In re Hardayal Singh [1977] FJSC 148; Civ. Action 80 of 1977 (10 May 1977)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA

Civil Jurisdiction
Action No. 80 OF 1977

BETWEEN

IN THE MATTER of an application by HARDAYAL SINGH f/n KARAN SINGH
for leave to apply for an ORDER OF MANDAMUS

AND IN THE MATTER of a decision dated 4th May, 1977 made by G.B. SINGH
for the Permanent Secretary for Home Affairs

AND IN THE MATTER of the Immigration Act, 1971

Mr. J. Punja for the Applicant.

JUDGMENT

This is an application for leave to issue a writ of mandamus to the Minister for Home Affairs in respect of an application by one Hardayal Singh f/n Karan Singh for permission to remain in Fiji. The statement filed pursuant to Order 53/1/2 of the Rules of the Supreme Court says that the applicant resides in Lautoka and is a merchant carrying on business as an exporter and importer, and that he seeks an order directing the Minister for Home Affairs to hear and determine a petition lodged on 25th April and it is said t that this petition remains unheard to date. Then the grounds upon which the order is sought are set forth. The solicitors for the applicant say first that the Minister has failed to hear the said petition according to Law. Secondly that a letter from the Permanent Secretary stating that the Minister had dismissed the petition is an arbitrary exercise of the Minister's powers under the Immigration Act 1971 and in complete disregard of the principles of natural justice, and thirdly that the appellant has been denied natural justice in that he has a legal right to have his appeal heard before the Minister.

The real complaint is that the applicant wished to appear before the Minister and he has been denied the privilege. He asserts that it is a right. It is a common misapprehension that natural justice requires that the appellant has the right to appear face to face with the Minister. I do not think that it requires that the Minister apply his mind to the purport of an applicant's case. That may be done in some cases by a consideration of the relative papers, or in other cases may require that the Minister appoint someone to hear the applicant's representation. I will consider the applicant's affidavit and I will then come back to the type of consideration which the Minister might reasonably be expected to afford the applicant.

The applicant's affidavit sets out that he arrived in Fiji on 3 rd May 1976 on a visitor's permit. He is almost 27 years of age and was married to a Fiji citizen in July 1973 and has two children aged respectively 3 years and 3 months. He does not say what length of time his visitor's permit covered, but it had it extended until 25th September 1976.On 20th September 1976 he applied for a work permit and one wonders why he did not apply for that work permit quite a long time before 20th September 1976. Apparently he received no reply to that application and on 23rd March 1977 he was directed by the Permanent Secretary for Home Affairs to leave Fiji before 8th April 1977.It was not until 6th April 1977 that he got his solicitors t make application for his stay in Fiji to be extended for 3 months to enable him to lodge an appeal with the Minister. On 22nd April he signed a petition of appeal and that was lodged on 25th idem. On 29th April his solicitors asked when the appeal would be heard and on 4th May a letter was sent to him and his solicitors by the Permanent Secretary advising that the appeal had been dismissed. The material part of the letter is as follows:

"I am directed by the minister to advise you that he has carefully considered your appeal dated 22nd April 1977 and has decided to dismiss it, and he has further directed that you should leave Fiji without any delay."

I pause here to say that one of Mr. Punja's submissions was that the petition may not have been considered. I would think that a quite improper submission on the part of counsel in the face of the letter of 4th May and in the absence of any evidence on the part of the applicant that the statements contained therein are not correct. I am not prepared to assume that a Minister of the Crown is not telling the truth.

I return then to the applicant's affidavit and his petition to the Minister. He says that he intends to establish a business in Fiji to manufacture plastic buttons, but he does not say how he proposes to set up this business or the capital it might require. He gives the names of an Indian whom he describes as a merchant of Lautoka and a Fijian whose occupation he does not disclose as persons who will invest in the business, but again he does not disclose whether these persons are substantially financially, although he does say that the initial investment of approximately $5000 will be contributed by himself and these two persons.

Then Mr. Punja stated that the applicant had reserved certain matters which he wished to discuss with the Minister personally. He did not disclose these matters to the Court, and was not pressed to do so, and I have assumed that they have no bearing on this application. Mr. Punja also told me that the applicant had applied to the Minister of Commerce for leave to establish his business, and had been told to fill in the appropriate forms, but it transpired that no application was made until 14th March, 1977.

I now turn to the Immigration Act and the subsidiary legislation thereunder to see if the applicant has established a legal right of any kind, for unless he has 1 have no power to grant him leave, See Re Steele Civil Action 288 of 1971 the applicant has intituled his papers as being 'in the matter of a decision by G.B. Singh for the Permanent Secretary of Home Affairs'. But surely what he is objecting to is the dismissal of his appeal by the Minister for Home Affairs, who it is agreed is the Minister responsible for the administering the Immigration Act 1971.Such an appeal arises under section 18 of the Act and section 18(1) provides:

"8.(1) Any person aggrieved by a decision of an immigration officer under the provisions of this Act may appeal therefrom by petition in writing to the Minister who may, in his discretion, uphold, vary or revoke such decision:

Provided that no such appeal shall lie from decisions made by an immigration officer acting in accordance with the directions of, or instructions given in respect of any particular case by, the Minister."

The appellant also says that he falls within the paragraph 4(f) of the directions given by the Minister on 18th May 1971 in that he is entitled to a permit to enter and work because he is a person who intends to establish a business trade or undertaking approved by the Minister. But it is on those words 'approved by the Minister' that the applicant falls down. His proposed business has not received the approval of the Minister. The directions I have mentioned were issued by the Minister in pursuance of his powers under the Immigration Act 1971. These directions are not rules of law, but as Lord Denning pointed out recently in Reg. v Secretary of State for the Home Department exparte Hosenball (The Times 30th March 1977), rules of practice, and certiorari would not lie in respect of them. But that is not what the applicant is asking for.

I come to back, then, to the applicant's main contentions. It is clear that the Minister has heard his appeal. It is not correct that the letter from the Permanent Secretary is an arbitrary exercise of powers, because to my mind it is simply the notification by an agent that the Minister has exercised his powers, nor is it in disregard of the principles of natural justice. Further the applicant has not been denied natural justice for the reasons I have set earlier. Padfield v Minister of Agriculture [1968] UKHL 1; (1968) 1 AER 694 was cited to me but I do not think that is relevant in the context of this case. That case decided that whether or not the Minister is bound to give reasons for his decision he cannot act so as to frustrate the policy and objects of the act under which he is acting. Surely that cannot be suggested here. I think that I also have to approach the application to see whether the applicant has been fairly treated by the Minister. Bearing in mind that all that the applicant has done has not been done at the last minute and then done very sketchily, I cannot see that the papers submitted to me disclose any unfairness on the part of the Minister. It is true that the applicant is married to a Fiji citizen but the marriage appears to have taken place abroad, or at least that is the inference to be drawn from the plaintiff's affidavit. I find myself in complete agreement with Goudie J in his refusal of a similar application in Re Steele cit supra, and I accept his reference to Prem's Law of Writs in India, England and America (2nd ed.) at 385 as setting out the law. The learnt author said:

"Mandamus does not lie against a public officer as a matter of course. The courts are relevant to direct a writ of Mandamus against an executive officer of a government unless some specific act or thing which the law requires to be done has been omitted. Courts should proceed with extreme caution for the granting of the writ which would result in the interference by the judicial department with the management of the executive department of the government. The Courts will not intervene to compel action by an executive officer unless his duty to act is clearly established and plainly defined and the obligation to act is peremptory."

Here I cannot see that it was necessary for the Minister to give the applicant an opportunity to appear in person in support of his application. The application for leave to apply for an order of mandamus is refused.

(SGD.) K.A. STUART
JUDGE

LAUTOKA
10th May, 1977.