Singh v Minister of Home Affairs and Another (1467/2012) [2012] ZAECGHC 48 (14 June 2012)

13

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION,GRAHAMSTOWN)

Case No:1467/ 2012

Date Heard: 31/05/2012

Date Delivered: 14/06/2012

In the matter between:

SONY RAJAN DEEP SINGH ….............................................APPLICANT

And

THE MINISTER OF HOME AFFAIRS …........................1ST RESPONDENT

DIRECTOR-GENERAL: DEPARTMENT

OF HOME AFFAIRS …..............................................2ND RESPONDENT

JUDGMENT

SMITH J:

Introduction

[1] Sony Rajan Deep Singh (“Singh”), an Indian national, was arrested by an immigration officer at his residence in Grahamstown on 3 May 2012. He was initially detained at the Grahamstown Correctional Facility, and thereafter transferred to the Lindela Holding Facility at Krugersdorp on 18 May 2012.

[2] Singh has now applied on an urgent basis for an order declaring his arrest and detention invalid, and ordering his immediate release from detention.

[3] Mr Moorhouse, who appeared for Singh, submitted that his arrest and continued detention are unlawful for the following reasons:

Singh’s asylum seeker permit is valid until such time as it had been declared invalid by a court of law;

Singh is legally married to a South African citizen;

The immigration officer who arrested Singh did not properly exercise his discretion to arrest and detain him;

Singh was not informed of his rights set out in s. 34(1)(a) and (b) of the Immigration Act, 13 of 2002 (“the Immigration Act”) either at the time of his arrest or immediately thereafter;

Singh had not been informed of his rights in terms of s. 35 of the Constitution in a language that he understands;

Respondents failed to prove that Singh has been detained in a manner and place determined by the Second Respondent;

Respondents have failed to prove that Singh’s conditions of detention meet the prescribed minimum standards of detention;

Singh had not been advised of his rights in terms of Article 36(1)(b) of the Vienna Convention on Consular Relations 1963, thus rendering his detention unlawful; and

(i) His continued detention is arbitrary and without just cause.

Factual background

[4] Singh asserts that he had been lawfully residing in the Republic of South Africa since 2009, by virtue of a valid asylum seeker permit issued in terms of s. 22 of the Refugees Act, 13 of 1998 (“the Refugees Act”). His application for asylum is still awaiting final decision by the relevant authorities.

[5] But Singh also appears to rely on another ground for his assertion that his presence in South Africa is lawful. And that this is that he is married to a South African citizen, one Roseline Katrien Singh. It is however not clear on what basis Singh asserts that this entitles him to residence in the Republic. In the event, it appears that he had applied for a temporary resident’s permit on the basis of his marriage, and that that application had been refused on 25 May 2012.

[6] Singh also alleged that at the time of his arrest he had presented his asylum seekers permit to the immigration officer. He was however not informed of the reasons for his arrest and detention.

[7] The onus being on the Respondents to justify Singh’s arrest and detention, they filed affidavits by the immigration officer who effected the arrest, one Singatwa Mtiya, as well as other officials.

[8] Mtiya states that when she arrested Singh on 3 May 2012, he had produced a copy of a marriage register, apparently in an attempt to justify his presence in the Republic. He was unable to explain however why he was in possession of a copy of the marriage register. Mtiya apparently thought this strange because spouses are usually handed a copy of a marriage certificate which had been completed by the marriage officer.

[9] When Mtiya requested Singh to produce documents which entitled him to be present in the country, he produced his passport and a marriage certificate. His passport indicated that he had entered the Republic during March 2008 with a visitor’s visa which entitled him to be in the country for ten days at a time during the period 5 March 28 to 26 May 2012.

[10] Mtiya was however not satisfied that any of the documents which Singh had produced entitled him to be legally present in the country. She therefore asked Singh whether he was in possession of, or had applied for any permit that entitled him to be lawfully in the country. Singh replied that he did not have a valid permit. Mtiya thereafter arrested him without a warrant. Singh was subsequently detained at the Grahamstown police station under a warrant issued in terms of s. 7(1)(g) of the Immigration Act, read with Regulation 28(7) of the Regulations published in Government Notice no 616, and published on 27 June 2005 (“the Regulations”).

[11] During further questioning Singh had told Mtiya that he had “asylum”. This Mtiya had taken to mean that Singh had been issued with an asylum seeker permit in terms of s. 22 of the Refugees Act.

It had been issued at the department’s satellite office at Tirro on 2 November 2011, and was valid until 2 May 2012;

The initial permit was issued at Port Elizabeth on 26 March 2009; and

(c) The decision of the Standing Committee for Refugees was still being awaited.

[13] Mtiya explained to Singh’s brother that his application for asylum had already been rejected as being “manifestly unfounded” in terms of s. 24 (3) (b) of the Refugees Act, and that this rejection had been referred to the Standing Committee for review.

[14] Mtiya had thereafter conducted further investigations and as a result thereof discovered the following:

The first asylum seekers permit was issued at Port Elizabeth on 25 March 2009;

The second permit was issued at Port Elizabeth on 24 June 2009, and was valid until 24 July 2009;

There are no records indicating that the current permit had ever been issued and that it was therefore a forgery;

(d) That Singhs’ marriage was solemnised by a marriage officer in King Williams Town who did not require the parties to furnish the affidavit prescribed by regulation 8 of the regulations published under Government Gazette 10500 of 24 October 1986. The marriage is therefore void ab initio, alternatively voidable.

[15] After concluding her investigations on 7 May 2012, Mtiya decided to deport Singh to India. She informed him about the decision on the same day. She also served him with a “Notice of Decision Adversely Affecting Person”, as well as a “Notification of Deportation” in terms of s. 7(1)(g) of the Immigration Act, read with Regulations 8(3) and 28(2), respectively. She also informed him of his rights to appeal to the Director-General, and to request that his detention be confirmed by warrant in terms of s. 34(1)(c) of the Immigration Act.

Did Singh have permission to be in the country?

[17] Mr Moorhouse’s submission that Singh was entitled to be in the country by virtue of a valid asylum seeker permit cannot be upheld for the following reasons:

First, the permit was only valid until 2 May 2012. It is common cause that it had not been extended.

Second, I am constrained to accept the Respondents’ assertion that the certificate is a forgery and had probably been fraudulently

obtained. The Respondents have in my view established a sound factual basis for this assertion. In the event, Singh’s own

account of how he had obtained the permit serves to support the Respondents’ contentions in this regard. In his replying

affidavit he relates how he had been assisted by an “Indian interpreter” who appeared to have free access to officials. He himself had not spoken to any of the officials. After the interpreter had spoken to a number of the Home Affairs officials, he returned with the permit. I am not persuaded that Singh could under these circumstances have believed in the validity of the certificate.

Third, it seems highly unlikely that officials would have issued any certificate to Singh which purported to give him permission to remain in the country without interviewing him, or raising the fact that, at least at that time, he would have been in the country without a valid permit.

[18] There can therefore be no doubt that when Singh was arrested on 3 May 2012, he did not have any lawful permission to be in the country. He was in possession of an asylum seeker permit which on all accounts appeared to have been a forgery, and which in any event had expired on 2 May 2012. The question however remains whether his continued detention is vulnerable to attack on one or more of the technical grounds argued by Mr Moorhouse. I consider these points below.

Exercise of Mtiya’s discretion

[19] Mr Moorhouse argued that Mtiya did not properly exercise her discretion to arrest and detain Singh. In this regard he submitted that s. 34(1) of the Immigration Act provides that an immigration officer “may” arrest, detain or deport a illegal foreigner. He argued that Mtiya was constrained to exercise her discretion “in favorem libertatis” and that she did not state any facts to justify her decision to arrest and detain Singh. (Ulde v Minister of Home Affairs 2009 (8) BCLR 840 (SCA).

[20] I do not agree. At the time of his arrest Singh was in possession of a fraudulent asylum seeker certificate which had in any event expired. He had, after the expiration of the last valid certificate issued to him, been unlawfully residing in the country since July 2009. Although he claims to be entitled to asylum, he does not state on what basis he would qualify. I am of the view that under these circumstances Mtiya had good cause to arrest and detain Singh in terms of s.41 or s.34 of the Immigration Act.

“shall be informed upon arrest or immediately thereafter of the rights set out in the preceding two paragraphs, when possible, practicable and available in a language that he or she understands.”

The rights referred to in this subsection are: to appeal against a decision to deport him; and for his detention for the purposes of deportation be confirmed by a warrant of court.

[22] It is common cause that Singh was only informed of these rights on 7 May 2012, some 5 days after his initial arrest. Mr Moorhouse submitted that once Singh had placed the lawfulness of his arrest and continued detention in issue, it was required of the Respondents to prove that all procedural requirements had been complied with. He argued that these provisions are peremptory and Singh’s detention is therefore unlawful. Mr Moorhouse relied in this regard on Jeebhai v Minister of Home Affairs [2009] 3 ALL SA 103 (SCA) where Cachalia JA held that where an applicant has placed the lawfulness of his or her detention in issue, it is incumbent on the authorities to satisfy every procedural statutory requirement. Because the initial detention and subsequent deportation of the applicant in Jeebhai (supra) were effected without a warrant and therefore unlawful, it was not necessary for the court to decide the issue as to what legal consequences, if any, flow from the failure of the authorities to warn an applicant of his or her rights under ss. 34(1)(a) and 34(1)(b) of the Immigration Act.

“41 Identification

(1) When so requested by an immigration officer or a police officer, any person shall identify himself or herself as a citizen, permanent resident or foreigner, and if on reasonable grounds such immigration officer or police officer is not satisfied that such person is entitled to be in the Republic, such person may be interviewed by an immigration officer or a police officer about his or her identity or status, and such immigration officer or police officer may take such person into custody without a warrant, and shall take reasonable steps, as may be prescribed, to assist the person in verifying his or her identity or status, and thereafter, if necessary detain him or her in terms of section 34.”

[24] The reasons stated by Mtiya for Singh’s arrest without a warrant on 3 May 2012 do appear to place the arrest squarely within the purview of s. 41. First, the warrant for his detention, which was issued on 3 May 2012, refers to s. 41 and states that he was detained because he is a “suspected illegal foreigner in terms of sec 43 of the Immigration Act…”. Furthermore, the warrant states the purpose of his detention as being “pending an investigation into his or her prima facie status or citizenship”. Second, it appears that the decision to deport Singh was only taken on 7 May 2012 after Mtyiya’s investigations had shown that he was indeed an illegal foreigner. This would mean that Singh’s detention in terms of s. 34 of the Act only commenced on 7 May 2012. On this basis he had indeed been promptly advised of his rights in terms of s. 34 of the Immigration Act.