MINISTER OF INFORMATION IMMIGRATION AND TOURISM AND ANOTHER v MACKESON 1980 ZLR 76 (A)

Author: Trodat Zimbabwe

MINISTER OF INFORMATION IMMIGRATION AND TOURISM AND ANOTHER v MACKESON 1980 ZLR 76 (A)

1980 ZLR p76

Flynote

Immigration — deportation of prohibited person — whether prohibited person may be deported to country of origin — Immigration Act, 1979 — section 8 — detention of D prohibited person — whether grounds of detention may be

challenged if Minister’s decision that E person is undesirable inhabitant is not challenged”

Costs — appellant succeeding on ground not relied on in grounds of appeal — whether entitled to costs.

Headnote

The _F first appellant had decided that the respondent was an undesirable inhabitant of this country in terms of section 14 (1) (h) of the Immigration Act, 1979, probably as a result of allegations of fraud made against the respondent in Britain, his country of origin. As a consequence of the Minister’s decision the respondent became a prohibited person in terms of the Act. Thereafter he was detained in terms of section of the Act and efforts were made _G to deport him to Britain, which efforts he successfully resisted. He obtained an order from the General Division that his detention was unlawful in that it had been motivated by the improper purpose of returning him to Britain to stand trial. He did not challenge the Minister’s decision in terms of section 14 (1) (h). On appeal. _H

Held that once a valid decision to deport a prohibited person has been made in terms of the Immigration Act, an immigration officer is entitled to arrange the prohibited person’s deportation to his country of origin, even if criminal proceedings are pending against him there (R v Brixton Prison (Governor), ex parse Soblen [1962] 3 All ER 641, referred).

1980 ZLR p77

Held, further, that once the respondent had decided not to challenge the validity of the Minister’s decision that he was an undesirable inhabitant and so a _A prohibited person, he rendered impossible an attack on the immigration officer’s decision to detain him preparatory to his deportation, since there was no evidence that the immigration officer had any intention other than to give effect to the Minister’s decision.

Held, further, that the appellants were entitled to costs despite the fact that they had not relied specifically on the point on which they had succeeded. _B

Cases cited

R v Brixton Prison Governor ex parse Soblen [1962] 3 All ER 641,

Case information

R R Horn SC, with him B H Christie, for the appellants. The Court a quo found that the detention of the respondent was effected _C pursuant to the policy of the first appellant’s Ministry to ensure that persons such as the respondent, who were due to face criminal charges in their home countries, were sent back to those countries to face sum charges? this policy, it found, was impermissible and improper.

The principles governing the law of deportation in this country are _D basically the same as those in the United Kingdom in 1962, in regard to which, see the observations of LORD DENNING in R v Brixton Prison (Governor), ex parte Soblen [1962] 3 All ER 641, at 660B­D. In Soblen’s case it was suggested to the Court that by reason of the common law a man could not be deported, even to his own country, if he was a criminal who had fled from it. This submission was rejected by LORD DENNING at pages 660H to 661B.

The policy pursuant to which the respondent was declared to be an undesirable inhabitant of this country and subsequently detained pending his deportation, is to deport to their home countries persons who are required there to face serious criminal charges which, if the offences had been committed in this country, would have been crimes in this country and which are not crimes of a political nature. The implementation of such a policy may well have the effect that a fugitive criminal is sent to a _G country where he is required to face charges just as he would have been had he been extradited to that country, but this does not render the policy an improper deportation policy. A particular deportation policy adopted by the authorities which can have the same effect as extradition is not an unlawful deportation policy simply because it can have that _H effect in certain circumstances. Compare Soblen’s case at page 663I­664E (per LORD DONOVAN) and at 666I­667D (per LORD PEARSON), and see Schmidt and Anor v Secretary of State for Home Affairs [1969] 1 All ER 904, at 908B­F. The effect of the judgment of the Court a quo is to hold that the policy of the first appellant is impermissible when­

1980 ZLR p78

MacDonald CJ ever its implementation results in a prohibited person being deported to his home country where he is wanted on serious criminal charges. This overlooked, with respect, clear dicta in Soblen’s case indicating that such _A a policy is perfectly permissible as a deportation policy.

The respondent established no more than that, pursuant to this policy he was detained with a view to deporting him to his home country where he was required to face criminal charges. This does not establish that the _B first appellant had not genuinely considered the respondent to be an undesirable inhabitant and that he did not consider it to be to the good of this country that the respondent should be deported to his home country to face criminal charges. In any event, even if the return of the respondent was requested by the British, this does not mean that the _C purpose of the deportation was to satisfy this request rather than to give effect to the deportation policy referred to above.

C. W Jordaan, for the respondent. There was no evidence that the first appellant had genuinely considered respondent to be an undesirable _D inhabitant and that he considered it to be to the good of this country that respondent should be deported. Even if first appellant had considered this aspect, it is abundantly clear from the Assistant Secretary’s affidavit that the main reason for respondent’s detention was first appellant’s desire that respondent be “brought to justice in the country _E having jurisdiction over him in respect of such charges” This reason clearly played the dominant or main or at least substantial part in influencing first appellant’s decision, and is sufficient to render that decision bad. See Patel v Witbank Town Council, 1931 TPD 284,

Administrator, Cape v Associated Buildings Ltd., 1957 (2) SA 317 _F (AD) at 325E and 329H? The Firs

Investments (Pty.) Ltd v Johannesburg City Council, 1967 (3) SA 549 (W) at 552B, Port Elizabeth

Local Road Transportation Board and Anor v Liesing, 1968 (3) SA 243 (E) at 245H, Pieters v Administrateur van Suidwes­Afrika and Anor., 1972 (4) SA 127 (SWA) at 142E­F? De Smith, Constitutional and _G Administrative Law, 3rd edition, page 419.

Judgment

MacDonald CJ: The respondent on the 30th day of October was granted a rule nisi calling upon the appellants to show cause why the respondent should not forthwith be released from detention. The rule _H was confirmed on the 21st November, 1979, ^* and the appellants noted an appeal on the following grounds:

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1.        That the trial court erred in holding that the forwarding of the passport of the Respondent by theCriminal Investigation Department to the A Metropolitan Police, New Scotland Yard, London, to establish its authenticity was an unconvincing explanation.

2.        That the trial court erred in accepting the assertion of ‘the Respondent in his answering affidavit thathe had been told by Mr B  R  Glanville that ‘this had been done at the request of the British Authorities’. B

3.        That the trial court erred in failing to find as a matter of probability that the Respondent would notvoluntarily leave Zimbabwe Rhodesia and that, therefore, it was reasonable and lawful to arrest and detain him pending his removal from Zimbabwe Rhodesia.

4.        That the trial court erred in failing to have regard to the fact that the passport of the Respondenthad been endorsed by the British Authorities C in such a manner as to allow him one journey only, namely to the United Kingdom, in consequence of which endorsement there was only one country to which the Respondent could be removed, namely the United Kingdom.

5.        That the trial court erred in holding that it was unlawful to remove a D prohibited person, such as the Respondent, to the country where he was facing criminal charges to ensure that he was brought to justice in circumstances where no extradition treaty existed between Zimbabwe Rhodesia and the country where the prohibited person was facing such criminal charges.”

The salient facts are set out in the judgment delivered in the Court a quo: _E

“The material facts leading up to these proceedings are substantially undisputed. The petitioner is a citizen of the United Kingdom and until late 1977 resided in England. During that year, dissension arose with two business associates over substantial losses sustained by two finance companies managed by him. The disharmony was exacerbated by an action instituted by the petitioner for the recovery of moneys claimed to be due to him and culminated in his being threatened with death. At first the threats were disregarded, but an assault upon the F petitioner perpetrated at the instigation of one of his former associates, convinced him that his life would be in jeopardy were he to remain living in England. He therefore left that country. After spending two months in hiding somewhere in Europe, the petitioner lawfully entered G Zimbabwe Rhodesia in January, 1978, at a time when, as far as he was aware, no criminal charges, resulting from his activities in the United Kingdom, were pending against him.

The petitioner obtained employment in Salisbury, initially as a research assistant and then as a school teacher. In August, 1978, he commenced to trade H as a dealer in antiques. Save for a minor statutory contravention for which he paid a deposit fine, his record in this country is blameless. On 21 May, 1979, the petitioner was advised by Superintendent Hughes of the Criminal Investigation Department, that allegations of fraud had been made against him by the British police and that after further investigation of the matter, there was a possibility he would be declared a prohibited person. In response

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to a request and as a gesture of good faith, the petitioner surrendered his passport. The following day he and his attorney interviewed Hughes and were informed that in the interim the passport would be retained, but that if the petitioner were declared a prohibited person it would be returned to him. A There was no mention by Hughes of an intention to remit the passport to the United Kingdom.

On 13 June, 1979, the petitioner was deemed by the first respondent to be a prohibited person. Thereafter, on 15 June, 1979, he was detained in Salisbury Prison by an immigration officer, pending removal from the country. On the B same day, and without seeking the petitioner’s permission, his passport was dispatched by registered post to the Metropolitan Police, New Scotland Yard, London. The petitioner learned of this four days later, but only in consequence of the grant of a spoliation order against the Commissioner of Police and Hughes.

On 28 June, 1979, the petitioner’s attorney was advised of a C communication received from the British Foreign and Commonwealth Office to the effect that the passport was to be endorsed to permit of a single journey to the United Kingdom. Such endorsement was duly made.

On 24 July, 1979, the petitioner was driven, in custody, to Salisbury Airport, to be placed on an aircraft to Johannesburg, where it was intended he D would board a British Airways’ aircraft bound for London. Immediately the petitioner alighted from the motor ­ vehicle, which had stopped at the steps of the aircraft, he sat down on the tarmacadam apron and refused to stand up. It became necessary for four persons to carry him bodily into the aircraft. At the commencement of the flight, his behaviour was offensive. On arrival at Johannesburg, the petitioner was detained by the South African E Police. By reason of his refusal to board the British Airways’ aircraft peacefully ­ again he sat down on the apron and resisting fiercely was forced into the aeroplane where a fracas developed ­ the captain refused to accept him as a passenger. He was lodged in prison in Johannesburg, but on 4 August, 1979, was delivered to an immigration officer at the Beitbridge border.

Since F 5 August, 1979, the petitioner has been detained at Khami Prison, Bulawayo. No further attempt to remove him physically from the country has been made, but officials of the first respondent’s department have endeavoured, without success, to obtain the active co­operation of the United King dom Government for the petitioner’s removal to that country, even to the extent of his being transported by ship. It seems that only in the event G of recognition of legality being accorded to this country by the United King dom Government, will the authorities materially assist in the petitioner’s removal. An approach to South African Airways to convey the petitioner to London was rejected because a firm undertaking could not be given that he would behave himself in an aircraft. H

It is apparent, therefore, that the first respondent’s efforts have been directed solely at effecting the removal of the petitioner to the United Kingdom. No inquiries have been undertaken as to the feasibility of removing him elsewhere, and a cancellation Of the restrictive endorsement on his passport has not been sought.

1980 ZLR p81

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The petitioner’s attitude is, and has been, that he does not object to being removed to anywhere other than the United Kingdom. He believes that the A insistence upon removing him to that country is because he is required there to face charges of fraud.”

None of these facts is challenged in this appeal.

In argument on the return day of the rule, counsel for the respondent informed the Court that the respondent was not challenging the validity _B of the Minister’s decision to “deem” him to be “an undesirable inhabit tent of . . . Rhodesia” in terms of section 14 (1) (h) of the Immigration Act, 1979 (No. 18 of 1979). His contention was that despite the validity of the Minister’s decision it is unlawful for the Rhodesian authorities to attempt to send him hack to his country of origin and that to detain him _C preparatory to doing so is also unlawful.

It is understandable that the respondent’s counsel should have decided not to challenge the validity of the Minister’s decision in the light of the very limited right of appeal available to a person deemed to be _D an undesirable inhabitant under the provisions of section 14 (1) (h) of the Act. Section 14 (1) (h) provides that:

“Subject to the provisions of this Act, the following persons are prohibited persons ­

.......................................................................................................................

   (h)     any person who, from information received from any source, is E deemed by the Minister to be an undesirable inhabitant of or undesirable visitor to Rhodesia.”

Under section 21 of the Act a person who has been given notice that he or she is a prohibited person may appeal “to the nearest magistrates court “ _F and section 22 (1) (a) provides that:

“No appeal shall he against a decision made in terms of ­

(a)      paragraph (a) or (h) of subsection (1) or subsection hi) of section fourteen, unless such appeal is directed solely to the identity of the person affected by the decision? or

(b)      ....”

Section _G 22 (2) provides that:

“. . . no Court may question the adequacy of the grounds for any such decision.”

By “decision” is meant a decision in terms of section 14. _H

Once a valid decision has been made by the Minister under section 14 (1) (h) deeming a person to be an undesirable inhabitant and thus, by definition, to be a prohibited person the provisions of section 8 (2) of the Act come into effect. This subsection provided ^† that: .

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“. . . an immigration officer may ­

(a)      remove or cause to be removed from Rhodesia any prohibited person? and A

(b)      pending the completion of arrangements for the removal of a person in terms of paragraph (a) andsuch removal, subject to Me provisions of section nine, detain that person.”

While the existence of the power to detain in terms of section 8 (2) is not and could not be challenged by the respondent, it is submitted that the _B power was lost so far as the respondent is concerned because the Rhodesian immigration authorities were motivated not only by a desire to deport him from Rhodesia but also by a desire that he should stand trial on the allegation of fraud made against him in Britain, his country of origin. _C

The questions which arise for decision are whether the Minister, having made a valid decision deeming the respondent to be an undesirable inhabitant, an immigration officer became entitled to arrange for his deportation to his country of origin and, if so, whether this latter right _D was lost because of the attitude to the respondent’s detention evinced by the following statement of the Assistant Secretary to the Minister:

“The main reason for his detention is that he is due to face charges of fraud in the United Kingdom and it is the policy of my Ministry to ensure that such a person is brought to justice in the country having jurisdiction over him in E respect of such charges. Failure to comply with this policy would also result in fugitives from justice using this country as a refuge and could create a precedent for similar behaviour on the part of other prohibited persons.”

Once a valid decision to deport has been made as a result of a decision by the Minister that a person is an undesirable inhabitant, there can be no doubt that an immigration officer becomes entitled to arrange for that person’s deportation to his country of origin. For obvious reasons, this is an appropriate place to send a person who is being deported and it can make no difference that this happens to be the place _G where he is likely to be charged and tried for an alleged crime. Not surpassingly, there is abundant authority for this proposition. See, for example, R v Brixton Prison Governor ex parse Soblen [1962] 3 All ER 641. _H

Despite protestations to the contrary, there can be no doubt that counsel for the respondent seeks to bring into question the Minister’s decision. It is argued in effect that his decision was taken with the ulterior motive of extraditing the respondent for trial on a criminal charge and

1980 ZLR p83

MacDonald CJ that that, on the authority of decisions such as that in the Brixton Prison case (supra), was invalid. There is no evidence that the immigration officer _A responsible for the detention of the respondent had any intention other than to give effect to the decision of the Minister, and it is impermissible in those circumstances for the respondent’s counsel to accept the validity of the Minister’s decision deeming the respondent to be an undesirable inhabitant and at the same time to challenge the validity of the _B immigration officer’s decision to act upon it. If there was no basis on which the former decision could be challenged, there was no basis on which the latter could be, and the restrictions placed on an appeal against the Minister’s decision by the Act may not be circumvented by the simple expedient of purporting to appeal against the resulting detention. In _C substance the respondent’s complaint is against the Minister’s decision. The decision to detain considered in isolation is unimpeachable. In the result, counsel for the respondent in arguing the appeal was obliged to reveal the true nature of the proceedings and to challenge the validity of the Minister’s decision. Thus he submitted in his Heads of Argument: _D “That there was no evidence that the Minister had genuinely considered the respondent to be an undesirable inhabitant.” Such a decision by the Minister cannot be attacked under the guise of attacking the detention which follows upon it, and this is what is happening in the present case.

If _E the Minister’s decision under section 14 (1) (h) is to be attacked, the proceedings must take the form of the very limited appeal allowed under sections 21 and 22 of the Act or, alternatively, they must be proceedings on review. On review no less than on appeal it is not permissible for a Court to “question the adequacy of the grounds for any _F such decision”. These proceedings did not purport to be review proceedings. This was a petition for an order de homine libero exhibendo.

The position therefore is that once the respondent decided not to challenge the validity of the Minister’s decision that he was an _G undesirable inhabitant and in consequence a prohibited person who could be deported as is usual and permissible to his country of origin, he rendered impossible an attack on the immigration officer’s decision to detain him preparatory to his deportation. _H

The only other ground on which the detention of the respondent is attacked is that the first appellant in “confining his efforts to return the respondent to the United Kingdom” unreasonably prolonged the period of the respondent’s detention. There can be no doubt that the respondent’s further detention was a direct result of his refusal to take advantage

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of the arrangements which had been made to return him to his country of origin, and in my view, he has no just ground of complaint on this score. _A

In regard to costs, Mr Jordan submitted that since the appellants had not specifically relied on the point on which they have now succeeded there should be no order as to costs. It seems to me, however, that the point is implicit in appellants’ argument, moreover, there is no indication that had the matter been raised specifically the respondent would have _B accepted the validity of the point and abandoned the proceedings. In the circumstances, I am satisfied costs should follow the event.

I would allow the appeal with costs and alter the order of the Court a quo to read: “The rule is discharged with costs.” _C Lewis JP: I agree.

Davies JA: I agree.

Webb, Law & Barry, attorneys for the appellants.

Calderwood, Bryce Hendrie & Partners, attorneys for the respondent. _D