State v Minister for Home Affairs, ex parte Fiji Times Ltd [2000] FJLawRp 30; [2000] 1 FLR 63 (26 April 2000)

[2000] 1 FLR 63

IN THE HIGH COURT OF FIJI

STATE

v

MINISTER FOR HOME AFFAIRS

ex-parte

FIJI TIMES LIMITED AND RUSSELL HUNTER

High Court Judicial Review
Fatiaki, J
26 April, 2000
HBJ 1/2000

Immigration - refusal to grant extension of applicant's 3 year work permit - unfettered discretionary powers exercised by the Minister - whether bias and in bad faith - unavailability of satisfactory local replacement for the position - Immigration Act (Cap 88) ss3, 6, 7, 8, 9, 10, 11, 12, 13, 14, 18, 20; Immigration Regulations 3(2)(d), 3(2)(e); Immigration Directions paragraphs 3(2), 4(1)

The applicant obtained a 3 year work permit for its Editor-in-Chief on condition it train a local replacement within the validity of the permit. The applicant had trained a local to understudy but when the position was advertised, the local understudy did not apply. Two other candidates were not considered experienced or skilled enough. The applicant applied for a three year extension of work permit, which was refused. The applicant sought judicial review, stay order, damages and costs on the grounds including that decision was ultra vires the Immigration Act. The Court observed that employment of foreign nationals in Fiji and the grant and extension of a work permit to such persons is a matter of government concern and policy. Further, that the government is undoubtedly required to balance the interests of foreign investors in overseeing their vestments and the creation of employment opportunities, against the interests of Fiji citizens in being trained and in securing gainful employment in such enterprises. However, the court observed that it was neither the concern nor function of the Court to either evaluate, or comment on the policies of government, or to prefer or dictate which of two competing policies - localisation of positions or acceptable degree of autonomy to foreign investors - ought to prevail in the present circumstances.

Held - (1) entry into Fiji is a privilege, rarely to be granted, not a right for non-exempted persons, and only where the skills required by the position sought to be filled cannot be met satisfactorily within Fiji.

(2) At the initial grant of a work permit to a foreign national the Director may ask a relevant question: 'ought' the position to be localised at the end of the term?' At the extension stage a relevant question is: 'can' (not ought) the position be localised now? Implicit in that reason for refusal is the consideration of whether or not the position can or cannot be filled locally. Thus, the Minister did not err in his approach or that his refusal to grant the extension of the second applicant's work permit was so unreasonable as to border on irrationality.

Applicant failed to discharge burden of proof and satisfy the court that the Minister approached his duty with a closed mind and that there was a real likelihood of bias.

Cases referred to in judgment

appl Re Peko-Wallsend 66 ALR 299
cons K.R. Latchan Bros. Ltd & Vatukoula Express Service v Sunbeam Transport Co Limited, Pacific Transport Limited and Transport Control Board unrep Civil Appeal Nos. 45, 51, 57 & 61/83 FCA Reps 84/261
cons CREEDNZ Inc v Governor-General (1981) 1 NZLR 172
cons Ashby v Minister of Immigration (1981) 1 NZLR 222
dist Victor Jan Kaisiepo v Minister of Immigration HBJ 25/95
dist Re Cui Zhong Yi and Ors v Permanent Secretary for Immigration [1997] HBJ 2/1997S unrep Decision of 31 January 1997
foll Victor Jan Kaisiepo v Minister of Immigration Civil Appeal 54/96 unrep
foll R v Barnsley Licensing Justices ex-parte Barnsley and District Licensed Victuallers Association [1960] 2 QB 167
ref Kumar v Immigration Department (1978) 2 NZLR 553
ref Chandra v Minister of Immigration (1978) 2 NZLR 559
ref Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; (1947) 2 All ER 680
ref Secretary of State for Education and Science v Tameside Borough Council (1947) AC 1014
ref English v Bay of Islands Licensing Committee (1921) NZLR 127

Martin Daubney, Grahame E. Leung and Shayne Sorby for the applicant
Ganga Prasad Shankar and Daniel Singh for the respondent

26 April, 2000.

JUDGMENT

Fatiaki, J

On 13^th December 1996 after a successful appeal to the then Minister of Immigration against an earlier refusal of a work permit, the Fiji Times Limited was granted a permit to employ Russell Hunter a non-Fiji citizen as its Editor-in-Chief until 31.12.99.

The relevant permit had a condition attached to it as follows:

'3. That the employer will take the following action to train a Fiji citizen to fill the above post:

TO TRAIN A LOCAL REPLACEMENT WITHIN THE VALIDITY OF THIS PERMIT.'

This condition was further reinforced in the accompanying letter signed by the then Director of Immigration wherein he noted: '... that this decision is given on the condition that a local would be identified and trained to take over at the end of Mr. Hunter's three year permit'.

In this latter regard it is not seriously denied that the Fiji Times identified its most senior local editorial executive as a potential 'local replacement' for the second applicant and provided him with training at its parent company's head office in Australia and also on-the-job understudying Mr. Hunter. It is also undisputed that when the second applicant's position was advertised locally, no application was received from the identified 'local replacement'. Of the ten (10) applications received, two (2) were short-listed for personal interviews but neither was considered experienced or skilled enough for the position.

By letter dated September 8, 1999 the Fiji Times sought from the Director of Immigration ('the Director') an extension of Mr. Hunter's work permit 'for another three years'. Almost three (3) months later on 25^th November, 1999 the application was refused'... in view of the Permanent Secretary for information's comments that the position be localised...'. The following day 26^th November, 1999 the Fiji Times through its solicitors lodged an appeal with the Minister of Immigration ('the Minister') which was further supplemented in a letter dated 9 December 1999. By letter dated 30 December, 1999 the Minister wrote to the solicitors in the following terms:

'The appeal has been considered. Whilst there maybe some justification for the unease expressed by your firm, I have looked at all matters afresh.

I advise that the appeal has been refused. The reason for this decision is that I am not satisfied that there are no locals who can satisfactorily take up the position.'

By an application dated the 4^th of January 2000 the Fiji Times and Russell Hunter (the applicants) sought leave of the High Court to issue judicial review proceedings against the Minister's decision on numerous grounds including that the decision was:

'(a) Ultra vires the Immigration Act;

(b) Biased and made in bad faith;

(c) Unlawful in that it failed to take into account relevant considerations;

(d) Unlawful in that it was actuated by unreasonable, extraneous or, improper consideration;

(e) 'Wednesbury' unreasonable.'

The applicants also sought a stay order, damages and costs. On 12^th January 2000, leave was granted 'on the papers and in the absence of any opposition', a stay of proceedings was also ordered. Subsequently, both parties filed interlocutory applications. Suffice it to say of those applications that after a chambers hearing they were withdrawn to allow for the substantive application to be heard. Directions were then given for affidavits to be filed.

There are before the Court the following affidavits (in date order):

(1) The primary affidavit of Alan Robinson the Managing Director/Publisher of the Fiji Times dated 13^th January 2000;

(2) The answering affidavit of Navendra Prasad the Director of Immigration dated 9^th February 2000;

(3) An affidavit in reply from Alan Robinson dated 10^th February 2000;

(4) Supplementary affidavit of Navendra Prasad dated 9^th March 2000;

(5) An answering affidavit of the Minister of Immigration dated 8^th March 2000;

(6) An affidavit in reply to (4) above from Alan Robinson dated 16^th March, 2000;

(7) An affidavit in reply to (5) above from Alan Robinson also dated 16^th March 2000; and

(8) An affidavit of the Attorney-General dated 16^th March 2000.

Quite plainly this case concerns the Immigration Act (Cap. 88) ('the Act') and, in particular, the discretionary powers that exist therein for the extension of work permits. It is convenient therefore to begin generally with the relevant statutory framework that governs the case before dealing with the specific complaints levelled against the decision of the Minister.

I begin with Section 6 of the Act which imposes a blanket prohibition on any person (unless exempted under Section 7) from entering Fiji 'without being in possession of a valid permit lawfully issued to him under the provisions of this Act.' Then Sections 8, 9 & 10 expressly give the Permanent Secretary an unfettered discretion to issue and to extend various types of permits to persons desiring to enter Fiji; Section 11 defines a 'prohibited immigrant' of which there are twelve (12) enumerated classes; Section 13 subjects the unfettered nature of the Permanent Secretary's discretion as to the persons to whom a permit may be granted '... to the provisions of this Act and to any directions issued by the Minister thereunder' and Section 14 makes it 'unlawful' for any permit holder to remain in Fiji after the cancellation or expiration of his permit 'unless otherwise entitled or authorised... under the provisions of this Act.'

It is sufficiently plain from the above synopsis that entry into and remaining in Fiji is not a 'right' but a privilege for non-exempted persons. Further, that the person primarily charged in the Act with responsibility for administering its provision is the Permanent Secretary. For present purposes however, it is common ground that by virtue of a gazetted notice dated 15^th October, 1996 the then Permanent Secretary delegated his powers to issue and extend work permits under Section 8 of the Act to the Director of Immigration. It is also sufficiently clear that subject to the Act and to any Ministerial Directions thereunder, the Permanent Secretary is given a wide and largely unfettered discretion as to the persons to whom permits may be granted under the Act.

The specific provision empowering the Permanent Secretary to issue and to extend work permits is to be found in Section 8 of the Act which (excluding an inapplicable proviso) is couched in the following terms:

'8. - (1) The Permanent Secretary may issue a permit in the appropriate form to any person entitling him to enter or to reside or work in Fiji, upon such conditions as to the security to be furnished, the profession or occupation which the holder may exercise or engage in and the person by whom the holder may be employed in Fiji, and to any other matter whether similar to the foregoing or not which the Permanent Secretary may deem fit to impose or as may be prescribed, and may at his discretion vary any such condition:

(2) The Permanent Secretary may at his discretion extend a permit issued under the provisions of subsection (1), but shall not so grant or extend a permit except in accordance with directions issued by the Minister under Section 3.'

It is clear from the above that in granting a work permit the Permanent Secretary is given a wide and unfettered discretion as to the 'conditions' that he considers appropriate to impose in addition to those already enumerated in the Section. Indeed even the requirement to train a local as prescribed by Regulation 3(2)(d) of the immigration Regulations (referred to below), is made subject to his approval albeit that the pre-printed permit appears to include such a condition on its face. The discretion to extend a work permit is similarly unfettered '... except in accordance with directions issued by the Minister under Section 3'.

Finally for present purposes, Section 18 of the Act provides for an unlimited appeal to the Minister by 'any person aggrieved by a decision of an immigration officer under the provisions of this Act.'

It cannot be seriously doubted that in considering such an appeal the Minister is not merely required to cross-check the Director's decision for possible errors or defects nor, is he necessarily confined to the materials available to the Director. Indeed the language of the section and the weight of authority persuades me that in considering and determining an immigration appeal the Minister is exercising a discrete personal discretion in the matter by way of a complete re-hearing of the original application undeterred by the Director's earlier decision.

For completeness, reference should also be made to the provisions of Section 3(3) and Section 20 which separately empower the Minister to 'give ... directions' to the Permanent Secretary and to make regulations 'for the better carrying out' of the Act.

In this latter regard Regulation 3(2) of the Immigration Regulations relevantly provides:

'The conditions upon which a permit to reside and work may be granted shall be-

(d) that where the Permanent Secretary considers it appropriate, the employer shall train a citizen of Fiji in the work for which the employee has been granted the permit;

and any permit shall be subject to such further conditions as the Permanent Secretary may deem fit to impose.'

Similarly under the Immigration Directions issued by the Minister, paragraph 4(1) provides:

'Permits ...... to work in Fiji for a period of three years or for such further period as the Permanent Secretary may deem appropriate may be granted to the following:

(e) persons under written contracts of employment with local employers and for whose services there is a reasonable demand which cannot be met satisfactorily within Fiji.'

and paragraph 3(2) expressly applies the Immigration Directions:

'to the grant of permits to enter and reside or to reside and, unless the context otherwise requires, to the extension of such permits.'

This latter paragraph gave rise to a sharp difference of opinion between counsels as to the ambit of the Immigration Directions, with the applicants counsel submitting that the Directions applied to the extension of work permits and counsel for the Minister submitting that ('expressio unius') they did not.

Having considered the respective arguments, I am satisfied that paragraph 4(1) of the Directions applies not only to the initial grant of a work permit 'for a period of three years' but also to its extension by the Permanent Secretary for a 'further period'.

There is however a cognizable difference in the ambit of the Regulation which seeks to impose specific 'conditions' on work permits, and the Direction, which qualifies and limits the 'person(s)' to whom work permits may be granted by the Permanent Secretary.

Having said that, it is clear from the foregoing Regulation and Direction that the employment of foreign nationals in this country and therefore the grant and extension of a work permit to such persons is a matter of government concern and policy. It is, if I may say so, a 'privilege' rarely to be granted except upon an employer agreeing '(to) train a local in the work for which the permit is granted' and only where the skills required by the position sought to be filled cannot be met satisfactorily within Fiji.

Equally, the attraction and retention of foreign investment in this country is also a proper concern of government which is undoubtedly required to balance the interests of foreign investors in overseeing their vestments and the creation of employment opportunities, against the interests of Fiji citizens in being trained and in securing gainful employment in such enterprises.

This case serves to highlight the unfortunate tensions that can arise in pursuing an immigration policy of localisation on the one hand, and on the other hand, providing an acceptable degree of autonomy to foreign investors in this country.

Having said that however, it is neither the concern nor function of the Court to either evaluate, or comment on the policies of government, much less is it the function of the Court to prefer or dictate which of two competing policies ought to prevail in the present circumstances.

The sole and proper function of the Court in this application as in any judicial review application, is to review the manner in which the decision was made and to examine its lawfulness vis-à-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 present their submissions either to the Director or to the Minister.

Indeed, if I may so, the undisputed evidence clearly supports the view that there had been substantial compliance with the 'appropriate course' suggested by the Fiji Court of Appeal in Victor Jan Kalsiepo v. The Minister of Immigration Civil Appeal No. 54 of 1996 unreported at pp.7 & 8 in 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 national interest does not readily lend itself to compartmentalisation of the amalgam of considerations involved, and the isolation of particular aspects of foreign and/or domestic policies as obligatory considerations that 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 provisions cannot be seriously doubted even in immigration matters see: Kumar v. Immigration Department and Chandra v. Minister of Immigration both 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 think that 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 brothers in the unreported cases 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'. It might well be that discretionary 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 principle that guides the Court in such a review are well settled and has been recognised and applied in the decisions of numerous Courts throughout the common law world. For present purposes it is only necessary to refer to the decision of the House of Lords, in the leading case of Associated Provincial 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 conferring the discretion, there is to be found expressly or by implication matters which the authority exercising the discretion ought to have regard to, then in exercising the discretion it must have regard to those matters. 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 must disregard those irrelevant collateral matters.'

Thirty (30) years later and in similar vein Lord Wilberforce said in referring to the discretionary decision of the Secretary 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 facts is for the Secretary of 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 those requirements are not met, then the exercise of judgment, however bona fide it may be, becomes capable of challenge: see Secretary of State for Employment v. ASLEF (No.2) (1972) 2 Q.B. 455 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 it is for a court of law to determine whether it has been established 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 applicants forcefully submits that both the Director and the Minister took a completely misconceived approach to the subject application which was not an application for the issuance of a work permit under Section 8(1) of the Act, rather, it was an application under Section 8(2), for the extension of an existing work permit which was already subject to a specific condition.

Section 8(2) of the Act so far as relevant provides:

'The Permanent Secretary (read Director) may at his discretion extend a (work permit), but shall not ... 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' paragraph 4(1)(e) of the Immigration Directions (op.cit) which clearly delimits and qualifies the 'person(s)' to whom a work permit maybe granted and extended as being '(one) ..... for whose services there 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 submitted 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 of the Permanent Secretary of Information.

This misconception counsel submits is exemplified in the Director's letter refusing the extension application and, more particularly, in his answering affidavit wherein he deposed (at para.6):

'I rejected it on the basis that the position should now be localised. The Fiji Times was given almost six years to localise the position of Editor-in-Chief, which in my consideration was sufficient time to do so.'

In somewhat similar vein reference maybe made to paragraphs 9, 10, 21, 44, 45, 47 & 48 of the Minister's answering affidavit.

In counsel's submission the only question required to be considered and answered in an extension (as opposed to an original) application and as dictated by the Immigration Directions, is the relatively straight forward question - whether, in respect of the position sought to be filled, 'there is a reasonable demand which cannot be met satisfactorily within Fiji' and not the more controversial and quite erroneous one - whether or not the position must now be localised. In this regard counsel stressed that the only relevant and acceptable evidence before the Director and the Minister pointed to the unavailability of a satisfactory 'local replacement' for the position held by the second applicant.

The distinction, I believe, is more readily understood by saying that at the initial grant of a work permit to a foreign national a relevant question is; 'ought' the position to be localised at the end of the term?' and, depending on the 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 localisation does eventually occur, if that is the desired result. This is to be contrasted with, the rather limited question at the extension stage: 'can' (not ought) the position be localised now? At this latter stage the answer necessarily depends upon an objective assessment of the relevant facts as they exist at the time of the application for an extension and which may or may not include the degree of compliance with any training condition(s) imposed at the outset.

In Counsel's submission the opinion as to whether or not the position should now be localised is 'completely irrelevant'. What's more, such an opinion is necessarily based on a 'misconstruction of the condition which attached to the work permit'. The particular condition counsel argues did not unequivocally require the Fiji Times 'to appoint' a local to the position at the end of the term, rather, the requirement was, 'to train a local replacement within the validity of the permit'. This submission however, ignores 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 (a person or thing) or to fill the place of (a person or thing) with or by a substitute'.

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 based upon any suggested 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.

That being said I am unable to accept Counsel's suggestion that the question of whether the position ought now to be localised 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 firmly of the opinion that a proper consideration of the question of localisation necessarily and reasonably entails a consideration of the question of whether the skills required for the position for which the extension is sought, are or are not available locally.

In this latter regard the facts before the Director and the Minister were:

(1) That since the creation of the position of Editor-in-Chief of the Fiji Times in 1993, two (2) foreign nationals have been appointed to the position;

(2) That the three (3) year work permit of the second applicant which was granted after a successful appeal, imposed on the Fiji Times a specific duty; to train a local replacement within the validity of this permit;

(3)That whatever training was provided by the Fiji Times over the past three (3) years did not enable it to appoint a 'local replacement' to fill the position;

(4) That the position of Editor-in-Chief which was advertised locally in the Fiji Times required:

'(in essence) ... the services of a seasoned and successful 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 independent, balanced and fairway';

(5) That the advertisement elicited ten (10) applications of which eight (8) were from local applicants;

(6) That all local applicants were considered unsuitable by the Fiji Times;

(7) That the Fiji Times was seeking a three (3) year extension of the second applicant's work permit to enable him to continue in the position of Editor-in-Chief; and

(8) The Permanent Secretary for Information had commented that the position be localised.

In addition the Minister deposed (without elaboration) that in determining the appeal, he had considered the following factors 'with an open mind' (see: para.28):

'(i) the decision of the Director of Immigration against which the appeal has been lodged;

(ii) the Government policy;

(iii) all the submissions made by the Fiji Times or its solicitors to the Immigration Department including those to the responsible Ministers;

(iv) the contents of letter dated the 3^rd December, 1999 from the Director of Immigration to Messrs Howards and the records in possession of the Department regarding the subject matter of this application, that is, the position of Editor-in-Chief of Fiji Times since it was created including Mr. Russell Hunter's Immigration file;

(v) the legal requirements'.

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). Implicit in that reason is the consideration of whether or not the position can or cannot be filled locally. Plainly therefore, the Minister did not misconstrue the requirements of the Act or the Directions thereunder.

More importantly, was that a decision which the Minister was reasonably entitled to make after fairly considering the various facts and factors that he deposed to? In considering this question I remind myself, that the burden of proving the negative falls squarely upon the applicants to establish on a balance of probabilities, and, of the limited role of a court reviewing the exercise 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, 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 Minister has made his decision and in spite of counsel's careful submissions to the contrary, I remain unpersuaded that the Minister erred in his approach or that his refusal to grant the extension of the 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 ample circumstantial evidence from which the Court may properly infer that '(the decisions) were actuated by ill-will in the decision-making process'. What's more 'the bare 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 regard is comprised of numerous newspaper cuttings and an address to the Media Council 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 both the Director 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 grant an extension of Mr. Hunter's work permit knowing the Prime Minister's public (sic) reported views about the Fiji Times. To do so would carry the personal 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 them by the Prime Minister, and by a process of 'osmosis' they 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.'

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 I am not prepared to make such unwarranted assumptions or doubt the Minister's letter in the absence of cross-examination or clear evidence to the contrary.

Having said that however, the Minister in his letter refusing the extension of the second applicant's work permit specifically recognised that 'there may be some justification for the unease expressed by your firm'. What the particular 'unease' was or the 'justification' for it, is nowhere identified in the Minister's letter but the solicitor's letter of 26th November, 1998 makes it plain that 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 'heavily biased 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 bias it must be established on the balance of probabilities that 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 clippings which included utterances from the Minister directly concerned, his lordship said at p.196:

'Read singly or together they do not justify the serious allegation 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.'

What's more as Salmond J. cautioned in English v. Bay of Islands Licensing Committee (1921) N.Z.L.R. 127 at p.135: '... the rule of disqualification by reason of predetermination must be applied with the utmost caution'.

In the present case mindful that public confidence can be undermined by a decision-maker who manifests an unwillingness to consider 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 is clear from his letter that the Minister was conscious of the applicant’s 'unease' in that regard and would have been anxious to dispel any suggestion of predetermination or bias in arriving at his decision.

Needless to say the relevant test formulated and applied by the Fiji Court of Appeal in its unreported judgment in Latchan 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 words of Devlin L.J. in R. v. Barnsley Licensing Justices ex-parte Barnsley and District Licensed Victuallers 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 minds of the public generally. We have to satisfy ourselves that there is a real likelihood of bias - not merely satisfy ourselves that that was the sort of impression that might reasonably get abroad.'

In light of the foregoing, I am not at all satisfied that the applicants have discharged the onerous burden of proving on a balance of probabilities that there was a 'real (not fanciful) likelihood of bias' on the Minister's part in determining the appeal.

For the foregoing reasons the application is refused with costs which are summarily assessed at $1,000.00.

Application dismissed with costs.

Marie Chan