation to the availability of review of such decisions.
98. This allocation reflects a deliberate statutory sequence: first, the Director must determine whether the statutory grounds for cancellation are satisfied; only thereafter may the Minister consider whether, for reasons of national interest, the decision should be insulated from review. Statutory powers must be exercised within the scheme enacted by Parliament and that administrative decision-making must occur within the structure the legislation establishes.
99. Where ministerial intervention precedes or effectively determines the Director’s exercise of power, the statutory sequence is inverted. The Director’s function is no longer exercised independently but becomes derivative of ministerial will. Such a process is inconsistent with the legislative allocation of authority and cannot constitute a lawful exercise of the Director’s statutory discretion.
100. The statutory design therefore requires not merely that the Director be the nominal decision-maker, but that the Director reach the cancellation decision independently on the material before him. Ministerial involvement that dictates the outcome, rather than addressing reviewability after the event, is incompatible with that design.

Procedural fairness

101. Although The Immigration Act 2012 confers significant discretionary powers affecting a person’s right to remain and work in Solomon Islands. The Act contains no express provision excluding the application of the common law requirements of fairness to the exercise of the Director’s cancellation power (or to the Minister’s exceptional power to preclude review).
102. The Court of Appeal has reaffirmed that the implication of procedural fairness into a statutory power is a principle of construction: “Parliament is not to be presumed to act unfairly; the courts will imply into the statutory provision a rule that the principles of natural justice should be applied.”
103. The same approach is reflected in the acceptance of Kioa v West (that the “justice of the common law will supply the omission of the legislature”), and in Pierson, that even wide statutory words are read as limited by the presumption that fairness applies unless clearly displaced.
104. The Court of Appeal also cautioned against reasoning from statutory silence or by rigid reliance upon inclusio unius. Where Parliament intends to limit or remove a citizen’s rights, “that intention must be stated clearly”, and interpretation proceeds on the assumption that Parliament “always intends to, and will, act fairly.”
105. Critically, the Court of Appeal rejected the “reversed” approach that asks whether the legislature has sufficiently revealed an intention not to exclude fairness. The correct inquiry is whether the legislature has sufficiently revealed an intention to exclude it. In assessing exclusion, indirect references, uncertain inferences, or equivocal considerations are not enough.
106. In that light, and absent clear statutory language to the contrary, a person exposed to an adverse decision of this kind is ordinarily entitled to be informed of the substance of what is alleged and to be given a reasonable opportunity to respond before a final decision is made. The strength of the requirement is intensified where the consequences may include loss of lawful status, employment and removal.
107. I therefore proceed on the basis that, unless the Immigration Act clearly displaces it (which it does not), the exercise of the cancellation power under s 21 (and the exceptional s 88 power) is conditioned by the ordinary requirements of procedural fairness, including prior notice and a meaningful opportunity to be heard.

Summary of legal principles

108. From the structure of the Immigration Act 2012, read in light of settled principles governing the exercise of statutory discretions, the following propositions emerge:
     1. The Director’s power under s 21 is conditioned upon satisfaction, on a proper evidentiary foundation, that statutory grounds for cancellation exist.
     2. Because the Act confers that power upon the Director, the discretion must be exercised independently.
     100. In the absence of express statutory exclusion, the exercise of the cancellation power is subject to the requirements of procedural fairness, which ordinarily include notice of the substance of the allegations and a reasonable opportunity to respond before a final adverse decision is made.
     4. The Minister’s function under s 88 is confined to determining whether a decision should be subject to review. It does not authorise the Minister to make, dictate, or effectively determine the underlying cancellation decision itself.
     5. declaration of non-reviewability under s 88 is exceptional in character and must therefore rest upon a genuine consideration of the statutory criterion, whether review would be contrary to the national interest, supported by material capable of rationally sustaining that conclusion.
109. These principles provide the legal framework within which the impugned decisions must be assessed.

APPLICATION OF LAW TO FACTS
Whether the Claimant breached the conditions of his long-term employment visa

110. The Defendants seek to justify cancellation under s 21 of the Immigration Act on the basis that the Claimant’s conduct in Western Province constituted employment outside the scope of his authorised sponsorship or otherwise a breach of visa conditions.
111. The evidence establishes, and it is not disputed, that the Claimant was present in Western Province in February 2020 and that he was involved in the execution of a High Court order for vacant possession. Those matters form part of the agreed chronology.
112. The statutory question, however, is not whether the Claimant was present or involved in enforcement activity, but whether that involvement amounted to employment or conduct inconsistent with the conditions of his visa. On that question the evidentiary record is notably limited.
113. No documentary evidence was produced demonstrating that the Claimant entered into employment with any person other than his approved sponsor. There is no evidence of remuneration, contractual engagement or alternative sponsorship. The case advanced by the Defendants rests largely on inference drawn from the Claimant’s presence and activities in Western Province.
114. The oral evidence does not materially strengthen that inference. The Deputy Registrar of Companies gave evidence concerning the classification of Western Star Pte Ltd’s business sector and the significance of the sector recorded at incorporation. That evidence did not establish that the Claimant himself undertook employment outside the scope of his sponsorship, nor that participation in enforcement of a court order necessarily constituted unlawful employment. Nor did the evidence concerning the sponsoring company’s registered business sector establish that participation in enforcement activity was inconsistent with the Claimant’s authorised employment.
115. On the findings made, the Court is not satisfied that the Claimant breached the conditions of his visa. The statutory precondition for cancellation under s 21 was therefore not established.

Whether the Director lawfully exercised the cancellation power under s 21

116. Even if the evidence had been capable of supporting an inference of breach, the legality of the cancellation decision depends not only on the existence of a possible ground but on whether the statutory power was exercised in accordance with the requirements of the Act and the principles governing administrative decision-making.
117. The investigation minute prepared within the Immigration Enforcement Unit is central in this regard. That document records the relevant events and expressly recommends that a show-cause notice be issued and that any cancellation decision be withheld pending the Claimant’s response.
118. That recommendation demonstrates that, at the investigative stage, the Department did not regard the breach as established or inevitable. Rather, the investigators recognised that the allegations required clarification and that the Claimant’s explanation should be considered before any final decision was made.
119. No such process occurred. On the findings made, the visa was cancelled without any show-cause notice or opportunity for the Claimant to respond.
120. The Immigration Act does not exclude procedural fairness in relation to cancellation decisions. In the absence of such exclusion, the ordinary requirements of natural justice apply. A person facing cancellation of a visa, with the attendant consequences for residence, employment, and exposure to deportation, should ordinarily be informed of the substance of the allegations and given an opportunity to respond before the decision is made.
121. The failure to implement the recommended show-cause process is therefore not a minor procedural omission. It deprived the decision-maker of the Claimant’s explanation and deprived the Claimant of the opportunity to influence the outcome. On the findings made, the decision was taken without any prior engagement with the Claimant’s position.
122. In addition, the cancellation letter records that the decision was taken “following the advice of the Minister”. The evidence of Mr Horesi confirms that ministerial involvement preceded and influenced the cancellation.
123. In light of the evidentiary gaps already identified, that ministerial involvement must also be viewed through the lens that the ‘advice’ may itself have proceeded upon allegations which were not properly investigated or were inaccurately stated. That is not to make any finding as to motive; it is to observe that the integrity of the process depended upon the accuracy of the material placed before both decision-makers.
124. The Act confers the cancellation power on the Director. While the Director may obtain information or advice, the decision must ultimately be the Director’s own. Where the Director acts because the Minister requires or directs the outcome, the statutory allocation of functions is undermined.
125. On the findings made, including the abandonment of the recommended procedural step and the contemporaneous ministerial involvement, the Court concludes that the cancellation decision was not the product of an independent discretionary assessment by the Director. It was therefore not a lawful exercise of the power conferred by s 21.

Whether the Director’s discretion was fettered or dictated

126. The issue of ministerial involvement requires separate consideration because it concerns the structure of the statutory scheme itself. The Act contemplates that the Director exercises the primary administrative function of granting and cancelling visas. The Minister’s role arises only in relation to the reviewability of that decision.
127. Where the evidence shows that the Director acted “following the advice of the Minister”, and where the investigative recommendation was not followed, the inference that the Director’s discretion was effectively dictated is compelling.
128. That conclusion is reinforced by the absence of any evidence demonstrating that the Director undertook an independent assessment of the material or considered the Claimant’s position prior to cancellation.
129. The Court therefore concludes that the Director’s discretion was unlawfully fettered and that the cancellation decision cannot stand on that basis alone.

Whether the Minister lawfully exercised the power under s 88

130. The Minister’s declaration under s 88 must be assessed in light of the conclusions already reached. Section 88 permits the Minister to declare a decision non-reviewable where the Minister considers that review would be contrary to the national interest. The provision concerns the availability of review; it does not authorise the Minister to determine the underlying decision itself.
131. The declaration in this case relied upon the Claimant’s involvement in enforcement proceedings in Western Province and the asserted disruption arising from that involvement. However, the Court has not been shown a verified evidentiary narrative, tested by adequate inquiry and by the Claimant’s response, capable of supporting the characterisation that appears to have been adopted at decision-maker level. In that setting, the Minister’s assessment was vulnerable to proceeding upon allegations later shown not to be established.
132. On the findings made, that involvement constituted participation in the execution of a lawful court order. That circumstance, without more, does not rationally sustain a conclusion that review of the decision would be contrary to the national interest.
133. More fundamentally, where the underlying cancellation decision is itself unlawful, the declaration cannot cure that illegality. The Minister’s declaration therefore falls with the cancellation decision.
134. In addition, the Claimant was not informed that such a declaration was contemplated and was given no opportunity to address the matters relied upon. The Act does not exclude procedural fairness in relation to the exercise of the s 88 power. Given the seriousness of the consequences, fairness required that the Claimant be heard before such a declaration was made.
135. For those reasons, the Minister’s declaration was also beyond power.

Overall conclusion on legality

136. Taking these matters together, the Court concludes that the impugned decisions cannot be sustained. In particular:
     1. the statutory precondition for cancellation under s 21 of the Immigration Act was not established on the evidence;
     2. the cancellation decision was made without affording the Claimant an opportunity to respond and therefore without compliance with the requirements of procedural fairness;
     100. the Director did not exercise the statutory discretion independently but acted in circumstances indicating that the outcome was effectively dictated by ministerial intervention; and
     4. the Minister’s declaration under s 88 was unsupported by a rational factual foundation and, in any event, cannot stand where the underlying cancellation decision is unlawful.
     5. It follows that both the cancellation decision and the Minister’s declaration were made beyond power and must be set aside.

ORDERS

The Court makes the following orders:

1. The decision of the Director of Immigration dated 4 March 2020 cancelling the Claimant’s Long-Term Employment Visa is quashed.
2. The declaration of the Minister made on 4 March 2020 purporting to render that decision non-reviewable is quashed.
3. The matter is remitted to the Director of Immigration for reconsideration according to law.
4. Until the Director determines the matter according to law, the Claimant is not to be removed from Solomon Islands on the basis of the impugned cancellation decision.
5. The Defendants are to pay the Claimant’s costs.

By the Court
Hon. Justice Howard Lawry
Puisne Judge