Extract of case

The Accused stood charged for the offence of Remaining in Mauritius without Reasonable Excuse when Visa has been Expired in breach of Section 36(f) of the Immigration Act 2022.

The Accused pleaded not guilty and was assisted by Counsel Mr Koomaren Ramasamy.

The Accused was reproached for having on or about 01st day of December 2024 unlawfully and without reasonable excuse stayed in Mauritius after the expiry of the period for which he obtained a visa permit, to wit: between 01.12.2024 up to 27.04.2025.

Witness No.1 for the Prosecution, recorded 2 defence statements from Accused which he produced, and he was cross -examined and agreed that:

–          Accused collaborated with the Police

–          Statements were concerning Accused allegedly providing misleading information post 27.04.2025.

–          The charge for giving misleading information was struck out,

–          The Accused was a student

–          There was an application for renewal of Accused’s visa

–          The Accused was never informed whether his visa was renewed or not,

–          The visa was still in process,

–          On 27.04.2025, the Accused left Mauritius voluntarily and came back on 17.05.2025, whereby he was granted a 60-day visa.

–          Since 20.05.2025, he has been in custody.

Two more witnesses deponed for the Prosecution and Witness 3 confirmed that the Accused was a student, an application to extend his visa was made and he was not aware of the outcome. He also confirmed Accused was not issued with a notice of illegal stay when he left Mauritius.

Accused elected to remain silent and Defence Counsel offered submissions.

The Analysis by the Court:

Burden of proving each element of the offence rests on the prosecution ( vide Gowry S v ICAC [2016 SCJ 499 ].

The elements which the Prosecution needs to prove are as follows:

–          The Accused remained in Mauritius during the relevant period

–          His visa expired or was cancelled, and

–          He remained without reasonable excuse.

It is not disputed that Accused stayed in Mauritius during the relevant period. It is further not disputed that Accused was a student and that there was an application for renewal of his visa during that period. Accused left voluntarily and re-entered on 17th May 2025 at which point he was granted a fresh 60-day visa by the authorities at the airport.

The EO, Witness no.1 confirmed that Accused collaborated, the charge relating to misleading information was struck out and that the focus of statements concerned conduct after 27 April 2025. He also confirmed accused was a student and there had indeed been an application for visa renewal. Crucially, he acknowledged that the Accused was not informed whether the visa had been renewed or rejected, and that the application remained in process.

The Court stated that this piece of evidence is significant. The Prosecution did not place any evidence before the Court from the Immigration authorities to demonstrate that the visa renewal application was rejected or refused. Nor was there any communication shown to have been sent to the Accused advising him of the expiry or cancellation of his visa. It is a fundamental principle of procedural fairness that a person who seeks to regularise his immigration status by making a bona fide application ought to be informed of the outcome thereof in a timely and formal manner.

The Court further stated that the Prosecution failed to adduce any evidence to establish that the Accused was ever notified that he was residing in Mauritius illegally. On the contrary the EO agreed that Accused was not issued with any notice of illegal stay upon his departure from Mauritius on 27th April 2025. His voluntary departure further weakens any suggestion of mala fides or deliberate overstaying on his part.

The Court further stated that in absence of any evidence from the immigration authority confirming that the Accused’s visa had lapsed and that he had been duly notified of same, the Court cannot safely find that the remained without reasonable excuse. It would be unsafe and indeed contrary to law to criminally convict a person for overstaying when the very institution responsible for informing him of the expiration or rejection of his visa has failed to do so or failed to provide any proof of notification.

Finding

The Prosecution has not proved its case beyond reasonable doubt and the case against Accused is dismissed.