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MOHAMED JAWAD MROUCH v MINISTER FOR HOME AFFAIRS 1996

TLR 142 (HC)

Court High Court of Tanzania - Dar es Salaam

Judge Mackanja J

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 quasi-judicial 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 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.

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 country-and 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