| Fiji Islands - The State v Permanent Secretary for Public Service Commission; Ex parte Khan - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
JUDICIAL REVIEW NO. 5 OF 1998
THEESTATE
v
1. THE PERMANENT SECRETARY FOR PUBLIC SERVICE COMMISSION
2. THE DIRECTOR OF IMMIGRATION
3. THE ATY GENERAL OF FIJI
Ex parte:
<SHERINA BEGUM KHAN
Mr. I. Fa fo Applicaplicant
Mr. D. Singh for the Respondents
JUDGMENT
Pursuant to leave granted on 11 M1998 SHERINA BEGUM KHAN (the "Applicant") moves for judicial review of thef the decision of the 1st Respondent (the "PSC") dismissing
the Applicant from employment with the 2nd Respondent (the "DOI") on 3 January 1998 pursuant to Regulation 51(1)(a) of the Public Service Commission (Constitution) Regulations 1990 (the "regulations").
Relief sought
The relief sought are (a) an order of certiorari to quash the decision of the 2nd Respondent dated 23 January 1998, (b) a declaration
that the dismissal on the charges laid is irregular, void and is of no effect in that the Applicant was denied natural justice, (c)
a declaration that the Respondent acted ultra vires in that it failed to comply with the requirements of sections 41(1) of the regulations
hence the decision is irregular, void and is of no effect, (d) a declaration that the 2nd Respondent acted unreasonably to dismiss
because it had predetermined the matter, and (e) an order for damages and costs.
Grounds of relief
The grounds on which the various reliefs are sought are as follows (as contained in the Application for Judicial Review):
i) That the 2nd Respondent in dismissing the Applicant from the Civil Service pursuant to Section 51(1)(a) of the PSC Regulations
1990 had failed to comply with the requirements of the provisions of Regulations 41(1) of the PSC Constitution Regulations 1990 and
as such had acted ultra vires in arriving at its decision.
ii) That the 2nd Respondent in dismissing the Applicant from the Civil Service had acted in breach of the Rules of Natural Justice
in failing to hear the Applicant during the course of its investigation or after completing its investigation and dismissing her
from the Public Service.
iii) That the 2nd Respondent in proceeding to discipline the Applicant in accordance with Regulation 41(1) of the PSC Constitution
Regulations 1990, had failed to make a determination in accordance to law as required by the said Regulation.
iv) That the 2nd Respondent's decision of the 23rd of January, 1998 in proceeding to dismiss the Applicant from the Civil Service
was biased and had predetermined this matter.
About the Applicant
Prior to her dismissal on 23 January 1998 the Applicant held the position of an Immigration Inspector Class 11 with the Department
of Immigration, Suva Office and has been employed in the Civil Service for almost seven years having commenced work with the 2nd
Respondent (DO1) on 16 July 1990. She is married with a son.
On 3 November 1997 the Applicant was charged by DO1 with six counts of disciplinary offences under reg. 36. The charges relate to
alleged breaches by the Applicant of regulations 36(a), 36(d), 36(i), 35(l) and 36(t). She was asked by DOI to admit or deny the
charges. On 14 November 1997 she responded by denying the charges except that she said that she did not have "any intention
to deliberately make false declaration" when she endorsed on the Passport Application that "applicant is known to me personally".
These charges appear to have arisen out of the Criminal proceedings against the Applicant where she was charged with criminal offences
under sections 317 and 111 of the Penal Code in Criminal Action No. 2156/96. Charges were subsequently withdrawn after she pleaded not guilty and after she agreed to co-operate
with the Director of Public Prosecutions in the course of their investigation concerning one Rahmat Ali in a passport scandal in
which he was allegedly involved.
Then on 23 January 1998 the PSC dismissed her from the Civil Service which arose when she was found guilty of the disciplinary charges
against her.
The issues
The issues for Court's determination are:
a) Whether the 2nd Respondent is in breach of Regulation 41 of the PSC Constitution Regulations in arriving at its decision?
b) Whether the 2nd Respondent is in breach of the common law principle of Double Jeopardy?
c) Whether the procedure adopted by the 2nd Respondent in arriving of its decision was in breach of the requirement of the principles
of Natural Justice?
The regulations - statutory provisions
The various regulations for Court's consideration are as hereunder (outlined for ease of reference).
The procedure pertaining to disciplinary offences are contained in regulation 41. It provides:
Major Offence
Regulation 41:-
(1) If a Permanent Secretary or Head of Department, or any officer acting properly with the authority of the Permanent Secretary or
Head of Department has reason to believe that an officer of his Ministry of Department has committed a disciplinary offence which
the Permanent Secretary or Head of Department regards as a major offence (or one of a series of minor offences which should be treated
as a major offence) he shall charge the officer with having committed the alleged offence and shall forthwith serve the officer with
a written copy of the charge against him and the particulars of the alleged offence, in which event the following provisions of this
regulation will apply.
(2) The officer charged shall by notice in writing be required to state in writing within a reasonable time to specified in such notice
whether he admits or denies the charge and shall be allowed to give the Permanent Secretary or Head of Department an explanation
if he so wishes.
(3) Where an officer fails to state in writing under sub-regulation (2) whether he admits or denies the charge he shall be deemed
to have admitted the charge.
(4) The Permanent Secretary or Head of Department shall require those persons who have direct knowledge of the allegation to make
written statements concerning it.
(5) The Permanent Secretary or Head of Department shall forthwith forward to the Commission the original statements and relevant documents
and a copy of the charge and of any reply thereto together with his own report on the matter and the Commission shall thereupon proceed
to consider and determine the matter.
(6) If the truth of the charge is admitted by the officer concerned, or if the Commission after consideration of the reports and documents
submitted to it under sub-regulation (5) and after such further investigation or inquiry as it considers necessary is satisfied as
to the truth of the charge it may after taking into account the service record of the officer impose any of the penalties specified
in regulation 51.
(7) If any charge is established under the provisions of this regulation and the Commission is satisfied that any act, omission or
default involved in that finding resulted in ascertained or assessable damage to property or loss to the Government of Fiji, the
Commission may recommend to the Permanent Secretary for Finance that, in addition to any penalty may lawfully be imposed under regulation
51, recovery of an amount not exceeding the amount of such damage or loss be effected by the Minister responsible for Finance under
the powers vested in him by virtue of section 63 of the Finance Act, 1981.
Regulation 51(1) provides:
"51. - (1) Any one or more of the following penalties may be imposed by the Commission by disciplinary proceedings brought against
any officer in respect of misconduct or indiscipline:
(a) dismissal, that is termination of appointment.
(b) reduction in rank, that is, removal to another grade with an immediate reduction in salary;
(c) reduction of remuneration;
(d) no merit increase in salary for a specified period;
(e) fine not exceeding $500;
(f) reprimand."
Regulation 53 provides:
"An officer acquitted of a Criminal charge in any Court shall not be dismissed or otherwise punished in respect of any charge
of which he has been acquitted, but nothing in this regulation shall prevent his being dismissed or otherwise punished in respect
of any other charge arising out of his conduct in the matter, unless such other charge is substantially the same as that in respect
of which he has been acquitted".
The Applicant's contention
The learned counsel for the Applicant argues that there has been a 'procedural impropriety' on the part of DO1 in not complying with
r.41(4), (5) and (6). He said that these procedures provide for assessing whether the Applicant has committed a major offence and
whether the Applicant should be dismissed or not. Because it has not followed these procedures the decision is ultra vires and unlawful.
Also by not giving her the opportunity of being heard on the allegations against her before penalising and imposing sanctions the
DO1 has failed to observe the principles of natural justice whereupon the career interest and reputation of the Applicant have been
adversely affected.
Mr. Fa submits that under r.41(4) the Permanent Secretary was mandatorily obliged thereby to "require those persons who have direct knowledge of the allegation to make written statements concerning it". He says that no such requirement has been fulfilled in evidence before this Court, neither were such written statements served on
the Applicant before her dismissal. Also r.41(5) was not complied it. There is no proper evidence before this Court that this was
done.
Mr. Fa further submits that under r41(6) to be "satisfied as to the truth of the charge" the DO1 should have conducted an
investigation into the allegation and consider the Applicant's reply in light of the fact that the allegations are denied and they
relate to penal offences punishable under sections 111 and 312 of the Penal Code. He said that the Applicant should have been accorded natural justice which is simply the requirement of procedural fairness.
The learned Counsel further submits that the Applicant ought to have been given an opportunity to state her case clearly before a
Disciplinary Tribunal with an opportunity to fully defend herself and cross-examine her accusers.
He submits finally that even if DO1, was not in breach of the procedures under r41, the Applicant should have been heard on the imposition
of penalty. In this regard he refers to the Court of Appeal case of Permanent Secretary for Public Service Commission & Permanent Secretary for Education v Epeli Lagiloa (Civ. App. No. ABU 0038 of 1996 FCA p.16).
Respondents' contention
It is the Respondents' submission that there is no requirement for the institution of any disciplinary proceedings under r41(6) or
51(1). Regulation 51(1)(a) allows the Commission to dismiss an officer. Opportunity was given to the Applicant to make representations
to rebut the charges.
The learned Counsel Mr. D. Singh submits that to require a hearing as of right when a statute clearly does not require it is detrimental
to the administration of justice. He said that Lagiloa (supra) does not apply here as the facts are materially different in the instant
case.
The present case requires strict compliance with procedures in processing application by immigrants applying to reside in Fiji because
of the concern for national security and public interest.
Mr. Singh submits that there was no denial of natural justice. He referred to a number of cases in this regard. He says that the case
of FURNELL v WHANGAREI HIGH SCHOOLS BOARD (1973) 2 NZLR 705 PC supports the view that where there is no clear stipulation of a right to be heard then there is no breach of
natural justice if the officer is not heard. He further submits a fortiori in the present case where the facts disclose a major offence
of a serious nature concerning immigrants, there is no breach of natural justice if the applicant was not heard. Mr. Singh further
argues that the nature of the offence, including an assessment of the gravity or seriousness of charges are deciding factors for
the need for a proper hearing in relevant cases based on the facts and evidence where such a provision to a right to be heard is
not provided for.
It is further submitted that there was no need to appoint a disciplinary tribunal under Reg. 44 as PSC had no doubts as to the truth
of the charge. The distinction between Lagiloa and the instant case is that here an explanation was asked from the applicant on the
charges laid against her and nowhere in her written explanation did she request a hearing or calling of witnesses to examine or cross-examine;
the applicant in her explanation made an admission of the charge as a gross over-sight on her part in endorsing the passport application.
In this case there is sufficient evidence and here the right of hearing before imposition of penalty does not arise. Mr. Singh submits
that the PSC proceeded regularly and in accordance with the law.
Mr. Singh distinguishes Lagiloa's case from the present case on the facts as they were different. He says that the question that is vital to the submissions is 'Would
the decision have been any different by the Commission, say for instance, if the right to a hearing were required by law exercised?'
The answer he says is in the negative in relation to both dismissal and penalty.
Consideration of the issues
I have for my consideration both the oral and written submissions of both counsel on the issues before me.
In an application for judicial review the Court is concerned not as much with the merits of the decision as with the process by which
the decision was reached. In REG. v INLAND REVENUE COMMISSION, Ex parte PRESTON [1984] UKHL 5; (1985) A.C. 835 at 862, LORD TEMPLEMAN on this aspect said:
"Judicial review is available where a decision-making authority exceeds its powers, commits an error of law, commits a breach
of natural justice, reaches a decision which no reasonable tribunal could have reached, or abuses its powers".
The courts ensure that the administrative actions are intra vires and keep within the bounds of their authority. These actions will
be ultra vires if they fail to comply with the requirements of certain statutes and by common law. It is important that administrative
actions take into account all relevant considerations and ignore any irrelevant considerations. The decisions must be reasonable;
they must not be biased or pre-determined; they must be exercised with the rights of natural justice in mind, unless a statute, expressly
or by clear implication provides a contrary intention.
In this case the grounds boil down to two main ones. They are, firstly, procedural impropriety and secondly, denial of natural justice.
First ground
Procedural impropriety - whether Reg. 41 breached
One of the issues is whether the second respondent (DO1) is in breach of regulation 41.
The salient facts are: that the decision by the first respondent (PSC) to dismiss the applicant from the Civil Service was made in
writing on 23 January 1998; on 3 November 1997 she was charged with six counts of disciplinary offences under regulation 36 and was
given 14 days within which to admit or deny the charges; on 14 November 1997 she denied the charges (vide annexure SBK17 of applicant's
affidavit) but it is pertinent to note at this stage that she admitted making an entry in the application form which was not true.
She said:
"I then placed a note that the witness was known to me personally. However, later I found to my surprise that instead of writing
"witness is known to personally" I had written "applicant is known to me personally".
The explanation which she gave is:
"I was in the Control Section of the Immigration Department which is a very busy place where lot of immigration activities are
carried outside the office and after normal office hours. I was in a rush to do some urgent work and as a result of this, I may have
written "applicant" rather then "witness". I had explained this to the police in their investigation and also
to the D.P.P.'s Office. As a result of this all charges imposed to me by DPP's Office were formally withdrawn/dropped in the Magistrate's
Court in Lautoka and I was discharged. I was further granted immunity from prosecution and was made a State witness."
The further facts are that: there were criminal proceedings against her and she was charged under sections 317 and 111 of the Penal Code and which said charges were subsequently withdrawn and the applicant was discharged upon being granted immunity on condition that
she appeared as a State witness in another case; upon being charged for criminal offences in State v Sherina Begum Khan Crim. 2156/96 she was interdicted on 18 September 1996.
On 5 August 1997 the DPP informed PSC that "the trial was aborted due to the refusal of State witness to come to Fiji to testify. In the circumstances Mrs. Khan was not
called as a witness, and in the absence of the same State witness no criminal charges can be laid against her. The issue of disciplinary
action is of course a matter for you to consider."
As to what action or steps DO1 took after receiving the applicant's reply to the disciplinary charges, they are contained in the Affidavit
in Reply of JOHN TEVITA, the Director of Immigration. He was satisfied that the charges were established and "in the particular circumstances of this case, nothing more could be gained by requiring statements from other officers."
Mr. Tevita deposes that he is empowered to "appoint, transfer and discipline officers" in his Department pursuant to delegation of Constitutional powers by the Commission in Legal Notice No. 138. He said that there was
"no dispute of facts or any conflicting issue of credibility, that would have mandated an oral hearing. I sincerely believe that
nothing more would have been obtained by conducting a hearing" whereupon he dismissed the Applicant on 23 January 1998.
He has stated in his application that the Applicant's actions have brought disrepute to his Department and has tarnished its image.
As an Immigration Inspector it required strict vigilance on her part. This alleged oversight can put "this nation's security and interest at grave risk". In this case her "endorsement of a passport application and her disclosure of highly confidential immigration information resulted in a number
of Pakistani illegal immigrants obtaining a valid Fiji Passport, when clearly they were not entitled to one". He says that the penalty imposed, namely, dismissal was most appropriate in this case.
It is Mr. Fa's argument that Reg. 53 applied in this case as the Applicant was 'acquitted' of the Criminal charge (Crim. Case No.
215/96). But to me it is clear there was no acquittal; she was discharged. There is a difference between 'acquittal' and 'discharge'.
Therefore no question of Double Jeopardy arises in this case.
It is the decision-making process which the courts will look closely and the ultimate decision to ascertain whether the decision-maker
has acted fairly. One of the grounds of challenge in this case is that there was procedural impropriety.
In COUNCIL OF CIVIL SERVICE UNIONS v MINISTER FOR THE CIVIL SERVICE (1985) A.C. 374 at 408 LORD DIPLOCK explained the parameters of this ground thus:
"I...describe the third head as "procedural impropriety" rather than failure to observe basic rules of natural justice
or failure to act with procedural fairness towards the person who will be affected by the decision. This is because the susceptibility
to judicial review under this head covers also the failure by an administrative tribunal to observe procedural rules that are expressly
laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial
of natural justice."
This ground deals with the process by which the decision was reached and not the outcome. Here the applicant is required to show that
the decision was reached unfairly. This process is also called the 'duty to act fairly' or "natural justice". Each case
has to be considered on the facts and circumstances of each case.
In this case the procedure for coming to a decision are laid down in reg. 41. If there is a failure to follow it there would be a
breach of the requirements of procedural fairness which could make the decision illegal.
I have outlined hereabove in considerable detail the facts and circumstances of this case and how the DO1 came to the said decision.
There is no dispute that this senior immigration officer committed a serious 'offence' by making a false statement and she admitted
doing this. Her act has brought disrepute to the Department in question and serious consequences flowed resulting in prosecuting
her (later withdrawn for reasons already given) and a number of Pakistanis.
The DO1 has given the applicant the opportunity to explain and he had acted in accordance with natural justice. It has even been held
in an immigration case that "as the law stood there was nothing wrong in his obtaining information from other authorities to
check or corroborate the information given by the applicant; nor was he obliged to tell the applicant what he had been told"
[Regina v Secretary of State for the Home Department, Ex parte MUGHAL (1974) 1 QB (C.A.) 313 at 314]. In the case before me there was a clear admission of guilt and the explanation given was not acceptable
and rightly so for the position she held in the Department and hence there was no need to hunt for any other information relating
to the offence.
The Director of Immigration I find was quite justified in following the procedure he did in view of the fact that there was a clear
cut admission of guilt on the applicant's part. How could a Department of Immigration tolerate such carelessness. The blunder that
she has made is something which pertains to an item in the 'application form' which a clerk ought to familiarise himself/herself
with. But for an Inspector in the position of the applicant it is inexcusable. Why should DO1 waste his time looking for any other
information in the face of the admission. You do not hold a hearing for the sake of having one. The DO1 has exercised his discretion
in the matter quite properly. The applicant could not have succeeded any way even if there was a hearing. I adopt what was said by
HOOPER J in Regina v Ministry of Defence Ex parte Murray (The Times Law Report, Q.B. Div. Ct. 17.12.97 p. 33) when he said:
"judicial review was unlikely to succeed where the reasons were easily discernible albeit not expressed or where no other conclusion
than that reached was realistically possible."
On the aspect that 'unfairness can never be ignored if a fair hearing would not have made any difference to the decision taken'. I
refer to what was held in CELIK (Ali) and Celik (Hanife) v Secretary of State for the Home Department [(1991) Imm. A.R. 8, C.A. referred to in CLY p.489 1991 item 1969]. It was held:
"refusing the applications, that (1) there is no principle of law that says that unfairness can never be ignored if a fair hearing
would not have made any difference to the decision taken; (2) since C and his wife had had ample opportunity to see a solicitor between
their arrival at Heathrow and October 2 and never suggested any alternative method of entry with the rules there had been no unfairness
in any event."
Per Staughton L.J.
"ordinarily, if there has been improper procedure, one needs to be roundly convinced that the impropriety made no difference
before one should refuse to act upon it".
The above being the position in this case there was no need for an oral hearing.
My reading of the cases pertaining to immigration lead me to the conclusion that mistakes of the nature before me invariably lead
to an officer's dismissal and less leniency is accorded as in perhaps some other situations. In MUGHAL (supra) at p.325, LORD DENNING M.R. rejected the suggestion that reports should have been put to Mr. Mughal and 'asked for his explanation of them'. He said that the
rules of natural justice 'must not be stretched too far'. His Lordship's statements regarding the status of an immigration officer
are interesting and worth noting. He stated:
"An immigration officer is not a judge or a judicial officer. He has not to obey set rules of procedure. He is an administrative officer. He is engaged in administering the control of immigrants into this country. It is a most responsible
and delicate task. He is, of course, bound to act honestly and fairly: but, so long as he does so the courts cannot and should not
interfere: see In re H. K. (An Infant) [1967] 2 Q.B. 617, 630, by Lord Parker C.J. and In re Mohammed Arif (in infant) [1968] Ch.643, 665. On the evidence in this case I think the immigration
officer acted with scrupulous fairness and thoroughness. When his suspicions were aroused, he made them known to Mr. Mughal. He gave
him every opportunity of dispelling them. If Mr. Mughal had been lawfully settled here, the inquiries which the immigration officer
made would go to help him - to corroborate his story - rather than hinder him. There was no need at all for the immigration officer
to put them to him when they proved adverse. The rules of natural justice must not be stretched too far. Only too often the people who have done wrong seek to invoke "the
rules of natural justice" so as to avoid the consequences. (emphasis mine)
His Lordship further stated that "Where here, he faked an endorsement on a Pakistani passport so as to give himself the appearance of legality. If he were allowed
in, it would encourage others to do the same". By analogy the Department can ill-afford to forgive such lapse on the part of the applicant whose actions have cost the country
thousands of dollars in money terms.
I find that there was no denial of natural justice; there was no failure to give the applicant a chance to state her case. The Director
of Immigration did not act perversely in not being satisfied with her explanation on the evidence before him. No doubt it is his
duty to act fairly which he did. There is no sign of procedural irregularity or unfairness; the DO1 complied with the procedural
requirements of reg. 41 and conducted a most careful inquiry. For these reasons I find that there is no merit in Mr. Fa's argument
that there has been a breach of the requirements of reg. 41.
This ground of her application therefore fails.
Natural justice - second ground
Much of what I said hereabove apply to this ground as well. LORD DIPLOCK in O'Reilly v Mackman [1983] UKHL 1; (1982) 3 All E.R. 1124 at 1126-1127 said that the observance of 'the rules of natural justice' means 'no more than to act fairly towards him in carrying out their decision-making process, and I
prefer so to put it'.
The content of the rules of natural justice are customarily summarised by reference to two maxims:-
(a) Audi alteram partem (the opportunity to be heard); and
(b) memo debit esse judex in propria sua causa (no man should be a judge in his own cause - the "anti - bias" rule).
These rules are examined only if the statute conferring the relevant power either expressly or by necessary implication does not exclude
the rules of natural justice.
On 'opportunity to be heard', in KIOA v WEST [1985] HCA 81; (1985) 159 CLR 550, 584-585, MASON J (as His Honour then was) remarked that:-
"What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia,
the nature of the inquiry, the subject matter, and the rules under which the decision-maker is acting. ...
In this respect the expression "procedural fairness" more aptly conveys the notion of a flexible obligation to adopt fair
procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly,
i.e. in accordance with procedures that are fair to the individual considered in light of the statutory requirements, the interests
of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits
to be taken into account as legitimate considerations .....
Mr. Fa submits that there ought to have been an oral hearing and in the absence of that the decision should be quashed if not on failure
to comply with Reg. 41 then on the question of penalty.
A similar issue as in this case arose in Regina v Immigration Appeal Tribunal, ex parte ENWIA (1984 1 W.L.R. (C.A.) p.11) where it was held as follows and the same can properly be applied to the facts of this case:
"Held, allowing the appeals (1) that under rule 12 of the Rules of 1972 the adjudicator was entitled to determine an appeal without
a hearing and under rule 16(5) the tribunal was bound to dispose of an application for leave to appeal without a hearing unless it
considered that special circumstances rendered a hearing desirable; that although it might be desirable that an applicant who was
refused political asylum should be heard at some stage of the appeal process, the existence of special circumstances depended on
all the facts of the particular case and it could not be said that they existed in every arguable case where asylum was claimed unless
the applicant had had an oral hearing before the adjudicator; and that, accordingly, since there was no evidence that the applicant
in the first case had wanted an oral hearing or that there had been a denial of natural justice it could not be said that there were
special circumstances to render a hearing desirable."
In considering the application of the principles of natural justice in this case I bear the following very important passage right
at the commencement of the judgment of LORD MORRIS OF BORTH-Y-GEST in the House of Lords case of WISEMAN v BORNEMAN (1971) A.C. 297 at 308-309 and that is how I have considered this case on its own facts. LORD MORRIS said:
"My Lords, that the conception of natural justice should at all stages guide those who discharge judicial functions is not merely
an acceptable but is an essential part of the philosophy of the law. We often speak of the rules of natural justice. But there is
nothing rigid or mechanical about them. What they comprehend has been analysed and described in many authorities. But any analysis
must bring into relief rather their spirit and their inspiration than any precision of definition or precision as to application.
We do not search for prescriptions which will lay down exactly what must, in various divergent situations, be done. The principles and procedures are to be applied which, in any particular situation or set of circumstances, are right and just and
fair. Natural justice, it has been said, is only "fair play in action". Nor do we wait for directions from Parliament.
The common law has abundant riches: there may we find what Byles J. called the justice of the common law" (Cooper v. Wandsworth Board of Works [1863] EngR 424; (1863) 14 C.B.N.S. 180, 194)
I find that on the facts and the particular circumstances of this case the DO1 acted fairly so that it could be said that his procedure
did match with what justice demanded to use the words of Lord Morris (supra p.309). Lagiloa's case (supra) on the right to be heard
in person on reg. 41 and reg. 51(1) has no relevance to the facts of this case for an oral hearing will depend on the facts and circumstances
of each case and hence Lagiloa can be distinguished from this case. It is not my understanding that the passage regarding hearing
in Lagiloa is of general application that is, for each and every case.
On the facts and circumstances of this case I do not find anything wrong with the process by which the decision was reached by the
Director of Immigration or that there was anything unfair in not giving an oral hearing to the applicant. There was no denial of
natural justice as far as the applicant is concerned.
For these reasons the applicant has failed in all the grounds of judicial review. The application is therefore refused with costs
to the Respondents to be taxed if not agreed.
D. Pathik
Judge
At Suva
9 November 1998
Hbj0005j.98s
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