State v Director of Immigration, Ex parte Woo Jin Chae [2004] FJHC 318; HBJ0015J.2003S (10 March 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. HBJ0015 OF 2003

Between:

STATE

v

DIRECTOR OF IMMIGRATION
PERMANENT SECRETARY FOR IMMIGRATION
Respondents

Ex parte: WOO JIN CHAE
Applicant

Mr. T. Fa for the Applicant
Ms. N. Karan for the Respondents

JUDGMENT

Pursuant to leave granted to Woo Jin Chae (the ‘applicant’) he applied for judicial review of the decisions of the Director of Immigration (the ‘first respondent’).

Decisions impugned

The decisions impugned are contained in the first respondent’s letters dated 17 February 2003 and 5 March 2003 which read respectively as follows:

Letter of 7 February 2003 reads:

“It has been brought to my notice with proof that you sold all your 70% shares in the company Orion Marine Co. Ltd.

This indicates that you are no longer involved in the company.

Therefore, the permit No 1977/01 which has been extended to 19.04.2005 automatically becomes null and void.

Please make immediate arrangements to leave the country within fourteen (14) days from the date of this letter.

You may await the result of your Fiji Citizenship application from outside Fiji”.

Letter of 5 March 2003:

“Mr. Woo does not possess a valid permit to enable him to await the result of the Civil matters in the court.

Please advise him to leave the country within the next 48 hours or else he will face immediate removal from the country.

He can await the result of his civil court case from outside Fiji and he may come in as a visitor if, at any time he is required for the case.

The permit currently in his possession must be returned immediately.”

Relief sought

1. An order for certiorari to remove the decision of the Director of Immigration of 17 February 2003 and 5 March 2003 to declare the Applicant’s work permit 1997/01 as null and void and requiring the Applicant to leave the country within 14 days or face immediate removal to this Honourable Court be quashed;
   
2. A declaration that the Director was in breach of the rules of natural justice in cancelling the said work permit and ordering the Applicant to leave the country without first hearing the applicant or allowing him to show cause as to why he should leave the country;
   
3. A declaration that decisions of the Director are grossly unfair and in breach of the rules of natural justice and of no effect;
   
4. A declaration that the work permit is still valid and does not expire until 19 April 2005; and
   
5. Damages
   

Grounds of relief

Briefly, the grounds, on which the applicant is seeking relief are as follows:

1. There was breach of natural justice in declaring Permit No. 1 977/01 to be ‘null and void’ and that it was cancelled without calling upon the applicant to show cause why it should not be declared null and void or cancelled.
   
2. Further, there was again a breach of natural justice when the applicant was ordered to leave the country and later threatened with deportation without first calling on him to show cause.
   
3. Thirdly, the first respondent acted capriciously, wantonly and maliciously in reaching his decisions.
   

Background facts

The background facts of this case have been well stated by Mr. Fa in his written submission which are as follows:

The Applicant is a Korean business national aged 51 years old and is married with two children.

He arrived in Fiji on 27.02.96 and thereafter made numerous visits to Fiji before he finally decided to invest in the fishing industry.

In January 1999 the Applicant purchased a fishing vessel with a gross tonnage of 1999 tonnes from Japan called “Ace” and incorporated a company Orion Marine Company Limited which was to own the vessel “Ace”. The Applicant held 70% of the shares in the company and the other 30% was owned locally.

In 2001 the Applicant was issued with Permit No. 1977/01 valid for five months conditional on the Applicant holding the key post of Managing Director for Orion Marine Company Limited. Upon expiration of the permit a renewal was issued for 19.4.05.

On the first week of December 2002 the Applicant sold his 70% interest in Orion Marine Company Limited to a Chinese national and since disposing of his shares has continued to live in Fiji.

In early March 2003 the Applicant received a letter from the Immigration Department revoking the Applicant’s Permit No. 1977/01 and ordering the Applicant to leave the country within 14 days of receipt of letter.

Consideration of the application

I have before me for my consideration the affidavits of the parties and written submissions from both counsel.

The facts of this case are very simple and these are contained in the various correspondence passed between the parties.

The only and the main ground in this application for my determination is whether there was a need for the applicant to appear before the first respondent and be heard. In other words was there a denial of natural justice on the facts and circumstances of this case.

The learned counsel for the respondent dealt in her submission with the issue on two grounds. Firstly, that before applying for judicial review the applicant should have had recourse to the alternative remedy of appeal from the respondent’s decision for which there is provision in s.18(1) of the Immigration Act. Cap. 88. Secondly, she dealt with the principles pertaining to ‘natural justice’ and stated that there was no denial of natural justice in this case.

Principles pertaining to judicial review and natural justice

In considering an application for judicial review the principles which I state hereunder have to be borne in mind.

Some of the leading decisions have stressed that the ‘merits’ of the decision the subject – matter of judicial review, are not the matter for the courts, which must substitute their own view for those of the Minister or statutory body, in whom is vested the relevant power. The courts are merely concerned with the lawfulness of the decision-making process. There is a requirement though that the exercise of any statutory power affecting a person’s right or interests should be performed by complying with the rules of natural justice, in other words, ‘fairly’.

The boundaries of judicial review had been succinctly stated by Lord Hailsham in Chief Constable of North Wales Police v. Evans [1982] UKHL 10; [1982] 1 W.L.R. 1155 at 1160 thus:

“This remedy of judicial review under R.S.C., Order 53 vastly increased in extent, and rendered, over a long period in recent years, of infinitely more convenient access than that provided by the old prerogative writs and actions for declarations, is intended to protect the individual against the abuse of the power by a wide range of authorities judicial, quasi judicial and ..... administrative. It is not intended to take away from those authorities the powers and discretions properly vested in them by law and to substitute the courts as the bodies making the decisions. It is intended to see that the relevant authorities use their powers in a proper manner ..... But it is important to remember that in every case the purpose of the remedies is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide matters in question. A function of the court is to see that lawful authority is not abused by unfair treatment and not to attempt the task entrusted to that authority by the law.” (emphasis mine)

I shall now consider whether there was a denial of ‘natural justice’.

I find that it was not the case here.

The applicant was written to by the respondent that he is in breach of his ‘permit’. In fact the respondent has stated the ‘reason’ for wanting to deport the applicant. Nothing could be clearer than that; the applicant’s argument for wanting to remain in the country was considered by the respondent and hence there was no need for him to appear ‘in person’ and be heard. In this regard the following statements of Lord Lane C.J. in Regina v Immigration Appeal Tribunal Ex parte Khan (Mahmud) [1983] 2 W.L.R 759 at 762 are opt:

“Speaking for myself, I would not go so far as to endorse the proposition set forth by Sir John Donaldson that any failure to give reasons means a denial of justice and is itself an error of law. The important matter which must be borne in mind by tribunals in the present type of circumstances is that it must be apparent from what they state by way of reasons first of all that they have considered the point which is at issue between the parties, and they should indicate the evidence upon which they come to their conclusions.” (emphasis added)

Alternative remedy

I shall now deal with the ground of attack, namely, alternative remedy on which counsel for the respondent relies.

The applicant has stated in his affidavit that if the Respondent had called upon him to show cause why the Permit should not be cancelled he would have admitted that the two ‘pending court cases as the reasons’ why the Permit should not have been cancelled.

The learned counsel for the Applicant submitted that although what is appropriate will always be a matter of discretion for the Director of Immigration, but before attempting to reach a decision the ‘Director was bound to inform the Applicant of the grounds on which he proposed to act and give him an opportunity of being heard in his own defence’.

Under s.18(1) of the Immigration Act which provides as follows an Applicant has available an alternative remedy of appeal to the Minister for Immigration:

“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.”

And by subsection (2) the Permanent Secretary may grant an applicant an “Interim Permit” allowing him to remain in Fiji pending the determination of his appeal or court action.

It does not appear from the evidence before me that there was an appeal to the Minister from the decisions.

The situation in this case is very similar to the case of Victor Jan Kaisiepo and the Minister for Immigration (Civil Appeal N0.54/96S – F C A – 14.11.97) where the Director gave his decision but not the Minister. The following passage from the judgment at page 5 is pertinent:

“It is clear therefore that the Minister himself must exercise his discretion and either uphold, vary or revoke the decision, for there is no provision for him to delegate his power. The papers before the Court do not show that the Minister himself ever considered the appeal and, in his discretion, upheld the decision. The notification that the appeal had been dismissed came from the Department, as referred to earlier in this judgment, and the only other information as to Minister’s part in the procedure followed came from the Director of Immigration Mr. John Tevita who made an affidavit. In his Affidavit he deposed that “... it was only following a very careful consideration of his case and deliberation of all important related factors by the Minister that a decision was made to dismiss the Applicant’s appeal.”

In that case counsel was asked if he could point to any material in the record which showed that the Minister had himself considered the matter, but he was unable to do so. Whereupon the Court said:

It appears to us that this is a fatal defect. On the face of it there appears to be undisposed of appeal to the Minister. There certainly does not appear to be before us a decision by the Minister, made in accordance with the statutory provisions, to which an order for certiorari could apply. In our view, though such an order was not included in the application for judicial review, the Court should make a declaration that there is an undertermined appeal from the Permanent Secretary to the Minister and that it is his duty to consider and determine that appeal in accordance with s.13 of the Act. (emphasis added).

On alternative remedy, the Lord Chief Justice, Lord Bingham in R v. Hereford Magistrate’s Court ex p. Rowlands [1997] Cr, App. R 340 at 341 stated:

“For most of this century at least, certiorari has provided the usual if not invariable means of pursuing challenges based on unfairness, bias or procedural irregularity in magistrate’s courts. The cases which show this are legion. It is only necessary to mention, by way of example Sussex Justices, ex p. McCarthy [1924]1 K.B. 256; East Kerrier Justices, ex p. Mundy [1952] 2 Q.B. 719; Barry Justices, ex p. Nagi Kashim [1953] 1 W.L.R. 1320; Oldham Justices, ex p. Morrissey [1959] 1 W.L.R. 58; Brighton Justice, ex p. Robinson 69; Liverpool City Justices, ex p. Topping [1983] 1 W.L.R. 119; and Bolton Justices, ex p. Merma [1991] Crim L.R. 848. In a number of cases, of which some are cited in Dowler at pp. 567-568 the courts have stated that a remedy by way of Judicial review should not be granted where an alternative remedy exists. An applicant is expected to exhaust all other remedies open to him before seeking judicial review, otherwise, the court may in the exercise of its discretion deny relief”’ (emphasis mine)

In this case I am not oblivious of what Brighton C.J. said in Hereford (supra) at 351 when he said:

“......the decision whether or not to grant relief by way of judicial review is always, in the end, a discretionary one. Many factors may properly influence the exercise of discretion, and it would be both foolish and impossible to seek to anticipate them all.”

Conclusion

To sum up, on the facts and circumstances of this case, I find that there is no basis for the ground that there was a denial of natural justice. The applicant had a fair hearing and the decisions with reasons were given.

Although the applicant fails on the ground of natural justice, the question arises as to whether certiorari as a relief could be granted when there has been a failure on the part of the applicant to exhaust the alternative remedy of appealing to the Minister under s.18 of the Immigration Act.

In the light of the decision in Kaisiepo (supra) this jumping a step in the words of Fiji Court of Appeal is a fatal defect. Why the applicant did not appeal has not been disclosed. If the said appeal procedure is by-passed it would make a nonsense of the said section 18 and the Court will be inundated with applications of the nature such as the one before the Court. The applicant will be able to come to Court for the determination of his rights should he be unsuccessful on appeal to the Minister. The Act has provided him with another remedy and he must exhaust that before applying for judicial review. And as Lord Simons said in Ridge v. Baldwin [1963] UKHL 2; [1964] AC 40:

“There is nothing in the Act to suggest that while a new remedy, perhaps cheap and expeditious, is given, the old and, as we like to call it, the inalienable remedy of Her Majesty’s subjects to seek redress in her Courts is taken away.”

For these reasons the application for relief sought are refused. The applicant should exercise his rights in the way provided by the statute in the first place as “the right and the remedy are given ‘uno flatu’ (with one breath), and the one cannot be dissociated from the other.” (Barraclough v. Brown [1897] UKLawRpAC 32; [1897] AC 615 at 622)

The application for judicial review is dismissed with costs in the sum of $300 to be paid within 14 days.

(D. Pathik)
Judge

At Suva
10 March, 2004