026-NLR-NLR-V-70-S.-SATHAPPAN-Petitioner-and-W-T-JAYASINGHE-Controller-of-Immigration-an-Emi.pdf
92
Sathappan i Jayasinghe
1967
Present : Samerawickrame, J.S.SATHAPPAN, Petitioner, and W. T. JAYASINGHE (Controllerof Immigration and Emigration) and another. Respondents
S. CJ. 667/66—Habeas Corpus Application
Habeas corpus— Immigrants and Emigrants Act, 6',27,28 (2)—Removal
orders—Persons against whom they may he made—Right of Minister todelegate his power.
SAMERAWICKJRAME, J.—ScUhappan v. Joyasinghe
93
There is no justification for the view that the Immigrants and Emigrants Actis wholly inapplicable to a person who had entered Ceylon before the date of itsenactment. A person who had originally entered Ceylon before the Act cameinto operation and who does not fall within the exceptions mentioned in section
is a person in respect of whom a removal order may be made under section
(2) if paragraph (a), (6) or (c) of that sub-section applies to him.
The discretionary power vested in the Minister to make a removal ordermay be delegated by him to an Assistant Secretary of the Ministry in termsof section 6 of the Act.
-APPLICATION for a writ of habeas corpus.
K.Shanrmigalingam, with M. D. K. Kvlaiunga, for the petitioner.Mervyn Fernando, Crown Counsel, for the respondents.
Cur. adv. vult.
July 26, 1967. Samerawiokrame, J.—
This is an application for the issue of a writ of Habeas Corpus. Thepetitioner alleges that the corpus Suppiah Enamuthu Nadarajan hasbeen in Ceylon for the last twenty years and has never left Ceylon duringthat period, but has made Ceylon his home and has been domiciled here.He further alleges that on the 31st October, 1966, the said SuppiahEnamuthu Nadarajan was arrested by officers of the ImmigrationDepartment acting on the orders of the 1st respondent and that he isnow detained at the Slave Island detention camp by the 2nd respondent.The petitioner states that the detention of the said Nadarajan is illegaland prays for the issue of a writ of Habeas Corpus and for an orderfor the release of the said Nadarajan from the said illegal detention.The respondents have filed objections to this application.
Learned Crown Counsel submitted that the matter could be disposedof upon the averment in paragraph 13 of the affidavit of Everard JosephStanislaus de Silva Wijeyeratne. In the said paragraph there is pleadeda removal order in respect of the corpus made in terms of Section 28 (2)read with Section 6 of the Immigrants and Emigrants Act.
Learned counsel for the petitioner has raised the following mattersin regard to the validity of the said removal order. He submitted—
that the Immigrants and Emigrants Act has no application to the
petitioner because the petitioner had entered Ceylon beforethe date of the said Act.
that the power of making a removal order in terms of Section
28 (2) could not be delegated to any other person by the Ministerand that the removal order in question which has been made byan Assistant Secretary is therefore invalid.
that the petitioner is not a person to whom sub-section (c) of
Section 28 (2) applied.
94
SAMERAWICKRAME, J.—Sathappan v. Jaya&inghe
There are express provisions in each of the parts 3, 4, 5, of theImmigrants Act which deal with the question as to the persons to whomthe said part would apply. The question, therefore, whether theparticular provisions in the Act apply or do not apply to a person mustbe determined by reference to such provisions contained in the Act.I can see no justification for the view that the Act itself is whollyinapplicable to a person who had entered Ceylon before the date of itsenactment.
Section 28 (2) empowers the Minister to make a removal order inrespect of a person if he is satisfied that that person is one to whomsub-paragraphs (a), (6) or (c) of the sub-section apply. It is no doubttrue that where a power of this nature is given it must be exercised by theauthority to whom it has been entrusted and cannot ordinarily bedelegated. This is, however, subject to the exception that the authoritymay be empowered by the Statute itself to delegate the exercise of thepower.
S. A. de Smith in “Judicial Review of Administrative Action”, 1stEdition, at page 173 states : “A discretionary power must, in general,be exercised only by the authority to which it has been committed.It is a well-known principle of law that when a power has been confidedto a person in circumstances indicating that trust is being placed inhis individual judgment and discretion, he must exercise that powerpersonally unless he has been expressly empowered to delegate it toanother. ”
Section 6 of the Immigrants and Emigrants Act states “ The Ministermay either generally or specially authorize the Permanent Secretaryor any Assistant Secretary to the Ministry or the Controller to exercise,perform or discharge any power (other than the power conferred bysection 2 or section 31 or section 52), duty or function vested in, orimposed or conferred upon, the Minister, by or under this Act. ” I
I am of the view that under and in terms of this provision, it wasopen to the Minister to delegate the function conferred on him by Section28 (2) to an Assistant Secretary of the Ministry.
Section 28 (2) states: “ Where the Minister is satisfied that a personto whom this Part applies—
(а)enters or remains in Ceylon in contravention of any provision
of Part III or of any regulation made by virtue of the powersconferred by that Part ; or
(б)has had his visa or endorsement cancelled ; or
has overstayed the period specified in the visa or endorsement,
the Minister may by order, direct a prescribed officer to arrest, detainand take on board a ship such person and may further direct by thatorder, or by any subsequent order that the master of that ship shallremove from Ceylon such person. ”
SAMRIIAWICKRAME, J.—Salhappan v. Jayasinghe
95
Under this provision, it is clear that the Minister can only make aremoval order in respect of “ a person to whom this Part applies Section27 sets out “ that this part would apply to every person unless (a) he is acitizen of Ceylon ; or (6) by virtue of any order under Part I for the timebeing in force, he is exempted from the provisions of this Part Nada-rajan is neither a citizen of Ceylon nor has it been claimed on his behalfthat an order under Part I had been made exempting him from theoperation of Part V of this Act. The Minister had, therefore, authorityto make a removal order in respect of Nadarajan if he was satisfiedthat he had overstayed the period specified in the visa or endorsement.
Where an authority is empowered to take a prescribed course of actionwhen it is satisfied that a given state of affairs exists, the expression ofsatisfaction or opinion of that authority is decisive. It may be, however,that a Court might hold the action taken invalid if it can be shown thatthere was no evidential or rational basis upon which the authority couldhave formed the view that the prescribed state of affairs existed.
The only question, therefore, that I have to decide is whether theauthority who took the view that Nadarajan was a person to whomsub-paragraph (c) of Section 28 (2) applied had before him evidentiarymaterial upon which he could reasonably have formed that view.
It appears that several petitions had been received alleging thatNadarajan was overstaying his residence permit or visa. Upon inquiryit was found that permit No. C. 32207 dated 20th June, 1951, validfor two years from the date of issue and permit No. CE 9549 of the 18thAugust, 1953, valid from the date of issue, that is the 17th August, 1955,had been issued to one S. E. Nadarajan who in his application for thesaid permits had declared himself to be the holder of Passport No. 79368.While inquiries were in progress, the corpus Nadarajan made an appli-cation for a permit or visa dated 7th April, 1966, forwarding PassportNo. C. 010750 and stating that he had not held a residence permit earlier.Upon being questioned he admitted that he was an Indian nationalbut he denied that he had applied for or held permits Nos. C. 32207 andCE. 9549. Upon inquiries made at the Indian High Commission, it wasfound that the corpus had been issued India Ceylon Passport No. C. 010750and that the holder of that Passport had earlier been issued India CeylonPassport No. 79368 which had been mentioned in the application for thepermits issued in 1951 and 1953. A written communication from theIndian High Commission stating these facts had been obtained by theAssistant Secretary and has been placed before Court.
Upon this evidence, it would appear that there is material to showthat the corpus had held two residence permits and at least two passports.The inference is almost irresistible that he had at sometime left Ceylonafter he had first entered in 1948.
Air. Shanmugalingam appearing for the applicant submitted that evenif it be correct that the corpus had issued to him residence permitsand passports, it did not show that he had in fact left the country and
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SAMERAWICKRAME, J.—Sathappan v. Jayasinghe
that he may well have made arrangements to do so and for that purposeobtained the necessary documents but that he did not in fact leave.Had the corpus admitted that he obtained these permits but that he didnot in fact leave the country, the matter may have merited some inquirybut as he chose to deny the receipt by him of these documents, theauthority, namely, the Assistant Secretary, cannot be blamed for drawingan inference adverse to him.
I am of the view that from the material that was available before him,the Assistant Secretary may reasonably have taken the view that itwas established that the corpus had left Ceylon sometime after he hadfirst come here in 1948.
I am, accordingly, of the view that the removal order issued in respectof the corpus is valid and that his detention is lawful. The applicationis, accordingly, refused.
Application refused.