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Removal authority does not include native banishment

Application for Habeas Corpus, Kitte Rongorongo [1976] NRSC 1; [1969-1982] NLR (A) 36 (1 January 1976)
[1969-1962] NLR (A) 36 IN THE SUPREME COURT OF NAURU Miscellaneous Cause No. 3 of 1975 APPLICATION FOR HABEAS CORPUS Applicant: KITTE RONGORONGO 1st January, 1976. Habeas corpus deportation - Expulsion of Undesirables Ordinance 1961-1967 deportation order not lawful unless on ground provided for by section 2 of the Ordinance. Application for habeas corpus, the applicant having been detained to await deportation on a deportation order made by the Cabinet. The applicant, who was born in Nauru but was alleged not be Nauruan, was requested by the immigration officer on 4th November, 1975, to depart from Nauru; he refused to do so. On 14th November, 1975, he was informed by the Immigration Officer that he was required to leave Nauru; again he refused. On 15th December, 1975, he was informed by the Acting Principal Immigration Officer that he was required to leave Nauru on 17th December, 1975; again he refused to do so. On 23rd December, 1975, the Cabinet made an order, under section 2 of the Expulsion of Undesirables Ordinance 1961-1967, for his deportation from Nauru; it stated as the grounds for the order that the applicant's conduct had been "such that he should not be allowed to

remain in Nauru". He was arrested with a view to enforcement of the order. Counsel for the Government conceded that the only conduct relied on by the Cabinet as a ground for the order was the applicant's refusal to depart from Nauru when requested to do so and when informed that he was required to do so. Held: The only power to make deportation orders is derived from section 2 of the Expulsion of Undesirables Ordinance 19611967. If the applicant's conduct had been such that the Cabinet could properly have found it to be conduct "such that the applicant should not be allowed to remain in Nauru", the Court could not have interfered with the order for his deportation . But the conduct relied on was merely an exercise of the applicant's civil rights under the laws of Nauru and, as such, could not constitute conduct such that he should not be allowed to remain in Nauru. Further, if as the applicant alleged, he was a Nauruan, no order for his deportation could lawfully be made whatever his conduct might be. K.R. Adeang for the applicant J.H.Berriman for the respondent Thomson CJ.: The applicant alleges that the order made for his deportation from Nauru was unlawful. The order was made by the Cabinet on 23rd December, 1975, under section 2 of the Expulsion of Undesirables Ordinance 1961-1967, on the ground that the applicant is not a Nauruan and it was satisfied that his conduct had been "such that he should not be allowed to remain in Nauru". The conduct of which the Cabinet was satisfied and the facts relevant thereto are not in dispute. The applicant was born in Nauru in 1954 and has resided in Nauru ever since. On 4th November, 1975, the applicant was requested by the Immigration Officer to depart from Nauru but refused to do so. On 14th November, 1975, he was informed by the Immigration officer that he was required to leave Nauru. Again he refused to do so. On 15th December, 1975,

he was informed, this time by the Acting Principal Immigration Officer, that he was required to leave Nauru on 17th December, 1975. He refused and did not leave. His refusal to leave in compliance with that request and those requirements was the conduct of which the Cabinet was satisfied for the purposes of section 2 of the Ordinance. In other words, the Cabinet decided that it was conduct "such that the applicant should not be allowed to remain in Nauru". Mr. Berriman has conceded, rightly in my view, that there is no statutory authority, other than that provided by the Expulsion of Undesirables Ordinance, for removing from Nauru against his will any person born in Nauru or for requiring a person born in Nauru to leave Nauru. (In the circumstances of post-Independence Nauru there is a need for such statutory authority but up to date no legislation to provide it has been enacted.) Mr. Berriman has stated that it has been a practice over the years for the Administrator and, latterly, the Minister responsible for such matters to request informally, or to require, non-Nauruans to leave Nauru. In many instances, no doubt, this has proved a satisfactory way of overcoming the lack of statutory provision and the persons concerned have departed voluntarily. But, if anyone does not comply with such a request or requirement and refuses to give up voluntarily his civil rights under the laws of Nauru and his way of life here, he is not acting unlawfully or doing more than exercising his rights under the laws of Nauru, as they are at present. That being so, mere refusal to comply with such a request or requirement, even repeated refusal, cannot by itself constitute conduct rendering the person concerned unfit to be allowed to remain in Nauru. Section 2 of the Ordinance reads: "Where the Cabinet is satisfied that any person other than a Nauruan (a)..... (b) is a person whose conduct has been such that he should not be allowed to remain in Nauru; or (c).....,

the Cabinet may make an order for the person."

deportation

of that

The Ordinance contains no provision for an appeal against any such order or for its review by the Courts. However, Article 5(4) of the Constitution requires this Court to inquire into any-complaint made to it by a person alleging that he has unlawfully been deprived of his liberty. Thus, if this Court receives a complaint that an order made by the Cabinet under section 2 of the Ordinance is unlawful, it has not only a power but also a duty to look into the order to see whether it is a lawful order and so by virtue of Article 5(1)(h) justifies the deprivation of liberty. In order to be lawful the order must be totally intra vires the provisions of section 2 of the Expulsion of Undesirables ordinance. Thus, as the Cabinet has no power under the section to make a deportation order in respect of a Nauruan, the order is not intra vires if the applicant is a Nauruan. It is not possible at this stage of these proceedings to decide whether he is a Nauruan or not. However, it was also a pre-condition of the exercise by the Cabinet of its discretion to make the deportation order that it should have been satisfied that the applicant was a person whose conduct had been such that he should not be allowed to remain in Nauru. I have already stated what that conduct was of which the Cabinet was satisfied. Mr. Berriman has submitted that it was for the Cabinet to decide whether that conduct was of such a nature that the applicant should not be allowed to remain in Nauru. If the conduct had been such that the Cabinet could properly have so held, I should have accepted that submission. But in the circumstances of this case, I am unable to do so. Mr. Berriman has referred to the Cabinet's discretion in this matter. The discretion vested in the Cabinet is to decide whether or not to make a deportation order, if two pre-conditions exist. The first pre-condition is that the person concerned is not a Nauruan. The second is any one of those prescribed by paragraphs (a), (b) and (c) of section 2. Before the Cabinet can be satisfied that a

person's conduct is such that he should not be allowed to remain in Nauru, the conduct must be of such a nature that it is possible for the Cabinet to be so satisfied. If it is, it is then for the Cabinet to consider whether it is so satisfied or not. But the Cabinet cannot be satisfied of an impossibility and, if it expresses itself as being so satisfied, it is clear that it has been under some misapprehension as to the true state of the law. If the request and requirements addressed to the applicant on the 4th and 14th November and the 15 December respectively had been requests and requirements with which the applicant had a legal obligation to comply, his refusal to comply with them (assuming that he is not a Nauruan) would undoubtedly have constituted conduct such that he should not be allowed to remain in Nauru. Possibly the Cabinet made the order in erroneous belief that that was the state of the law. But as, in fact, the applicant was not under any obligation to comply with the request or the requirements, and his refusals to do so were merely an exercise of his rights under the law as it is at present, those refusals were not capable of amounting to conduct such that he should not be permitted to remain in Nauru and the Cabinet, if it had been aware of the true state of the law, could not have been satisfied that they did constitute such conduct. That being so, one of the two preconditions necessary before the Cabinet could lawfully exercise its discretion to make the deportation order was not fulfilled. In consequence the order made was ultra vires and is a nullity.