Minister of Internal Affairs v Varsani (MA 241 of 2022) [2023] SCSC 132 (16 February 2023)

VIDOT J

Background

1. The Respondent, an Indian national, filed a petition dated 07^th January 2022. In that petition he makes an application for the Court to judicially review the decision of the Applicant. The Applicant had refused an application by the Respondent for a Gainful Occupation Permit (“GOP”) and a further made an order declaring the Respondent a prohibited immigrant (“P.I”). That decision was contained in a letter dated 17^th December 2019. On 09^th January 2020, the Respondent through an agent in Seychelles, Mr. Marco Francis of AAA Management Services Ltd. (AAA), lodged an appeal against that refusal not to grant a GOP and decision to declare the respondent a P.I. The Respondent replied by letter dated 21^st February 2020 maintaining its position.
2. On 06^th January 2020, the agent in Seychelles, wrote to the Applicant requesting access to all information pertaining to reason for such refusal of GOP and declaration of the Respondent as a P.I. It is to be noted that the Respondent was formerly in possession of a GOP for the period 01^st May 2018 to 30^th April 2020. At that time, he was a director and employee of Lucky Pal Construction (Proprietary) Limited, (“Lucky Pal”) a company incorporated in the Seychelles. In response, the Applicant by letter dated 14 July 2020, informed Mr. Francis that the Respondent was declared a P.I under section 19(h)(ii) of the Immigration Decree by reason that he was not of good character to remain in Seychelles. By letter dated 19^th November 2019, the Principal Secretary of the Applicant added that the Respondent had been declared a P.I because he has been in breach of Immigration laws as he had engaged in working activities outside the scope of of his GOP.
3. The P.I was issued when the Respondent was not in the jurisdiction. He received a copy of the P.I Notice on 15^th October 2021, after the Respondent had made a request for a copy from the Applicant. It is averred that despite numerous letters for further information that resulted in the Applicant taking such decision, the same has not been forthcoming. Therefore, the Respondent alleges that failure of the Applicant to provide the Respondent or his agent with particulars of allegation of bad character and not to allow him to remain and reside in Seychelles is tantamount to denying the Respondent the right to state his case, which is of natural justice and that the decision of the Applicant to declare the Respondent a P.I is irrational, unreasonable and unlawful.
4. Being aggrieved by the decision of the Applicant, the Respondent prays to Court to exercise its supervisory jurisdiction and;
   1. 1. Grant leave to the Respondent to proceed with the petition in accordance with Rules 5 and 6 of the Supreme Court (Supervisory Jurisdiction over Subordinate Courts, Tribunals and Adjudicating Authorities) Rules (“the Rules”);
      2. Direct the Applicant to direct all relevant records in accordance with Rule 10 of the Rules; and
      3. After hearing the petition:-

1. Grant a declaration to that the Respondent’s right to naturally justice has been breached by the Applicant and that the Applicant’s decision to refuse the Respondent’s application for GOP was irrational, unreasonable and unlawful;
2. Issue an order of certiorari revoking the Notice to Prohibited Immigrant to leave the Seychelles made by the Applicant on 19^th December 2019;
3. Issue an order of certiorari quashing the Applicant’s decision of 17 December 2019 and 21 February 2020;
4. Issue an order of mandamus ordering the Applicant to determine the Respondent’s application for GOP within a reasonable time and in accordance with the law;
5. Grant such former or other relief as may seem just in the circumstances; and
6. Grant costs of these proceedings to the Respondent.

Ruling of 21^st July 2022.

5.  On 21^st July 2022, the Court delivered a Ruling that after consideration of the of the application for leave to proceed together with document attached therewith, found that the Respondent has interest in the matter in terms with Rule 6 of the Rules with a caveat that a copy of the Ruling be served on the Applicant. The reason for that was to invite the Applicant in terms with Rule 7(1) to take a position on the Ruling should they consider the necessity to do so. Therefore, in that regard the Applicant filed a Motion to set aside the Ruling for Leave under Rule 7(1) of the Rules and the reasons for such Motion was laid down in an attached affidavit sworn by Mr. Alain Volcere, Principal Secretary of the Department of Immigration and Civil Status. However, the reasons for the Application to set aside the Order granting leave were not included in the Notice of Motion itself. Despite that lapse, such reasons could be discerned from the attached affidavit.

Motion to Set aside Ruling Granting Leave to Proceed.

6. In the attached affidavit, the Applicant gives an overview as to the circumstances regarding the refusal of the GOP and declaration of P.I of the Respondent by the Applicant.
7. The Applicant explains that on 15^th October 2018, the director of Lucky Pal, Mr. Frank Hoareau had written to various Ministries and Departments, including the Applicant to inform them that the Respondent has been suspended from his role within the company as a result of alleged “major fraud”. That was followed by a further letter dated 22^nd October 2019 explaining that the Respondent’s employment has been terminated and ask for the cancellation of the GOP.
8. Mr. Francis wrote to the Applicant on 29^th October 2019 seeking approval for a “Visitors permit and subsequent GOP application approvals expressing an intention to stay in the country awaiting issue of Mr. Varsani’s Company Building Contractor Licence Class II” and it was confirmed by Mr. Francis later that such licence was granted and the GOP application would be submitted by the 05^th December 2019 and such application was made on the said date in respect of the Respondent’s position with Jigar Construction. On 13^th December 2021, the Respondent and his wife left the Seychelles jurisdiction.
9. After considering complaints received against the Respondent, decision was taken to declare him a P.I. That decision was confirmed in a Notice was issued and as he was declared as such pursuant to section 19(1)(h)(ii) of the Immigration Decree. the Notice was issued pursuant to section 20 of the Decree. The decision to refuse the GOP was taken on 17^th December 2019.   
10. Thereafter followed an exchange of letters between Mr. Francis and the Applicant on dates specified above, requesting for documents that referred to the decision to declare the Respondent a P.I. On the 06^th January 2020, the Applicant received a letter from LBS Law and HR Solutions Consultancy (“LBS”) signifying that the Respondent was appealing against both the decision; that is, not to grant the GOP and the declaration of the Respondent as a P.I. On 21^st February 2020, the Applicant wrote a letter maintaining their decision. It is noted that the Respondent was under GOP with Lucky Pal when he registered the other company. The Applicant rehearsed the averments made by the Respondent in respect of communications Mr. Francis engaged with them.

Application to Proceed out of Time

11.  When the Respondent filed his application for leave and judicial review, an application for leave to file the petition out of time was also filed. This Court recognises that when it delivered the Ruling 21^st July 2022, there was an inadvertent omission to address and make a determination on the application to file the petition out of time. This Court apologises to parties for that failure. In fact, in the court proceedings of 02^nd February 2022, the Court indicated that before the issue of leave under Rule 6 is dealt with, it was going to address the issue of the application for leave to file the petition out of time. The Applicant’s Notice of Motion is partly based on that omission.
12. The reason for the delay according to the Respondent as per his affidavit dated 07^th December 2021, was due to various communication between the Respondent, through his agent Mr. Francis and the Applicant, pertaining to information in respect of his refusal for GOP and declaration as a P.I. I have dealt with these exchanges of communication above and shall not repeat them here.

The Law

13. Article 125(1)(c) of the Seychelles Constitution, provides that the Supreme Court is granted supervisory powers over subordinate courts, tribunals and adjudicating authorities. That means that the Supreme Court may judicially review decision from these bodies.
14. Under the Rules, an application for judicial review has to be brought within three months of the impugned decision having been pronounced. In Rule 4 of the Rules, it is provided that a judicial review petition has be initiated “promptly and in any case within 3 months from the date of that order or decision sought to be canvassed in the petition.” However, it is trite law that a party may initiate an action outside the prescribed time period provided that leave is granted for starting such action. The party seeking to initiate such action has to make such an application by way of a Notice of Motion. The power to grant an application for leave to file an application for judicial review out of time should be exercised judiciously.
15. It was held in Viral Dhanjee v James Alix Michel SCSC CP03/2004 that “applicants might be hurt when petitions or applications are dismissed due to legal technicality. But in the long run, rule of law would be hurt, if we allow some procedural irregularities to continue….” In Ratnam v Cumarasamy [1964] 3 ALL ER 933, it was held that “rules of court must prima facie, be obeyed, and in order to justify a court extending the time which some step in procedure require to be taken, there must be some material on which the court can exercise its discretion.” This made it abundantly clear that rules of procedure are to be followed and that failure to do so can only be condone in exceptional cases.
16. Counsel for the Applicant cited Labrosse v Chairperson of Employment Tribunal (SCA 36/2012) [2014] SCCA 44, wherein the Court of Appeal held;

“[..] procedural rules must be followed for both appeals and judicial review applications […]. Similarly, Rule 4 of the Supreme Court (Supervisory Jurisdiction over Subordinate Courts, Tribunals and Adjudicating Authorities) Rules 1995 provides that a petition for judicial review shall be made promptly and in any event within 3 months from the date of the order or decision unless the Supreme Court considers that there is good reason for extending the period.”

Discussion

17. In this case, the application for GOP was refused and the Respondent was declared a P.I by letter dated 17^th December 2019 from the Applicant. By letter dated 09^th January 2020, Marco Francis from AAA lodged an appeal against that decision.  The Applicant considered the appeal and by letter dated 21^st February 2020 informed the Respondent that it was maintaining its decision. The petition for judicial review should have been filed three months thereafter and that is 21^st May 2020. The Applicant failed to do that and waited 07^th January 2022 to do so, nearly some 20 months after the decision maintaining the decision not to allow the appeal was given.
18. The Respondent submits that since the Notice of P.I was not served on him and that it was only placed in his immigration file he had no way of knowing that such Notice had been issued. I cannot accept this as a reason for allowing the filing of the petition out of time since the Respondent’s affidavit clearly states that Mr. Francis of AAA appealed against the P.I Notice. So, he had knowledge of the same as otherwise Mr. Francis would have only made a query as to correctness of its existence. In any case, it appears that at that time or immediately after the Respondent was out of jurisdiction
19. The Respondent also claims that there was delay in filing the application and that that was not due to inaction but rather because there were continuous discussions with the Applicant. I do not find this to be a valid reason. Once the decision was taken on appeal, the Applicant could not have gone back on its own decision. The communications between the parties centred on access to information in respect of the refusal and declaration. If the Respondent noticed that they were not moving forward with such correspondence, then they should have filed the judicial review application and could, as it did in the application that he filed, that once leave was granted, ask for an Order from Court instructing the Applicant to produce all records in accordance with Rule 10 of the Rules.
20. Despite the agent of the Respondent’s continuous discussion with the Applicant, such discussions seemed to have carried on till the 19^th November 2020, yet the Respondent waited till the 07^th January 2022. The Respondent failed to explain the reason for such inordinate delay.
21. Applications for Judicial review is governed by the Rules. Rules 4 states thus;

“A petition under rule 2 shall be made promptly and in any event within 3 months of the date of the order or decision sought to be canvassed in the petition unless the Supreme Court considers that there is good reason for extending the period within which the petition shall be made.”

22. The Respondent did not act promptly. I am reminded that in Ratnam v Cumarasamy (supra) it was held that … rules of court must prima facie , be obeyed, and in order to justify a court extending the time which some step in procedure require to be taken , there must be some material on which the court can exercise its discretion.” The Respondents waited for some 20 months before filing the petition for judicial review. That is the abuse of the right to seek leave to file the petition out of time.

Determination

23. This Court considers that the Respondent sat on his right and that caused inordinate delay in filing the judicial review application. The time that lapsed was far too great that this Court finds that it will be unfair and unjust to allow the filing of the Respondent’s petition out of time.
24. Therefore, I allow the Applicant’s Notice of Motion and declare that the petition for judicial review has been filed out of time and leave to file it out of time is denied.
25. I make no Order as to cost.

Signed, dated and delivered at Ile du Port on 16 February 2023

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Vidot J