MOHAMED JAWAD MROUCH v MINISTER FOR HOME AFFAIRS 1996 TLR 142 (HC)

 

MOHAMED JAWAD MROUCH v MINISTER FOR HOME AFFAIRS 1996 TLR 142 (HC)

Court High Court of Tanzania - Dar es Salaam

Judge Mackanja J

B

MISC CIVIL CAUSE NO 157 OF 1993

23 August, 1984

Flynote

Immigration Law - Residence permit - Cancellation thereof by the Director of the

Immigration C Services and confirmed by the Minister for Home Affairs - Whether

grounds existed for such cancellation.

Principles of Natural Justice - Individual's right to be heard by judicial and quasijudicial

bodies - D Whether such function was exercised by the Director and/or the

Minister - Whether an individual has the legitimate expectation of remaining in the

country until expiry of his residence permit - Whether such expectation entitles the

individual to make representations to the authorities - Section 15 of the Immigration

Act. E

Administrative Law - Duty to give reasons - When such duty arises.

-Headnote

The Applicant arrived in Tanzania during the course of 1987 and was subsequently

granted a `Residence Permit Class 'A' No.004307', issued on 14 September 1990.

Renewed on 16 September 1993, the permit was to remain current until 12 September

F 1994. In the interim, however, it was cancelled by the Director of Immigration

Services and duly confirmed by the Minister for Home Affairs, on 2 December 1993.

In a letter to the Applicant, the Director advanced that `the power conferred upon

me under s.15(2) of the Immigration Act No.8 of 1972' constituted the reason for the

cancellation of the Applicant's permit. G

The Applicant's counsel contended that the unstated reason for the cancellation of the

permit was due to certain criminal charges pending against the Applicant, and that

the effect of such cancellation was that the Applicant, as persona non grata in the

Republic, could not clear his name by defending the charges. H

The Applicant accordingly sought the invalidation of the cancellation of the permit

on account of the alleged bias of the Minister and also on the basis that the Applicant

was `punished' unheard.

Held:

(i) The Applicant learnt of the cancellation of his permit from a third

party, since he I was himself out of the country at the time of cancellation and the

letter of cancellation was served upon his son.

1996 TLR p142

(ii) The Applicant was charged under laws and by authorities independent

of the A powers of the Minister.

(iii) A foreign alien (sic) has no right to enter the Republic except by leave;

and should leave be granted, he cannot overstay the permissible period by a single

day.

(iv) Once a permit is granted to an immigrant, he has the right to remain in

the B Republic until such permit expires. If, however, the permit should be revoked

during its currency, the immigration authorities have a duty to give reasons for such

revocation and to afford the affected person the opportunity of being heard, prior to a

final decision being taken.

(v) Discretionary powers must be exercised fairly, and this requires

adherence to C the rules of natural justice which include the right to be heard.

There is nothing in Section 15(1) of the Immigration Act which ousts that right.

(vi) Although the Applicant had a legitimate expectation of remaining in

the country until the expiry of his permit, that expectation could have been justifiably

D extinguished if, and only if, he had been given an opportunity of making

representations to the authorities.

(vii) In the result, the following orders of certiorari are made:

the Director's decision, cancelling the Applicant's permit is quashed; the Minister's

decision, confirming the Director's decision of cancellation, is E quashed; and the

Minister's order of deportation of the Applicant is quashed.

(xi) A mandamus is issued, ordering the Director to restore `Residence

Permit Class `A' No.0043607' to the Applicant forthwith.

(xii) The Applicant is entitled to his costs.

Case Information

Ordered accordingly. F

Cases referred to:

1. R v Brixton Prisoner Governor, Ex parte Soblem [1962] 3 All ER 641

2. Schmidt v Secretary of State for Home Affairs [1969] 1 All ER 904

3. Ridge v Baldwin [1963] 2 All 66; [1964] AC 40 G

El-Maamry, for the applicant.

Mallaba for the respondent.

[zJDz]Judgment

Mackanja J: H

It is not disputed at all that the applicant came to Tanzania sometime in 1987 and

subsequently established some business here in Dar es Salaam. In order to regularise

his stay in this country he applied for, and was granted, residence permit class `A'.

According to Hassen Rajabu Maiga, a Senior Immigration Officer who swore the

counter I affidavit and who was summoned to be cross-examined at the instance of

the applicant, the applicant was, for the first time,

1996 TLR p144

MACKANJA J

issued with Residence Permit Class `A' No 004307 on 14 September 1990. This permit

A was renewed on 16 September 1993; it was to remain current until the 12

September 1994. This was not to be because the residence permit was cancelled on 2

December 1993. According to law the cancellation was made by the Director of the

Immigration B Services, an exercise which was confirmed by the Minister

responsible for Home Affairs. The Minister's confirmation is contained in a letter

with Ref No HAS 152/113/03/F/50 dated 2 December 1993. That letter is addressed to

the applicant; the operative part reads: C

`I, Augustine Lyatonga Mrema (MP), Deputy Prime Minister and Minister for

Home Affairs, do hereby confirm under s 15(2) of the Immigration Act 1972 that

Residence Permit Class `A' No 0043607, issued to you is hereby cancelled and that

you are required to leave the country by the 2nd December, 1993. D

I, also hereby, order under section 23 of the Immigration Act No 8 of 1972 that

you, Mr Mohamed Jawad Mroeh (sic) are prohibited from entering and staying in

Tanzania ...'.

The reason which was advanced for the cancellation of the residence permit is E

contained in the letter which communicated that decision to the applicant. It was

written on 2 December 1993 by the office of the Director of Immigration Services.

The operative part reads:

`Please take note that by the power conferred upon me under s 15(2) of the

Immigration Act No 8 of F 1972, I hereby cancel, in the public interest, your

residence permit class `A' No 0043607 issued on 14/9/90 and renewed on 16/9/93

valid until 12/9/94.

Your stay in the United Republic of Tanzania shall, therefore, be unlawful

under section 6(f) of the Immigration Act No 8 of 1972 ...' G

He was ordered to surrender his residence permit and to leave the country not later

than the day the letter was written. He was advised to appoint an agent of his own

choice to take care of his movable and immovable property he might have in the

country during his H absence. Both letters have been annexed to the affidavit which

supports the application.

Mr El-Maamry, learned advocate for the applicant, maintains that the action which

was taken against his client is unfair, because for all the years that he lived in this

country he led a clean faultless life. In spite of all this the Minister for Home Affairs

did, on 22 I October 1993 call a press conference at which he accused the applicant

of having

1996 TLR p145

MACKANJA J

illegally exported US $401,208 to foreign banks. That he ordered the arrest of the A

applicant who was consequently arrested on 23 October 1993. On 25 October 1993,

charged with two counts of forgery and uttering a false document concerning some

US $6,000 in Criminal Case No 1273/93. That although the Minister has accused the

applicant of wrong-doing involving a larger amount of money, the criminal charges B

reflected a smaller amount. That when this case came up for mention in court on 23

November 1993 the applicant who was admitted to bail, applied for leave to travel to

Spain for treatment to his eye. The prosecution is alleged to have raised no objection

to this overseas trip and the court of the Resident Magistrate, Kisutu duly granted him

leave C of absence. The applicant's son, Ali Mohamed Jawad Mrouch, was bound

over to produce his father before the court on 22 December 1993, a date on which

hearing of the case was fixed. Ali Mohamed Jawad Mrouch has sworn an affidavit in

which he testifies to the above matters. From the forgoing facts it is now clear that

the applicant's D residence permit was cancelled while he was out of the countryand

while criminal matters were pending in court against him. The letter which

communicated the cancellation of the residence permit was served on his son. So he

came to know this matter through a third person. E

Mr El-Maamry contends that both the cancellation of the resident permit and the

order which declared the applicant a probited immigrant were unlawful because they

were made and confirmed by the same authority who had initiated criminal

proceedings F against his client. The effect of the order which declared the applicant

persona non grata was, of course, to disable the applicant from coming back to stand

trial on criminal charges which were preffered against him in Criminal Case No

1273/93 of the Kisutu Court of Resident Magistrate. In the view of Mr El-Maamry

these orders were unlawful G because they were intended to prevent the applicant

from demonstrating his innocence. He based his submissions on the judgment in R v

Brixton Prison Governor, Ex parte Soblem (1) at 907. For if he was guilty of the

charges which faced him the law would have taken its full natural course. Mr El-

Maamry contends that his client was not allowed H to clear his name although there

was no evidence against him. He cited as an example the fact that although the

Minister had accused him of offences involving a larger sum of US $401,208 the

criminal charges against him involved only US $6,000.

Another point which the applicant persues relates to his right to be heard before he is

I punished.

1996 TLR p146

MACKANJA J

Mr El-Maamry submits that the applicant was denied his basic right to be heard

before A he was condemned. That the applicant has been stigmatized and that the

only remedy is to quash the orders because they were taken illegally and injudiciously

and that the Republic failed to establish the public interest which they claim was the

basis for B expelling the applicant from the country. Mr El-Maamry contends

further that the Minister has made himself a judge in his own cause by ordering the

arrest, the prosecution and confirming the cancellation of the applicant's residence

permit. This, he says, is a clear manifestation of a denial of natural justice. Mr El-

Maamry has referred to several English C decisions which to a large extent are

irrelevant to the matters which are before me. Suffice it to say at this point that he

contends that the Minister, on account of accusations which are made by Mr El-

Maamry, should have disqualified himself in a matter in which he had a personal

interest. Mr El-Maamry also questions the powers of D the Director of Public

Prosecutions when he entered nolle prosequi in the case which faced the applicant.

He invites this Court to quash that decision so that the applicant may be allowed to

demonstrate his innocence.

So, from the foregoing submissions the applicant is raising the following important E

issues:

1. The criminal proceedings which were instituted against him should be

proceeded with to their conclusion so that he cleans his name, so to speak. F

2. That the cancellation of the residence permit and the deportation order

are invalidated on account of the fact that the Minister's decision is tainted with bias.

3. The applicant was punished unheard. G

Mr Mallaba, learned State Attorney who represents the Republic, has invited this

Court to dismiss the application. He has submitted that the existence of a criminal

case against the applicant has nothing to do with the cancellation of his residence

permit and H his subsequently being declared a prohibited immigrant. It is Mr

Mallaba's contention that the two, that is the institution of the criminal case and the

applicant's immigration status, have nothing in common. He argues that the criminal

prosecution is a police matter and the other is an Immigration Department issue. And

that there is no evidence I that both matters were instituted in tandem by the

Minister.

1996 TLR p147

MACKANJA J

Be that as it may have been, the applicant has not led evidence which does on a A

balance of probability show that the criminal charges were instituted at the instance

of, or under pressure from, the Minister. The only evidence there is the affidavit of

Ali Mohamed Jawad Mrouch, the applicant's son. He deposes on nothing which

touches on B these allegations. What remains are statements from the Bar and press

reports. Statements made from the Bar or press reports cannot be substituted for

probative evidence. I would therefore say that the applicant was prosecuted, and his

charges later discontinued, under laws and by authorities which are independent of

the powers of Minister for Home Affairs. In these circumstances, I would agree with

Mr Mallaba that the C existence of the criminal charges or the discontinuation of

those criminal charges cannot be a bar for the appropriate authority to discharge its

duty under the Immigration Act. If the applicant feels that his name has been

tarnished his remedy cannot be contained in proceedings of this nature. These

observations answer the first and second D issues which I have framed.

I now turn to the third issue: was the applicant denied natural justice?

The Republic concedes that the right to be heard is one of the principles of natural E

justice which all the judicial and quasi-judicial bodies are required to observe. Mr

Mallaba contends, however, that the Director of Immigration Services and the

Minister did not exercise a quasi-judicial function when the former cancelled the

applicant's residence and when the Minister confirmed that cancellation. Mr Mallaba

stated that even if the F Director and the Minister were quasi-judicial bodies, s 15(1)

of the Immigration Act waves the right to be heard. That section provides:

`Section 15(1) Every residence permit issued under this Act shall be subject to

the condition that if at G any time the holder thereof is notified by the Principal

Immigration Officer that the permit has been cancelled in accordance with ss (2) the

holder shall, within such time that the Principal Immigration Officer may specify,

leave Tanzania.' H

Subsection (2) of s 15 empowers the Principal Immigration Officer (now the Director)

to cancel a residence permit provided it is confirmed by the Minister for Home

Affairs. All that is required of the Director, according to Mr Mallaba, is to notify the

foreign alien of I the changed circumstance in his immigration status, and if the

Minister is satisfied, he will confirm the cancellation. The language

1996 TLR p148

MACKANJA J

used in this legislation uses the word shall, which implies that it is mandatory. A

On the fact of it, it appears that the foreign alien whose permit is cancelled shall leave

Tanzania at the time he is notified that his permit has been cancelled. In Mr Mallaba's

B interpretation of s 15(1) an alien's right of being heard is extinguished by that

statute. He finds support for this contention in an English decision in Schmidt v

Secretary of State for Home Affairs (2) in which the same issue was discussed. Lord

Denning was of this view, at 908 and 909: C

`... I quite agree, of course, that where a Police Officer has power to deprive a

person of his liberty or his property, the general principle is that it is not to be done

without his being given an opportunity of being heard and of making representations

on his own behalf. But in case of aliens, it is rather D different; for they have no

right to be here except by licence of the Crown. And it has been held that the Home

Secretary is not bound to hear representations on their behalf, even in the case of a

deportation order, though, in practice he usually does so...'.

As regards an alien who has no valid residence permit I would also agree with Lord E

Denning that a foreign alien has no right to enter this country except by leave; and if

he is given leave to be in the country for a limited period, he has no right to overstay

a single day. However, as Lord Denning says in Schmidt v Secretary of State (supra) at

909 in respect of those aliens who have residence permits: F

`... If the permit is revoked before the time limits expires, he ought, I think, to

be given an opportunity of making representations for he would have a legitimate

expectation of being allowed to stay for the permitted time. Except in such a case a

foreign alien has no right-and I would add, no legitimate expectation-of being

allowed ...'. G

From the above exposition of the law, with which I fully agree, a foreign alien has no

right to stay in this country without a permit. But once a permit has been given to

him then he H is entitled to stay until it expires. If it is revoked mid-term, then the

immigration authorities have a duty to given him the reasons and an opportunity of

being heard before the final decision is taken.

Now, Mr Mallaba contends that the functions of the Director and the Minister are

administrative and purely discretionary; hence the rules of natural justice do not

apply. I Well, I need not overemphasize the point that a discretion has to be

exercised fairly; it

1996 TLR p149

MACKANJA J

cannot be exercised fairly if the decision is arbitrary. In fact, decretionery powers

cannot A be exercised fairly without adhering to rules of natural justice, including

the right to be heard. There is nothing in s 15(1) of the Immigration Act which ousts

that right of being heard in an appropriate case of a person whose lawful story has

been abruptly discontinued before the expiry of his residence permit. The English

case of Ridge v B Baldwin (3) is sufficient persuasive authority for the view that the

distinction between administrative and judicial powers is largely not a valid one. Lord

Denning says at page 909 in Schmidt v Secretary of State (supra) that: C

`... Some of the judgments in those cases were based on the fact that the Home

Secretary was exercising an administrative power and not a judicial act.

But the distinction is no longer valid ... an administrative body may, in a

proper case, be bound to give D a person who is affected by their decision an

opportunity of making representations. It all depends on whether he has some right

or interest, or, I would add, some legitimate expectation, of which it would not be fair

to deprive him without hearing what he has to say....'

I have already held that the applicant has a legitimate expectation of staying in the E

country until the expiry of his residence permit. That expectation could be

extinguished justifiably if, and only if, he had first been given an opportunity to make

representations to the authorities. It is after hearing him that the authorities could

have justly decided, after F considering those representations, that it was in the

public interest to revoke the permit. In the circumstances the application succeeds.

Upon the foregoing considerations I hereby issue an order of certiorari quashing the

order of the Director of the Department of Immigration Services which cancelled the

G applicant's Residence Permit Class `A' and an order of certiorari quashing the

decision of the Minister for Home Affairs which confirmed the aforementioned

cancellation. Persuant to the above order, I further issue an order of certiorari

quashing the Minister's order deporting the applicant from this country. Finally I

issue an order of mandamus H against the Director of Immigration Services ordering

her to restore Residence Permit Class `A', No 0043607, to the applicant forthwith.

The applicant shall have his costs. I

1996 TLR p150

A