State v Minister for Immigration & Home Affairs, Ex parte Marianovich [1994] FJHC 114; Hbj0013j.1989s (10 September 1994)

IN THE HIGH COURT OF FIJI
(AT SUVA)
JUDICIAL REVIEW

ACTION NO. 13 OF 1989

BETWEEN:

STATE

v.

MINISTER FOR IMMIGRATION AND HOME AFFAIRS

EX-PARTE: DAVID DRAGON MARIANOVICH
ALSO KNOWN AS DRAGOSLAV MARJANOVIC

Applicant in Person.
S. Rabuka for the Respondent

Date of Hearing: 20th July 1994
Date of Published Judgment: 10th August 1994

JUDGMENT

On the 20th of July 1994 I gave a brief ex-tempore judgment dismissing this application for judicial review for want of prosecution.

Because the Applicant is now appealing to the Court of Appeal against my decision on the ground of alleged delay on the part of his former solicitor it is desirable that I should publish fuller reasons for my decision which I now do.

On the 12th of May 1989 Palmer J. granted the Applicant leave to apply for judicial review of a decision of the Respondent dated on or about 14th March 1989 refusing to give the Applicant a work permit.

It appears the Applicant who is an Australian citizen living in Suva was granted permission to work in Fiji on or about 14th March 1988 for a period of approximately three years until 31st March 1991, although the Respondent has deposed that this date has been incorrectly placed on the Applicant's passport. The Respondent has had at all times denied that the Applicant had a valid work permit.

A perusal of the Court file shows that since the decision of Palmer J. granting leave to apply for judicial review there have been frequent adjournments of the application, the first of any relevance being given by Fatiaki J. on the 21st of August 1991 when he had before him a Summons to set aside the Stay order granted by Palmer J. when giving leave.

On that date counsel for the Respondent applied for adjournment of the application on the ground that the now Deputy Solicitor-General Mr. Nand who was appearing for the Respondent was that day appearing in the High Court at Lautoka. Fatiaki J. adjourned the application for argument on the 29th of August 1991 when it was listed before me because I was seized of two similar applications in judicial review proceedings namely Action Nos. 26 and 27 of 1991 State v. Police Service Commission - Ex parte: Romanu Tikotikoca and Waisale Vakaloloma. On that date by consent the matter was adjourned sine die pending my decision in those cases.

I gave my decision in the matter of Tikotikoca on the 4th of November 1991 in which I refused to remove the stay of proceedings I had granted against the Respondent.

Following my order of the 29th of August 1991 nothing further appears to have been done in the matter until the 17th of September 1993 when the Respondent filed a Notice of Motion to dismiss the Applicant's application for judicial review on the grounds of inordinate and inexcusable delay by the Applicant in the prosecution of his claim.

On the 19th of January 1994 the matter came before me again when then counsel for the Applicant Mr. T. Fa stated that the reason why the Applicant had not proceeded with his application more expeditiously was that Mr. Fa was exploring possible settlement of the Applicant's case with the Respondent. Mr. Fa sought a further adjournment of eight days which I granted without any objection from counsel for the Respondent. The application was listed for mention only on the 27th of January and the Applicant through his counsel undertook to have talks with the appropriate government authority with a view to having his stay in Fiji legalised and to inform the Court of the result of such talks.

On the 27th of January the parties again appeared before me when counsel for the Respondent stated that he had instructions that the Applicant should be deported. I therefore fixed the hearing of the Respondent's Motion for the 18th of April and continued the stay order until determination of the Motion. Counsel for the Applicant Mr. Fa undertook to the Court that he would not consult any government department in respect of his client's application for stay in Fiji without giving prior notice to the Attorney-General's office.

On the 18th of April the Applicant appeared with his counsel but there was no appearance by the Respondent. I therefore adjourned the matter for hearing on the 17th of May. On that date the Applicant again appeared with his counsel who stated that the Applicant hoped he could export $800,000 worth of timber per month to Australia. He stated that the Applicant had sent a sample of timber to the Colonial Sugar Refining Co. in Australia and was waiting for a reply. By consent I adjourned the matter again until the 20th of June for mention only when the counsel for the Respondent Mr. G. Leung would have returned to Fiji from which he was currently absent.

On the 20th of June Mr. Fa and Mr. Leung appeared and by consent I adjourned the matter for mention on the 4th of July noting that on that date the Applicant stated he expected to be able to put proposals for the resolution of the matter to the Court and the Respondent.

On the 4th of July the Applicant appeared before me in person and Mr. S. Rabuka appeared for the Respondent. I was informed that counsel for the Applicant Mr. Fa was sick and I therefore adjourned the matter for mention on the 20th of July. I stated that I hoped some definite information would be forthcoming by that date.

On the 20th of July Mr. Fa and Mr. S. Rabuka appeared before me and Mr. Fa stated that the Applicant had withdrawn his instructions from him. Counsel for the Respondent stated that the Respondent would accordingly seek an order that the Motion for judicial review be struck out. I adjourned the matter to 11.00 a.m. because I had been informed that the Applicant was appearing in the Magistrate's Court in Suva. At 11.00 a.m. the Applicant appeared in person and Mr. S. Rabuka for the Respondent moved the Motion to dismiss the application for want of prosecution. I then gave a brief ex-tempore judgment dismissing the application on the ground of inordinate delay on the part of the Applicant. My principal reasons for so doing which I stated were that if, after the lapse of more than five years, the Applicant had still not been able to persuade the authorities that they should allow him to remain in Fiji it did not seem to me that he had much chance of reversing the decision to deport him. I stated that generally a visitor to a country has little hope of successfully defeating a decision by a Sovereign Government to deport him or her unless he or she can show that the appropriate minister or authority has acted most irrationally in the Wednesbury sense of that term. I stated that it was desirable to reach finality in the matter and that I considered in all the circumstances that the Respondent's motion should be granted.

I then made two orders the first dismissing the Applicant's application for judicial review and the second granting the Respondent's motion for dismissal for want of prosecution on the ground of inordinate and inexcusable delay on the part of the Applicant.

JOHN E. BYRNE
J U D G E

HBJ0013J.89S