IN THE HIGH COURT OF FIJI
IN THE WESTERN DIVISION
AT LAUTOKA

Judicial Review No. HBJ 08 of 2023

IN THE MATTER of the MINISTER FOR HOME AFFAIRS & IMMIGRATION

AND

IN THE MATTER  of the IMMIGRATION ACT and the IMMIGRATION REGULATIONS and the CITIZENSHIP OF FIJI ACT and the CITIZENSHIP OF FIJI REGULATIONS

AND

IN THE MATTER  of an application by SUNG JIN LEE, NAM SUK CHOI, BYEONGJOON LEE, BEOMSEOP SHIN, JUNG YONG KIM and  JINSOOK YOON for Judicial Review and with other relief including an Order of Certiorari to quash the decision made by the Minister for Home Affairs and Immigration made between 01 September 2023 and/or 07 September 2023 DECLARING SUNG JIN LEE, NAM SUK CHOI, BYEONGJOON LEE, BEOMSEOP SHIN, JUNG YONG KIM and  JINSOOK YOON Prohibited Immigrants using his purported discretion under section 13(2)(g) of the Immigration Act AND purportedly making an ORDER and/or ORDERING the removal of JIN LEE, NAM SUK CHOI, BYEONGJOON LEE, BEOMSEOP SHIN, JUNG YONG KIM and  JINSOOK YOON from Fiji

BETWEEN:
SUNG JIN LEE currently in immigration detention and/or unlawful custody of the Respondent
1ST APPLICANT

AND:
NAM SUK CHOI currently in immigration detention and/or unlawful custody of the Respondent
2ND APPLICANT

AND:
BYEONGJOON LEE currently in immigration detention and/or unlawful custody of the Respondent.
3RD APPLICANT

AND:
BEOMSEOP SHIN currently in immigration detention and/or unlawful custody of the Respondent.
4TH APPLICANT

AND:
JUNG YONG KIM currently in immigration detention and/or unlawful custody of the Respondent.
5TH APPLICANT

AND:
JINSOOK YOON currently in immigration detention and/or unlawful custody of the Respondent.
6TH APPLICANT

AND:
THE MINISTER FOR HOME AFFAIRS & IMMIGRATION of 1st and 2nd Floor, New Government Wing, Government Buildings, 26 Gladstone Road, Suva.
1ST RESPONDENT

AND:
THE ATTORNEY-GENERAL OF AND FOR THE REPUBLIC OF THE FIJI ISLANDS
2ND RESPONDENT

Appearances: Mr. Ower KC, Mr. R. Gordon, Mr. W. Pillay and Mr. Prasad for the Applicants
: Mr.  R. Green and Ms. O. Solimailagi for the Respondents
Date of Hearing: 13 December 2023
Date of Ruling: 19 January 2024

R U L I N G 

INTRODUCTION

1.	Before me now is an application seeking leave to issue Judicial Review proceedings and an order for stay filed pursuant to Order 53 Rule 3(2) (a) (i) and Order 53 Rule 3(8) (a) of the High Court Rules 1988. The applicants are six persons of South Korean origin. They filed the application on 20 September 2023. They came to Fiji at different points in time on a Republic of Korean Passport. They are all directors/shareholders of a company which began operations in Fiji in 2014. For convenience, I will refer to this company as the “Grace Road Group”. Their business operation in Fiji has expanded and grown steadily over the years. 

2.	Apparently, since their arrival in Fiji, each applicant has had his or her permit to work and reside in Fiji extended time and again. At the present time, all their permits have lapsed.  Five of them had lodged an application for another extension at some point some years back. The Minister for Home Affairs and Immigration (“Minister”) has yet to make a decision on these.

3.	The sixth applicant, namely Sung Jin Lee, did lodge an application for citizenship some years back. His application was refused by the Minister very recently, following the institution of these proceedings. That refusal is currently the subject of an appeal before the Citizenship Appeals Tribunal.

4.	There are in fact some criminal charges pending against the six applicants in the Republic of Korea (“South Korea”). The South Korean Government has, since 2018, persisted in seeking the assistance of the Fiji Government in facilitating the repatriation of the applicants to Korea to face the said  charges. For that purpose, the South Korean Government, by its Fiji Embassy, has sent various Diplomatic Notes in 2018 and in 2023. The last Diplomatic Note was issued on 14 February 2023. 

5.	In addition, the relevant authorities in South Korea facilitated the posting of various Red Notice alerts by Interpol in 2018 and again in February – March 2023.

6.	Notably, as I gather from the Diplomatic Note attached to the Minister’s affidavit filed on 11 November 2023, the crimes alleged against the six applicants include aggravated assaults, fraud, illegal confinement and violation of child welfare. It would appear that these alleged crimes were committed in Fiji against followers of their Church in Fiji. The victims are all Korean or former Korean nationals who are involved one way or another in Grace Road Group’s operations.

FIJI GOVERNMENT’S RESPONSE

7.	The first Red Notice was published by Interpol on 23 July 2018. Upon learning of this, the then Permanent Secretary for Immigration, Mr. Yogesh Karan, then convened a special taskforce. He then  issued a warrant of detention against the applicants.  The immigration officials acted on the said warrant and took the applicants into custody.

8.	The applicants then instituted habeas corpus proceedings in the High Court in Lautoka (HBM 25 of 2018). However, on 16 August 2018, Mr. Karan revoked the warrant of detention and the applicants were released from detention. Consequently, the habeas corpus proceedings were discontinued.

9.	It would appear that the South Korean Government then desisted in seeking the assistance of the Fiji Government for some time. However, in February 2023, it again issued another Diplomatic Note and other correspondence to the Fiji Government. At around the same time in early 2023, Interpol again published a series of Red Notices. The applicants would highlight in their submissions that the time of prosecution or the expiry date of the arrest warrant stated on the Red Notices, was 31 August 2018 and that the Red Notices state that “if traced, locate and arrest with a view to extradition”.

10.	Upon receipt of the February 2023 Diplomatic Notes, a special taskforce was again convened in Fiji. The taskforce was comprised of officials from the Fiji Police, the Immigration Department, the Fiji Financial Intelligence Unit, the Fiji Revenue Customs Service and the Ministry for Justice. The purpose of the taskforce was to “investigate matters of security and good governance in relation to the nine (9) companies which are part of the Grace Road Group (see paragraph 12 of the Minister’s Affidavit sworn on 10 November 2023).

11.	The taskforce presented its findings to the Minister. Included in these is a finding that the Grace Road Group had committed various breaches of the law. Also included is a recommendation for the removal of the six applicants.

12.	After receiving the brief from the Taskforce, the Minister then gave a directive to proceed with the removal of the six applicants. This was supported by the Prime Minister.  Notably, the brief in question is not attached to the Minister’s affidavit.

13.	The Minister then wrote a letter dated 31 August 2023 to the Director of Immigration pursuant to section 13(2)(g) of the Immigration Act. The said letter is reproduced in full below:

The Director
Fiji Immigration Department
969 Rodwell Street
Suva

31 August 2023

Director

Discretion Pursuant to Immigration Act 13 (2) (g)

HAVING considered Diplomatic notes KFJ-18-143 and KFJ-18-148 issued to the Government of Fiji by the Embassy of the Republic of Korea on 18 and 21 SEP 2018 respectively (attached) and;

HAVING considered the Red Notices issued by Interpol on 31 JUL 2018 (attached);

I am satisfied that the presence of the following individuals in Fiji is prejudicial to the country’s security and good governance pursuant to Section 13 (2) (g) of the Immigration Act 2003. 

Therefore, these individuals have become Prohibited Immigrants. In accordance with Section 13 of the Immigration Act 2003, the presence of these individuals in Fiji is deemed to be unlawful. These individuals are: 

1.	Mr. Jung Young KIM.
2.	Ms. Sung Jin LEE.
3.	Ms. Nam Suk CHOI.
4.	Mr. ByeongJoon LEE.
5.	Mr. Jin Sook YOON.
6.	Mr. BeomSeop SHIN. 

Please liaise with the Permanent Secretary for Home Affairs & Immigration in the exercise of his powers under Section 15 of the Immigration Act. 
Vinaka
Sgd: Pio Tikoduadua
Minister
Cc: Permanent Secretary, Ministry of Home Affairs & Immigration 

14.	Following the above letter, the Permanent Secretary then issued Orders for the removal of the six applicants pursuant to 15(1) and section 15(4) of the Immigration Act and then directed that (i) the six applicants leave Fiji and that they remain out of Fiji indefinitely and (ii) that they be kept in the custody of the immigration officials pending removal.

15.	On 06 September 2023, the operation to remove the six applicants was carried out by officials of the Department of Immigration who were assisted by officers from the Fiji Police and also officers from Korea.

16.	Two of the applicants, namely Byeongjoon Lee and Beonseop Shi, have since been deported to South Korea on 06 September 2023 vide Fiji airways Flight No. 636 FJ escorted by officers from the Fiji Police and three Senior Officers from South Korea.

APPLICANTS’ GRIEVANCE

17.	The applicants are aggrieved about (i) the Minister’s and the Permanent Secretary’s decisions of 31 August 2023 and (ii) the indecision of the Minister in relation to the pending applications for extension of permits to remain in Fiji.

18.	Hence, if leave to issue Judicial Review is granted, the applicants would be pursing an Order that the decision of the Minister under section 13(2)(g) and the decision of the Permanent Secretary under section 15 be quashed. They advance six (6) proposed grounds altogether to support this contention. I deal with these very generally further below. 

19.	In addition, the applicants would seek a mandamus to direct the Minister to make a decision on the five pending applications for extension of permit.

TEST FOR GRANTING LEAVE

20.	An applicant seeking leave to issue Judicial Review must first show that they have a sufficient interest.  Once the Court is satisfied that the applicants have sufficient interest, the Court then has a discretion as to whether or not to grant leave. In exercising that discretion, the Court may have regard to the following factors (see Matalulu v Director of Public Prosecutions [2003] FJSC 2; [2003] 4 LRC 712 (17 April 2003).

(1) 	whether the proposed application is frivolous or vexatious or an abuse of the process. 

(2) 	whether the application discloses arguable grounds for review based upon facts supported by affidavit.

(3) 	whether the application serves any useful purpose.

(4) 	whether there is an obvious alternative remedy, such as administrative review or appeal on the merits, which has not been exhausted by the applicant and 

(5) 	whether a restrictive approach to the grant of leave is warranted because the decision is one which is amenable to only limited judicial review. 

21.	Notably, the applicants have only raised submissions on (2) above. The respondents appear to have limited their response accordingly. As such, I will consider this application only on (2) above. Again, I caution myself that, at this leave stage, I only need to undertake a quick perusal of the material placed before me and then consider whether the application discloses an arguable case. I am not required to go into the matter at any depth.  

SIX GROUNDS FOR REVIEW

22.	The applicants do propose six (6) substantive grounds of review. These are as follows:

(a)	that extradition procedures were not followed

(b)	that no written reasons were given by the Minister for his decision.

(c)	that there was a lack of procedural fairness

(d)	that the Minister misunderstood his jurisdiction, Accordingly, his decision was ultra 			vires.

(e)	that the decision was irrational and lacked proportionality

(f)	that the Minister acted under bad faith/under the dictation of the Republic of Korea

23.	These grounds are premised on two basic assertions, one of fact and the other of law.  Firstly, they are asserted on the presumption that the Minister’s decision was based entirely on the 2018 Red Notices and nothing else. That assertion is based on the applicants’ interpretation of the letter of 31 August 2023. Secondly, they are premised on the argument that there is a glaring disconnect between the 2018 Red Notices in question and the Minister’s decision in August of 2023. 

24.	Mr. Green asserts that the Minister’s decision was made after taking into account the Red Notices, the Diplomatic Notes from the Republic of Korea and the findings and recommendations of the Taskforce. Mr. Ower counters that the letter of 31 August 2023 makes no reference to the taskforce’s report or recommendation. 

25.	As for the alleged disconnect between the Red Notices and the decision in question, Mr. Ower submits that a decision under section 13(2)(g) will only be lawful if the Minister had hitherto formed a view or had otherwise been satisfied that the six applicants had conducted themselves in a manner “prejudicial to the peace, defence, public safety, public order, public morality, public health, security or good government of the Fiji Islands”. He argues that the expired Red Notices cannot possibly be the basis of an opinion or view by the Minister that the applicants are therefore a threat to the peace, defence, public safety, public order, public morality, public health, security or good government of Fiji.

26.	The alleged disconnect, as I gather, lies in part in the fact that the Red Notices had in fact long expired at the time the Minister used it as the basis of his decision. The disconnect also lies in part in the seemingly absurd position that a prosecution begun in Korea could somehow make a person a threat to peace, safety, order, morality, security or good government in Fiji.

27.	Again, Mr. Green’s counter argument is that the Minister did not just take into account the Red Notices. He also took into account the Diplomatic Notes and the findings of the Taskforce. Furthermore, as I have noted above, the Diplomatic Note attached to the Minister’s affidavit filed on 11 November 2023 suggests that the crimes alleged against the six applicants were all allegedly committed in Fiji against members of the Grace Road Church who reside and work in Fiji. On that note, perhaps there is, after all, a “connection” between the Red Notices and the Minister’s conclusion that the applicants are a threat to peace, safety, order, morality, security or good government in Fiji.

WHETHER OR NOT EACH GROUND IS ARGUABLE?

Extradition Procedures Not Followed

28.	Mr. Ower submits that what the Minister actually had in mind when he declared the applicants as “prohibited immigrants” was to, immediately thereafter, facilitate their extradition to the Republic of Korea.  This submission presupposes that the only reason why the applicants were to be removed to South Korea was so that they could face the criminal charges for which the Red Notices were issued. As such, the Minister was effectively executing the extradition of the applicants to Korea.  

29.	Mr. Ower submits that a lawful extradition could only be carried out pursuant to the procedures set out in the provisions of the Extradition Act. It cannot be carried out under section 13(2) (g). What the Minister has done in this case is to carry out an extradition disguised as a removal. In doing so, he has completely bypassed the procedures of the Extradition Act.

30.	In other words, the Minister cannot execute an extradition by simply declaring a person a prohibited immigrant under section 13 (2) (g).

31.	Mr. Green would submit that the State has available to it three options when removing an illegal or prohibited immigrant. These are (i) extradition (ii) deportation and (iii) removal. He submits that the State does retain the right to choose which process of removal it will execute in any given case.

32.	I must say at this point that it is not clear to me as to whether or not there is a bilateral arrangement between Fiji and the Republic of Korea regarding the “removal” of fugitives present in Fiji who are facing prosecution or a conviction in Korea – and - if there is no such arrangement, whether or not the Minister may respond to a Diplomatic Note from Korea by exercising the power under section 13(2)(g) for that purpose? There were no clear submissions on this point.

No Written Reasons

33.	Mr. Ower highlights that no written reasons were given to the applicants by the Minister at the time he made the decision. This contravenes section 16(1) (b) of the Constitution. This in turn, potentially invalidates the decision.

34.	I am mindful of Mr. Green’s submissions that the Minister had also taken into account the national security concerns which were highlighted by a Report of the Taskforce which the Minister allegedly convened in response to the Red Notices and the Diplomatic Notes. I also note Mr. Green’s submissions that the said Report cannot be disclosed. This raises several questions. 

(a)	is Judicial Review available in decisions  pertaining to the ‘national security’ of Fiji?

(b)	if it is, to what extent should this court be satisfied that there is in fact, a matter of national security at stake?  

(c)	flowing from that, to what extent should the Court enquire as to whether or not the Minister’s decision to declare the applicants “prohibited immigrants” was in fact influenced by matters of national security?

(d)	is the Court entitled to call for an affidavit from the Minister in pursuit of that inquiry?

(d)	is the Minister immune from disclosing any documentation relating to national security and the defence of the country? Can the Court require from the Minister evidence to prove that the disclosure of documents (Taskforce Report) would compromise national security concerns?

35.	Even if the Report were to be disclosed, this Court, or anyone else for that matter, may not be equipped to review the Minister’s factual assessments and the substance of his decisions. I am mindful of this.

Lack of Procedural Fairness

36.	Mr. Ower submits that, before the Minister made the decision to declare each of the six applicants a “prohibited immigrant”, he ought to have given notice to each one of them of his intention to take that action and, thereafter, provide each one of them an opportunity to make submissions in response.

37.	He submits that section 16(1) (a) of the Constitution requires at that all executive processes leading to a decision must be procedurally fair. At common law, this means that every person has the right to know any case against him or her, and must be afforded an opportunity to respond to the case. Any argument as to the extent to which the common law should apply, if at all, may be considered later at the substantive hearing after leave is granted.

38.	The question as to whether or not the Minister and Permanent Secretary were actually executing an “extradition” or a “removal” or a “deportation” and whether or not a person who has been declared a prohibited immigrant is entitled to a right to be heard before he or she can be deported or removed from Fiji, I will keep open for argument.

Ultra Vires (Minister Misunderstood his Jurisdiction)

39.	Mr. Ower submits that it is arguable that the Minister’s declaration of the applicants as prohibited immigrants was ultra vires. He adds that the Minister misunderstood his powers under section 13(2)(g).

40.	Furthermore, and this is a recurring theme in this case theory, the Minister could only declare a person a prohibited immigrant if the Minister is satisfied that the person has been conducting himself in a manner “prejudicial to the peace, defence, public safety, public order, public morality, public health, security or good government of the Fiji Islands”.

41.	Again, this ground is based on the assertion that the Minister had acted on the 2018 Red Notice alerts when he made the decision to declare each of the six applicants as a prohibited immigrant under section 13(2)(g).  The question of fact which Mr. Ower formulates is:

What was the Minister actually thinking, and what did he understand he was doing when he made the decision?

42.	I accept the general position that a decision maker who misunderstands the scope of any statutory power given to him, and who makes a decision based on that misunderstanding, acts in excess of, and outside the scope of that conferred power. Consequently, any decision made on that misconstrued power will, in all likelihood, be ultra vires.

43.	However, having said that, I observe that section 13(2)(g) is couched in language which appears to allow the Minister to “deem” that a person is or has been conducting himself in a manner prejudicial to the peace, defence, public safety, public order, public morality public health, security or good government of Fiji. Arguably, this deeming provision enables the Minister to create a statutory fiction that a person is a threat to Fiji. However, the Minister’s ability to “deem” as such will only be activated if the facts required in the section are made out. These are (i) that he has received information (ii) from any country through official or diplomatic channels OR from any other source the Minister considers reliable.

44.	The issue then becomes – what sort of information is envisaged by section 13(2)(g)? Is information from the Republic of Korea that the applicants are facing criminal charges based on an allegation that that they had committed a serious crime, sufficient for the Minister to deem that they are a threat to Fiji?  What if the alleged crimes were committed right here on Fiji soil? These are questions which require much fuller argument. 

Irrationality & lack of proportionality

45.	Section 16(1) (a) of the Constitution provides that every person has the right to executive or administrative action that is lawful, rational, proportionate, procedurally fair, and reasonably prompt. 

46.	Mr. Ower submits that it was irrational for the Minister to have considered the expired 2018 Red Notices as the basis to declare each of the applicants a prohibited immigrant under section 13(2) (g). 

47.	The underlying argument is that the Minister could only declare a person a prohibited immigrant under section 13(2) (g) if the person has been conducting himself in a manner “prejudicial to the peace, defence, public safety, public order, public morality, public health, security or good government of the Fiji Islands”. 

48.	While the above position seems tenable, on the other hand, it appears to clash with the deeming powers in section 13(2) (g) (see above). However, it must be left open for argument as to how that deeming power is to be construed.

Bad faith/ Acting under Dictation of Republic of Korea

49.	It is also submitted that, in as far as the material before the Court is concerned, it is arguable that the Minister was being prevailed upon by the Republic of Korea. 

50.	This argument is preposterous. I agree with Mr. Green that Fiji is a sovereign state and cannot be prevailed upon by any other sovereign state on how it should apply its laws.

COMMENTS

51.	Based on all the points raised above, I am of the view that, except for the allegation that the Minister had acted in bad faith under the dictation of the Republic of Korea, the applicants have raised an arguable case.

52.	However, the question remains as to whether or not the existence of the ouster clauses should insulate the Minister’s decision from review. 

53.	On their wording, section 13(2) (g) of the Immigration Act 2003 and section 173(4)(d) of the Constitution do appear to ouster the Court’s jurisdiction  in their own ways. 

54.	Mr. Ower however submits that all powers have limits. He argues that it would be absurd if section 13(2)(g) were to be construed as conferring an unbridled power which enables upon the Minister to declare anyone, anytime, anywhere and for whatever reason, a prohibited immigrant. 

55.	Mr. Ower argues that Parliament has provided that the Minister can only declare one a prohibited immigrant under section 13(2)(g) if he or she is a risk to Fiji. This, itself, is a limitation provided by law. The Court is ordinarily the guardian of the restrictions enacted by Parliament. Accordingly, the courts, should be able to review any executive decision which exceeds the restrictions set by Parliament. 

56.	At common law, there is a presumption in favour of a right of access to the courts. Flowing from that, it is arguable that there must be a presumption against the ousting of the role of the Court in the review of any excessive Ministerial decision. Section 13(2) (g) must be interpreted accordingly. 

57.	Mr. Ower illustrates the point by saying that, if an executive decision is based on an error of law, the decision is automatically ultra vires and is accordingly null and void. 

58.	Accordingly, an ouster clause cannot be interpreted to exclude from judicial review a decision which is based on an error of law or in excess of jurisdiction (see Anisminic  Ltd v The Foreign Compensation Commission [1969] 1 A11 ER 208 and Venkatamma  v  Ferrier-Watson  [1995] FijiLawRp 3; [1995] 41 FLR 258 (24 November 1995)), and/or to defeat the common law presumption in favour of a right of access to court to challenge such an unlawful decision.

59.	With regards to section 173(4)(d) of the Constitution, Mr. Ower submits that this provision was designed to immunize and insulate decisions taken during the period 05 December 2006 to 06 October 2014 (“interim period”), so any decision or action taken during that time is removed from any review.

60.	05 December 2006 was the date when the coup took place. 06 October 2014 was the date of the first sitting of Parliament under the 2013 Constitution.

61.	The idea was to put beyond doubt the doings of the government of Fiji during the interim period, and to draw a line underneath that period so to speak, so as to allow the country to transition into and prosper under the new 2013 Constitution and the new government system it ushers in.

62.	Mr. Ower argues that the Fiji Court of Appeal judgment in One Hundred Sands Limited v AG Civil Appeal No. ABU 27 and 31 of 2015 is distinguishable. The impugned decision in that case was made on 09 February 2015 under the provisions of the Gaming Decree of 2009. Hence, while the decision itself was made outside the relevant period, it was made pursuant to a Decree which came into existence within the relevant period. In that case, the High Court had ruled that, the impugned decision was not caught under section 173(4)(d), although, the Decree was. That reasoning was overturned by the Fiji Court of Appeal.

63.	Mr. Ower submits that the proper construction should be that section 173(4)(d) only protects decisions made within the interim period under any law which was promulgated within the same period.

64.	Mr. Ower highlights that section 13(2)(g) was actually enacted in two parts. 

65.	The first part gave the Minister the powers to declare a person a prohibited immigrant. This part was enacted in 2003 outside the interim period in question. 

66.	The ouster clause however was introduced in 2008 by section 2 of the Immigration Act (Amendment) Promulgation 2008, which, seemingly, brings the ouster clause within the interim period. The submission goes that, in any event, the Permanent Secretary’s decision under section 15 is clearly outside the protection of section 13(2)(g) as well as section 173(4)(d) as it was based on  a law that was in existence before the interim period and also because the decision was actually made well outside the interim period.

67.	Mr. Green responds that the two powers are not severable. The Permanent Secretary does not exercise his powers under section 15 unless the Minister has made appropriate Orders under section 13(2)(g). 

68.	Mr. Green goes on to emphasize that there are actually four ouster clauses to be considered here, namely section 13(2) (g) and section 58(8) of the Immigration Act 2003, section 173(4)(d) of the Constitution and finally the common law ouster clause relating to matters of immigration and national secuirty.

69.	He distinguishes the case of Annisminic on the basis that it did not relate to an immigration matter or to any security issue. Also, the case did not have to consider any constitutional provision as it was decided in England which does not have a written constitution.

70.	Mr. Green also emphasizes that the wording of section 13(2)(g) of the Immigration Act 2003 as amended by section 2 of the Immigration Act (Amendment) Promulgation 2008 in its relevant part is :

"…. notwithstanding anything contained in this Act, the decision of the Minister made under this paragraph shall be final and conclusive and shall not be questioned or reviewed in any court."

71.	He submits that the intention of Parliament could not be any clearer that any decision of the Minister under section 13(2)(g) is immune also from Judicial Review.

OBSERVATIONS

72.	Both counsel have raised very good submissions on the issues presented in this case. I am grateful. As I have said above in paragraph 51, I am of the view that the applicants have raised an arguable case in terms of the six grounds of review which they propose. The only question is whether or not the ouster clauses in question should preclude this Court from granting leave and from exercising any jurisdiction to review the decisions in question. As a starting point, I do accept that an executive decision based on an error of law is automatically ultra vires and is null and void. Having said that, I do remind myself that one of the six grounds of review proposed by the applicants is that the Minister had acted ultra vires when he declared the applicants “prohibited immigrants” on 31 August 2023, based on an expired Red Notice of 2018. 

73.	As I have said, this proposed ground of review is arguable. The questions which confront me now are:

(a)	whether or not I should then desist from any further review of the arguably ultra vires decision, on account of the existence of the ouster clause? 

(b)	should I now refuse leave and exclude from judicial review a decision which, I have opined, is arguably based on an error of law? 

(c)	should I now, on account of the ouster clause, refuse leave and deny the applicants an opportunity to access this Court to challenge the decision of the Minister as being ultra vires?  

74.	It is fair to say that Fiji’s Constitution, at section 16(1)(a), demands the accountability of the executive.

16.—(1) Subject to the provisions of this Constitution and such other limitations as may be prescribed by law— (a) every person has the right to executive or administrative action that is lawful, rational, proportionate, procedurally fair, and reasonably prompt;

75.	It is also fair to say that Fiji’s Constitutional arrangement tasks an independent judiciary with the duty inter alia to ensure that the executive actions comply with the law (section 16(2)). 

76.	There is substance in Mr. Green’s submission that executive decisions which touch on issues of national secuirty is an area where judicial review will be rare and limited. However, I would rather postpone any comment or conclusion on any of these questions until the final determination of this case.

CONCLUSION

77.	In the final, I find that the applicants have raised an arguable case on five of the six grounds of review which they propose. Accordingly, I grant leave for judicial review of the decisions of the Minister and the Permanent Secretary dated 31 August 2023.  For the avoidance of doubt, I reserve my conclusions on the issues relating to the ouster clauses which I have summarized above. For now, suffice it to say that the applicants have raised a good arguable case on the restrictions which they suggest ought to be placed on these clauses. I will reserve this for further argument at the substantive hearing and for ruling later. I will now adjourn the case to 15 February 2024 for Ruling on the application for the release of the applicants. Parties are to bear their own costs. 

……………………..
Anare Tuilevuka
JUDGE