Kaisiepo v Minister of Immigration [1996] FJHC 150; Hbj0025j.1995s (18 October 1996)

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

NO. HBJ0025 OF 1995

BETWEEN:

VIKTOR JAN KAISIEPO
aka VICTOR JAN KAISIEPO
aka JAN VICTOR KAISIEPO
of Isa Lei Road, Suva, Fiji
Applicant

AND

MINISTER OF IMMIGRATION
Government
Buildings, Suva, Fiji
Respondent

G. Prasad for the Applicant
Ma'ata Sakiti for the Respondent

Dates of Hearing: 27th August, 5th and 23rd September 1996
Date of Judgment: 18th October 1996

JUDGMENT

Introduction:

Pursuant to leave granted by Pain J. on 8th February 1996 the Applicant applies for Judicial Review of the decision of the Respondent made on 25th October 1995 dismissing the Applicant's appeal against the refusal of the Permanent Secretary of Immigration to grant him a work permit for employment with the Pacific Concerns Resource Centre ('PCRC').

The following facts are not in dispute:

In or about October 1993 PCRC advertised in Fiji and elsewhere in the Pacific for five Assistant Directors to be employed at its office in Suva, Fiji.

PCRC is the Secretariat of the Nuclear Free and Independent Pacific Movement which was founded in Suva, Fiji in 1975. The Secretariat was relocated to Port Villa in 1978, to Honolulu in 1980, to Auckland in 1986 and then to Fiji in 1993. It is headed by Lopeti Senituli ("Lopeti") who is the Director of PCRC.

On 29th January 1993 PCRC was registered in Fiji under the provisions of the Charitable Trust Act (Cap. 67).

The objectives of PCRC are, inter alia, directed towards public education, creating an awareness and understanding of the people in relation to the natural environment, human rights issues and rights of the indigenous peoples in the Pacific and elsewhere.

PCRC is funded substantially by the Churches with the bulk of funds coming from churches in Europe. It also receives financial assistance from the United Nations Development Programme and Other specialised agencies of the United Nations.

In response to the advertisement from PCRC the Applicant applied and, in January 1994, after considering 89 applicants for the five positions, the Executive Board of PCRC offered him the position of Assistant Director - Environment.

The Applicant was appointed because of his long history of work with international non-governmental organisations and the United Nations and in particular his involvement with the Human Rights Commission and the United Nations Working Group for Indigenous Populations in Geneva.

The other four positions were offered to the following:

(i) Losena Salabula (Fiji) Assistant Director-Demilitarisation.

(ii) Susanna Ounei-Small (NZ) - Assistant Director-Decolonisation.

(iii) Prosey Mailau (PNG) - Assistant Director Land Rights and Sovereignty.

(iv) Kushma Ram (Fiji) - Assistant Director Economic Development.

Due to the regional and international nature of its work and activities the recruitment pool for all PCRC staff is not confined to Fiji citizens.

During the first half of 1994 PCRC lodged applications and obtained work permits for Susanna Ounei-Small and Prosey Mailau.

There was a delay in lodging an application for a work permit on behalf of the Applicant because of the difficulties PCRC was facing in securing funds for his employment.

In mid 1994, Dienst in Ubersee (DIU) which is the Committee of Protestant Churches in Germany for Service Overseas and recognised by the German Government as a legal body for development service agreed in principle to fund the Applicant's 3-year employment with PCRC to commence in January 1995 but the formal Agreement between PCRC and the Applicant was not signed until July 1995.

The Applicant claims, and it is not denied, that DIU rarely provides funds to anyone other than German volunteers to work abroad so that, according to the Applicant PCRC was fortunate to secure funding from DIU which he believes was in appreciation of the work of PCRC and in recognition of the Applicant's experience and expertise.

On 3rd May 1995, PCRC lodged an application for a work permit with the Department of Immigration ("The Department").

When this application was lodged with the Department the Applicant was classed as a stateless person on a Kingdom of Netherlands Travel Document for Aliens No. 012691V. The Applicant says he has travelled extensively using this document since 1962 and has never encountered any difficulties with immigration authorities in any country.

Why the Applicant was classed as a stateless person:

The following claims are also not disputed by the Respondent:

(a) The Applicant was born in 1948 on the island of Biak in West Papua which was then a Dutch colony called Dutch New Guinea.

(b) In 1949 Dutch East Indies became independent as Indonesia under President Sukarno.

(c) The Dutch government retained Dutch New Guinea as a colony despite Indonesian pressure.

(d) Under the New York Agreement of 15 August 1962 the Dutch and Indonesian Governments agreed that the indigenous people of Dutch New Guinea would exercise their right of self determination in a referendum in 1969 to determine whether they preferred to become an independent nation or be assimilated into Indonesia.

(e) However, on 1 May 1963, Indonesia unilaterally declared West Papua or Dutch New Guinea as an integral part of its territory.

(f) A number of intellectuals and political leaders of West Papua were killed or imprisoned for resisting the Indonesian presence while some others were granted political asylum in other countries including Fiji.

(g) The Applicant's father was a prominent West Papuan leader and he was also forced into exile with his family as a political refugee in the Netherlands.

(h) While the Applicant lived in the Netherlands, he could have obtained Dutch citizenship but he was reluctant to take this in the hope that one day his country of birth, West Papua, might become an independent and sovereign nation when he could then return to his country of birth to live and claim his true nationality of being a West Papuan.

Thus when his application was lodged by PCRC with the Department, he had not obtained Dutch citizenship and remained classed as a stateless person.

The Attempts by PCRC to obtain a Work Permit for him.

According to Lopeti well before application was lodged on behalf of the Applicant Lopeti had made certain enquiries with the Department which suggested to him that the Applicant's application for a work permit might be jeopardised by his status as a stateless person.

For this reason PCRC urged the Applicant to apply for and take up citizenship of the Kingdom of the Netherlands.

Accordingly, the Applicant made Application on or about 14th April 1995 and on 8th May 1995 he was granted citizenship of the Netherlands. On 19th May 1995 he was issued with a Netherlands Passport No. Z00099584.

In a letter dated 2nd August 1995 by his lawyers in the Netherlands to the relevant authority in Fiji it was stated that according to Dutch law former Dutch citizens do not have any waiting time when they apply for Dutch nationality.

By letters 18th and 24th May 1995 Lopeti had informed the Department of the Applicant's application and acquisition of Dutch citizenship. In his letter of 24th May 1995 he had sent a facsimile copy of the Applicant's citizenship papers. In these letters Lopeti had also informed the Department that unless the Department had any objections and while his application was being considered, he intended to ask the Applicant to come to Fiji with his family on or about 15th June 1995.

Both letters received an immediate reply from the Department dated 25th May 1995 which for some unexplained reason was not received by PCRC until the 31st of May. The Department stated that the Applicant's application for a work permit was still under process and concluded "At this processing stage it is advisable for him not to travel to Fiji".

Despite this and apparently based on conversations which Lopeti had with two subordinate officers of the Department on the 14th and 28th of June 1995 Lopeti wrote to DIU and the Applicant on 29th June stating that the Department had still not decided on the Applicant's application for a work permit but planned to do so in the following week. In the letter to the DIU Lopeti said inter alia, "However they have agreed that Viktor and his family can now travel to Fiji. This virtually means that Viktor's application will in the end be approved."

In his facsimile message to the Applicant of the 29th of June Lopeti stated, "The good news is that the Department of Immigration had approved your travelling to Fiji now whilst we awaiting their decision. This virtually means that your application has been approved 99.99%."

These two alleged conversations between Lopeti and persons who could only be described as counter-staff in the Department's office have loomed large in the submissions made to me on behalf of the Applicant who says that the officers concerned clearly had ostensible authority on behalf of the Department to permit the Applicant to arrive in Fiji before his work permit had been approved.

The Respondent denies any such conversations ever took place and I shall later state my views on the way which, even if they be true, they affect the Applicant's case. First however I must quote part of Lopeti's Affidavit in Reply of 29th of May 1996 as to these conversations.

In paragraph 12 of his affidavit Lopeti admits he received the Department's letter of 25th of May 1995 but then says, "However, on 14 June 1995 without any prompting from me or anyone else from PCRC an officer from the Department namely one Jioji contacted me by telephone in respect of the Applicant's application for work permit and sought explanations as to why PCRC was not employing Fiji citizens in accordance with the Project Proposal submitted by it to FTIB in 1993.

I then provided Jioji with an explanation over the phone to his question and immediately followed this up with my letter dated 14th June 1995.

A fortnight later on 28th June 1995 at around 2.15 p.m. I went to see the said Jioji ......... to find out the status of the Applicant's application.

On 28th June 1995 at around 2.15 p.m. the said Jioji informed me that "all that was left for him (which I construed as the Department) was to see a facsimile copy of the Applicant's Dutch passport".

Lopeti then says he went back to the PCRC office and got a facsimile copy of the relevant pages from the Applicant's passport and then returned to the Department at around 2.45 p.m.. He was met there by one Miss Varea at the counter and he asked to see Mr. Jioji. He says Miss Varea went into the office then came back to the counter and said that Mr. Jioji was not available but Lopeti should give the facsimile copy of the relevant pages of the Applicant's passport to her which he did.

Lopeti then continued: "To remove any doubts in my mind against the background of the advice given to me by the Department on 25th May 1995 I then requested Miss Varea to please clarify from Mr. Jioji if this okay meant that the Applicant could now come to Fiji while his application for a work permit was still being processed.

Miss Varea again went into the office, I believe to Mr. Jioji. She returned to me at the counter after a few minutes and informed me that Jioji had said that it was now okay for PCRC to bring the Applicant to Fiji.

It was on the basis of this unequivocal representation and advice given to me by the said Miss Varea (ostensibly under the authority, instructions and advice of Jioji) that .......... I had informed the Applicant to make arrangements for travel to Fiji."

He also says that in the cases of three other employees of PCRC whom I will call Susanna, Prosey and Brigitte verbal approval had been given by the Department allowing them to come to Fiji on visitors' permits.

As to this the Respondent denies that the stance taken by the Department concerning the Applicant was inconsistent with the stance the Department has always taken on previous occasions. Thus John Tevita says that in the case of Susanna no prior approval had ever been given by the Department for her travel to Fiji whilst her work permit application was under consideration. He says that she travelled to Fiji of her own volition on a visitor's visa on 20th March 1994. Her application for a work permit was lodged with the Department on 25th March 1994 although there had been no indication on her application that she was already in the country. Even if the Department knew this, Tevita says, on no account would that fact be instrumental in or influence the Department to consider her application favourably.

Similarly in the case of Prosey Mialau, he travelled to Fiji on a visitor's permit on 8th May 1994 and his application was subsequently lodged on 26th May 1994. No indication of his presence was made in his application. The Respondent asserts that neither the Applicant nor PCRC can rely on the facts relating to other Applicants, in this case those of Susanna and Prosey. Each application is considered individually and on its own merits so that as far as the Applicant is concerned he can not rely on departmental decisions relating to other people as indicating a departmental policy that presence in Fiji on a visitor-permit would guarantee the grant of a work permit.

The Respondent says that the grant of the work permit is a privilege to be enjoyed by successful Applicants and not a right to be conferred on any person who can show that he or she is already in the country. Thus had their applications been refused Susanna and Prosey would have been requested to leave the country upon expiry of their visitor-permits. Accordingly when the Applicant's application was rejected he was asked to leave upon expiry of his visitor's permit.

In his answering affidavit John Tevita also says that the Applicant and his family were issued with visitor's permits valid for four months effective from 16th July 1995 to expire on 17th November 1995. He also claims that on his arrival card the Applicant indicated the purpose for his visit as visiting relatives and friends. It was for this reason that the Department approved the issuance of visitor's permits for himself and his family. Whether or not this was done by the Applicant deliberately in order to obtain entry into Fiji, which is denied by the Applicant, in my judgment is immaterial to the question I have to decide.

By letter dated 20th July 1995 and received by PCRC on 25th July 1995 Lopeti was informed by the Department that the Applicant's application for a work permit had not been approved but no reason or explanation was given for the decision. The letter further stated that if PCRC was aggrieved by this decision it could appeal directly to the Minister for Immigration within 14 days and subject to his paying an appeal fee of $550.00.

On 27th July 1995 Lopeti met one Mr. Volau of the Department and informed him that PCRC intended to appeal against the Department's decision refusing a work permit to the Applicant. According to Lopeti he asked Volau why the Applicant's application had been declined.

At first Volau informed him that he was not legally obliged to give any reasons why the Applicant's application had been rejected. Lopeti then says in his affidavit of 29th May 1996 "Being familiar with the Immigration Act I accepted his answer".

For reasons which I shall give later I place some significance on this statement.

Lopeti then informed Volau that for an appeal to the Minister for Immigration to have any chance of being considered favourably, he needed to know at least some of the difficulties associated with the application.

He was then informed by Volau that one of the reasons for the decision was the Department's concern at the speed at which the Applicant had acquired his Dutch citizenship and passport.

Lopeti says that the conclusion he drew from that remark was that the Department was not convinced about the genuineness of the Applicant's new Dutch passport.

The Respondent denies that any such conversation took place but then says that whilst Volau may have expressed surprise at the Applicant's presence in the country before a determination was made on his application for a work permit it would only have been proper for the Department to tender advice (if such advice was tendered at all) to the effect that the Applicant should not begin work with PCRC without first obtaining a work permit.

As to this, Lopeti comments that Tevita is selective in accepting or rejecting those parts of paragraphs 47 and 48 of the Applicant's affidavit which refer to his conversation and which allegedly suit the Department's purpose.

For reasons which I shall give later I find it unnecessary to make any finding of credibility on the part either of the Applicant, Lopeti or Tevita on this matter.

The Applicant duly lodged his appeal and was supported by various civic groups and bodies in Fiji.

PCRC wrote to the Hon. Minister for Home Affairs on 3rd August 1995 giving reasons why it considered the Applicant should not be denied a work permit namely those which I have stated earlier in this judgment. The Young Women's Christian Association, the Pacific Regional Young Women's Christian Association, an organisation called Women's Action for Change, the Fiji Anti Nuclear Group, the Fiji Women's Crisis Centre and the Fiji Trades Union Congress all wrote supporting letters broadly to the effect that the Applicant's experience and knowledge of the United Nations System and the International Non-Governmental Organisations (NGO) Community could only enrich the public and the NGO Community of Fiji and the Pacific.

On 25th October 1995 the Department wrote to the Director of PCRC stating so far as relevant:

"The appeal in respect of Mr. Victor Jan Kaisiepo to work as Assistant Director-Environment has been carefully considered by the Minister.

I regret to advise that it has been dismissed. It is noted that Mr. Kaisiepo left on 10th October 1995 and he will not be allowed to return."

This was followed by another letter from the Department dated 27th October 1995 advising that the Applicant and his family had to leave Fiji no later than 1st November 1995.

I gave the Applicant limited leave to cross-examine John Tevita on his affidavit in answer to the affidavit of the Applicant in support of his application.

Mr. Tevita said that he was the decision-maker in this case. He said that under the Immigration Act any one who comes to Fiji in the hope that a work permit will be issued to him does so at his own cost. He did not think that any subordinate staff gave either PCRC or the Applicant any assurances that the Applicant would be given a work permit when he arrived here.

He later said that he provided the Minister with all relevant information relating to this case and that although he said in paragraph 36 of his affidavit that in his capacity as Director of Immigration he made the decision not to grant a work permit, it was the Minister's decision and not Tevita's to reject the Applicant's appeal. I interpolate here that paragraph 36 of Tevita's affidavit concludes thus:

"The Applicant was given opportunity to appeal my earlier decision. A thorough investigation was again carried out by the Department taking into account all points raised by him and all considerations relevant to an application of this nature, some of which are noted above, the result of which persuaded me to reject his appeal."

In re-examination Mr. Tevita said that the ultimate responsibility for decisions concerning work permits is that of the Permanent Secretary for Immigration who chairs a Committee of which Tevita is a member. He said that Mr. Volau was the officer who processes applications and obtains information. He prepares the relevant papers for the Committee. Mr. Jioji helps Volau and attends the counter to advise the public. Both employees perform merely administrative functions and have no authority to make representations or give advice on behalf of the Department.

He said it was not normal to allow Applicants to make oral representation to the Minister, nor to allow Applicants to enter the country while their applications for work permits are being processed. He said that he would not condone any advice or representations made by his subordinate staff on such a matter.

Those then are the relevant facts and allegations of the parties in the matter.

Grounds on which the Applicant seeks Judicial Review

The Applicant gives the following reasons why he should be given a work permit:

(a) That the Minister of Immigration breached the rules of natural justice in that he did not give the Applicant any or any proper or fair hearing and took into account recommendations or advice from officials of the Immigration Department who were biased against the Applicant.

(b) That the Minister of Immigration failed to give any or any proper or valid reason for his decision.

(c) That the Minister abused his discretion in that

(i) he took into consideration irrelevant matters in reaching his decision;

(ii) he failed to take into account relevant matters;

(iii) he acted unreasonably, arbitrarily or in bad faith;

(iv) he did not give regard or take into consideration the legitimate expectations of the Applicant.

The Applicant seeks the following orders:

(a) An order of certiorari to remove the decision of the Minister of the 25th of October 1995 into this Court and thus quash it.

(b) An order of Mandamus directing the Minister of Immigration to grant the Applicant a permit to work in Fiji.

(c) A declaration that in any event the Minister of Immigration has acted in breach of the rules of natural justice or abused his discretion.

(d) Damages and costs.

The Law to be applied in this case:

It is several years since I have received such detailed submissions and copious citation of cases in an application for Judicial Review. I have read all the cases cited to me and some others of my own choosing and therefore intend no disrespect to the thoroughness of counsel's research when I say that I consider it necessary to mention only a comparative few of the many cases to which I have been referred.

This is because in my judgment the law governing this case is well settled and certainly has been since the decision of the English Court of Appeal in Schmidt v Secretary of State for Home Affairs (1969) 2 Ch. 149.

I consider that law may be summarised in the following propositions:

(1) Any sovereign nation has the right to decide whom it will admit or refuse admission to its borders.

(2) The decision to admit any person to a sovereign nation is an executive decision and normally not subject to judicial review.

As Barwick C.J. said in Salemi v MacKellar (No. 2) (1977) 137 CLR at 402:

"The Parliament, by its legislation, has determined who shall fill that description. The Parliament in this legislation is dealing with a national interest of paramount importance, namely, the composition of the nation, determining who shall enter and who shall stay. The decision of those questions is not hedged, nor can it be hedged, around with principles of the kind that the judiciary are wont to consider: nor is it necessary, or convenient, or indeed desirable, that reasons be assigned for the determination of those questions."

At p.403 he said:

"We are not here dealing with the administration of a statute or statutory instrument which on its proper construction involves judicially recognizable limitations upon the discretion confided to the body or official. We are dealing with the exercise of a fundamental national power exercisable according to government policy, for which ultimately there is responsibility to the Parliament."

(3) The only exception to the principle that Judicial Review does not lie in such cases is when a Government gives reasons either expressly or by clear implication for refusing to admit a person to its borders or, as in the instant case, refusing to grant a work permit; then, and only then may those reasons be examined by a Court, and if found unsatisfactory or incorrect Judicial Review may be granted.

(4) That the grant or refusal of an entry permit amounts not to "a civil right" in the sense referred to in Article 6(1) of the European Convention on Human Rights but to a mere licence revocable at any time by executive act is supported by a number of cases based on comparable foreign statutory provisions. Article 6 says:

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

Later I shall quote the comments of Lord Denning on this in Birdi's case decided by the Court of Appeal in England on 11th February 1975 reported in part in 1976 92 LQR 34 but first take as the starting point the declaration of the Privy Council in Attorney-General for the Dominion of Canada v. Cain [1906] UKLawRpAC 37; (1906) AC 542 in reliance upon Vattel's Law of Nations, that:

"One of the rights possessed by the supreme power in every State is the right to refuse to permit an alien to enter that State, to annex what conditions it pleases to the permission to enter it, and to expel or deport from the State, at pleasure, even a friendly alien, especially if it considers his presence in the State opposed to its peace, order, and good government, or to its social or material interests."

At p.8 of the judgment in Birdi's case (supra) Lord Denning said:

"There is no infringement of that article here. The words 'civil rights and obligations' are used to denote the rights and obligations given by the civil law of the country. The article does not extend to administrative procedures, such as licences given by a licensing authority, nor to the permission given to aliens to enter a country. Nor does it apply to the leave given or refusal made under the Immigration Act 1971."

The decisions of R. v. Inspector of Leman Street Police Station; Ex parte Venicoff (1920) 3 K.B. 72, R. v. Governor of Brixton Prison; Ex parte Soblen (1963) 2 Q.B. 243 and Re Marles' Application ((1958) E.A. 153 illustrate that "rights" were not in question when deportation of aliens was being considered and that the procedures therein involved not judicial but administrative functions.

In Marles' case it was expressly stated by the Supreme Court of Kenya that "Immigration is and we think must always be, a jealously guarded privilege, and it would seem that the fact that it is a "privilege", and "not a right" is often overlooked." (emphasis mine) MacDuff J. at p. 161.

In the first part of his final submissions on behalf of the Applicant, counsel asks to what extent is the Director or the Minister bound by the rules of natural justice? He then proceeds to quote numerous cases on the subject such as O'Reilly v. Mackman (1982) 3 WLR 617, Attorney-General of Hong Kong v. Ng Yuen Shiu [1983] UKPC 2; (1983) 2 ALL E.R. 346, Reg v. The Secretary of State for Home Affairs Ex-parte Hosenball (1977) 1 WLR 766 and in Re H.K. (An Infant) (1967) 2 WLR 962 and others including Daganayasi v. The Minister for Immigration (1980) 2 NZLR 130 in support of his argument that the Applicant has been denied natural justice here. Counsel comments that the decision of Reg. v. The Governor of Brixton Prison Ex parte Soblen to which I had referred in argument and various cases referred to by the Respondent which I shall mention shortly have to be considered against the background of an era when there was, what Lord Denning described as a blackout of any development of judicial review.

With respect I disagree. Immigration cases have always been regarded as being in a category of their own and whether or not any right of hearing should be given to a person denied entry or extended residence in a country must depend first on the law of that country and secondly on any practice in considering applications for entry which might give rise to a legitimate expectation that he would be given a hearing. Lord Denning made his remark in O'Reilly v Mackman which was not an immigration case. Likewise whilst Lord Fraser said in Attorney-General of Hong Kong v. Ng Yuen Shiu at p.351 that:

"Their Lordships see no reason why the principle should not be applicable when the person who will be affected by the decision is an alien just as much as when he is a British subject,"

He then added:

"When a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with the statutory duty."

In Ng Yuen Shiu the Government of Hong Kong had announced a change in immigration policy to the effect that illegal immigrants would be interviewed in due course and that, although no guarantees could be given that they would not be subsequently removed each case would be treated on its merits. The Court of Appeal of Hong Kong and the Privy Council held that in the circumstances the Applicant had a legitimate expectation of being accorded a hearing but had not received one. The Privy Council then ordered certiorari to go to quash the order made against the Applicant but then said that the order of certiorari was entirely without prejudice to the making of a fresh removal order by the Director of Immigration after a fair enquiry had been held at which the Applicant had been given an opportunity to make such representations as he wished as to why he should not be removed (see p. 352).

The first comment I make about the relevance of Ng Yuen Shiu to the instant case is that here the Director made no promise to the Applicant. Secondly there is nothing in the Immigration Act which requires the Director to give any person denied a work permit or made the subject of a deportation order any right of oral hearing. This is clear by implication from Section 18(1) of the Act which reads:

"Any person aggrieved by a decision of an immigration officer under the provisions of this Act may appeal therefrom by petition in writing to the Minister who may, in his discretion, uphold, vary or revoke such decision:

Provided that no such appeal shall lie from decisions made by an immigration officer acting in accordance with the directions of, or instructions given in respect of any particular case by, the Minister."

In his evidence before me John Tevita said that it was not normal to allow Appellants to make oral representations to the Minister and this is clearly in accord with Section 18(1).

In Hosenball's case Lord Denning M.R. said at p.781:

"If the body concerned, whether it be a Minister or Advisers, has acted unfairly, then the Court can review their proceedings so as to ensure, as far as may be, that justice is done."

In this case the Applicant availed himself of a right of appeal given him by Section 18 and, presumably, put all the material information he had relating to his application before the Minister. In my judgment his complaint that he was denied natural justice can not be sustained.

Nor do I consider the Applicant's claim that he should have been given reasons for refusing to grant him a work permit can be sustained.

The Applicant relied here on my decision in Sydney Wright v. The Minister for Immigration Judicial Review No. 2 of 1991, unreported ruling of 21st November 1991 when I held after an extensive review of authorities on the issue that as a matter of natural justice the Applicant was entitled to know the reasons why an extension of his work permit had been refused. My decision was based on the particular facts of the case which can be distinguished from those in the present case. I held that by clear implication the Immigration Department had given reasons for its decision and that on the principle that those reasons then became examinable I held that the Department was bound to inform the Applicant of its reasons. This principle appears to have been first stated by Taunton J. in R. v. Mayor and Aldermen of London [1832] EngR 425; (1832) 3 B & Ad. 255 at pp. 273-74 who said:

"But then it is said that they ought to have set forth the grounds upon which they arrived at that conclusion. I think that this is one of those cases in which it is probably much better that the grounds not be disclosed ... but if the corporation are so candid as to state their reasons, and allege bad ones, this Court will in such cases interfere."

It is true that at p.15 of my ruling in Wright I observed that:

"I think it is fair to say that at the present time there is an observable change in the attitudes of the Courts, legal text book writers and other legal commentators conversant with the problem that reasons for decisions should, now wherever possible, be given."

It will be observed that I qualified my statement by adding "wherever possible". Then at p.18 I said:

"Matters involving entry, expulsion and revocation of entry permits are in my view subject to their own rules and principles and not directly relevant here."

Once again the matter must in the end be governed not only by common law but by the Immigration Act itself. I can find nothing in the Act or the regulations made under it which requires the Minister to give reasons for his refusal to grant a permit. The position in Fiji is different from that in England and Australia where Immigration Review Tribunals are established and have a statutory obligation to give reasons. I accept that the giving of reasons is normally required by the ordinary man's sense of justice and is also a healthy discipline for all those who exercise power over others as stated by Professor Wade and Lord Woolf but as I have been at some pains to point out immigration cases have always been in a class of their own and the decision to admit or expel a person from a sovereign nation has always been regarded as an executive decision and not subject to Judicial Review. It is clear in my view on the authority of the cases and text books on Public International Law, for example von Glahn Law Among Nations 4th Edition (1981) that although a decision-maker may eventually have to account to Parliament for any decision he makes the Courts have no jurisdiction to correct him or examine his decision except in the very limited class of cases which I have mentioned namely where a decision-maker either gives express reasons or reasons by clear implication.

The Applicant claims that he had a legitimate expectation that he would be given a work permit based on the experience of other employees of PCRC who had come to the country without work permits but had been granted them after their arrival and on the conversation alleged to have occurred in the Immigration Department between Lopeti, Miss Varea, Mr. Volau and Mr. Jioji.

In Tammie's case Civil Appeal No CBV 0004/94; FCA No. 42/92 both the Court of Appeal and Supreme Court held that a proper foundation for applying the legitimate expectation doctrine was laid where there is evidence of long-standing practice or a course of conduct sufficient to raise an expectation that one would either be given an opportunity to be heard or be granted a permit.

The principles were further spelt out in R. v. Jockey Club, ex parte R.A.M. Racecourses Limited (1991) Administrative Law Reports at page 26 where the Court held that to succeed on the basis of legitimate expectation an Applicant has to prove:

"(a) a clear and unambiguous representation;

(b) if the Applicant was not a person to whom any representation was directly made, he or it was within the class or persons who are entitled to rely upon it; or at any rate that it was reasonable for the applicant to rely upon it;

(c) that he did so rely upon it;

(d) that he did so to his detriment."

Even if I were to accept that the conversations deposed to by Lopeti in his affidavit of 29th May 1996 ever occurred, and I tend to believe they did, I am not satisfied that anything said constituted of an unambiguous representation by a person with ostensible authority to make it. Because of his admitted knowledge of the Immigration Act Lopeti must have realised that the staff in the Immigration Office were subordinates only. To my mind the alleged expression used by Mr. Jioji that it was now okay for PCRC to bring the Applicant to Fiji can be construed merely as an expression of opinion and not an unambiguous representation.

Because of the questions raised by the Department about the Applicant and because of Lopeti's admitted knowledge of the Immigration Act and the Applicant's own experience in overseas work I would have thought the obvious prudent thing for Lopeti to have done if Jioji made the remark alleged was to have asked the Department to put it in writing. He failed to do so and in my view if the Applicant has any cause to complain it is not through any action of the Respondent but rather the neglect of his own prospective employer.

Finally even if I were to hold that certiorari should issue to quash the decision of the Minister, which I am not, I am satisfied that it would be wrong for me to direct Mandamus to issue against the Minister. To do so would in my judgment be a clear negation of the right of a sovereign nation to make executive decisions. The simple fact is that, unpalatable though it may be to the Applicant and I do not mean to be uncharitable when I say it, the Government of Fiji simply does not want the Applicant either to work or reside here. That in my opinion is not justiciable in a court of law.

As to the other allegations made that the Minister was biased or took into account irrelevant matters or failed to take into account relevant matters and acted unreasonably or in bad faith I can only say that I find no evidence to support those allegations.

The Order of the Court is therefore that the application for Judicial Review is refused.

JOHN E. BYRNE
J U D G E

Legislation and authorities referred to in Judgment:

Immigration Act Cap. 88 Section 18(1)
Article 6 European Convention on Human Rights
von Glahn Law Among Nations 4th Edition (1981)
Attorney-General for the Dominion of Canada v. Cain [1906] UKLawRpAC 37; (1906) AC 542
Attorney-General of Hong Kong v. Ng Yuen Shiu (1983) 2 ALL E.R. 364
Birdi's case (1976) 92 LQR 34
Re Marles' Application (1958) E.A. 153
R. v. Governor of Brixton Prison; Ex parte Soblen (1963) 2 Q.B. 243
Daganayasi v. Minister of Immigration (1980) 2 NZLR 130
R. v. Inspector of Leman Street Police Station; Ex parte Venicoff (1920) 3 K.B. 72
Salemi v. MacKeller (No. 2) (1977) 137 CLR 402
O'Reilly v. Mackman (1982) 3 WLR 617
Reg. v. The Secretary of State for Home Affairs Ex parte Hosenball (1977) 1 WLR 766
R. v. Mayor and Aldermen of London [1832] EngR 425; (1832) 3 B & Ad. 255
Schmidt v. Secretary of State for Home Affairs (1969) 2 Ch. 149
R. v. Jockey Club Ex parte R.A.M. Racecourses Limited (1991) Administrative Law Reports p.26
Re H.K. (An Infant) (1967) 2 WLR 962
Tammie's case Civil Appeal No. CBV0004/94; FCA No. 42/92
Sydney Wright v. The Minister for Immigration Judicial Review No. 2 - unreported ruling of Byrne J. of 21st November 1991

The following additional authorities and cases were referred to in argument:

Annets and Another v. McCann & Ors 170 CLR 596
Associated Provincial Picture Houses Ltd v. Wednesbury Corporation CA [1947] EWCA Civ 1; (1948) 1 K.B. 223
Ashbridge Investments Ltd v. Minister of Housing and Local Government (1965) 3 ALL E.R. 371
Anisminic Ltd v. Foreign Compensation Commission [1968] UKHL 6; (1969) 2 AC 147
Birkdale District Electric Supply Co. Ltd v. Southport Corporation (1926) AC 359
Cannock Chase District Council v. Kelly (1978) 1 ALL E.R. 152
Breen v. Amalgamated Engineering Union (1971) 2 Q.B. 175
Council of Civil Service Union & Others v. Minister for the Civil Service [1983] UKHL 6; (1984) 3 ALL E.R. 935
Chief Constable of North Wales Police v. Evans [1982] UKHL 10; (1982) 1 WLR 1155
Cinnamond v. British Airports Authority (1980) 1 WLR 582
Creednz v. Governor General (1981) NZLR 172
Carltona Ltd v. Commissioner of Works (1943) 2 ALL E.R. 560
Franklin v. Minister of Town and Country Planning HL [1947] UKHL 3; (1948) AC 87
Hall v. Arnold (1950) 2 K.B. 543
Fereti Dewa v. The University of the South Pacific Judicial Review No. 7 of 1994 - unreported judgment of Pathik J.
Re Findlay (1985) AC 318
Manunivavalagi Korovulavula v. PSC Civil Appeal No. ABU0006 of 1994
Kanda v. Government of Malaya [1962] UKPC 2; (1962) A.C. 322
McInnes v. Onslow Fane and Another (1978) 3 ALL E.R. 211
Rex v. Secretary of State for Home Affairs Ex parte Duke of Chateau Thierry (1917) 1 K.B. 922
Re Racal Communications Ltd [1980] UKHL 5; (1980) 2 ALL E.R. 634
Ridge v. Baldwin [1963] UKHL 2; (1964) AC 40
Mahon v. Air New Zealand (1984) AC 820
R. v. Commission of Racial Equality ex parte Cotterell and Rothon (1980) 3 All E.R. 271
R. v. Lambeth London Borough Council ex parte Walters QBD (1993) The Times 6 October
Public Service Board of New South Wales v. Osmond (1985/1986) 159 CLR 656
R. v. Civil Service Appeal Board ex parte Cunningham (1991) NLJLR
Norfolk County Council v. Secretary of State for Environment (1973) 1 WLR 1400
Re Liverpool Taxi Owners' Association (1972) 2 ALL E.R. 589
Regina v. Secretary of State for Home Department Ex parte Mohammed Yaqoob (1984) 1 WLR 920
R. v. Gaming Board for Great Britain Ex parte Benaim [1970] EWCA Civ 7; (1970) 2 ALL E.R. 528
R. v. Minister for Housing and Local Government Ex parte Chichester Rural District Council (1960) 1 WLR 587
R. v. Higher Education Funding Council Ex parte Institute of Dental Surgery [1993] EWHC Admin 5; (1994) 1 ALL E.R. 651
R. v. Secretary for State of Home Department Ex parte Khan (1984) 1 WLR 1339
R. v. Secretary for State for Home Department Ex parte Oladehinde (1991) AC 254
R. v. Inland Revenue Commissioner Ex parte Preston (1985) 2 WLR 836
Regina v. Secretary of State for the Home Department Ex parte Ku (1995) 2 WLR 589
R. v. Secretary of State for Home Department Ex parte Doody [1993] UKHL 8; (1993) 3 WLR 154
Johns v. Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408
Lloyd v. McMahon [1987] UKHL 5; (1987) AC 625
State v. The Director of Immigration Ex parte Thomas Judicial Review No. 34 of 1991 - unreported judgment of Fatiaki J. of 26th February 1993
State v. The Permanent Secretary for Labour and Industrial Relations Ex parte Foods (Pacific) Limited Judicial Review No. 1/94 - unreported judgment of Byrne J. of 27th September 1995
Nagle v. Feilden (1966) 1 ALL E.R. 689
Schraam v. Attorney-General FCA Civil Appeal No. 72 of 1981
Shelley v. London Country Council (1948) 2 ALL E.R. 898
R. v. Secretary of State for Home Department Ex parte Ruddock (1987) 1 WLR 1482
Judicial Review by Superstone & Goudie
R. v. Joint Higher Committee on Surgical Training Ex parte Milner (1995) adm. L.R.
R. v. Halifax Ex parte Robinson (1912) 76 J.P. 233
R. v. Liverpool Justices Ex parte Topping (1983) 1 ALL E.R. 490
Applicant's Guide to Judicial Review - Lee Bridges and Others (1995)
Wade Administrative Law 6th Edition

HBJ0025J.95S