Keppel v Attorney-General of Fiji [1997] FJHC 170; Hbj0032d.1997s (11 November 1997)

Fiji Islands - Keppel v The Attorney-General of Fiji - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

JUDICIAL REVIEW NO. 32 OF 1997

BETWEEN:

RAPHAEL KEPPEL
Applicant

AND:

THE ATTORNEY-GENERAL OF FIJI
Respondent

Mr. P. Howard for the Applicant
Mr. S. Kumar for the Respondent

DECISION

The Applicant RAPHAEL KEPPEL has applied for leave to apply for Judicial Review pursuant to Order 53 Rule 3(2) of The High Court Rules, 1988 in respect of the purported decision (the "decision") of the Minister for Justice and Home Affairs made on or about 15 September 1997 when the Director of Immigration (as per Leave Application):

(1) declined the Applicant's application for extension of his work permit;

(2) informed the Applicant that there is no provision for appeal;

(3) that the applicant should now make arrangements to leave the country within seven (7) days from the date of the letter (i.e. 15/9/97);

(4) that the Applicant must also take his two eldest sons namely GUNNAR KEPPELL and LARS KEPPEL with him when he leaves Fiji, and

(5) that the Applicant should advise the Immigration Department the date and means of departure forthwith.

The reliefs which the Applicant seeks are (a) declarations that the Minister's decisions contained in items (1) to (4) above are all null and void and of no effect; (b) an order of certiorari questioning the said decisions; and that (c) leave shall operate as a stay of execution.

The grounds upon which the Applicant seeks relief are as follows (as stated in the Application for Leave):

(i) The said Minister and/or the Permanent Secretary and/or the Director of Immigration has, not only taken into consideration irrelevant matters, but also has not taken into consideration relevant issues.

(ii) The said Minister and/or the Permanent Secretary and/or the Director of Immigration acted in breach of the principles enshrined in Section 16(b) of the Constitution Amendment Act 1997 (No 13 of 1997) of the Republic of the Fiji Islands, 25th July 1997.

(iii) The said decisions have been made not in accordance with the rules of the Principles of Natural Justice.

For facts I refer to the 'Statement of Facts' document filed herein and to the Applicant's affidavit.

Applicant's submission

In his submission Mr. Howard referred the Court to s18(1) of the Immigration Act Cap. 88 (the "Act") (to which I shall advert to later) and said that the decision which also refers to the Minister's 'decision' should have come from the Permanent Secretary and not from the Director of Immigration. As a result the door is closed to appeal to the Minister. He says that it is likely that the Minister has taken irrelevant matters into consideration. Mr. Howard also makes the point that under s8 of the Act the Permanent Secretary is empowered to issue a permit "to enter and reside or to reside and work in Fiji" and he may extend a permit issued by him. Hence it was "procedurally wrong" the way the decision was reached and the mode of communication advising the Applicant of the decision.

Respondent's submission

For the Respondent Mr. Kumar argued, while opposing the Application, that the Applicant has failed to show any illegality, irrationality or procedural impropriety, or that the Respondent has taken into account irrelevant matters. He further submitted that the second ground of relief is not applicable because the "Amended Constitution" does not come into force until 27 July 1998. He also argued that the Applicant has failed to show that there was any denial of natural justice. He said that the papers filed do not establish that 'procedure' has not been followed by the Respondent. He says that the Act empowers the Minister to "come to a decision".

Consideration of Application

I have given due consideration to the submissions made by counsel.

This is an application for leave to apply for judicial review under Or 53 r 3. Leave is obtainable provided that, inter alia, there is an arguable case on merits. On the approach to applications for leave R J. F GORDON in his book JUDICIAL REVIEW: LAW AND PROCEDURE (1985) at p 79 in item 7 - 20 states:

"The court's general approach to applications for leave was well summarised by Lord Diplock in R. v. Inland Revenue Commissioners, ex p. National Federation of Self-Employed and Small businesses Ltd.[1981] UKHL 2; , (1982 AC 617) where he indicated that it would defeat the whole purpose of requiring preliminary leave to apply for judicial review if the court had to go into the matter in any depth at that stage. What was needed was a "quick perusal" of the available material to see if it disclosed an arguable case on the various criteria that had to be considered." (underlining mine for emphasis)

Here the Applicant must show that he has an "arguable case". The argument put forward by Mr. Howard does create grave doubts in my mind that the correct procedure as laid down in the Act, particularly in sections 8 and 18 (infra), has been followed resulting in the Applicant being denied the right of appeal to the Minister. The theoretical possibility that the Director of Immigration and through him the Permanent Secretary and the Minister misdirected themselves cannot be ruled out. The Applicant has the right of appeal to the Minister but this has been denied him as a consequence of the procedure adopted by the Respondent in dealing with the Applicant's application for a work permit.

Therefore, bearing in mind the purpose of judicial review, namely, that it is concerned with reviewing not the merits of a decision but the decision-making process and the manner in which the decision was made, I find without even hearing the judicial review which I am not required to do at this stage that a procedurally wrong approach has been adopted in this case.

However, before the hearing of the judicial review the 'threshold stage' (leave stage) as regulated by Or 53 r 3 has to be considered and also its purpose. It is as LORD DIPLOCK said:

"...is to prevent the time of the court being wasted by busybodies with misguided or trivial complaints of administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived." (INLAND REVENUE COMMISSIONERS and NATIONAL FEDERATION OF SELF-EMPLOYED AND SMALL BUSINESSES LTD [1981] UKHL 2; (1982) AC. 617 at 643).

The argument put forward by Mr. Howard has convinced me that there is an arguable case because of the alleged wrong procedure that has been adopted by the Minister for Immigration under the Immigration Act bearing in mind the the relevant sections of the Act which are as follows:

"8. - (1) The Permanent Secretary may issue a permit in the appropriate form to any person entitling him to enter and reside or to reside or work in Fiji, upon such conditions as to the security to be furnished, the profession or occupation which the holder may exercise or engage in and the person by whom the holder may be employed within Fiji, and to any other matter whether similar to the foregoing or not which the Permanent Secretary may deem fit to impose or as may be prescribed, and may at his discretion vary any such condition:

Provided that, except with the approval of the Minister, no such permit may be issued to any person who is unlawfully in Fiji, is in lawful custody or is a patient in a mental hospital.

(2) The Permanent Secretary may at his discretion extend a permit issued under the provisions of subsection (1), but shall not so grant or extend a permit except in accordance with directions issued by the Minister under section 3." (underlining mine for emphasis)

Section 18

"18. - (1) 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.

(2) The Permanent Secretary may grant to any person, not being a prohibited immigrant, and to any member of his family, who intends to appeal to the Minister under the provisions of subsection (1) or who seeks to take action available to him, before a court, to obtain redress against the decision of an immigration officer, an interim permit allowing him to enter or to remain in Fiji pending the determination of such appeal or action:

Provided that any such appeal or action is lodged or commenced within fourteen days of such decision.

(3) No permit shall be granted under this section unless the Permanent Secretary is satisfied that the person concerned is unlikely to become a charge on the public during the currency of the permit. Any such permit may be cancelled by the Permanent Secretary if the person concerned appears likely to become a charge on the public or if the appeal or action is not prosecuted within such period of fourteen days, and if not cancelled shall expire on the giving of a decision by the Minister." (underlining mine for emphasis)

It is on s8(2) that Mr. Howard says he relies heavily. The Applicant has been corresponding with the Immigration Department and, in this case in relation to his work permit, he has been receiving replies from the Director of Immigration as evidenced by the annexures to his Affidavit filed herein. The impugned decision which was conveyed to the Applicant by letter dated 15 September 1997 came from and under the hand of the Director of Immigration which in my view contravened the provisions of section 8.

Under s8 it is the Permanent Secretary who should be attending to these matters. Then s18(1) makes provision for appeal "by petition in writing to the Minister" who is empowered to "in his discretion, uphold, vary or revoke such decision". In the said letter of 15 September the Director wrote, inter alia, that: "After carefully considering the request, my Minister has decided that the application be declined." (underlining mine)

It appears that the decision is that of the Minister and not that of the Immigration Officer or the Permanent Secretary. I do not think that the proviso to s18(1) means that the Minister can short-circuit an application by ignoring his officers in these matters. If that were so then the statutory provision regarding 'appeal' will have no meaning. On the one hand the Act gave a right of appeal, and on the other hand the Applicant is told that there is "no provision for appeal". In this regard the following statement of LORD DIPLOCK in INLAND REVENUE COMMISSIONERS (supra) as far as the lawfulness of what the officers of the Ministry do is pertinent:

"It is not, in my view, a sufficient answer to say that judicial review of the actions of officers or departments of central government is unnecessary because they are accountable to Parliament for the way in which they carry out their functions. They are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge; they are responsible to a court of justice for the lawfulness of what they do, and of that the court is the only judge.

In the procedure that has been adopted there is a strong likelihood that irrelevant matters may have been put before the Minister without the Applicant's knowledge. The Applicant did not have the opportunity, nor will he ever have such an opportunity in the present state of things of putting his case. In a situation such as this the Director should have acted fairly bearing in mind, in the context of this case, namely, inter alia, that the Applicant has had his permit renewed previously. The duty of an immigration officer is stated clearly by LORD PARKER C.J in In re H.K. (An Infant) 1967 2 Q.B. 617 at 630 thus:

"...I myself find that even if an immigration officer is not in a judicial or quasi-judicial capacity, he must at any rate give the immigrant an opportunity of satisfying him of the matters in the subsection, and for that purpose let the immigrant know what his immediate impression is so that the immigrant can disabuse him. That is not, as I see it, a question of acting or being required to act judicially, but of being required to act fairly. Good administration and an honest or bona fide decision must, as it seems to me, require not merely impartiality, nor merely bringing one's mind to bear on the problem, but acting fairly; and to the limited extent that the circumstances of any particular case allow, and within the legislative framework under which the administrator is working, only to that limited extent do the so-called rules of natural justice apply, which in a case such as this is merely a duty to act fairly."

On the facts before me I find that the Applicant has established an arguable case on the first ground referred to hereabove but not on the second (ii) and third (iii) grounds. The Amended Constitution is not in force as yet and hence it is not applicable here. These two grounds are rejected by me.

Conclusion

For the above reasons, taking into consideration the relevant provisions of the Act relating to the procedure to be followed, the principles pertaining to application for

leave and the authorities, with particular reference to the following extract from the judgment of LORD DIPLOCK, I consider that the Applicant is entitled to leave which I hereby grant:

"The whole purpose of requiring that leave should first be obtained to make the application for judicial review would be defeated if the court were to go into the matter in any depth at that stage. If, on a quick perusal of the material then available, the court thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for that relief. The discretion that the court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application." (LORD DIPLOCK in INLAND REVENUE COMMISSIONERS and NATIONAL FEDERATION OF SELF-EMPLOYED and SMALL BUSINESSES LTD [1981] UKHL 2; 1982 AC 617 (HL at 643-644).

To avoid delay, after hearing counsel, I am prepared to expedite the hearing of Application for Judicial Review after due compliance with the provisions of Or.53 r.5 by the Applicant.

D. Pathik
Judge

At Suva
11 November 1997

Hbj0032d.97s