Lixia v Attorney-General [1999] SBHC 14; HC-CC 134 of 1998 (2 March 1999)

HIGH COURT OF SOLISLANDS

Civil Case No.134 of 1998

GLIAN LIXIA

v

ATTORNEY-GENERAL

JUDGEMENT: 2ND MARCH 1999

A. NORI FOR THE APPLICANT

P. KENILOREA (JNR) FOR THE RESPONDENT

PALMER J.: t"> [THE FACTS] The Applicant is from Guangdong Province, China. She was first issued with a work permit under the Labour Act (see section 37 of the Act and Rule 3(1) of the Work Permit Rules) on 30^th April 1993 as a chief cook at the Super China Town Restaurant now Fortune Restaurant. This was renewed for a further period of two years on 30^th April 1995 to 30^th April 1997 (see affidavit of Ronald Unusi filed 7^th December 1998 at paragraph 2). On 11^th March 1997 (note sub-paragraph two of paragraph 2 of the said affidavit of Ronald Unusi puts the year as 1998 which must be a typing error) an application for renewal of the said work permit was lodged (see annexure “RU1” in same affidavit of Ronald Unusi). This time her employer had changed to J. B. Leong Store. An approval was duly granted (see annexure “RU2”) and a new work permit issued, number 334/97 and dated 26^th March 1997. Expiry date was 26^th March 1999 (see annexure “RU3”).

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On 16^th July 1998 (more than a year later), the Applicanlicant received a letter from the Commissioner of Labour (hereinafter referred to as the “Commissioner”) requiring her to show cause why her work permit should not be terminated within 7 days from date of that letter. I quote in full the contents of that letter (see annexure "RU5" of the said affidavit of Ronald Unusi): /p>

“It has come to my attention that you left your employment with Fortune Restaurant without prior notifying your employer and without his consent.

You have therefore made a false declaration when applying for a Work Permit under J B. Leong Restaurant that you have ceased employment with your former employer amicably.

‘You are required to show cause to the Commissioner of Labour as to why your Work Permit with J. B. Leong should not he terminated in seven (7) days time being seven (7) clear days from the date of this letter.”

On 16^th July 1998 (the very next day the Applicant responded by letter through her lawyer, Bridge Lawyers, giving explanation of the resignation with Fortune Restaurant (see annexure “GL5” annexed to the affidavit of Guan Lixia filed 10^th August 1998) I quote:

"We advise that we act for Mrs. Lixia in relation to your letter of 15/7/98.

The basis for proposing to cancel our client’s permit in whollyholly unjustified. Every employee has a right to chose his or her employer . No permission is required by our client to change to change employment.

By letter dated 7/2/97 our client’s tendered her resignation from from Super Club Restaurant and the same was accepted by Patrick Leong by letter dated 5/3/97. Copies are attached for your record.

Our client applied for and was ed a new Work Permit allowing her to work for her curr current employer.

class="Mss="MsoNormal" style="margin-top: 1; margin-bottom: 1"> Please advise us if you accept this application as being sufficient to allow ouow our client to continue in her present employment.”

No response was received from the Commissioner of Labour. On 28 July 1998 (thirteen days later) the Applicant’s Work Permit was cancelled (see annexure “GL6” attached to the said affidavit of Guan Lixia). For the first time perhaps it was intimated what the false declaration referred to; that she had filled in a false particular in her application form. On the same date, the Applicant responded through her lawyers objecting to the revocation. On 31^st July 1998, the Director of Immigration issued a letter of intention to cancel the Applicant’s permit to enter and reside in Solomon Islands and a subsequent letter of cancellation issued on 4^th August 1998 (see annexure “GL8” annexed to the said affidavit of Guan Lixia).

THE APPLICANT’S APPLICATION:

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The Applicant had little recourse but to take legal action and apply fory for an order of certiorari under Order 61 of the High Court (Civil Procedure) Rules, 1964 on 10^th August 1998. The grounds relied on were that the action of the Commissioner of Labour and the Director of Immigration were both unjust and unlawful. Note the decision of the Director of Immigration followed on from the earlier decision of the Commissioner of Labour. Unfortunately the terms “unjust” and “unlawful” are general words and do not indicate with sufficient clarity what grounds are being relied on. If Counsels use these words in their pleadings, they must go on to specify in what way something is unjust or unlawful. In the facts of this case no objection had been raised by Counsel for the Respondent.

THE ISSUE:

It ame apparent from the submissions of learned Counsel, Mr. NMr. Nori for the Applicant that the ground relied on was breach of the rules of natural justice; that the Applicant had not been accorded opportunity to be heard or given a fair hearing; before her work permit was cancelled by the Commissioner of Labour. The issue in law thus was whether there had been a breach of the principles of natural justice such that the actions of the Commissioner were ultra vires and therefore void.

ass="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> THE LAW:

class="Mso="MsoNormal" style="margin-right: 7.2pt; margin-top: 1; margin-bottom: 1"> The law on the rights to be heard and given a fair hearing have been well established in this jurisdiction. What has been set out in England by the House of Lords in Ridge v. Baldwin [1963] UKHL 2; [1964] AC 40 more commonly referred to as the audi alteram partem rule (hear the other side) has been adopted in this country without hesitation and become an entrenched rule in the proceedings of tribunals and administrative bodies exercising judicial and quasi-judicial functions. This has been held to include Public Officers discharging government functions ( see the Law Text on “Administrative Law “by H. W. R. Wade, sixth edition page 497); in this instance, it would also cover the actions of the Commissioner. No issue has been raised whether the remedy sought would not apply to the Office of the Commissioner of Labour. The Commissioner of Labour therefore is also required in the facts of this case to comply with this fundamental principle in law; to give opportunity to the Applicant to be heard before making any decision that would be to her prejudice. In the facts of this case it is not in issue that a real prejudice exists if the Applicant was not given opportunity to be heard.

THE POWERS OF THE COMMISSIONER:

Commissioner may revoke any work permit granted or renewed pursuant to rule 3(1) at any time if, at that time-

(a) he becomes aware of and is satisfies that the applicant has filled is a false particular in his application for the work permit…”

Learned Counsel Peterlorea (Jnr) for the Commissioner argues the Commissioner er had acted intra vires after satisfying himself false entries had been made and giving time to the Applicant to respond to the allegations raised.

Mr. Nori responded by arguing that his client had simply not been given open opportunity to be heard and therefore in spite of the fact the Commissioner’s powers might have been unquestionable, he had failed to comply with the rules of natural justice. He also pointed out that the letter of 15^th July 1998 relied on by the Commissioner as giving adequate notice was misleading and ambiguous, and failed to raise the issue of false entries with sufficient clarity to give his client an opportunity to give a full and complete response.

ass="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> The crucial words in Rule 5(a) of the Work Permit Rules are the words “may revoke” and “is satisfied”. The word “may” entails the exercise of discretionary power and the words “if satisfied” anticipates that some enquiry should be conducted. The mere fact an irregularity or what appear to be false entries had been made, does not necessarily mean the Commissioner must revoke. He is required to make some enquiry into the matter and even if satisfied, it is still within his discretion to revoke or not. In the particular facts of this case, conducting some sort of enquiry into the matter in my respectful view must necessarily mean giving the Applicant opportunity to be heard. Only then could the Commissioner be said to have properly exercised his discretion.

ANALYSIS OF EVIDENCE AND APPLICATION:

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1. The Letter from the Commissioner dated 15^th July 1998. This was the letter relied on by the Commissioner as giving sufficient notice to the Applicant about the issue of false entries. In analysing that letter however, it would seem that the allegations contained therein refer to a false declaration having been made with respect to the question whether the Applicant had ceased employment with her former employer Super China Town Restaurant (Fortune Restaurant) amicably and with consent. It was not immediately clear, that the false declaration referred to false entries made some sixteen months earlier, in the application form of the Applicant when she applied for a new work permit. But even if it could be concluded that the false declaration could only have referred to the application form, it did not state with sufficient clarity what was referred to. Without the aid of the affidavit of Ronald Unusi filed 7^th December 1998, it would not be clear what the false declaration was about. I agree with learned Counsel Mr. Nori that the letter of the 15^th July 1998, was vague and ambiguous.

No one can blame the Applicant, even with the assistance of her lawyer, for “mis-interpreting” or rather, correctly interpreting the meaning of that letter. Paragraph 1 mentioned something about the Applicant having left her former employment (Fortune Restaurant) without notification and their consent. Nothing specific was mentioned about any false entries in the application form. Paragraph 2 referred to a false declaration having been made when applying for her work permit that she had ceased employment with her former employer amicably. Whilst it is possible to argue that the false declaration could be construed as referring to her Work Permit Application filed sixteen months earlier, one must seriously ask why the necessary details were not specified if they were known. The Commissioner knew about them, or at least someone in his Office knew. We now know what they are. But how could one expect the Applicant to know what was meant if they were not spelled out to her in the first place and thereby given opportunity to make a proper response? Even if she may have correctly concluded that the false declarations pertained to her application form, one must seriously question whether she would be expected to recall what she had written some sixteen months earlier; unless she was able to get a copy of her Work Permit application and the discrepancies pointed out to her. It is my respectful view that taken on their face value, the Applicant was entitled to conclude that the false declaration pertained to her resignation with her former employer, that is whether it had been done amicably and with consent.

That issue I am satisfied was adequately responded to by Briawyers in their letteletter of 16^th July 1998 (see “GL5” annexed to the affidavit of Guan Lixia filed 10^th August 1998 - note also copies of the resignation letter dated 7 February 1997 and acceptance letter dated 5^th March 1997 were included). But even if that response was inadequate, it would seem immaterial and irrelevant for the purposes of the Commissioner, whether resignation had been obtained amicably or with the consent of the former employer. There is no law to prevent her from resigning from her former employment with Fortune Restaurant. The only requirement under Rule 6(1)(d) of the Work Permit Rules is for her to get prior approval from the Commissioner if she is to do any work for any other employer other than the employer stated in her Work Permit. There is no suggestion that this rule had been breached. In any event, it would seem that she had first resigned before applying for a new work permit to work for J B. Leong Store.

So whether her formeroyer had accepted her resignation or not makes little difference to the right of the employee to call it quits with her employer. If the employer disagrees and wishes to take the matter further with any appropriate authority, it can do so. But he cannot and in fact has no right to stop the employee from resigning. Whether it is amicable or not, or with consent or not, is a matter between themselves to sort out. It would have little to do with the Commissioner. If Patrick Leong of Fortune Restaurant had felt there was something not right with her resignation, (bearing in mind this occurred in early March of 1997 well before her fresh application for renewal of her work permit was lodged on 11th March 1997), why didn’t he lodge a complaint with the Commissioner at that time. It took him more than sixteen (16) months to lodge a complaint with the Commissioner about the resignation. Something must be drastically wrong with such a complaint and should have alerted the Commissioner to the genuineness of such a complaint. At least by 8^th April 1997, it was acknowledged the Applicant was no longer working for Fortune Restaurant (see annexure “RU4”). If there was therefore any allegations of breaches of the Work Permit Rules, then this should have been made clear to her from the beginning so that she can be accorded opportunity to explain. The fact of resignation therefore appears not to have been in contention at all. At least we know by the time she lodged an application for a new work permit, she did so under the name of a new employer, J. B. Leong Store.

The letter of the 15^th Jul8 therefore was not only valy vague and ambiguous, but actually did not raise any valid or live issue about the resignation of the Applicant from her former employer. It is also important to take note of what the last paragraph in the letter from Bridge Lawyers dated 16^th July 1998 (“RU6”) says. I quote:

class="Mso="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> “Please, advise us if you accept this explanation as being sufficient to allow our client to continue in her present employment.”

This paragraph in my respectful view, required a response from the Commissioner. It was a relevant matter for him to take into account. If the explanation tendered was insufficient or unsatisfactory, to say so and perhaps indicate further what was expected or required. If anything, simply out of courtesy, in that a specific and polite request had been made. If done, most likely the Applicant would have gone to great lengths to provide any further explanations that may be needed. It wasn’t the case where the Applicant was being evasive or trying to avoid the issues raised. Unfortunately no response was given. I am satisfied the Commissioner erred in not responding to that letter and thereby failed to take into account a relevant matter in the exercise of his discretion. This would have been a relevant factor in the issue of reasonableness had it been raised.

The crucial fact remained, the Applicant was never given a proper opportunity to be heard before being condemned. That included being informed that the letter of explanation of 16^th July 1998 was unacceptable or unsatisfactory, making clear to her what the false declaration was about and giving her the opportunity to be heard. I am not satisfied this had been done.

2. THE AFFIDAVIT OF RONALD UNUSI FILED 7TH DECEMBER 1998:

p class="MsoNormal"rmal" style="margin-top: 1; margin-bottom: 1"> As pointed out er, it was only in this affidavit of Ronald Unusi filed 7th December 1998, at paragraph 4, that we are told in clear and plain terms what the false declaration was all about. This too was more or less the first time the Applicant became fully aware what the allegation was about. See paragraphs 3 and 4 of the affidavit of Ronald Unusi. I quote:

“3. In early July 1998, I had cause to review Guan Lixie’s case, when a letter from Mr. Dickson Chan, General Manager of Fortune Restaurant [former Super China Town Restaurant] came across my desk. He requested my office to investigate Mr. Yu Yue Qin and Guan Lixia, both employed by Fortune Restaurant. It was reported that Guan Lixia had left her employment without prior notice and consent on 8/4/97 Copy of this is annexed ‘RU4’.

class="Mso="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> 4. In reviewing the applicant’s work permit application under J B Leong I noted that the application lodged on 11/3/97 had a couple of false entries. On part 1, (6) that requires the applicant to state the date of first employment in S.I, there the applicant stated NO. This means she had never been employed anywhere, anytime in S.I prior to that application. Also on Part 1, (7) where the applicant is required to state his/her previous employment in S.I. and the dates and job title and the date of expiry of current work permit if an. Again it was stated No. The application was so constructed I believe so that I would not notice that she was already employed in the country and question the status of her current employment then at the time of application.”

lass="MsoNormal"rmal" style="margin-top: 1; margin-bottom: 1"> Whilst I partly agith the learned Commissioner the answer to item 6 of Part 1art 1 of the application implied the Applicant had never been employed in Solomon Islands, the significance of that discrepancy or irregularity would have been watered down by the fact the Commissioner already had a file opened on this particular applicant. She was not a new-comer. This meant it would have been possible to trace her previous employment records within a short time after the application was lodged. But even if that were not possible, when the discrepancy was discovered, and the previous file(s) on the Applicant eventually brought up, it would have been possible then to trace what her previous employment records were and any other details that might have required. This would include the details required under item 7 of Part 1 of her application form. Once these had been ascertained, the next logical step in the circumstances would have been to point these discrepancies out to the Applicant and require her to provide an explanation. I accept this was what was sought to be done in the letter of the 15^th July 1998. Unfortunately it did not go far enough.

As pointed out, that affidavit made clear for the first time the real issue ssue and the reason behind the revocation of the Applicant’s Work Permit. It articulated with sufficient clarity what the real issues were. It follows from this the Applicant had never been given opportunity to address those matters prior to cancellation of her Work Permit.

In the hearing before this Court on 7^th December 1998 Applicant sought to t to explain for the first time it seems, how the Application form had been incorrectly filled in. This was the very thing that would have been done before the Commissioner had she been given opportunity to do so and for what she now seeks relief. The decision to accept her explanation or not is a matter for the Commissioner alone to determine. This Court would have had no right to interfere in the merits of his decision.

SIDE ISSUE:

A side issue which could also have been raised in respect of this this case is the question whether the Commissioner had acted reasonably (applying the “Wednesbury Principle”- see the case of Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223) in the exercise of his discretion, bearing in mind the peculiar facts of this case; that is, (i) the time lapse of sixteen months (inordinate delay), (ii) the letter of complaint from Dickson Chan raising matters which would appear to be totally irrelevant; that is the issue of resignation and whether it had been done amicably and with the consent of her former Employer (taking into account extraneous matters), (iii) failing to make clear from the beginning what the real allegations against her were (breach of natural justice), and (iv) failing to take into account the letter of the Applicant dated 16^th July 1998 (that is, failing to take into account a relevant factor). I do not need to rule on this however as it had not been specifically raised but simply point out that this could also have been an alternative ground against the decision of the Commissioner.

CONCLUSIONan>

It should be made clear, the power of the Csioner is not in issue. It . It is clear beyond doubt he had the power to revoke the Work Permit at any time pursuant to Rule 5(a) of the Work Permit Rules. What he failed to do was to give opportunity to the Applicant to be heard before being condemned. I am not satisfied the letter of 15^th July 1998 was sufficient notice of what the allegation was about. His decision therefore must be quashed on the grounds of breach of natural justice. Subsequent orders must also follow in respect of the decision of the Director of Immigration which I am satisfied simply follow on from the decision of the Commissioner, to cancel her permit to enter and reside in Solomon Islands.

ORDERS OF THE COURT:

1. ;&nspp; IsSUE ORDER OF CERTIORARI AND DIRECT THAT THE DECISIONS OF THE COMMISSIONER OF LABOUR DATED 28TH JULY 1998 AND OF THE DIRECTOR OF IMMIGN DATH AUG998 B RE INTO THIS COURT ANRT AND QUAD QUASHED SHED FORTHFORTHWITH.WITH.

2. COSTS OF THE CPPLITONT TO BE BORNE BY THE &&;bsppspnbbRES .

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THE COURT