Lee Waverly John v Principal Immigration Officer and Co-Ministers of Home Affairs

The first respondent declared the applicant a prohibited person in terms of section 21 read with section 22(1) of the Immigration Act [Cap 4:02]. The applicant appealed to the Magistrates Court, which upheld his appeal on 23 June 2010. The first respondent then noted an appeal to the High Court against the Magistrates Court decision. The grounds of appeal were that the Magistrate erred in setting aside the applicant's status as a prohibited person and in finding that the applicant had acquired domicile and was therefore protected from being declared a prohibited person. The applicant then applied to have the respondents' notice of appeal struck out, arguing that no appeal lay against the Magistrates Court decision under section 21(3) of the Immigration Act, and that the respondents had failed to provide security for costs as required by the Magistrates Court (Civil) Rules.

• Whether there is a right of appeal to the High Court against a decision of the Magistrates Court made under section 21 of the Immigration Act
• Whether the failure to provide security for costs justifies striking out a notice of appeal under the Magistrates Court (Civil) Rules
• The proper interpretation of section 21(3) of the Immigration Act regarding the reservation of questions of law to the Supreme Court

1. The Notice of Appeal filed by the respondents in Civ 'A'503/10 is struck out. 2. The respondents shall pay the applicant's costs.

Where section 21(3) of the Immigration Act provides for questions of law arising from appeals heard by the Magistrates Court to be reserved for the decision of the Supreme Court through a stated case procedure, no general right of appeal lies to the High Court against such Magistrates Court decisions. The application to state a case must be made to the Magistrates Court during the hearing and before determination of the appeal; once the appeal has been upheld or dismissed, this option is lost and cannot be exercised by noting an appeal to the High Court.

The court observed that while the Magistrates Court (Civil) Rules require security for costs to be provided when noting an appeal, failure to do so does not automatically result in the appeal being struck out. This is because Order 33 Rule 1 provides that failure to comply with the rules is not a ground for judgment against the defaulting party, unlike the position under the Supreme Court Rules which contain an express provision (Rule 36) allowing for dismissal of an appeal for failure to furnish security. The proper remedy in the Magistrates Court context is to apply under Order 33 Rule 2 for an order compelling compliance with the requirement to furnish security for costs.

This case clarifies the appeal mechanism under the Immigration Act, particularly that there is no general right of appeal to the High Court from Magistrates Court decisions made under section 21 of the Immigration Act. It establishes that the only recourse for questions of law arising from such appeals is through the stated case procedure to the Supreme Court as provided in section 21(3). The case also provides guidance on the consequences of failing to provide security for costs under the Magistrates Court (Civil) Rules, distinguishing the position from that under the Supreme Court Rules.