McDonald v Robati [1981] CKHC 3 (28 July 1981)

IN THE HIGH COURT OF THE COURT COOK ISLANDS
HELD AT RAROTONGA
(CIVIL DIVISION)

BETWEEN:

RICHARD NORMAN McDONALD
of Rarotonga, Public Accountant
Plaintiff

AND

THE HONOURABLE PUPUKE ROBATI
Acting Minister of Immigration for the Cook Islands, Rarotonga
Defendant

Counsel: Turner for Plaintiff
Solicitor-General for Defendant

Date of Hearing: 8.6.1981
Date of Judgment: 28.7.1981

JUDGMENT OF SIR GAVEN DONNE CJ

This is a motion for the issue of a writ of certiorari directed to the Defendant to remove an application by the Plaintiff for a residence permit made under the provisions of section 24 of the Entry Residence and Departure Act 1971-72 to this Court for the purpose of quashing the refusal of the application by the defendant. The grounds for the motion are that the refusal was made without jurisdiction and in breach of the rules of natural justice and with bias on the part of the defendant.

Two affidavits in support were sworn by the plaintiff. The defendant filed none in reply, but, was granted leave to cross examine the plaintiff on one point raised in his affidavit.

In his amended statement of claim the plaintiff alleges (inter alia) that from the 5^th April 1977 he has held a valid residence permit to reside in the Cook Islands and that that permit expired on the 1^st May 1981. He applied on the 30th March 1981 for a renewal of his residence permit but that the defendant Minister of Immigration has refused to grant him such a permit and refuses to give him reasons for such refusal. He says he is Honorary Adviser to the Honourable the Leader of the Opposition in Parliament, that the Minister in reply to statements he, the plaintiff, made attacking the legislative programme of the Government, had stated that ways would be found to deal with the plaintiff and that subsequent to that statement the refusal to grant the permit was given. He alleges that he feels the refusal to grant him a residence permit arises from the fact that he has criticised the financial management of the Government. This latter allegation presumably is to back the allegation of bias.

The defendant filed a motion to strike out the proceedings on the grounds that no cause of action was disclosed in the pleadings. Where a breach of the rules of natural justice forms the basis of a claim, the breach must be established by affidavit, R v Wandsworth J.J., ex parte Read (1942) 1 KB 281. The motion, however, was not proceeded with, the defendant being satisfied that pleadings filed subsequent to his motion had rectified the alleged defect.

Save as for an admission that he refused to grant a residence permit to the plaintiff, the defendant denies all the allegations claimed.

The plaintiffs affidavits establish he is a New Zealand citizen possessed of high academic qualifications and that prior to coming to the Cook Islands he was a Director of Programme Business and Administrative Studies at an institution known as Mitchell College in Bathurst in New South Wales, Australia. He met his wife a Cook Islander there and later married her there in May 1976. On the 8^th April 1977 he came accompanied by his wife to the Cook Islands to work under the aid programme of the Australian Government known as the Australian Development Assistance Agency then in progress in this country. He took up appointment with the Ministry of Trade, Industry Labour and Commerce where until July 1978, he was employed, undertaking over that period, the duties of Senior Officer devising an industrial incentive scheme and advising on the proposed purchase of a local fruit canning factory. He subsequently was employed in various tasks involving his expertise as a Chartered Accountant until April 1979 when his contract with Australian Aid terminated. He then served for five months as a consultant with the Department of Education being involved in the re-organisation of the Department and staff training. He then in April 1980 joined the staff of the Cook Islands Accounting and Management Services receiving a salary, according to his application for the permit, $5,000 per annum. The plaintiff also deposes as to the charitable work carried out by him by the donating of fees earned by him as tutor for the University of the South Pacific to local charities. He also supports his allegations as to the refusal of the defendant to grant him a residence permit and his beliefs as to the reasons for such refusal. He also deposes that his wife is unemployed and refuses to leave the Cook Islands. He has built a home on leasehold land where he and his wife are living. He admits that he was in December 1979 convicted for drunken driving and suffered imprisonment for one month and that on the 18th February 1981 the Minister for Immigration gave notice of his intention to deport him because of that conviction. However as a result of his submissions, the Minister on the 3^rd March 1981 notified him that he had decided not to issue a deportation order. He further deposes that he proposes to issue proceedings for defamation against the Cook Islands News. He stresses that it would be very difficult and costly for him to pursue this action if he was removed from the country because of being an illegal resident since his presence at the hearing would be essential.

Certiorari in administrative law:

An oft quoted authority on the issue of certiorari in cases concerning administrative law is R v Electricity Commissioners (1924) 1 KB 171. Atkin LJ referring to prerogative writs at page 205 states:

"Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having a duty to act judicially, acts in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs."

Commenting on this, the learned author of de Smith's Judicial Review of Administrative Action (4th Edn) at pages 392 states:

"It is now almost certainly correct to state that certiorari and prohibition are not confined to reviewing decisions of a judicial nature... The attrition of the comparatively modem requirement that limited the availability of certiorari and prohibition to decisions with an independent 'Judicial' element may be broadly traced as follows:

(i) The duty to act judicially may be inferred solely from the nature of the power exercised by the tribunal in question...

(ii) The circumstances in which a duty to hear would be implied broadened, so that despite the absence of one or more of the characteristics of typical judicial decisions, courts were prepared to imply procedural requirements for the breach of which certiorari was an available remedy. Certiorari was then stated to issue to administrative bodies required by law to act fairly. The duty to act fairly may so pervade administrative decision - making that affects the rights of subjects that it has ceased to be a significant limitation upon the availability of certiorari as a suitable remedy.

(iii) When certiorari is sought to impugn on substantive grounds the validity of a decision, it would now appear that it is no bar to relief that the decision in question is not judicial."

On considering the authorities to which the learned author refers, I am satisfied his conclusions are correct and I would respectfully adopt them for the purposes of these proceedings.

Natural justice

In Daganayasi v Minister of Immigration (1980) 2 NZLR 130 (CA) Cooke J summed up what he described as "points that by 1980 have become fairly elementary". He said at p. 141 (lines 16 to 27):

"The requirements of natural justice vary with the power which is exercised and the circumstances. In their broadest sense they are not limited to occasions which might be labelled judicial or quasi-judicial. Their applicability and extent depend either on what is to be inferred or presumed in interpreting the particular Act (as is suggested by the speech of Lord Hailsham LC in Pearlberg v Varty (1972) 2 All ER 6, 11; (1972) 1 WLR 534, 540) or on judicial supplementation of the Act when this is necessary to achieve justice without frustrating the apparent purpose of the legislation (as Lord Reid put it in Wiseman v Borneman (1971) AC 297, 300; (1969) 3 All ER 275, 277). In order to stress that there are some legally enforceable elementary standards not confirmed to the exercise of powers like those of Courts but that they do not necessarily call for a procedure at close to Court procedure, the English Courts have tended for more than a decade to use the term 'fairness' instead of or as an alternative to natural justice."

The learned judge then proceeds to trace in a helpful review of authorities in New Zealand, Australia and the United Kingdom, the development of this principle. The concept of the identification of fairness and natural justice was adopted by this Court in Tangata v The Speaker of the Legislative Assembly of the Cook Islands and ors (judgment delivered 23/12/77).

Natural justice as a matter of procedure

In this case, the power of the respondent sought to be quashed is, as will be later seen, a wide discretionary one. The presence of such a power, ipso facto, does not preclude the application of the rules of natural justice; to require that he, in the exercise of his power, observe the rules of natural justice, involves no encroachment upon his discretionary power to do what the authority of the enactment creating it allows. The rules of natural justice are in a broad sense a procedural matter. Stephen J in the Australian case of Salemi v Minister of Immigration (1977) 51 ACJR 538, 556-557 stressed this stating that it was important to distinguish between matters procedural and those which relate to substantive law. He added at p556 (line G6) to p557 (line B1):

"It is important clearly to distinguish between matters procedural and those which relate to substantive law. The rules of natural justice are 'in a broad sense a procedural matter' - Tangs' Case, ante, at p. 396. What the present plaintiff seeks initially is no more than the observance of proper procedure. To require that the Minister should, in exercise of his powers under S. 18, observe the rules of natural justice involves no encroachment upon the breadth of his discretionary power to order deportation. Instead it merely ensures that he will bring to the exercise of that power a due observance of long-established patterns of procedural fairness. To do so will not fetter the exercise by the Minister of the power conferred upon him by s. 18; it will, on the contrary positively assist him towards a fair and just exercise of that power, precisely such an exercise as the legislature must be taken to have intended."

Gibbs J (as he then was) in the same case put the matter succinctly when at page 547 (lines F4 to 8 second column) he said:

"However, the principles of natural justice govern the manner in which a power may be exercised; they do not, and cannot, completely forbid the exercise of the power. They may supplement the provisions of a statute but may not repeal them."

Natural justice and the exercise of a statutory power

The court must as a matter of construction determines whether the statute had intended or not that the principles of natural justice should be observed. As Hailsham LC in Pearlberg v Vesty (supra) at page 11 of the All England Report (lines C2-E1) said:

"Despite the majestic conception of natural justice on which it was argued, I do not believe that this case involves any important legal principle at all. On the contrary, it is only another example of the general proposition that decisions of the courts on particular statutes should be based in the first instance on a careful, even meticulous, construction of what that statute actually means in the context in which it was passed. It is true, of course, that the courts will lean heavily against any construction of a statute which would be manifestly unfair. But they have no power to amend or supplement the language of a statute merely because on one view of the matter a subject feels himself entitled to a larger degree of say in the making of a decision than the statute accords him. Still less is it the functioning of the courts to form first a judgment on the fairness of an Act of Parliament and then to amend or supplement it with new provisions so as to make it conform to that judgment."

Berwick CJ in Salemi's case (supra) spells out this proposition fully when he says at p. 540 (line C5) to p. 541 (line D4):

"Here we are concerned with a 'statutory power' so that I shall confine my remarks to such powers. The courts in construing a statute may make express what is implicit in it. Thus they may decide that the statute requires those whom it vests with a power of decision affecting the rights and property of others to adopt procedures which, in the opinion of the courts, are necessary to ensure natural justice...

It is for the courts to decide in point of construction what the Parliament has relevantly enacted, both expressly and implicitly. The courts by construction of the statute adduce and make express the qualification of the granted power inherent in the statute. Having decided that the statute makes the exercise of the power contingent on the observance of natural justice, the courts then decide what is required in the particular circumstances to satisfy the statute so construed...

I have emphasized that what will suffice to perform or satisfy the obligation to accord natural justice will be particular to the circumstances which obtain. But the obligation to accord natural justice does not itself spring from these circumstances: it springs from the construction by the courts of the statute, in particular of the terms in which the power is granted, the nature of the power of decision or action, the identity of the donee of the power and of its subject matter. Of course the Parliament is not bound to provide that natural justice be accorded. It may enact a power which it intends should be exercised by its donee without regard to the demands of natural justice. In such a case, the courts cannot override the intention of the Parliament. It is not necessary that that intention should be expressly stated. Prima facie, the courts will conclude that the Parliament does not intend injustice or to authorize it. However, mere silence on the part of the Parliament does not mean that the courts are therefore free to import the obligation to accord natural justice. It still remains for the courts to find what I have called the qualification of the power by construing the statute taking into consideration all the elements to which I have referred. It is most important, in my opinion, that the courts do not transgress the line dividing the judicial from the legislative function. To do so is to weaken both functions which ought for the health of society to retain their mutual independence."

Therefore, the starting point in considering this application is to examine the legislation dealing with immigration in the Cook Islands. This is contained in one enactment intituled the Entry Residence and Departure Act 1971-72 (hereinafter called "the Act"). Unlike analogous legislation in New Zealand, there is no distinction drawn between aliens, Commonwealth citizens or New Zealand citizens and while Cook Islanders have the right as New Zealand citizens freely to enter and reside in New Zealand without restriction, no such right is afforded to New Zealand citizens in the Cook Islands. There is no Cook Island Citizenship, but, there is power for the Minister of Immigration to confer the status of "permanent resident" on persons who satisfy the criteria set out in section 5 of the Act. Apart from that all persons entering the Cook Islands, other than Cook Islanders, permanent residents or bona fide visitors, are required to be in the possession of an entry permit which ensures for a maximum period of thirty - one days after which time if any person desires to extend his stay he must apply pursuant to section 24 of the Act for a residence permit. It is this type of permit with which this application is concerned.

The relevant subsections of Section 24 are:

"(1) Any adult or young person may apply in the form, or to the effect of the form numbered 5 in the Schedule to this Act for a residence permit to be granted to him and to any of his children accompanying him.

(2) Any person who has the custody, care or control of a child who is not accompanied by a parent may apply in the form, or to the effect of the form numbered 6 in the Schedule to this Act for a residence permit to be granted to such child.

(3) A residence permit may be granted by the Minister in accordance with the provisions of this Act.

(4) No person shall, as of right, be entitled to the grant to him of a residence permit.

(5) A residence permit shall state the date upon which it shall expire, but otherwise may be granted either unconditionally or subject to such conditions as the person granting it may deem fit to impose."

If a person remains in the Cook Islands after the expiration of his residence permit he is no longer entitled lawfully to reside therein and is liable to prosecution under section 42 of the Act since he is in contravention of section 17 which defines those lawfully entitled to reside in the territory.

The power given to the Minister under the section to grant a residence permit is quite unconditional and no person is entitled to a permit as of right. It is an unlimited power to refuse a permit, grant it unconditionally, or subject to conditions. In these respects the case of Schmidt and Another v Secretary for State for Home Affairs [1968] EWCA Civ 1; (1969) 1 All ER 904 is relevant. The case was concerned with the refusal of the Minister to extend the period during which the plaintiffs might remain in the United Kingdom. The plaintiffs were aliens whose permits had expired. They issued a writ claiming declarations that the Minister's decisions not to consider their applications for extension of stay was unlawful and void and that he was obliged to consider such applications on their merits and in accordance with the principles of natural justice. The Minister in refusing such extensions was acting under the powers given to him in the Aliens Order 1953 (UK) which, as in our Act, in relation to the Cook Islands, prohibited any alien landing or embarking except with leave of an immigration officer. The permit granted could be subject to conditions and where any condition limited the period during which an alien could remain in the country, he was deemed to contravene that condition if he was found in the United Kingdom at any time after the expiration of that period and was liable for prosecution. Lord Denning MR considered the Minister was acting lawfully in refusing the extensions stating at p. 907 (lines H3 to I1):

"I have always held the view that at common law no alien has any right to enter this country except by leave of the Crown; and the Crown can refuse leave without giving any reason. The common law has now been overtaken by the Aliens Acts and the orders thereunder."

Considering the submissions that the Minister should have in refusing the applications, observed the precepts of natural justice, he said at p. 909 (lines B3 to F5):

"The speeches in Ridge v Baldwin [1963] UKHL 2; (1963) 2 All ER 66; (1964) AC 40 show that an administrative body may, in a proper case, be bound to give a person who is affected by their decision an opportunity of making representations. It all depends on whether he has some right or interest, or, I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say. Thus in Re K (H) (an infant) (1967) 1 ALL ER 226; (1967) 2 QB 617 a Commonwealth citizen had a right to be admitted to this country if he was (as he claimed to be) under the age of 16. The immigration officers were not satisfied that he was under 16 and refused him admission. Lord Parker, CJ, held that, even if they were acting in an administrative capacity, they were under a duty to act fairly - and that meant that they should give the immigrant an opportunity of satisfying them that he was under 16. By contrast, in the later case of R v Secretary of State for the Home Department, Ex p. Aktar Singh (25^th July 1967), unreported, a Commonwealth citizen said he wanted to come in so far as to marry a girl here. He had no right at all to be admitted. The statute gave the immigration officers a complete discretion to refuse. Lord Parker, CJ held that they were under no duty to tell him why he was refused admission and were not bound to give him an opportunity of making representations. If such be the law for a Commonwealth immigrant, it is all the more so for a foreign alien. He has no right to enter this country except by leave; and, if he is given leave to come for a limited period, he has no right to stay for a day longer than the permitted time. If his permit is revoked before the time limit expires, he ought, I think to be given an opportunity of making representations: for he would have a legitimate expectation of being allowed to stay for the permitted time. Except in such a case, a foreign alien has no right and, I would add, no legitimate expectation of being allowed to stay. He can be refused without reasons given and without a hearing. Once his time has expired, he has to go."

Lord Widgery said at p. 911 (lines D6 to F5):

"No doubt in fact applications for variations are frequently made, as in the present case. But here again the alien who has entered with a permit giving him a period of residence has no kind of right to require an extension of that period. The position is exactly the same as that of a man who takes a lease of a house for three months and wishes to renew it for a further period; the landlord can reject his application out of hand. No question of natural justice or anything of the kind arises, because there is no right in the tenant which can be infringed. So, in my judgment, if aliens such as the plaintiffs in the present case seek a variation of their landing permits of an extension of the period of residence, they are not asserting a right or interest capable of being interfered with, and accordingly they are not entitled to the consideration which is implicit in the argument addressed by counsel for the plaintiffs to us today."

Mr Turner for the respondent vigorously submits that the concept of fairness applies in the circumstances of the case. He relied strongly on a decision of Barker J in New Zealand, Chandra v Minister of Immigration (1978) 2 N.Z.L.R. 559. But, as Cooke J pointed out in the Daganayasi case (supra), in the circumstances of the case before him Barker J's discussion of the law could only be of an abstract kind. As the learned judge pointed out in the Daganayasi case the extract of which has already been quoted above, the applicability of the rules of natural justice depend either on what is to be inferred or presumed in interpreting the particular Act or on judicial supplementation of the Act where this is necessary to achieve justice without frustrating the apparent purpose of the legislation. Barker J criticised what he called the "xenophobic view" of Lord Denning in Schmidt's case at p. 907 (supra) and tendered to disagree with the contention that the common law, subject to the modification thereof in the Immigration Act (NZ) stated the law of New Zealand. He was of the view that "the Common law had been so overlaid by statutory provisions that any analogy with the common law could be misleading" (ibid p. 568 line 31).

However, when translated to the Cook Islands, where the common law has been "overtaken" by one enactment, I, with respect, find this rather academic consideration to be of little assistance. I prefer to adopt here, as did O'Regan J in New Zealand in Lucas v Colman (Wellington Registry M134/75) the view that in this case the common law has been modified by the Act but, subject to its provisions, the propositions stated therein state the law of this country.

In considering whether the principles of natural justice must be applied and, if so, what those principles require, the Court must have regard to the circumstances of each case. In the case of a statutory power, the question will depend on the true construction of the statutory provision in the light of the common law principles. These principles were cited by the Judicial Committee in Durayappah v Fernando (1967) 2 All ER 153. Lord Upjohn said at p. 156 (lines E2 to G1):

"Outside the well-known classes of cases, no general rule can be laid down as to the application of the general principle in addition to the language of the provision. In their lordships' opinion there are three matters which must always be borne in mind when considering whether the principle should be applied or not. These three matters are: first what is the nature of the property, the office held, status enjoyed or services to be performed by the complainant of injustice. Secondly, in what circumstances or on what occasions is the person claiming to be entitled to exercise the measure or control entitled to intervene. Thirdly, when a right to intervene is proved, what sanctions in fact is the latter entitled to impose on the other. It is only on a consideration of all these matters that the question of the application of the principle can properly be determined. Their lordships therefore proceed to examine the facts of this case on these considerations."

There may be other matters that will be relevant in deciding whether the principles apply, for example, the nature of the body on which the power is conferred, the language in which the power is conferred and the presence in the statute of provisions enabling the exercise of the power in question.

Natural justice and the present case

In adopting the approach above stated, it is, I consider, convenient firstly to examine the present case in the light of the three "Durayappah factors" in turn. The first question is whether the applicant enjoys any status entitling him to the observance of natural justice in the dealing with his application. His residence permit expired on the 1st May 1981. He sought a further permit, not a renewal of his existing one as he has stated. (There is no provision in the Act for renewal of permits). He is not entitled as of right to the permit (Sec. 24(4)). His position is therefore analogous to that of the alien in Schmidt's case (supra). He has no right to enter or reside in this country except by leave; he has no right to stay a day longer than the time permitted. He is an illegal resident and "by the very description he is not a person having any title to remain in the country" per Barwick CJ in Reg v Forbes, Ex parte Kwok Kwan Lee [1971] HCA 14; (1971) 124 CLR 168; 173. Nor has he to use Lord Denning's words in Schmidt's case (supra) a "legitimate expectation" of being allowed to stay beyond his permitted time in which case it would have been unfair to deprive him without hearing what he had to say. As to the second factor mentioned by Lord Upjohn, section 24 of the Act gives an unconditional right to the Minister to grant or refuse a permit. The section does not limit the circumstances or occasions on which he may exercise the power; he is not required to determine any question or form any satisfaction or opinion, before making or refusing the order - the matter is left entirely to his discretion.

A consideration of these two factors allows the strong conclusion that the Minister's discretion is exercised unfettered by any duty to observe the principles of natural justice. However the third factor when applied here, namely the saction (sic) following a refusal must result in the applicant being required to leave the Cook Islands voluntarily or be removed as an overstayer under section 29 of the Act with unfortunate consequences for him in so far as domestic circumstances are concerned. But as against this, his status in this country ever since his arrival here with his wife from Australia being that of a temporary resident - because a residence permit can confer the right to residence only for its permitted term - should have governed his decisions as to the acquisition both of property and employment. He also proposed the issuing of legal proceedings for defamation, but, these cannot be a factor to be weighed in the applicant's favour. The question of his right to be present for the hearing of the case could be settled by the issue of an appropriate entry permit or his classification as a bona fide visitor for the express purpose of his litigation.

With these factors, we must move to a consideration whether the legislation has intended that the principles of natural justice should be observed. To ascertain such intention the Act must be construed as a whole - Barwick CJ in Salemi's case (supra). The powers as to the granting and, of course, refusing entry and residence permits under sections 14 and 24 are unconditional as opposed to that contained in section 5 which imposes conditions to be satisfied before the status of permanent resident may be granted. So also is the power of the Minister to issue a deportation order conditional on his affording the proposed deportee reasonable opportunity of showing cause why the order should not be made, in marked contrast to what on the face of the section is the unfettered power of the Minister to issue a removal order in respect of illegal residents under section 29. The scheme of the Act thus shows that Parliament has drawn sharp distinctions between entry permits, residence permits and removal orders on the one hand and deportation orders and permanent residence certificates on the other. These distinctions, I consider, point very strongly to the conclusion that in the case of section 24 the legislature intended that there be no fetter on the Minister's absolute discretion to refuse a residence permit.

Having reached these conclusions as to the intention of the Act and considered in relation to this case the common law principles enunciated in the Durayappah case, I am of the firm view that in this present case, the application of the rules of natural justice are precluded in the statutory exercise by the Minister of his discretion to refuse a residence permit under section 24 of the Act and I so hold.

Position of observance of rules of natural justice required

However, assuming there was a duty for the Minister to observe the principles of natural justice or fairness in dealing with this application, it seems clear that they were in fact observed. As stated above (page 4), the rules of natural justice are in a broad sense procedural; they govern the manner in which a power may be exercised. They cannot encroach upon the breadth of the Minister's discretionary power to refuse the permit. The observance of the rules can assist him towards the exercise of the power. In this case, if the observance of such rules were required they would, I consider, extend to giving the applicant an opportunity of making representations on his behalf. This is what in fact, happened. The applicant on the 18^th April 1981 submitted in the statutory form prescribed, an application giving full details of his personal position, his reasons for applying for the residence permit and his proposals for future work in the Islands. The application also contained additional information in support thereof. Prior to this, in consequence of a notice of the Minister's intention to deport him, he, on the 24^th February 1981 submitted in writing to the former, reasons why he should not be deported and fully set out factors most of which he puts in support of his present application. On the 3^rd April 1981 the Minister declined the applicant's application. Clearly, at this stage, the Minister had before him all the above representations which constituted the complete case of the applicant to assist him in making his decision. Being satisfied on these matters, I could not hold that the applicant had not been able fairly to put his case to the Minister.

Reasons for decision

Mr Turner submits that the Minister should have been given reasons for the refusal. In my view this submission cannot be supported on authority. Admittedly, the giving of reasons opens up the possibilities of a review or appeal, which might be impossible if no reasons are given. Reasons are desirable, but, to say they must be given goes much further then the law allows. Indeed, it is not certain, that as a matter of law, a judge is compelled to give his reasons, though in practice he usually does so. There would thus seem to be little basis for a judicial requirement that administrative tribunals should be more judicial than the Courts themselves. De Smith's Judicial Review (supra) at page 195 says:

"The rule (audi alterem partem) sets minimum standards of fairness in 'adjudication' by bodies which in many cases bear no resemblance to courts 'strict sense'. Clearly, these minimum standards cannot be higher than those imposed by the courts for themselves. Courts are not obliged at common law to give reasons for their decisions; natural justice does not require other adjudicating bodies to give reasons."

It follows, therefore, that a Minister exercising a statutory discretionary power is not required to give reasons for the exercise of that power. Here, too, the applicant has no right to the grant of a residence permit; he has no right or interest incapable of being infringed or affected. He is in the country "at pleasure". In such circumstances the words of Lord Reid in Ridge v Baldwin (supra) at page 71 are apposite:

"Then there are many cases where a man holds an office at pleasure. Apart from judges and others whose tenure of office is governed by statute, all servants and officers of the Crown hold office at pleasure, and this has been even held to apply to a colonial judge (Terrell v Secretary of State for the Colonies) - (1953) 2 All ER 490; (1953) 2 QB 482. As the person having the power of dismissal need not have anything against the officer, he need not give any reason."

These authorities are convincing answers to Mr Turner's submission.

Bias

A further allegation against the Minister is that his refusal to grant the residence permit was made with bias. It is correct, in my view, to say that a statute which empowers or requires an official to act will usually carry the implication that he must in his official capacity free himself from bias, as that word is popularly understood. But where there is no duty to act judicially, a biased decision can be attacked only if it falls within one of the grounds for attacking discretionary decisions such as improper purpose, irrelevant considerations or unreasonableness in the case where the statutes expressly require that the power be exercised "on reasonable grounds" or for a "reasonable cause" or some other formula importing a standard of reasonableness.

No argument was addressed to me specifically on the alleged ground of bias other than the submission that the burden is on the applicant to prove it and that there is nothing in the evidence to support it. Since I was not referred to what sections of the evidence in the affidavits in support were relied on as proving bias, I have considered these documents in full. In substance, the applicant's complaint against the Minister's attitude to him is that "in an article in the Cook Islands News in reply to statements made by (the applicant) attacking the legislative programme of the Government (the Minister) stated that ways would be found to deal with (the applicant)" - paragraph 10 of the Affidavit of the 30th April 1981. The Article in question was not before the Court nor was the date of publication revealed in the affidavit. The applicant stated also in the paragraph quoted that he was honorary adviser to the Honourable the Leader of the Opposition in Parliament and states in paragraph 14 of the same affidavit that he believes that the Minister's refusal is because of that and also because he has actively criticised the financial programme of the Government. These facts may well allow an inference to be drawn that the applicant was politically unpopular with the Minister but this evidence falls far short of establishing that in making the decision refusing to grant a permit to him, the Minister was actuated by bias. Section 24 permitted the issue to the applicant of the residence permit which expired on the 1st day of May 1981. It carried with it no right for a further permit after that date. The applicant was not entitled as of right to a permit. The Minister was acting within his statutory power in refusing the permit and he was not obliged in law to give any reasons for his decision. The statutory power is unconditional and was used by the Minister in the exercise of the true purposes of the section; it has not been, established that his decision was influenced by irrelevant considerations. No case of bias has been made out.

Jurisdiction to refuse permit

One of the grounds of the motion filed is that the refusal to grant the residence permit was made "without jurisdiction". I received no argument to support this ground. I take it that the contention is that the Minister's act was unlawful. As Denning MR in R v Brixton Prison (Governor), ex p. Soblen (1962) 3 All ER 641 said, the validity of the Minister's act in that case:

"depends on the purpose for which the act is done. If it was done for an authorised purpose, it was lawful. If it was done professedly for an unauthorised purpose, but in fact for a deficient purpose with an ulterior object, it was unlawful."

Here, as has been already held, the purpose of section 24 is to enable the granting or refusal of residence permits. The Minister's act resulted in a lawful purpose being effected; it was done for no other purpose than to refuse in accordance with the law the grant of a permit to the applicant. It was within his jurisdiction to do this.

For the above reasons the relief sought is declined.

SIR GAVEN DONNE, KBE
CHIEF JUSTICE

Solicitor for Plaintiff: Max Turner & Co., Rarotonga
Solicitor for Defendant: Crown Law Office, Rarotonga