The applicant entered Zambia as a refugee in 1964, before the Refugees Act came into force. Per section 11 of the Act, refugees can only remain in Zambia if issued with a permit to remain, and unless he/she complied with the conditions of such permit. The Act provided for no grace period for refugees in Zambia to obtain permits prior to the Act coming into force. The main question to be determined by the court was whether the communication of a decision made by the Minister of Home Affairs, in the exercise of his discretion under section 24 of the Immigration and Deportation Act, Cap. 122, was invalid; and whether the detention of the applicant under section 26(3) of the Act was invalid.
The respondent submitted that the High Court had no jurisdiction to inquire into the exercise of the Minister's discretion under section 24 (2) of the Act, unless it was suggested that the Minister acted mala fide or ultra vires.
The respondent also submitted that under section ll of the Refugees (Control) Act, refugees entering Zambia since the Act came into force needed permits to remain in Zambia. Those who were refugees in law and who had entered Zambia before the Act came into force also needed permits.
The applicant submitted that either the Minister should have written directly to the applicant or the officer who communicated the Minister's decision should have prefaced the information communicated with the time honoured format, "I am directed by the Minister . . ." Instead of that, the applicant was informed by the Acting Chief Immigration Officer that "your appeal against the order requiring you to leave Zambia has been dismissed by the Minister of Home Affairs”.
Administrative law, executive discretion, Minister's discretion, Immigration and Deportation Act, validity of order, prohibited immigrant, refugee, Refugees Control Act
This was an application for an order declaring the Minister's declaration of the applicant a prohibited immigrant and his subsequent arrest as invalid.
The Act provided no grace period for refugees in Zambia to obtain permits prior to the coming into force of the Act.
On 30 June 1971, the Minister legalized the presence of the applicant and refugees in the country. On 9 October 1972, the applicant was declared a prohibited immigrant and ordered to leave Zambia within seven days.
The applicant unsuccessfully applied to be declared an established resident. He was however issued with a temporary permit to remain in the country on 23 October 1972. The permit was extended on three occasions, allowing him to remain in the country until 14 February 1973. On 25 October 1972 the applicant made written representations to the Minister under s. 24 (1) of the Immigration and Deportation Act. On 1 February, 1973, the Minister rejected his representations. On 16 February, 1973, the applicant was subsequently arrested and detained under s. 16 (3) of the Act.
The High Court held that there was no suggestion that the Minister acted mala fide. It also held that section 24(2) of the Immigration and Deportation Act simply required one to be notified that his representations were unsuccessful.
The Court also held that the Section 11 of the Refugees Act did not apply to refugees already in Zambia before the commencement of the Act and there was, therefore, a gap in the law.
The Court held that the Minister's decision and the communication thereof to the applicant was invalid. It held further that the applicant’s detention under the provisions of section 26 (3) of the Immigration and Deportation Act was also invalid.
Section 26(3) of the Immigration and Deportation Act only applied to prohibited immigrants and not refugees.