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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
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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 soand 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 1961-

1967. 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 hadbeen "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,
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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 theconduct 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).....,


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the Cabinet may make an order for the deportation of that

person."

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 Cabinetof 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, Ishould 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
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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 besatisfied 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 pre-

conditions 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.
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