In re Cui Zhong Yi No 2 [1997] FJHC 19; Hbj0002j.1997s (5 February 1997)

Fiji Islands - In re Cui Zhong Yi No. 2 - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

JUDICIAL REVIEW NO. 0002 OF 1997S

RE: CUI ZHONG YI

AND

HUANG YIHAT

AND

JIN QIN HAO
Applicants

T. Savu for the Applicant D. Singh for the Respondent

JUDGMENT

On 31 January 1997 I refused an application for leave to move for Judicial Review of a decision of the Permanent Secretary for Immigration dated 28 January 1997 refusing the Applicants permission to reside in Fiji. I now give my reasons. The central facts are not in dispute. The Applicants entered Fiji on 31 August 1995 and were granted 2 year work permits. By operation of law these permits incorporated the conditions contained in Regulation 3(2) of the Immigration Regulations-Cap 88.

On 17 November 1996 the Applicants terminated their employment with the nominated employer Bright International (Fiji) Co. Ltd and accordingly the permits became void (Regulation 3(2) (b) and (e)). The consequence of the avoidance of the permits was that the Applicants became prohibited immigrants (Immigration Act Cap 88 - Section 11(2)(a)) (The Act).

Arising out of the termination of their employment the Applicants commenced civil proceedings (HBC 22/97) in the High Court at Suva seeking arrears of salary amounting to almost $28,000. Naturally they wished to remain in Fiji in order to pursue their litigation but, being prohibited immigrants needed to apply for permits to continue to reside here.

Applications to reside in Fiji by persons who are already present in Fiji are subject to Section 8 of the Act and most particularly to the proviso thereto.

On 10 January 1997 the Applicants were advised that as a condition of being allowed to continue to reside in Fiji they would be required to provide a Bond of $3,000 each and also to provide proof that they had adequate funds for their support ( Exhibit D to the supporting Affidavit filed on 30 January 1997). Failure to comply with these requirements within 7 days would result in the Applicants being deported.

On 24 January Counsel for the Applicants wrote to the Director of Immigration (The Director) asking for a review of the decision to require the Bonds and, in the event that it was decided that the Bonds had to be provided for one month's period in which to collect together the necessary funds from friends and family.

On 28 January The Director replied. He wrote:-

"I refer to your letter of 24/1/97 and regret to advise that since your clients do not have their own means of support they cannot be allowed to remain in Fiji. Therefore arrangement will have to be made for them to leave the country."

This is the decision which it is sought to review.

The first problem for the Applicants is that they did not avail themselves of the statutory appeal provision contained in Section 18 (1) of the Act. Not having exhausted their statutory remedy and not having any advanced any exceptional circumstances Mr. Singh, doubtless relying on established authority (see e.g. Harley Development Inc. v CIR [1996] 1 WLR 727) submitted that Judicial Review was not open to the Applicants, at any rate at this stage. Mr. Savu suggested that there being no mention of Section 18(1) in the letter of 28 January it could confidently be asserted that the Department of Immigration was making it clear that no appeal would be considered, indeed was not even open to the Applicants. With respect, I disagree.

The second problem is that the Department of Immigration has a clear statutory duty not only to exercise its discretion but to exercise it within the fairly stringent limitations imposed by the legislation. Thus, Applicants for permits must be required to show that they are able to support themselves at the time that their applications for a permit are made (see Section 11(c) of the Act) and therefore promises of support from friends or family do not meet the statutory requirement. Given that the Chinese Embassy had requested the Department of Immigration's assistance to have the Applicants returned to China (see Exhibit A to the Affidavit filed on 31 January 1997 by Mohammed Yunus) I think it most unlikely that promises of assistance from friends or relatives either in Fiji or in China could have been safely relied upon.

Mr. Savu forcefully submitted that it would be unjust to send the Applicants back home before their claim for unpaid salary had been adjudicated upon. Unfortunately, such litigation all to often takes years to dispose of. Similar requests to be allowed to be reside in Fiji to oversee litigation were recently considered by Lyons J. in the Lautoka High Court (Francisco Cantilla v Director of Immigration HBJ 0012/1995L and Estrella Trufil v Director of Immigration HBJ0013/1995L). In Cantilla Lyons J had this to say:-

"I am not prepared to accept that the Immigration Authorities should allow a person to reside and continue residing in Fiji pending litigation over another matter ..... If I were to rule that as a general principle litigants can stay in a country whilst litigating a substantial mischief could well be created."

In Trufil he said:-

"In my opinion it would be a mischief to create a precedent that would of necessity provide that, as of right, a litigant can remain illegally in a country until the litigation is complete (if ever)."

I respectfully agree.

In Victor Jan Kaisiepo v Minister of Immigration HBJ 0025/1995S Byrne J, relying on Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149 expressed the view that immigration cases are in a category of their own and are not subject to Judicial Review. While I would not go quite so far as to exclude Judicial Review altogether (for example, the proviso particular to Section 11(2)(g) raises some doubts) I agree that immigration cases are indeed in a category of their own. Because of the obvious need to avoid the delay between the leave and motion stage I would, in the absence of the strongest material to show either that the Rules of Natural Justice had been entirely ignored or that the decision reached was wholly unreasonable, not be inclined to grant leave. On the material before me I was not satisfied that this high standard had been reached.

For all these reasons the application for leave to move for Judicial Review was refused.

M. D. Scott
JUDGE

5 February 1997

Hbj0002j.97s