State v Minister of Immigration, ex parte Wright [1991] FJLawRp 14; [1991] 37 FLR 113 (21 November 1991)

[1991] 37 FLR 113

HIGH COURT OF FIJI

STATE

v

MINISTER OF IMMIGRATION

ex parte

SYDNEY WRIGHT

[HIGH COURT, 1991 (Byrne J), 21 November]

Civil Jurisdiction

Immigration - whether Minister obliged to give reasons for refusing to renew a work permit.

Judicial review - whether stay or injunctive relief are available against the State - State (Crown) Proceedings Act (Cap 24) Section 15.

The Applicant sought judicial review of a decision of the Minister of immigration not to renew his work permit. After leave was granted the Minister questioned whether the interim stay amounted to an injunction against the state. The Minister also questioned whether he was obliged to give reasons for his decision. The High Court HELD: (1) that in the circumstances the stay did not contravene the restriction on granting an injunction against the state and (2) the Minister was obliged to give reasons to the Applicant for his refusal to extend his work permit.

Cases cited:

Cannook Chase D. C. v Kelly [1978] 1 WLR 1
Crystal Clear Video Ltd v. Commissioner of Police & The Attorney-General (C.A. 331/1988)
Factortame Limited v Secretary of State for Transport (No. 1) [1989] UKHL 1; [1989] 2 All ER 692
McInnes v Onslow-Fane [1978] 1 WLR 1520.
Minister of Foreign Affairs Trade & Industry v Vehicles & Supplies Ltd & Anr [1991] WLR 550
Public Service Board of New South Wales v Osmond (1985/1986)159 CLR 656
Puhlhofer & Anr v Hillingdon London Borough Council [1986] UKHL 1; [1986] 1 All ER 467
Pushpa Wati Sharma and the Public Service Commission (Suva JR 5/89)
R. v Gaming Board for Great Britain ex parte Benaim and Khaida [1970] EWCA Civ 7; [1970] 2 Q.B. 417
R. v Minister of Housing & Local Government ex parte Chichester Rural District Council [1960] 1 WLR 587
R. v Secretary of State for Education and Science ex parte Avon County Council [1991] 1 All ER 282
R. v Secretary of state for the Home department ex parte Swati [1986] 1 All ER 717
Ralph Rakhinand Premdas v The Independent State of Papua New Guinea [1979] G. L. R. 329
Regina v. Secretary of State for Home Department & Anr ex parte: Herbage [1986] WLR 504
Regina v Secretary of State for Transport ex parte Factortame Ltd & Ors (No. 2) 3 WLR 818
Ridge v. Baldwin [1963] UKHL 2; [1964] A.C. 40
Schmidt v Secretary of State, Home Affairs [1969] 23 Ch. 149
State v Minister for Foreign Affairs ex parte Tam Suk Chong Tammie (JR 17/89)
State v Minister for Immigration ex parte Mo Xing Bo Suva (JR 26/91)
State v Police Service Commission ex parte Romanu Tikotikoca (JR 21/90)
Yan Xiao Qiu v Director for Immigration JR 32/90

Interlocutory application in the High Court

J. Howard for the Applicant
N. Nand for the Respondent

Byrne J:

This application for Judicial Review in the form of Certiorari and Mandamus raises among other things an important question as to whether a Minister can be obliged to give reasons for refusing an application by an interested person for a particular purpose, in this case for the extension of a work permit.

The matter originally come before me on the 8th of February 1991 when I granted the Applicant leave to apply for Judicial Review of the decision of the Director of Immigration not to extend the work permit which had been issued by the Department of Immigration to the Applicant on the 12th of June 1989. I have not yet heard the substantive motion for Judicial Review because on the 5th of March 1991 counsel for the Respondent raised three preliminary issues for decision of the Court before the substantive motion is dealt with. The Order which I made on the 8th of February 1991 was that they should issue:

(a) Certiorari directed to the Minister for Immigration for the purpose of quashing the purported decision of the Minister denying the Applicant's appeal against an order refusing the Applicant’s application for a renewal of the Applicant's work permit;

(b) Mandamus requiring the Minister to hear and determine according to law the application of the Applicant for a renewal of the Applicant's work permit; and

(c) Mandamus by way of interim relief that all proceedings in relation to the purported refusal to renew the Applicant's work permit and the directive that he must stop working immediately be stayed until further order.

The preliminary issues on which the respondent seeks the Court’s direction are these:

(1) Whether the relief sought by the Applicant is injunctive relief against the Crown (State) and thus whether such relief can be granted.

(2) Whether the Minister is obliged to give the Applicant reasons for his refusal of the Applicant’s appeal including whether the Minister is obliged to give the Applicant an opportunity of making representations.

(3) Whether an action of this nature is a suitable case for Judicial Review.

Before I consider these three issues I shall state briefly the facts.

The Facts

The relevant facts are taken from the affidavit of the Applicant sworn on the 5th of February 1991 and that of one Robert Patrick Hay who is the Managing Director of Wormald Fiji Limited, the current employer of the Applicant, and which was also sworn on the 5th of February 1991.

There is no dispute that the Applicant Mr. Sydney Wright is an expatriate, a British citizen living in Fiji and accompanying his wife who is employed by the British Overseas Development Division in the Pacific. On the 12th of June 1989 Mr. Wright was issued with a work permit by the Immigration Department, to work at Wormald Fiji Limited. The permit was effective from 31/5/89 until 31/5/90.

On the 19th of February 1990 the Applicant applied for an extension of his work permit. After some delay, in December of 1990 the Director of Immigration finally informed the Managing Director of Wormald Fiji Limited that no extension to Mr. Wright's work permit would be granted. Thereafter an appeal was lodged with the Minister on the 11th of December 1990. By letter of 14th of January 1991, the Director of Immigration informed the Managing Director of Wormald that the Minister for Immigration had decided to dismiss the appeal and the Applicant was to cease work immediately.

On the 12th of February 199l the Applicant through his solicitors filed a Judicial Review challenging the decision of the Minister for Immigration. This Court granted leave to judicial review the decision and a stay. The precise terms of the latter order were: "That the aforesaid grant of leave shall operate as a stay of proceedings in relation to the purported refusal to renew the Applicant's work permit and the directive that he must stop working immediately." It is not disputed that the effect of granting a stay has been that the Applicant from the 12th day of February 1991 has continued in gainful employment despite the fact that he does not have a work permit. There is also no dispute between the parties that the only way that the Applicant can legally work in this country (being a non-citizen) is by having a work permit. On this issue alone the Court is invited by the Respondent to immediately vacate its Stay Order.

Before considering the three preliminary issues it is desirable to amplify a little the facts which I have outlined above for they bear in my view on the answers the Court should give to the three questions.

In his affidavit in support of the application for leave for Judicial Review Mr. Wright says that he is a fully qualified and experienced Security Officer trained by the Royal Marines in the United Kingdom. He had worked for eight years in top level security work with the British Government and attended many security training courses. He has now had over fifteen years Managerial experience mainly in security management in the United Kingdom and overseas. He arrived in Fiji on 28M of January 1989 with his wife, who as stated above is employed by the British Development Division in the Pacific.

On the 23rd f February 1989 he applied for the position of Operations Manager advertised in e Fiji Times by Wormald Security Services Limited, a subsidiary of his employer Wormald Fiji Limited. On the 13th of March 1989 he was offered the position of Operations Manager of Wormald Security Services Limited, subject to his obtaining a work permit from the Fiji Immigration Department.

On the 12th of June 1989 he was issued with a work permit to work for one year from 31st of May 1989 until 31st of May 1990.

Because his employer wished to retain Mr. Wright's services for a further year, on 19th of February 1990 he completed a new work permit application form which was sent to the Permanent Secretary, Ministry of Home Affairs, Suva on the 6th of March 1990 accompanied by a letter of that date from Mr. Robert Patrick Hay, Managing Director of Wormald Fiji Limited. In that letter Mr. Hay referred to the fact that the Applicant was the husband of a diplomat who had extended her posting in Fiji for a further two years and that Wormalds wished to utilise the Applicant's expertise for the period of his wife's extended posting. The letter stated that Wormalds Security employs some 500 guards throughout Fiji and provides security to American, Australia, Malaysian, UNDP and SPEC and many other organisations and with the exception of the Applicant employs all locals.

Mr. Hay said that the company had employed an understudy for Mr. Wright with the object of eventually replacing him and he believed that if the company were granted the extension it would be in a position to localise its entire security operation.

On the 25th of September 1990 the Immigration Department wrote to the Applicant about his application for extension of his work permit. The Department stated that they had to seek the views of the Department of Foreign Affairs which the Immigration Department then quoted in its reply to Mr. Wright as follows:

"Both enjoy diplomatic privileges and immunities by virtue of their spouses' positions as diplomats in their respective embassies.

It should be borne in mind however that in granting them permits to engage in gainful private employment the following points should be taken into consideration:-

(a) that all the ;diplomatic privileges and immunities they currently enjoy will be withdrawn while they are so employed in Fiji,

(b) that all the laws of Fiji would apply to them as if they are Fiji' citizens or permanent residents of Fiji, including relevant labour and taxation laws,

(c) that they will not be depriving Fiji nationals or permanent residents of employment opportunities.

It should also be borne in mind that in granting such permits you should advise this ministry so that it can process the withdrawal of their privileges and immunities."

The letter then continued:

"As Immigration sees it (c) above has no validity due to the nature of the work but (a) and (b) are areas where your good self could advise us your decision so as to assist us with our deliberations and Foreign Affairs with their necessary action."

On 9th of October 1990 Wormald Fiji Limited wrote to the Immigration Department in response to its letter to the Applicant of 25th of September. The company pointed out that Mr. Wright had been previously issued with a work permit in 1989 without any question being raised concerning his diplomatic privileges. The letter further said that Wormald was soon to become a fully localised company and that it was vitally important for it to continue to employ Mr. Wright in the immediate future to assist it over "this initially difficult period". The company requested re-consideration of Mr. Wright's position.

On 5th of December 1990 Immigration wrote to Wormald Fiji Limited advising that the Applicant's application for extension of his work permit had not been approved and that he would have to cease work within 14 days.

Following this letter Wormalds through its Managing Director, Mr. Hay appealed to the Immigration Department against its decision, to a large extent restating the reasons it had given earlier for seeking an extension of the Applicant's permit.

On 14th of January 1991 the Director of Immigration wrote to Wormald Fiji Limited as follows:

"I regret to advise that the Minister for Immigration has decided to dismiss your petition of appeal dated 11. 12.90.

Mr. Weight's work permit will thus not be extended any further and he must stop working for you immediately."

It is on these facts that the Applicant seeks Judicial Review.

Submissions of Counsel and the Law

The first question on which leave is sought is whether the relief sought by the Applicant is injunctive against the State and, if so whether such relief can be granted. To answer this question involves a consideration of a number of cases including two decisions of my own namely State v. Minister for Foreign Affairs, Ex-parte: Tam Suk Chon & Tammie, Judicial Review No. 117 of 1989 and State v. Minister for Immigration, Ex parte: Mo Xing Bo, Judicial Review No. 21 of 1990 and a decision of my brother Jayaratne J. in Yan Xiao Qiu and Director for Immigration, Judicial Review No. 32 of 1990, and four decisions of the English Courts, Factortame Limited (No. 1) [1989] UKHL 1; [1989] 2 All E.R. 692, Regina v. Secretary of State for Transport, Ex-parte: Factortame Limited and Others (No. 2) (1990) UKHL 13; [1990] 3 WLR 818, R v. Secretary of State for Education and Science, Ex-parte: Avon County Council 1 All E.R. 282 and the decision of the Privy Council in Minister of Foreign Affairs, Trade and Industry v. Vehicles and Supplies Limited and Another [1991] WLR 550.

In Factortame (No. 1) the House of Lords held that an injunction does not lie against the Crown in England in matters involving purely domestic law.

In Factortame (No. 2) a similarly constituted bench of the House of Lords held that where a rule of English law is in conflict with a provision of the European Economic Community law involving persons coming within the jurisdiction of the English Courts, on an application for interim relief the rule of domestic law must give way to that of the Community law if the rule of Domestic or National law was the only obstacle precluding an English Court from granting such interim relief.

In my second ruling in Tammie delivered on 31st of August 19891 followed Factortame (No. 1). In a subsequent ruling which I gave on 7th of August 1990 in Judicial Review No. 21 of 1990, Mo Xing Bo, I said at page 16 of the report that even if I had not been referred to Factortame (No. 1) 1 would nevertheless not have followed the decision of Mr. Justice Hodgson in Regina v. Secretary of State for Homes Department and Another, Ex-name: Herbage [1986] WLR 504 on the ground that the relevant section of the English Crown Proceedings Act on which Mr. Justice Hodgson relied in holding that an injunction could lie against the Crown had no exact counterpart in Fiji. The House of Lords in Factortame (No. 1) overruled Herbage's case.

In his reply to the submissions of counsel for the Respondent, counsel for the Applicant states that Factortame, (No. 2) is authority for the proposition that in certain circumstances an injunction may lie against the Crown and he invites this Court to so rule, taking particular account of the fact that Fiji is no longer a member of he Commonwealth, has severed its links with the Crown, and that in the circumstances of this case it is absurd to refuse to recognise that in some circumstances an injunction may lie against the State. I can see some force in this submission because as Professor Wade says in the Fifth Edition of his Administrative Law at page 517 when criticising the rule, "Interim relief may be just as necessary against the Crown as against any other party".

With respect however I disagree with the submission for a number of reasons. First, it is not true as counsel for the Applicant stated at page 4 of his first submissions that the House of Lords had re-appraised its original Factortame ruling by its decision in Factortame (No. 2). As I have said above Factortame (No. 2) must be read in the light of the peculiar position of England now as a member of the European Economic Community. Indeed as Lord Bridge said at page 857 of [1990] 3 WLR:

"Some public comments on the decision of the European Court of Justice, affirming the jurisdiction of the courts of member states to override national legislation if necessary to enable i9 relief to be granted in protection of rights under Community law, have suggested that this was a novel and dangerous invasion by a Community institution of the sovereignty of the United Kingdom Parliament. But such comments are based on a misconception."

His Lordship continues a little later at letter G:

"Thus, whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary. Under the terms of the Act of 1972 it has always been clear that it was the duty of a United Kingdom court, when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law."

These considerations do not apply to Fiji and even if I was so inclined, as a single judge of this Court I would not be prepared to "embark on a crusade of my own" in the light of the two decisions o£ the House of Lords in Factortame and, even more so, because of Section 15 of the Crown Proceedings Act Cap. 24. I therefore reject this submission by the Applicant.

However that does not end the matter for the Applicant. It is true as counsel for the Respondent states that the effect of my granting the order for stay in this case has meant that the Applicant from the 12th day of February 1991 has continued in gainful employment despite the fact that he no longer has a work permit. For this reason the Respondent invites this Court to vacate its Stay Order. At first glance there is a certain logical appeal in this argument but I am satisfied on reflection that I should not accept it. I consider it wrong to criticise the Applicant for taking advantage of a situation for which he should not be held responsible, namely for what really is a result of the due processes of the law. He is perfectly entitled as a member of the community to seek any legal remedy which may be open to him. He has sought and been granted interim relief and it is nothing to the point that as a result of being granted such relief he has been able to remain in employment much longer than if he had not requested this Court's assistance.

Had I been able to give this ruling earlier I may well have refused his application for the relief which ,'I have given him to date but because of pressure of work involving a number of cases raising important questions of law I have not been able to do so.

Since argument concluded in this case I have had to consider two later English decisions namely R. v. Secretary of State for Education and Science, Ex parte Avon County Council [1991] 1 All E.R 282 and Minister of Foreign Affairs, Trade and Industry, Vehicles and Supplies Limited and Another [ 1991] WLR 550. I discussed those cases in a ruling which I gave on 4th of November 1991 in Judicial Review No. 26 of 1991, State v. Police Service Commission, Ex-parte: Romanu Tikotikoca.

Neither of the latter two cases was cited to me during argument in the present case, possibly because they were not then available. I discussed them on pages 4 to 7 of my ruling in Romanu Tikotikoca. Thus at page 5 I quote from the judgment of Glidewell L. J, in the Avon County Council case [1991] 1 All E.R. 282 at pages 285 and 286 where he said this:

"It should be noted, however, that in the Factortame Ltd case their Lordships were not concerned with, and did not consider, the power of the court to stay a decision made by an officer of the Crown under Ord 53, r 3(19) (a). On this issue the views expressed by Woolf and Taylor LJJ in the Smith Kline v. French Laboratories case, though obiter, remain unaffected by the decision in the Factortame Ltd case."

Then towards the bottom of page 6 of my ruling I quote from Lord Oliver in of Foreign Affairs, Trade and Industry v. Vehicles and Supplies Ltd, and Another [1991] WLR 550 at page 556 when he said:

"A stay of proceedings is an order which puts a stop to the further conduct of proceedings in court or before a tribunal at the stage which they have reached, the object being to avoid the hearing or trial taking place.

It simply means that the relevant court or tribunal cannot, whilst the stay endures, effectively entertain any further proceedings except for the purpose of lifting the stay and that, in general, anything done, prior to the lifting of the stay will be ineffective."

In his ruling in Yan Xiao Qiu and Director for Immigration Judicial Review No. 32 of 1990 Jayaratne J. held that the relief sought by the Applicant was injunctive and therefore not available because of Section 15 of the Crown Proceedings Act Cap. 24. His Lordship followed my own rulings in Mo Xing Bo (supra) and the decision of Fatiaki J. in Crystal Clear Video Limited v. Commissioner of Police and the Attorney-General of Fiji C.A. 331/1988.

Again in my brother's ruling in Judicial Review No. 5 of 1989 in the matter of Pushpa Wati Sharma end the Public Service Commission His Lordship held that the relief claimed by the Applicant in that case although nominally a Stay Order was really in the nature of an injunction.

In that case the Applicant had been appointed a Head Teacher of a school. While she was acting as Head Teacher the Public Service Commission appointed another person to act as Head Teacher of the school. The Applicant was given leave for Judicial Review and a Stay Order was made by His Lordship against the Public Service Commission in these terns:

"It is further ordered that all matters pertaining to the transfer and or appointment as the Head Teacher of Vasist Muni Memorial School be stayed and it is further ordered that the applicant continue to act as the Head Teacher of Vasist Muni Memorial School until further order of this Honourable Court."

On a motion to set aside his order His Lordship stated at page 5 of his judgment:

"It is generally accepted that an order of the type I have made in this case which is now in issue has the force of an injunction. The Public Service Commission is an organ of the executive and is very much a part of the state. I therefore agree with the counsel for the Defendant that an injunction and order for specific performance could not be made against the state."

It was partly for this reason that His Lordship dissolved the Stay Order and His Lordship's other reason for dissolving the stay is irrelevant here.

Two comments may be made about His Lordship's decision, first, that it may be distinguished on the facts from the facts in the present case and secondly, that at the time his ruling was given namely on the 26th of July 1990 the decision of the Court of Appeal in the Avon County Council case had not been reported, nor had the remarks of Lord Oliver in the Vehicles and Supplies case [1991] WLR 550.

Had those decisions been brought to my brother Judge's notice it is possible that he would not have ruled as he did in Pushpa Wati Sharma. For my part, with respect I find the remarks of Glidewell L.J., speaking for the whole court most compelling. On the facts of the present case as they are known at the moment in my judgment the effect of my order of the 8th of February is that the decision of the Minister for Immigration against the Applicant is not to take effect until the challenge by the Applicant has finally been determined.

For these reasons I hold that the relief sought by the Applicant in this case is not injunctive against the Crown (State) and that it accordingly can be granted in the circumstances of this case. I also hold however, as now being beyond doubt, that in Fiji injunctive relief does not lie against the State.

Question Two

Is the Minister obliged to give the Applicant reasons for his refusal of the Applicant's request for a work permit and his refusal of the Applicant's appeal; including is the Minister obliged to give the Applicant an opportunity of making representations?

It is true as counsel for the Respondent states that at the moment this issue is merely academic. No Court Order has been made by inter-partes Summons that the Respondent file an Affidavit in Reply and that anything I am about to say in answer to this question may have to be revised later after a full trial. However both counsel have made comprehensive submissions on this question and therefore the Court's answer should attempt to be at least as comprehensive.

The general principle of the common law has always been that there is no general rule of law that bodies subject to Judicial Review are obliged to give reasons for their decisions. Various exceptions have been made to this principle over the years one of them being that once an authority subject to the process of Judicial Review goes into the reasons for making a particular decision then those reasons are examinable - see R. v. Minister of Housing and Local Government, Ex-parte: Chichester Rural District Council [1960] 1 WLR 587. ‘I think it fair to say that at the present time there is an observable change in the attitudes of the courts, legal text book writers and other legal commentators conversant with the problem that reasons for decisions should, now wherever possible, be given. Before referring to some of these I shall mention a number of cases relied on by the Respondent in opposing the claim by the Applicant that he should be given reasons for his refusal by the Minister. The first of these is the leading Papua New Guinea case of Ralph Rakhinand Premdas v. The Independent State of Papua New Guinea [1979] P.N.G.L.R. 329. This case was a sequel to the so-called Rooney case in Papua New Guinea in 1979 which led to the resignation of most of the Judges of Papua New Guinea at that time. The Rooney case was concerned with contempt of court by the then Minister for Justice Mrs. Nahau Rooney, the facts of which are not relevant here. When this matter first cam before me I drew the attention of counsel to the Premdas case and invited their comments on it, neither of them then having any knowledge of the decision. The relevance of the decision in Premdas to the instant case is that in it the Judges of the Supreme Court of Papua New Guinea considered at some length decisions of various superior courts on the question of whether a Minister of State on facts similar to those in Premdas could be compelled to give reasons for any decision adversely affecting a citizen or number of the public. I shall not prefer in this ruling to all those cases because first it would take too long and secondly the facts in Premdas can be distinguished from in those in this case. Briefly the facts in Premdas were that Dr. Premdas was an American citizen who was a lecturer at the University of Papua New Guinea under contract which was to run until 1982 and who had been requested by the then Minister for Primary Industry to assist with the running of his Department. It was not in dispute that in the course of his assisting the Minister, Dr. Premdas had obtained access to classified material and had interfered in the running of the Department of Primary Industry despite the express wishes of the Prime Minister of Papua New Guinea at the time. The Supreme Court found `that a serious situation had arisen as a result of Dr. Premdas' access to confidential documents and this led to the revocation by the Government of Papua New Guinea of Dr. Premdas' permit to enter Papua New Guinea.

He then applied under the Migration Act to have the Notice of Revocation reviewed by a Committee of Review. The Committee reviewed the Minister's decision and considered written submissions made by Dr. Premdas together with those of some ten other individuals and bodies. Dr. Premdas attended at the time and place fixed for the meeting of the Committee of Review but was not allowed to appear before it nor apparently was anyone else.

The decision of the Committee was conveyed to the doctor by the Secretary of the Department of Foreign Affairs and Trade by letter part of which read as follows:

"The Committee of Review carefully considered your application and all submissions from other parties. After lengthy deliberation, the Committee decided to up-hold the revocation of your entry permit. Whilst your competence as a political scientist was not questioned, the Committee was of the view that you interfered unduly in administrative and technical matters outside of your particular expertise within the Department of Primary Industry. At various times during the course of your attendance upon the Minister for Primary industry, you would have had access to matters which would mean a conflict of interest with respect to your role as a university lecturer."

Shortly after receiving this letter Dr. Premdas brought an action against the Government of Papua New Guinea, the Minister for Foreign Affairs and Trade and the Committee of Review seeking a declaration inter alia that he had been denied natural justice by all the defendants. Because the case raised important constitutional questions it was referred for hearing to a full bench of the Supreme Court of Papua New Guinea.

In the course of their various judgments the Judges considered among other things the question of whether there had been an infringement as against Dr. Premdas of the principle "audi alteram partem" of his right to be heard or make representations. The court held that no such rights had been violated and in the course of so doing reviewed many of the authorities dealing with the rights of a person affected by an executive decision to be heard and state his case. After considering these cases, all of which are distinguishable on their facts from the instant case, the court held that the decision affecting Dr. Premdas was administrative and not judicial and that therefore he had not been denied any right of natural justice by the refusal of the Committee and the Minister to allow him to make any representations.

It must be emphasised that in Premdas the principal allegation against the applicant was that he was interfering in the functions of government and giving himself access to classified matter; no such allegations are made against Mr. Wright, at least so far.

In Schmidt v. Secretary of State, Home Affairs [1969] 2 Ch. 149 Lord Denning M.R. removed the distinction between administrative and judicial acts when he stated at page 170:

"But that distinction is no longer valid. The speeches in Ridge v. Baldwin [1963] UKHL 2; [1964] A.C. 40 show that an administrative body may, in a proper case, be bound to give a person who is affected by their decision an opportunity of making representations. It all depends on whether he has some right or interest, or, I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say."

Two things may be said about the relevance of Lord Denning's remark to this case:

(1) That on the facts as they appear at the moment I do not consider that the Applicant may necessarily be said to have had a legitimate expectation that, assuming no change in the relevant circumstances from when the permit was first' issued, it would be renewed.

(2) Matters involving entry, expulsion and revocation of entry permits are in my view subject to their own rules and principles, and not directly relevant here.

Three cases were cited by counsel for the Respondent to support the general rule of English law against the giving of reasons for administrative decisions namely R v Gaming Board for Great Britain ex parte Benaim and Khaida [1970] EWCA Civ 7; [1970] 2 Q.B. 417; Cannock Chas. D.C. v. Kelly [1978] 1 WLR 1 and McInnes v Onslow-Fane [1978] 1WLR 1520.

These cases are also distinguishable on their facts from the present case and furthermore they state again the general principle of the common law as at the time the decisions were given. The same comment may be made of all the other cases mentioned by counsel for the Respondent.

Since argument concluded in this case, in the course of my normal reading schedule I have noted the decision of Otton, J in R. v Civil Service Anneal Board ex parts Cunningham (1991) Administrative Law Reports 372 which arrived in the library of this Court on the 27th of September last. In that case on the particular facts Mr. Justice Otton held that the Civil Service Appeal Board should have given reasons' when assessing compensation for a civil servant who had been unfairly dismissed. In a judgment of 24 pages, His Lordship considered various cases most of which have been cited here and then quoted with approval from various authorities including Sir William Wade and Lord Justice Woolf. Because in my judgment they are most apposite to the facts of this case I quote some of them now first from Administrative Law by Professor Wade (6th edition, 1988, p.547).

"Nevertheless, there is a strong case to be made for the giving of reasons as an essential element for administrative justice. The need for it has been sharply exposed by the expanding law of judicial review, now that so many decisions are liable to be quashed or appealed against on ground of improper purpose, irrelevant considerations and errors of law of various kinds. Unless the citizen can discover the reasoning behind the decision, he may be unable to tell whether it is reviewable or not, and so he may be deprived of the protection of the law. A right to reasons is therefore an indispensable part of a sound system of judicial review. Natural justice may provide the best rubric for it, since the giving of reasons is required by the ordinary man's sense of justice. It is also a healthy discipline for all who exercise power over others. No single factor has inhibited the development of English administrative law as seriously as the absence of any general obligation upon public authorities to give reasons for their decisions."

Later, he states:

"A more enlightened doctrine prevails in the European Economic Community, where the council and the Commission are required to state the reasons for their regulations, directives and decisions. Although there is no general rule of law requiring the giving of reasons, an administrative authority may be unable to show that it has acted lawfully unless it explains itself.... Although there may be difficulties in formulating suitable rules and the arguments are not all on one side, there is no doubt that the lack of a general duty to give reasons is an outstanding deficiency of administrative law."

Then at page 379 Mr. Justice Otton quoted a passage from the Justice All Souls Review of Administrative Law in the United Kingdom, entitled Administrative Justice Some Necessary Reforms, which was chaired by Sir Patrick Neill Q.C.

At page 71 Sir Patrick Neill stated the conclusions of the enquiry held by him:

"We believe strongly that the arguments in favour of reasons are compelling and we reiterate the comment made in 1971 in the JUSTICE Committee Report Administrative Law (p.23) ‘No single factor has inhibited the development of English administrative law as seriously as the absence of any general obligation upon public authorities to give reasons for their decisions.’ It is generally believed that the quality of tribunal decision making has improved since the imposition of the duty on tribunals in 1958. The same is true in the town and country planning field. We think that the fears of delay and expense are much exaggerated by the opponents of reasons. We record the fact that the respondents to our Discussion Paper were almost unanimous in advocating the introduction of a duty to give reasons."

Finally His Lordship quoted a statement by Lord Justice Woolf who, in his capacity as a Fellow of University College London, delivered the 1989 Hamlyn lectures. At page 92, he states:

"However, I regard the giving of satisfactory reasons for a decision as being the hallmark of good administration and if I were to be asked to identify the most beneficial improvement which could be made to English administrative law I would unhesitatingly reply that it would be the introduction of a general requirement that reasons should normally be available, at least on request, for all administrative actions. The only exception which I would countenance is one to cover those few situations where there is a compelling case for saying that the giving of reasons would be harmful in the public interest. Unless the reasons for a decision are known it may not be possible to tell whether it is fair or unfair, whether or not it is lawful. If a member of the public does not know why a decision which affects him has been taken, he cannot have confidence in that decision. If reasons are given for a decision and the member of the public can establish that the reasons disclose "the decision is unlawful or unjust it is normally relatively simple for him to seek a remedy before the courts or a tribunal. However, it is not only the public who benefit and are protected by the requirement to give reasons. Administrators benefit as well. As any judge knows, the process of formulating reasons helps you to come to a correct decision. The need to give reasons imposes a discipline upon the decision-maker, resulting in a better quality of decision. If satisfactory reasons for a proper decision are provided, then this reduces the risk of a decision being challenged by judicial review."

At a later passage, he says this:

"I would have hoped that the English courts would at least have stressed that in those cases where there is no duty to give reasons, there is a discretion to give reasons, and that good administrative practice dictates that discretion should normally be exercised by the giving of reasons unless there is some explanation for not doing so."

The Judge also commented on the decision of the High Court of Australia in Public Service Board of New South Wales v Osmond (1985/1986) 159 CLR 656 in which the court considered authoritative judicial precedents from England, Canada and New Zealand dealing with the matter in issue here.

In his judgment at pp. 675-676 Deane J remarked:

"..... the exercise of a decision-making power in a way which adversely affects others is less likely to be, or to appear to be, arbitrary if the decision-maker formulates and provides reasons for his decision. Nonetheless, the state has not been reached in this country where it is a general prima facie requirement of the common law rules of natural justice or procedural fair play that the administrative decision-maker, having extended to persons who might be adversely affected by a decision an adequate opportunity of being heard, is bound to furnish reasons for the exercise of a statutory decision-making power. To the contrary, the ordinary common law position remains that established by the authorities referred to by the Chief Justice in his judgment, namely, that where, as a matter of ordinary construction, the relevant statutory provisions do not impose an obligation to give reasons, the rules of natural justice will not remedy the omission.

The judgment of the (High Court of Australia is most persuasive and it is clear, as Mr. Justice Otton remarked also, that the weight of judicial authority is such that it is not open to me to find that there is a general duty to give reasons as a matter of administrative fairness. However each case must be decided on its own facts and in the present case after careful consideration I am of the opinion that the Minister should have given reasons to the Applicant for refusing to renew his work permit. Like Mr. Justice Otton I do not wish to be seen as creating a precedent but I consider the material in the present case warrants such a direction. This is because the Respondent appears to have given reasons for rejecting Mr. Wright’s Application in its letter of 25th of September 1990. Presumably the Director of Immigration was referring to Article 42 of the Diplomatic Privileges and Immunities Act Cap. 8 which reads as follows:

"A diplomatic agent shall not in the receiving State practise for personal profit any professional or commercial activity."

However, initially the Director seems to have ignored its relation to Mr. Wright for reasons which have not been given.

I think it safe to presume that the Applicant could not have been considered to constitute any security risk for this country for if he were I have little doubt that by now he would have been declared persona non-grata by the government. In my judgment if these are the reasons then on which the Minister has based his refusal to extend the Applicant’s permit then as a matter of natural justice, the Applicant was entitle to have this confirmed. Further more as stated earlier if these are the reasons then, once having been offered, there become examinable by the court. I therefore hold that in the circumstances of the present case and on the present material the Minister is obliged to give the Applicant reasons for his refusal to extend the Applicant’s permit.

The final question is whether this is a suitable case for Judicial Review. In my judgment it is. I consider the Applicant has sufficient interest in the matter to warrant such review. I note that in R v. Secretary of State for the Home Department ex parte Swati [1986] 1 All E.R 717 the Court of Appeal held that in the absence of exceptional circumstances the appeals procedure set out in the Immigration Act 1971 of England provided an alternative and appropriate remedy to judicial review. In the present case however the Applicant is not a visitor to this country but rather an exempted person with full rights of residence as long as his wife remains here as a member of the British Embassy. It is true that in recent years in cases dealing with Immigration and homeless people in England the courts have taken the view that judicial review should normally not be available as a remedy. For example in Puhlhofer and another v. Hillington London Borough Council [1986] UKHL 1; [1986] 1 All E.R. 467 the House of Lords held that Parliament intended local housing authorities to be the judge of fact when exercising their functions under the 1977 Housing (Homeless Persons) Act.

The evidence in this case which appears not to be denied by the Respondent is that the Applicant is not deriving Fiji nationals or permanent residents' employment opportunities. In addition the letter of the 25th of September 1990 appears to state that because of the Applicant's continued employment the diplomatic privileges and immunities entitled by his wife also will be withdrawn. There is nothing in the material before me to indicate why that should be or indeed what relevance it has to the Applicant's case for Judicial Review. It seems to me that the diplomatic status of the Applicant's wife has no bearing on the employment of the Applicant at least in as much as until the decision of the Minister refusing to extend the work permit, the Respondent apparently accepted this also. To summarise therefore my answers to the three questions asked are:

(1) No, but injunctive relief cannot be granted against the State in Fiji.

(2) In the circumstances of the present case, Yes.

(3) Yes.

There will be no order for costs.

(Preliminary rulings delivered)