Court quashes Indian man's deportation by Interior Minister

The deportation of an Indian businessman, Mr Ashok Kumar Sivaram, by the Minister of Interior, Mr Abrose Dery, in May 2017 has been declared illegal and quashed by the Accra High Court.

In a ruling on Monday, the court, presided over by Mr Justice Kweku T Ackah-Boafo, held that the Interior Minister exceeded his jurisdiction when he determined that Indian had engaged in fraud and subsequently deported him.

According to the court, the lawful procedure was for Mr Sivaram to have been put before a court of lawful jurisdiction for the case of fraud to be determined against him.

“The Minister arrogated to himself the role of prosecutor and adjudicator,’’ the presiding judge said.

The court further ruled that the Minister of Interior committed a serious breach of natural justice by not allowing Mr Sivaram to defend himself before a court of competent jurisdiction when the allegation of fraud was leveled against him.

“The right to be heard is a fundamental principle and cannot be ignored on the basis of administrative inconvenience,’’ Mr Justice Ackah-Boafo said.

As a result of the court ruling, Mr Sivaram can return to the country and any attempt to deport him in relation to this matter would constitute contempt of court.

Deportation

On May 15, 2017, Mr Dery signed an order for Mr Sivaram to be deported on the basis that the businessman used fake documents to enable him to continue to reside in the country.

“Ashok Kumar Sivaram acquired and submitted a forged marriage certificate in support of his application for citizenship by registration as a Ghanaian in 2015,’’ the deportation order stated

According to the Minister, the act was “fraudulent and criminal’’ and Mr Sivaram’s presence was not “conducive to the public good.’’

Mr Dery made the order per the powers granted him under Section 36(1) of the Immigration Act, 2000 (Act 573),

Section 36 (1-3) states that “The Minister may by executive instrument order the deportation of any person liable to deportation. The order may be made subject to such conditions as the Minister may impose. A deportation order may include the dependants of the person to be deported if the Minister so directs. ”

The order by the Interior Minister was carried out on June 1, 2017 by the Ghana Immigration Service (GIS) and Mr Sivaram was subsequently deported on that day.

Read also: Indian sues Interior Minister, Immigration Comptroller for 'unfair' deportation

Certiorari

Not happy with the deportation, lawyers for the Mr Sivaram filed an application for judicial review by way of certiorari for the order to be nullified by the High Court.

In the said application which named Mr Dery and the Director –General of the GIS, Mr Kwame Takyi, as respondents, the businessman argued that the Interior Minister exceeded his jurisdiction in issuing the deportation order.

Also, he argued that the order was a breach of natural justice he was not given any hearing after he was accused of submitting a fake marriage certificate.

He contended that fraud was a criminal offence and could only be determined by a court after both sides (prosecution and defence) had presented their case and the prosecution had proved its case beyond reasonable doubt.

“Fraud is a criminal offence and thus the 1st Respondent (Mr Dery) ought to have put the issue before the Court for a judicial determination of same if they were convinced that the Applicant had engaged himself in any fraudulent conduct,’’ the applicant said.

In their affidavit in opposition, the two respondents, argued that Mr Sivaram erred by suing them (Mr Dery and Mr Takyi) and should have rather sued the Attorney-General (A-G) because the two acted in their official capacity as Minister of Interior and Director –General of GIS.

The respondent further argued that Mr Sivaram was not in Ghana when he instituted the case and his address on the application was an address in India.

They also averred that the Minister did not exceed its jurisdiction because the businessman lied on oath by presenting a fake document for his citizenship registration and he “ought to blame himself’’.

Court decision

In its decision to grant the application, the court said Mr Sivarma did not breach any rules by naming the Minister of Interior and the Director-General of GIS as respondents instead of the A-G, because he did not sue them but rather he wanted their decision to deport him to be quashed.

“This was an application for judicial review of the deportation order and the use of the personal names is not fatal,’’ the court said.

On the issue of Mr Sivarma instituting the action with an address outside the country, the court held that an application for certiorari must emanate from an aggrieved person or an interested party.

Counsel for the applicant, the court said, could have even instituted the action.

The court further ruled that there was evidence to show that the said fake marriage certificate was issued by the Kumasi Metropolitan Assembly (KMA).

In this regard, the court, held that if indeed the marriage certificate was fake, then Mr Sivarma was a victim of the incompetence of a KMA official.