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Complaint against the Immigration Department [1996] VUOM 5; 1996.06 (10 October 1996)

REPUBLIC OF VANUATU

OFFICE OF THE OMBUDSMAN

PUBLIC REPORT

COMPLAINT AGAINST THE IMMIGRATION DEPARTMENT CONCERNING A
WOMAN WHOM THE IMMIGRATION DEPARTMENT ATTEMPTED TO
PREVENT LEAVING THE COUNTRY

10 October 1996

TABLE OF CONTENTS

PREAMBLE

1 INTRODUCTION

2 JURISDICTION AND SCOPE OF ENQUIRY

3 RELEVANT LAWS

4 METHOD OF INVESTIGATION

5 FINDINGS OF FACTS

6 FINDINGS OF WRONG CONDUCT AND MALADMINISTRATION PRACTICES

7 RECOMMENDATIONS

8 CONCLUSION

APPENDIX A

Reply from Mr Tofo, Immigration Officer

APPENDIX B

Reply from Mr Bovenga, Immigration Officer.

_______________________________________

COMPLAINT AGAINST THE IMMIGRATION DEPARTMENT CONCERNING A
WOMAN WHOM THE IMMIGRATION DEPARTMENT ATTEMPTED TO
PREVENT LEAVING THE COUNTRY

PUBLIC REPORT

PREAMBLE

"... Therefore have I also made you contemptible and base before all the people, according as ye have not kept my ways, but have been partial in the law ..." Malachi 2 v 9

In this investigation into a complaint of violation of an individual citizen’s fundamental right, a clear exposure appears of the misuse of official powers by the Immigration Office/Principal Immigration Officer in order to victimise an innocent member of the public.

The Principal Immigration Officer concerned, François Batik ("Mr Batick"), clearly acted outside his powers by instructing his subordinates to take illegal action to prevent the complainant from undertaking a journey by air of which her husband disapproved. Mr Batik was not impartial in this matter and clearly approved of the husband’s illegal request to interfere in his wife’s fundamental constitutional right of free movement.

There will also no doubt be questions arising in the public’s mind as to whether a Minister or official would have acted in this way against a husband at a wife’s request.

This matter provides yet another illustration of an attitude which emerges time after time in my investigations - namely a wrong impression held by officials and leaders that public office can be legally used to grant improper favours to friends, colleagues or relatives.

This of course, is not a tradition approved by the Biblical leaders, who clearly condemned the practice or being partial, instead of honest and just. This incident, though small in itself, constitutes a grave warning of what can happen when leaders fail to be guided by sound and proved principles of justice and fairness.

1 INTRODUCTION

Executive Summary

1.1 A complaint was received from Mrs Y, a lawyer from the Women’s Centre on behalf of Mrs X about an incident that occurred on 4 September, 1995. Mrs X alleged that she was prevented from leaving the country on the above mentioned date by the immigration officers at the airport.

1.2 This complaint is directed against the Immigration Department. The Immigration Department is given power to regulate and control Immigration into Vanuatu as specified in the Immigration Act Cap 66 ("Act").

1.3 The Immigration officers were acting on the advice of Mr Batick, the Principal Immigration Officer ("PIO"), who had apparently been asked by Mr X to stop his wife from leaving the country.

1.4 The Ombudsman has found that Mr Batick acted contrary to the art 5(1) (i) of the Constitution which guarantees the freedom of movement. The PIO can only stop a person leaving or entering Vanuatu:

(a) by a Court order;

(b) if the person has committed an offence against the Act; and

(c) if the person is a "prohibited immigrant".

1.5 However, none of those grounds existed in this case. It appeared that Mr Batick considered a woman’s husband had the right to dictate her movements. Freedom of movement is a constitutional right given to all citizens and not affected by marriage.

1.6 The Ombudsman also found that Mr Wai, Mr Tofo and Mr Bovenga, the investigation officers under Mr Batick in complying with Mr Batick’s instructions acted contrary to law and are also responsible for this stopping.

2 JURISDICTION AND SCOPE OF ENQUIRY

2.1 Pursuant to arts 62(1) and 62(2) of the Constitution and s14 (1) of the Ombudsman Act, the Ombudsman has jurisdiction to investigate into administrative defects and improper administrative practices.

2.2 Accordingly, the Ombudsman has jurisdiction to investigate Mrs X’s complaint to determine whether her allegation was true and whether the action taken by the immigration officers was lawful. The Ombudsman therefore commenced an enquiry.

2.3 The scope of the investigation was to establish the following;

(a) whether Mr Batick and Messrs Wai, Tofo and Bovenga acted within the law; and

(b) why they acted in the manner in which they did.

3 RELEVANT LAWS

3.1 Art 5(1) provides:

"The Republic of Vanuatu recognises, that, subject to any restrictions imposed by law on non-citizens, all persons are entitled to the following fundamental rights and freedoms of the individual without discrimination on the grounds of race, place of origin religious or traditional beliefs, political opinions, language or sex but subject to legitimate public interest in defence, safety, public order, welfare and health.

(i) freedom of movement ..."

3.2 The start of the Act states that the Immigration Department has power to regulate and control immigration into Vanuatu.

3.3 S3 (1) of the Act provides for the establishment of a PIO. S3 (2) allows the PIO to delegate his powers in writing. S3 (3) goes on to provide a discretion to the Minister to give directions consistent with Act.

3.4 S4 of the Act is relevant to this case. It sets out the powers of the PIO. It reads as follows:

Powers of Principal Immigration Officer

(1) For the purpose of exercising his powers and functions and carrying out his duties under this Act, the Principal Immigration Officer may require any person who desires to enter or leave Vanuatu to make and sign the prescribed form under this Act.

(2) If the Principal Immigration Officer has or any police officer has, reasonable cause to suspect that any person has committed an offence against this Act, or that the presence of any person in Vanuatu is unlawful, and it appears to be necessary to arrest such person immediately, he may arrest such person without a warrant.

Provided that where the person arrested is a person whom the Principal Immigration Officer, or the police officer, has reasonable cause to suspect is a prohibited immigrant and such person is a passenger or seaman on a ship, he may if he consents, be handed over to the custody of the masters of the ship until its departure from Vanuatu.

3.5 As noted in 1.5 above, the PIO can only prevent a person leaving or entering Vanuatu:

(a) if it is suspected that the person has committed an offence against the Act;

(b) if a person is a "prohibited immigrant".

3.6 Additionally, Courts previously have made orders preventing a person’s departure or entry into Vanuatu.

4 METHOD OF INVESTIGATION

4.1 Under s. 17 of the Ombudsman’s Act No. 14 of 1995, evidence and information were obtained from:

(a) Mrs X;

(b) Mrs Y;

(c) Mrs Z;

(d) Mr Batick;

(e) Mr Wai;

(f) Mr Tofo; and

(g) Mr Bovenga.

5 FINDING OF FACTS

5.1 The Minister responsible for the Department of Immigration at that time was the former Prime Minister, Hon Maxime Carlot Korman.

5.2 In early September 1995 Mrs X and her husband had a domestic problem. Mrs X was to attend a Conference in another country on Tuesday 5 September 1995. Because she was afraid her husband would try to stop her she approached Mrs Y.

5.3 On the 4 September 1995, Mrs Y applied to the Magistrate’s Court for a restraining order against Mr X on behalf of Mrs X. The application was granted. The Court directed that a copy of the order was to be served on Mr X by 4.30 p.m. that day. One of the paragraphs specifically stated that Mr X was not to interfere with Mrs X’s trip on 5 September 1995.

5.4 On that same day Mr X went to see Mr Batick. Mr X asked him to stop his wife leaving the country so they could solve their family problem. Whilst in Mr Batick’s office, Mr X drafted a letter to Mr Batick seeking his assistance to stop his wife. Mr X knew Mr Batick through work and socially. Mr Batick said in his statement that sometimes he drank kava with Mr X. Mr Batick lives one street after his. At that time Mr X was an executive of the UMP Efate Region. Before this incident Mr X was the second secretary to the Prime Minister. He returned to an executive position at the Prime Minister’s Office during the term of the last Korman Government. The contents of Mr X’s letter addressed to Mr Batick reads as follows:

"I am writing this letter to the Department of Immigration to stop my wife Mrs X to leave the country for any overseas trip.

It’s understood that she will be leaving tomorrow for (another country). Would you please take necessary arrangements to stop her.

Thank you for your kind cooperation."

Yours sincerely,

(Mr X)."

5.5 On Tuesday evening 5 September 1995, Mrs X went to the Airport, accompanied by her children and family as a precaution in case her husband tried to stop her. However, he was not at the airport.

5.6 While Mrs X was filling in her airport departure card, with Mrs Z beside her, she was approached by Mr Wai. He asked whether she was Mrs X and she replied yes. Mr Wai then said she could not board the plane.

5.7 When Mrs X queried why, he replied that his boss (Mr Batick) had instructed him orally at the immigration office to stop her because she had problems with her husband. Mr Wai said he did not receive any written instruction.

5.8 When Mrs X asked if his boss was Mr Batick, Mr Wai said yes. She explained that Mr X assaulted her and that she had got a restraining order against her husband not to interfere with her. Despite the explanation Mr Wai still refused to let her through.

5.9 Mrs Z used the public telephone to call Mrs Y to come to the airport with the order. By that time Mr Wai had left to go into the office. He did not come back.

5.10 When Mrs Y arrived with the order they all went to the departure counter. They were served by Mr Tofo. The order was given to Mr Tofo. He looked at the order then handed it over to Mr Bovenga who came to assist him at the counter.

5.11 Mr Bovenga saw the order and asked whether it was authentic. Mrs Y confirmed that the order was proper and that she was the lawyer who had prepared the application. The order had the Court’s seal on it. Mr Bovenga then reluctantly let Mrs X through.

5.12 In response, Mr Batick said in his evidence that he had advised Mr X that he had no power to stop Mrs X unless he was ordered by the Court to do so. He made an appointment for Mr X to see the people at the Court house.

5.13 Mr Batick says he then informed his officers at the airport about Mr X’s letter. He instructed them to stop Mrs X if they were shown a Court order stopping her from leaving. He also stated that he did not remember speaking to Messrs, Wai, Tofo and Bovenga.

5.14 This evidence differed from that of the immigration officers who were on duty that evening. Mr Wai said that whilst at the immigration office, Mr Batick approached him and asked him to stop Mrs X from leaving the country that evening. When Mr Wai asked if there was a Court order Mr Batick said there was none. However, he was instructed to simply stop her. He also said that Mr Batick said "if anything happens I’ll handle it". According to Mr Bovenga, a copy of Mr X’s letter was given to them at the airport. Furthermore, Mr Tofo stated that the instruction to stop Mrs X was written on the notice board at the airport. None of these officers said anything about Mr Batick’s instruction to stop Mrs X if Mr X came with a Court order.

5.15 Given that none of the immigration officers recalled anything about a Court order, I do not accept Mr Batick’s explanation. Accordingly I consider that what occurred is as stated by these officers and not Mr Batick, considering the events and evidence.

6. FINDINGS OF WRONG CONDUCT AND MALADMINISTRATION

6.1 Mr Batick, acted contrary to law. Specifically, he breached Mrs X’s freedom of movement as protected by art 5(1)(i) of the Constitution.

6.2 Mr Batick acted beyond his powers as specified under s4 of the Act. The Principal Immigration Officer can not stop any person leaving the country unless he has reasonable cause to suspect that the person has committed an offence against the Act or is suspected to be a prohibited immigrant. Of course none of these situations existed. Nor was there a Court order stopping Mrs X from going on her trip.

6.3 Moreover, Mr Batick, as a departmental head has breached the Leadership Code as his conduct was not in accordance with law or practice and was based on irrelevant grounds or irrelevant considerations.

6.4 The immigration officers, Messrs Wai, Tofo and Bovenga where they complied with Mr Batick’s instructions acted contrary to law and have some responsibility for the breach of Mrs X’s fundamental right of freedom of movement.

In their testimony, they never indicated that they questioned their head of department concerning the legal basis of his instructions.

7 RECOMMENDATIONS

Following the findings I have made regarding the breach of Mrs X’s fundamental right, I find it necessary to make the following recommendations:

7.1 The Principal Immigration Officer, Mr Batick should be reprimanded by the Minister for Foreign Affairs, Mr Willie Jimmy for breaching the Constitution, Leadership Code and engaging in administrative malpractice.

7.2 The Immigration Officers, Messrs Wai, Tofo and Bovenga be reprimanded by the Foreign Affairs Minister for breaching the Constitution by complying with Mr Batick’s instructions.

7.3 Mr Batick to write a letter of apology to Mrs X for his illegal attempt to prevent her from leaving the country.

7.4 A manual be prepared for the Immigration Department outlining their functions, powers, duties, etc, if there is none. All the immigration officers should be informed and educated about laws that govern their work.

8 CONCLUSION

In accordance with Article 63(1) of the Constitution and Section 22 of the Ombudsman Act No. 14 of 1995, the Ombudsman requests the Minister for Foreign Affairs responsible for Immigration and the Principal Immigration Officer to put the above recommendations into effect and to notify this office within 21 days of the date of receipt of this report and recommendations outlining what steps have been taken.

MARIE-NOËLLE FERRIEUX PATTERSON
OMBUDSMAN OF THE REPUBLIC OF VANUATU

APPENDIX A

REPLY FROM MR TOFO, IMMIGRATION OFFICER

In his reply to Preliminary Findings, Mr Tofo, immigration officer made the following comment:

Mr Batick instructed us to stop Mrs X so he is fully responsible for what happened.

Comments of the Ombudsman

The instruction given by Mr Batick was illegal so the immigration officer should not have followed it, or at least the officer should have queried the legal validity of the instruction.

APPENDIX B

REPLY FROM MR BOVENGA, IMMIGRATION OFFICER

In his reply to my Preliminary Findings, Mr Bovenga, immigration officer made the following comment:

The instructions to stop Mrs X was already on the white board. I am a subordinate officer who is subject to the authority of my superiors whether it is my OIC of the shift Mr Wai or Mr Batick.

If Mr Batick gives an instruction, I have no authority as a Police Constable to counter his instruction. So I think that the person who made such an instruction should be penalised and not the subordinate officers.

Comments of the Ombudsman

Mr Batick is subject to all the laws of the Republic of Vanuatu. A subordinate officer can not out of ignorance comply with an unlawful order and use it as an excuse to defend himself. The laws of Vanuatu must be respected by all citizens.

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