The court had to determine whether the Minister of home Affairs’ discretion under S 22(2) of the Immigration and Deportation Act (IDA) to declare a person a prohibited immigrant is applicable to a refugee under the Refugee (Control) Act (RCA) 1970, as in the case of the applicant.
In the first instance, the court accepted that on the evidence before it, the applicant was accepted, treated and accommodated as a refugee by the authorities on arrival in Zambia. The court was satisfied that the applicant was a refugee in fact, as early as September 1964 and a refugee in law since June 1971. He clearly fell within the ambit of the RCA.
In the second place, it was held that a finding to the effect that the Minister may exercise the discretion under s 22(2) of the IDA in the case of a refugee, would result in the incongruous situation where one could be a refugee and a prohibited immigrant, at the same time. This would make one subject to deportation under both under s 26 of the IDA and s 10 of the RCA.
Moreover, the RCA was enacted to provide certain safeguards to rights of refugees. Those safeguards are not so provided in the IDA, which confers on the Minister unfettered discretion. The court held that the intention of the legislature, in enacting the RCA, would be defeated if the safeguards therein were discarded by resorting to an alternative machinery. Therefore, interpretive preference must be given to the RCA, which is a specialised legislation, over the IDA, which is more general.
It was thus decided that the Minister’s declaration was ultra vires and fell to be set aside.
Refugee; persecution for political opinion; ultra vires
The applicant, a Malawian national, entered Zambia as a refugee in 1964 and was treated as a “refugee in law” since June 1974. The Minister of Home Affairs later invoked the provisions in the Immigration and Deportation Act (the Act), declaring the presence of the applicant in Zambia to be inimical to public interest and served him with notice to leave Zambia. The applicant then made representations against the notice but was informed that the representations were unsuccessful and was subsequently detained in terms of s 26(3) of the same Act. He was later released on further representation but detained again shortly after his release, again relying on s 26(3) of the Act. In the matter before court, the applicant sought an order a certiorari against the Minister, that the declaration of the applicant as a prohibited immigrant was ultra vires.
The application was allowed.
The court granted the declaration that the decision of the Minister, declaring the applicant a prohibited immigrant under s 22(2) of the IDA, was ultra vires and fell to be set aside.