The sole and proper function of the Court in this application aany judicial review application, is to review the manner iner in which
the decision was made and to examine its lawfulness vis-a-vis the empowering legislation.
As for the `manner’ in which the decision was made it is not suggested on behalf of the applicants that there has been a breach of the rules of natural
justice or that they were denied ample information and opportunity to pretheir suir submissions either to the Director or to the Minister.
Indeed, if I may so, the undisputed evidence clearly supports the view that there had substantial compliance with with the `appropriate course’ suggested by the Fiji Court of Appeal in Victor Jan Kaisiepo v. The Minister of Immigration Civil Appeal No. 54 of 1996 unreported at pp.7 & 8in order `to ensure that procedural fairness is satisfied’ in any appeal to the Minister. I turn next to consider the `lawfulness’ of the decisions made in this case.
In so doing I acknowledge the salutary observations of Richardson J. in Ashby v. Minister of Immigration (1981) 1 N.Z.L.R. 222 when his lordship said at p.231 :
`Immigration policy is a sensitive and often controversial political issue. The nationterest does not not readind itself to compartmentalintalisation
of the amalgam of considerations involved, and the isolation of particular aspects of foreign r domestic policies as obligatory considerations
that must must be weighed in the balance as distinct from permissible considerations which may properly but need not be taken into
account.’
Having said that however, the reviewability of discretionary decisions made under statutory provs cannot be seriously doubtdoubted
even in immigration matters see : Kumar v. Immigration Department and Chandra v. Minister migration both cash cases reported in (1978) 2 N.Z.L.R. at p.553 & 559 respectively, and in particular, the judgment of the Fiji Court of Appeal in Kaisiepo (op.cit.) where the Court said at p.7:
`We are satisfied that, broadly speaking, they (the principles of fairness) have application to decisions made under the Immigration Act and, in particular (the opportunity to make representations and the requirement to be informed of the gist of the case ...... to answer). We do not that deci decisions made by authorised persons under the Immigration Act are exempt from the scrutiny of the Courts or from its orders.’
Needless to say and with all due respect to the obiter observations of my learned brs in the unreported cases oses of : Victor Jan Kaisiepo v. Minister of Immigration Judicial Review No.25 of 1995 (per Byrne J.) and Re : Cui Zhong Yi and Others v. Permanent Secretary for Immigration Judicial Review No. 2 of 1997 (per Scott J.), I am disinclined to agree that `immigration cases are in a category of their own’. Iht well be that discretioretionary decisions in immigration matters are less fettered and have a wider policy content than might
be encountered in other administrative or executive decisions, but, nevertheless, such decisions are and remain reviewable by the
Courts and upon well established principles.
The relevant principles that guides the Court in such a review are well ed and has been recognised and applied in the decisions of
s of numerous Courts throughout the common law world. For present pus it is only only necessary to refer to the decision of the
House of Lords, in the leading case of Associated Provi Picture Houses Ltd. v. Wednesbury Corporation [1947] EWCA Civ 1; (1947) 2 ALL E.R. 680 where Lord Greene M.R. said in an off-cited passage at p.682 :
`The exercise of such a discretion must be a real exercise of the discretion. If in the statute cring thng the discretion, there
is to be found expressly or by implication matters which the authority exercising the discretion ought to have regard to, then ircising
the discretion it must have regard to those matterstters. Conversely, if the nature of the subject-matter and the general interpretation
of the Act make it clear that certain matters would not be germane to the matter in question, the authority musregard those irrelevant
collateral matters.’
Thirty (30) years later and in similar vein Lord Wilberforce said in referring to the discrery decision of the SecreSecretary of State in Secretary of State for Education and Science v. Tameside Borough Council (1997) A.C. 1014 at p.1047 :
`If a judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those fas for the Secretary
of Stat State alone, the Court must inquire whether those facts exist, and have been taken into account, whether the judgment has
been made upon a proper self-direction as to those facts, whether the judgment has not been made upon other facts which ought not
to have been taken into account. If thoquirements are not mnot met, then the exercise of judgment, however bona fide it may be,
becomes capable of challenge : see Secretary of State for Emenoyment v. ASLEF (NO.2) 2 Q.B. per. per Lord Denning M.R. at p.493.’
In the same case Lord Diplock said ibid at p.1064 :
`... It is not for any court of law to substitute its own opinion for his; but ifor a court of law to determine whether it has been
establitablished that in reaching his decision unfavourable to the council he had directed himself properly in law and had in consequence
taken into consideration the matters which upon the true construction of the Act he ought to have considered and excluded from his
consideration matters that were irrelevant to what he had to consider ... Or put more compendiously, the question for the Court is,
did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information
to enable him to answer it correctly ?
In the present case learned counsel for the cants forcefully submits that both the Director and the Minister took a completely misconceivproacproach to the subject application which was not an application for the issuance of a work permit under Sec8(1) of the Act, rather, it was an application under Section 8(2), for thor the extension of an existing work permit which was already subject to a specific condition.
SeGB>Section 8(2) of the Act so far as relevant provides :
`The Permanent Secretary (rerector) may at his discretion extend a (work permit), but shall not ...t ... extend a permit except in accordance with directions issued by the Minister under Section 3.’
In other words any extension of a work permit must be `... in accordance with’ of the Immigration Directions (op.cit) which clearly delimits and qualifies the `person(s)’ to whom a work permit may be granted and extended as being `(one) ... for whose ces there is e is a reasonable demand which cannot be met satisfactorily within Fiji’.
Given the limited statutory criterion for the extension of a work permit, counsel for the applicants sued that both the Director and the Minister asked themselves the wrong question viz : whether the position ought now to be localised ?, and considered irrelevant matters in answering it viz : whether the length of time given to the Fiji Times to localise the position was sufficient ? and the comments e Perm>Permanent Secretary of Information.
This misconcn counsel submits iits is exemplified in the Director’s letter refusing the extensiolication and, more particulticularly, in his answering affidavit whehe deposed (aed (at para.6) :
`I rejected it on the basis that the position should now be localised.&nbse Fiji Times was given almost six years to localise the
pose position of Editor-in-Chief, which in my consideration was sufficient time to do so.’
In somewhat similar vein reference may be made to paragraphs 9, 10, 21, 44, 45, 47 & 48 of the Minister’s answering affidavit.
In counsel’s submission the onlstion required to be considered and answered in an extension (as opposed to an originriginal) application
and as dictated by the Immigration Directions, is the relatively straight forward question - whether, in respect of the positionht to be filled, `the>`there is a reasonable demand which cannot be met satisfactorily within Fiji’ and not/b> the more more controversial and quite erroneous one - wheth not the positiosition must now be localised. In thisrd counselssed
that that the only relevant and acceptable evidence before the Director and the Minister pointed t unavility of a satisfatisfactory `local replacement’ for the position held by they the second applicant.
The distinction, I believe, is more readily understy saying that at the initial grant of a work permit to a foreign national a relevant
questiuestion is : `ought’ the position to be localised at the end of the term ?’ and, depenon the athe answer to the question, the Director may then frame and impose, in his discretion, whatever training and/or other condition(s) he considers would promote and ensure that
loation does eventually occuroccur, if that is the desired result. This is to be contrasted with rather limr limited question at
the extension stage : `can’ (not ought) the position be localised now ? As lattage nswer necessarissarily depends upon an objecobjective tive assessment of the relevant facts as they exist at the time
of the appion for an extension and which may or may not include the degree of compliance with any tray training condition(s) imposed
at the outset.
In Counsel’s submission the on as to whether or not the position should now be localised is `completely irrelevanlevant’. Whatsmore, such an on is n is necessarily based on a `misconstruction of the condition which attached to the work permit’. The cularition counsel argl argues did not unequivocally require the Fiji Timi Times `to appoint’ a local toposition at the end of the term, rather, the requirement was, `to train a local replareplacement within the validity of the permit’. This submissowever, ignoregnores or places little weight on the word `replacement ‘ which, according to the Shorter Oxford Dictionary means, `to take the place of, become a substitute of or to fill the place of (a person or thing) with or by a substitute’.
ass=MsoN=MsoNormal style="text-align: justify; margin-top: 1; margin-bottom: 1">
Counsel accepted however, that the degree of compliance with the imposed condition may be a relevant consideration on an extension
application but, in the present case, there was, in Counsel’s submission, no evidence that training had not been undertaken `... within the validity of the permit’.
In considering this ground of objection it is important to iterate that the refusal to extend was not/b> based upon any suggestegested breach of any specific condition of the work permit which would have immediately rendered the
permit `void’ and therefore, presumably, incapable of being extended [see : Condition (6) in the permit & Regulation 3(2)(e) of the Immigration Regulations ] rather, the decision was taken in pursuance of an affirmative decision that the position should now be localised.
p class=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> That being said I am unable to accept Counsel’s suggestion that the question of whether thition ought now to be locallocalised is
`wholly irrelevant’ or tantamounts to a misconstruction of the relevant legislative provisions, ministerial directions, or even the actual condition
imposed in the work permit. On the contrary, I am fiofly of the opinion that a proper consideration of the question of localisation
necessarily and reasonably entails a considerati the question of whether the skills required for the position for which the extension
is sois sought, are or are not available locally.
In this latter regard tcts before the Director and the Minister were :
(1) &nbp; &nnbsp; &nbssp;&nsp; &nbp; ;&nbpp; shat since tnce the creation of the position of Editor-in-Chief of the Fiji Times in 1993, two (2) foreign nationals have been appointed to the posit
(2) &nbssp;&nnsp;&&nsp; &nsp; &nbbp;&nnbsp; That that the three (3) year work permit of the seappchwhichgranted after a successful appeal, imposed on the Fiji Times a s> a specifpecific duic duty : `to train a local replacement within the validf this permit ;
ass=Level1 stylestyle="text-align: justify; text-indent: -34.9pt; margin-left: 70.9pt; margin-right: 0cm; margin-top: 1; margin-bottom:
1"> (3) &nsp; & p;&nbp; &nsp; &&nbp;;&nbpp; &nThat whatever training was provided by the Fiji Times over the past three (3) years did not enable it to appoint `lreplat’ to filo fill thel the posi position ;
(4) &nsp; &nbbsp; &nb/span>That that the posi position of Editor-in-Chief which was advertised locally in the Fiji Times required :
`(in essence) ... the ces of a seasoned and succesuccessful daily newspaper journalist who will provide leadership to our editorial staff and who
will ensure that the Fiji Times maintains its integrity by covering all aspects of life in Fiji in an independant, balanced and fair
way.’ ;
(5)&n;"> & &nsp; &nbssp; Thsp; thp; the adve advertisement elicited ten (10) applications ofh eig>(8)
(6) &nbbsp;& &nsp; &nsp; &nnbp;& all loca local appl applicants were considered unsuitablthe ;
(7) ; &nnsp;&&nsp;;&nbp; &nbp; Tpan the Fiji Times was seeking a three (3) yetensi the d appt’s wermitnable him to continue in the position of n of EdEditor-itor-in-Chin-Chief ; b> ; and
(8) &nsp; & p;&nbp; &nsp; &&nbp;;&nbpp; &nThe Permanermanent Secretary for Information had commented that the position belisedan> &-GB> nbsp; In addition the Minister deposed (without elabora that in determining the appeal, he had considered the foll following factors `with an open mind’ (see : para.28) :
`(i) &nnbsp;; tsp dthe dthe deci decision of the Director of Immigration against which the appeal has been lodged ;
(ii) & tsp; the Government policy ;
 an> (iii) all the submissione madthey the Fiji Times or its solicitors to
(iv) &nbssp;&ntsp; one cone cont contents of letter dated the 3rd December, 1999 from the Director of Immigration to Messrs Howards and the records in possession of the Department regarding ubjecter
os appliapplicatiocation, thn, that is, the position of Editor-in-Chief of Fiji Times since it was created including Mr. Russell
Hunter’s Immigration file ;
(v) &nbssp; &nbssp; &nbp; the legql remeirements.’
&nbs> The Minister’s declared reason for rejecting the appeal was his present lack of satisfaction `that there are no locals who can satisfactorily take up the position’ (of Editor-in-Chief of the Fiji Times). Iit in that reason is the the consideration of whether or not the position can or cannot
be filled locally. Plainly therefthe did not misconstrue the requirements of the Act or the DiDirections thereunder.
More importantly, was that a decision which th Minister was reasonably entitled to make after fairly considering the various facts ants and factors that he deposed to ? nsidering this
question I on I remind myself, that the burden of proving the negative falls squarely upon the applicants to esta on a balance of
probabilities, and, of the limited role of a court reviewing the exercise cise of an administrative discretion. Furthermore, `... in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker
and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising
the statutory power’ (per Mason J. in Re Peko-Wallsend 66 A.L.R. 299 at 309).
Having said that, Iat, I accept that the evidence of the availability of suitable locals to fill the position of Editor-in-Chief of the Fiji Times might be considered sparse, nevertheless, the `weight’ to be given to such evidence as exists is entirely a matter for the Minister to assess in the exercise of his statutory discretion. The Min has made hide his decision and in spite of counsel’s careful submissions to the contrary, I remain unpersuaded that the ter erred in his approach or that his refusal to grant the extension of the seco second applicant’s work permit was so unreasonable as to border on irrationality.
As for the ground of `bias and bad faith’ counsel submits that there is ampleumstantial evidence from whom which the Court may properly infer that `(the decisions) were actuated by ill-will in the decision-making process’. Whatsmore bare deni denials that (the decision makers) were, or would have been, influenced by the publicly-antagonistic attitude of the Prime Minister to the Fiji Times defy credibility’.
The evidence in this latter r is comprised of numerous newspaper cuttings and an address to the Media Council by > by the Prime Minister which, counsel submits, exhibits such a degree of hostility on the Prime Minister’s part towards the Fiji Times that it would have been impossible for the Directirector and the respondent Minister to have exercised their discretions fairly and in an impartial and unbiased manner in considering the application for an extension
of the second applicant’s work permit.
In the words of the Managing Director/Publisher of the Fiji Times (para.44):
`It is highly improbable that either of these gentlemen would `go against’ the Prime Minister or grantxtension of Mr. Hunter’s wo’s
work permit knowing the Prime Minister’s public (sic) reported views about the Fiji Times. To do uld carry the personersonal risk
of incurring the wrath of the head of the country’s government.’
and at para.48 :
`The decision on Mr. Hunter’s application had already been effectively made for th the Prime Minister, and by a process of `osmosis’
they simy simply validated the thinly veiled view and preference of the Prime Minister not to allow the renewal of the work permit
of the Editor-in-Chief of the Fiji Times against whom he had a self-confessed and deep seated grievance.’
ass=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> In response to both paragraphs the Director `categorically’ denies being influenced and the Minister likewise, `vehemently’ denies that his decision `was at all or in any manner whatsoever influenced by the political environment or any newspaper or media reporting’ which in turn was `never submitted’ to him during the course of the appeal.
Additionally, there are several problems with counsel’s submission in so far as : (1) It assumes that the respondent Minister actually read the newspaper articles and the Prime Minister’s speech ; (2) It assumes that the respondent Minister is incapable of forming an independent assessment of the matter ; (3) It assumes that the extension of the work permit was inevitable
; and (4) It ignores the clear contents of the Minister’s refusal letter. Suffice to say Iot prepareepared to make such unwarranted assumptions or doubt the Minister’s letter in the absence of cross-examination or clear evidence to the contrarpan>
Having said that however, the Mir in his letter refusing the extension of the second applicant’s work permit specificalfically recognised that `there may be some justification for the unease expressed by your firm’. What the particular <`unea`unease’ was or the `justification’ for it, is nowhere identified in the Minister’s letter but the solicitor’s letter o 26th November, 1998 makes it plain that part part of the applicant’s concern centred around the prevailing `political environment’ in which the Director’s decision was made and which was described as being `heavilsed against Fiji Times Limited’.
In CREEDNZ Inc. v. Governor-General (1981) 1 N.Z.L.R. 172 where a similar submission of predetermination and bias was made on the basis of the public utterances of relevant Ministers published
in the newsprint media and covering a period of a year, Richardson J. in rejecting the submission said at p.194:
`Before the decision can be set aside on the grounds of disqualifying biasust be established on the balance of probabilities that
in t in fact the minds of those concerned were not open to persuasion and so, if they did address themselves to the particular criteria
under the section, they simply went through the motions.’
and later in regard to the press clis which included utterances from the Minister directly concerned, his lordship said said at p.196 :
`Read singly or together they do not justify the serious allon that Ministers decided ahead of time how they would deal with any application
under
(the Act) ... and that they made their decision (under the relevant section) with closed minds.’
Whatsmore as Salmond J. cautioned in (1921) N.Z.L.R. 127 at p.13>p.135 : `... the ru diofualiqualification by reason of predetermination must be applied with the utmost caution’.
span>
<
In the present case mindful that public confidence can be undermined decision-maker who manifests an unwillingness to consider ider
applications on the merits, after having carefully read and considered the numerous newspaper clippings which are singularly silent
on any relevant utterances by the respondent Minister, I am not satisfied that the applicants have established that the Minister, despite his deposition to the contrary, had in fact approached his duty with a `closed mind’. If anything it isr from hiom his letter that the Minister was conscious of the applicants `unease’ in that regard and would have been anxious to dispel any stion of predetermination or bias in arriving at his decisiecision.
Needless to say the relevant test formulated and applied by the Fiji Court of Appeal in itsported judgment in L Latchman Bros. Ltd. & Others v. Sunbeam Transport Co. Ltd. Civil Appeal Nos. 45, 51, 57 & 61 of 1983 namely - `would the circumstances cause a reasonable on-looker to think there was a real likelihood of bias ...’ requires the matter to be looked at from the objective standpoint of a detached `on-looker’ and not from the subjective and dangerous view point of a person directly affected by the decision. In the wof Devlin L.J. in R. v. Barnsley Licensing Justices ex-parte Barnsley and District Licensed Victus Association [1960] 2 Q.B. 167 at p.187 :
`We have not to enquire what impression might be left on the minds of the present applicant or on the mif the public generally.&nbs.
We to satisfy ourselves thes that there is a real likelihood of bias - not merely satisfy ourselves that that was the sort of impression that might reasonably get abroad.’
ass=MsoN=MsoNormal style="text-align: justify; margin-top: 1; margin-bottom: 1"> In light of the foregoing, I am not at all satisfied that the cants have discharged the onerous burden of proving on a ba a balance
of probabilities that there was a `real (not fanciful) likelihood of bias’ on the Minister’s part in determining the l.
ass=MsoNormal stal style="tlign: justify; margin-top: 1; margin-bottom: 1"> For the foregoing reasons the application is refused with costch are summarily assessed at $1,000.00.
D.V. Fatiaki
JUDGE
/b>
At Suva,
26th April, 2000.<000.
HBJ0001J.00S
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