Wilson v Lini [1990] VULawRp 4; [1980-1994] Van LR 483 (19 November 1990)

[1980-1994] Van LR 483

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

Civil Case No. 95 of 1990 (No. 1)

BETWEEN:

PETER JOSEPH WILSON and
AILEEN ELIZABETH WILSON
Plaintiffs

AND:

WALTER HADYE LINI
First Defendant

AND:

ATTORNEY GENERAL
Second Defendant

Coram: ACJ Goldsbrough

JUDGMENT

[CONSTITUTIONAL LAW - INJUNCTIONS - interlocutory application - IMMIGRATION - natural justice considerations]

This application, brought by the plaintiffs, is for interlocutory orders. Notice of the application was given to the defendants and counsel for all parties attended the application and made their respective submissions to the Court.

The application requested the Court to consider two separate issues, the first being for orders restraining the defendants from further exercise of their powers under the Immigration Act [Cap. 66] and the second to set "a timetable for completion of interlocutory steps". As indicated during the course of the hearing I do not propose to deal with that second matter here and give counsel leave to address that question at a subsequent hearing if it is still an issue.

The relevant facts, briefly, are these. The plaintiffs sought and were granted leave to apply for certiorari against a decision of the first defendant made on 15 September 1990. In addition they made application for an order declaring section 17 of the Immigration Act unconstitutional and invalid. On grant of leave to apply for certiorari the Court made an interlocutory injunction restraining the defendants from acting upon the decision of the 15th September 1990. On application by the defendants for the removal of that injunction the defendants through counsel indicated to the Court that the decision of the first defendant had been reversed and the plaintiffs therefore restored to the legal status they enjoyed prior to that decision being made. The interlocutory order was removed, and the substantive matter adjourned sine die, counsel indicating that they were not in a position to deal with these issues.

This application arises as a result of a further decision of the first defendant made on 13 November, ordering Peter Joseph Wilson to be removed from Vanuatu on 2 December 1990 and to remain out of Vanuatu indefinitely.

Thereafter he is to be a prohibited immigrant within the terms of s.15 of the Immigration Act.

Counsel for the plaintiffs made their submissions substantially in writing. On behalf of the defendants counsel responded to those submissions. I do not propose to set those submissions out in full here.

The questions which the Court is required to consider when dealing with an application for such interlocutory relief as is sought in this case are well established, as counsel agreed, and amply set out in American Cyanamid Co. v. Ethicon Ltd [1975] UKHL 1; [1975] 1 All ER 504. The first question is whether the Court is satisfied that the claim is not frivolous or vexatious. If it is so satisfied the second question is whether the balance of convenience lays in favour of granting or refusing the interlocutory relief that is sought.

Counsel for the defendants did not trouble the Court with submissions on the second question as they submitted that the Court could not be satisfied that the plaintiffs had raised any serious question to be tried in the statement of claim and accompanying affidavits. It is my view that the balance of convenience clearly lies in favour of interlocutory relief being granted to the plaintiffs when one considers the relevant questions in particular that the effect of the order of the 13 November 1990 will be to preclude the plaintiff Peter Joseph Wilson from presenting his case to the Court for determination.

I therefore consider the matter which needs further consideration is whether the plaintiffs have raised a serious issue to be tried. Counsel for the defendants put their submission on that question firmly and eloquently. They contended, inter alia, that the plaintiffs could never succeed in obtaining a permanent injunction against the first defendant on the issues raised by them and that therefore interlocutory relief should not be available to them; that the plaintiffs had not shown any Constitutional right to have been violated.

In that I cannot imagine circumstances in which any Court could make a permanent order addressed to the Minister of Immigration restraining him from exercising his legitimate powers against any particular individual. I am inclined to agree with the Attorney General on that point. On the Constitutional rights issue I am less certain.

It was his contention that in exercise of his powers under section 17 Immigration Act (the power to remove persons from Vanuatu) the Minister for Immigration was not under a duty to act fairly, in other words that the rules of natural justice do not apply in these circumstances.

Counsel for the defendants then submitted, quite properly and fairly, their contention as to section 17 of the Immigration Act (the power to remove persons from Vanuatu) under which the order of 13 November 1990 was made, in response to the plaintiffs' submissions on that legislation. They contended that the duty to act fairly should not be implied into that section or that the rules of natural justice should not be imputed to the section.

Whilst it is established that legislation can expressly or by necessary implication provide that a person affected is not to be given the right to be heard, that goes against the general principle of law that a public officer given the power to exercise such powers as provided by this Act should not exercise those powers without first affording those affected an opportunity of being heard and of making representations.

I consider that even if this were the only question raised by the plaintiffs it is sufficient for me to conclude that there is a serious question to be tried.

The interlocutory relief sought is therefore granted and the defendants their servants and agents are restrained from doing anything or in any way acting upon the order of 13 November 1990 or any other act, order, or declaration relating thereto to interfere with the full rights and privileges of the plaintiffs Peter Joseph Wilson and Aileen Wilson to remain, reside, work and move anywhere in or out of the Republic of Vanuatu pursuant to their permits pending the hearing.

Costs of this application shall be costs in the cause.

Draft orders to be submitted for approval and sealing by the plaintiffs.

By order of the Court.

19 November 1990

E.P. GOLDSBROUGH
ACTING CHIEF JUSTICE