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,
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
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.
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.
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 Mallabastated 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
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
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
A