| Fiji Islands - Keppel v The Attorney-General of Fiji - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
JUDICIAL REVIEW NO. 32 OF 1997
BETWEEN:
RAPHAEL KEPPEL
Applicant
AND:
THE ATTORNEY GENERAL OF FIJI
Respondent
Mr. Peter Howard for the Applicant
Mr. S. Kumar for the Respondent
JUDGMENT
This is an application for judicial review of the purported written decision of the Minister for Justice and Home Affairs made on
15 September 1997 when the Director of Immigration declined the Applicant's application for extension of his work permit. For full
text of the decision vide infra.
The application for leave for judicial review was made on 3 October 1997 and objection to it was filed on 7 October. There was inter
partes hearing on 23 October and written decision was given by me on 11 November 1997. The hearing of the judicial review took place
on 14 January 1998 when written submissions by both counsel were handed to Court. Shortly thereafter I proceeded on leave and did
not resume work until recently.
Declarations and orders sought
By his Notice of Motion dated 21 November 1997 the Applicant is seeking the following declarations and Orders:
(a) A Declaration that the Minister for Justice and Home Affairs decision to decline the Applicant's application for extension to
his work permit on or about 15th September, 1997 is null and void and of no effect.
(b) A Declaration that the Minister for Justice and Home Affairs and/or Director of Immigration's statement that there is no provision
for appeal is null and void and of no effect.
(c) A Declaration that the Minister for Justice and Home Affairs and/or Director of Immigration instructions to leave the country
within seven (7) days from 15/9/97 is null and void and of no effect; and
(d) A Declaration that the Minister for Justice and Home Affairs and/or Director of Immigration instructions that the Applicant's
two eldest sons namely Gunnar Keppel and Lars Keppel also leave the country within seven (7) days is null and void and of no effect.
(e) An order that Certiorari do issue quashing the said decisions of the Minister for Justice and Home Affairs.
(f) An Order that the leave shall operate as a stay on the decisions of the Minister for Justice and Home Affairs.
(g) An Order that the leave shall operate as a stay of execution and the status quo should remain.
(h) Costs.
Grounds of relief
The grounds of relief are as follows:
(i) The said Minister and/or Permanent Secretary and/or the Director of Immigration has, not only taken into consideration irrelevant
matters, but also has not taken into consideration relevant issues as set out fully in the Decision to grant
Leave of Mr. Justice Pathik dated 11th November, 1997.
(ii) The wrong procedure was used in obtaining the "decision" of the Minister as per the ruling in Victor Jan Kaisiepo and the Minister for Immigration of the FIJI COURT OF APPEAL, (Civil Appeal No: ABU0054 of 1996S) Date of delivery of Judgement: 14 November, 1997 by Sir Ian Barker,
Mr. Justice I.R. Thompson and Mr. Justice R. Savage (Judges of Appeal).
The facts
Before dealing with the issue before me it is necessary to set out the facts in some detail.
The applicant came to Fiji on 3 September 1989 and made an application for a permit to work as Manager Director of German Archive
Limited. On 18 September 1989 the Fiji Trade and Investment Board approved his project to set up a publishing company, that is, to
register all available statistical data about football and publishing books about it. The Company (Co. No. 8261) was registered on
11 October 1989. There was change of name to World Football Souvenirs Limited on 18 January 1994. He left on 22 September 1989 and
returned on 2 January 1990. The work permit was issued on 16 January for the Applicant to be self-employed as Managing Director of
the Germans Football Archives Limited. This permit was valid up to 12 January 1993, it was extended to be valid until 12.1.94 and
then to 12.2.94; and it was further extended to 12 January 1997 (this included permits for his two eldest sons).
Further facts about the applicant (as stated in the "Statement of Fact" document) are as follows:
His latest application for extension of his work permit has been refused by the Minister for Justice and Home Affairs on 15th September,
1997. No reasons have been given for the refusal nor was the Applicant given the opportunity to put his case to the Director of Immigration
or to the Permanent Secretary for Justice and Home Affairs or to the Minister for Justice and Home Affairs. He was told that there
was no appeal and must leave within 7 days.
THE Applicant applied for Fiji Citizenship on 13th June, 1995 and paid the application fees of $550.00 (Five Hundred and Fifty dollars).
On 26th July, 1995 the Director of Immigration wrote to the Applicant and requested that "you have to provide proof of your
contribution to the advancement of the nation so that we may process your application further". The applicant duly complied
but despite numerous enquiries over the last two years for a decision none has been forthcoming. He has been told that his application
is still being processed.
Further facts about the applicant (from "Statement of Fact") are:
THE Applicant is married (on 30.10.92) to a Fijian Woman namely Kasanita Raluve who is a citizen of Fiji with two sons born in Fiji. He has two other sons from a previous marriage in Germany who are living with his Fijian family. The eldest
son Gunnar Keppel is in his final year of a three year Bachelor of Science degree course at the University of the South Pacific.
The second eldest son, Lars Keppel is in fifth form at Suva Grammar School. The two eldest son are German citizens holding German
passports and are in Fiji on the basis of their father's work permit.
One son SETAREKI KEPPEL was born on 31.7.93 at Nausori Maternity Unit and the second son RAPHAEL (JNR) KEPPEL was born on 15.3.96.
The Applicant has built a large modern house for his family at his wife's village in Koronivia Road in Toga, Rewa.
On 9 January 1997 he applied for another three year extension to his work permit and paid the required fees on 21 February 1997. On
17 September 1997 he was served a reply dated 15th September 1997 under the name of the Director of Immigration in the following
terms:
We refer to your application for the extension of your work permit.
After carefully considering the request, my Minister has decided that the application be declined.
As such there is no provision for appeal and you should now make arrangement to leave the country within seven (7) days from the date
of this letter together with your two sons namely GUNNAR KEPPEL and LARS KEPPEL.
Please advise the date and means of departure.
Applicant's contention
The applicant contends that he has not been given the opportunity to answer any adverse reports against him given to the Immigration
Department and the Ministry of Justice and Home Affairs; and that no reasons have been given for the refusal of the extension of
his work permit. For these reasons he says that there has been a denial of natural justice.
Mr. Howard submits that the Immigration Department has adopted a wrong procedure in this case and in support of that he referred the
Court to the said case of KAISIEPO (supra).
He further submitted that there has been a breach of the provisions of s18 of the Immigration Act (Cap.88) in that the applicant has been denied the right of appeal to the Minister. His submission is:
(a) The Immigration Officer, the Immigration Department's Work Permit Committee, the Director of Immigration and the Permanent Secretary
have in this case deliberately acted in concert or have conspired to deny the Applicant/Plaintiff his right of appeal by seeking the Minister's decision to treat him
as a Prohibited Immigrant" in accordance with the "Proviso" in Section 18(1) of the said Act. It is submitted that
the "Immigration Officer's" decision to treat the Applicant/Plaintiff as a Prohibited Immigrant should also be subjected
to appeal.
He further argues:
(b) The Applicant/Plaintiff has shown in paragraphs 8 to 17 (inclusive) of his Affidavit In Reply dated 5cember 1997,1997, that the Immigration Department had taken into account irrelevant matters when making their decision to recommend
to the Minister to decline the Applicant/Plaintiff's application for a renewal of his work permit.
Respondent's contention
The Respondent's reply to the Applicant's affidavit is contained in the affidavit of MOHAMMED YUNUS, the Principal Immigration Officer,
sworn 25 November 1997.
The salient points in the Reply are:
(a) that the Minister is not obliged to provide reasons for the decision.
(b) necessary investigation was done while processing the application and the Respondent had information that (i) a 'false death Certificate' was sent to the Immigration Department by the German Honorary Consul, (ii) the applicant was convicted of Aeroplane hijacking in
1979 and sentenced to 3 years and 6 months imprisonment; and (iii) that the applicant is wanted for arrest by the Kassel Public Prosecutor's
Office in Germany for fraud.
Mr. Yunus says that the procedures after receipt of above information on the application is as stated by him in his said affidavit
as follows:-
10. THAT above information were placed before the Immigration Work Permit Committee which is chaired by the Permanent Secretary for Home Affairs
and Immigration.
11. THAT the said committee considered all relevant information made available to them, in particular, the false death certificate, the conviction
and the fact he is wanted for arrest in Germany. The committee agreed that the Applicants work permit extension be refused and referred
it to the Minister for Home Affairs and Immigration under section 11(2) (f) & (g), the Minister agreed with the working committee's
recommendation annexed hereto is marked with "MY3" the communication from the Permanent Secretary for Home Affairs &
Immigration to the Minister, and from the Minister to the Permanent Secretary and from Permanent Secretary to the Director of Immigration.
12. THAT further investigation was carried out as to the confirmation of information on hand.
13. THAT it was confirmed by the Permanent Secretary for Home Affairs and Immigration that he had received similar correspondence. Subsequently
on the 24th of November, 1997, the Interpol section of the Fiji Police Department received further confirmation; annexed hereto marked
as "MY4" and "MY5" respectively.
The Respondent submits that he took into account "all relevant considerations and left out all irrelevant considerations"; and that the applicant has not been denied natural justice "as he was informed of developments pertaining to the processing of his application".
The learned counsel for the Respondent Mr. Sunil Kumar submits that the procedure that has been followed by the Respondent is as contained
in the said affidavit of YUNUS. He says that the Permanent Secretary's (the "PS") power is delegated to YUNUS pursuant to section 3(1)(2) & (3) of the Immigration Act Cap. 88 (the "Act").
Under s.4 Immigration Officers carry out investigation work; sec 8 empowers the PS to grant work permits. Section 11 defines the "prohibited immigrants" and the relevant sub-paragraphs are (f) and (g).
Mr. Kumar submitted that in view of the information on hand on the Applicant the Respondent was entitled to act under s.11(g) of the
Act. He said that the applicant had obtained the work permit through 'deception by not declaring the correct offence for which he was charged'. Therefore, he says the work permit granted him is in breach of "immigration controls rendering the Applicant an illegal entrant".
The learned counsel further submitted that in this case 'National security' comes into play, hence rules of natural justice do not apply.
On the allegation of bias he said that the applicant should demonstrate that the decision is Wednesbury unreasonable.
Finally Mr. Kumar argued that in the light of the information on hand in regard to the Applicant, particularly the 'false' death certificate and his conviction and sentence of 3½ years in Germany, the Applicant falls under s11(f) and (g) of the Immigration Act Cap.88 which would be an offence in Fiji; also that he is an undesirable immigrant on the above information from Interpol Germany
regarding him being wanted for national arrest for an offence of fraud.
Mr. Kumar submits that it is in the Minister's discretion to uphold, vary or revoke decision of immigration officer. Thus, he says,
the system works as a team and there are no procedural errors when the Minister used his discretion to refuse Applicant's permit
to reside in Fiji.
The Respondent denies that there was any breach of natural justice and that the Immigration Officer and the Minister acted without
bias based on the facts at hand that the Applicant was a convicted person for more than 2 years and also wanted for an offence of
fraud, thus he is an undesirable immigrant.
Mr. Kumar sums up by saying that the Respondent took into account all relevant consideration and left out all irrelevant consideration
and came up with a reasonable decision which any reasonable person would have come to in the given circumstances.
Consideration of the issue
It is on the facts outlined above and the submissions made by both counsel that I will now consider the issue before me in this judicial
review.
The Law
There are certain principles applicable when considering an application for judicial review. In a judicial review the Court is "not as much concerned with the merits of the decision as with the way in which it was reached" [CHIEF CONSTABLE OF THE NORTH WALES POLICE v EVANS [1982] UKHL 10; 1982 1 W.L.R. 1155 at 1174]. Also, as put by LORD TEMPLEMAN in REG. v INLAND REVENUE COMMISSIONER, Ex parte PRESTON [1984] UKHL 5; (1985) A.C. 835 at 862:
"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".
In a judicial review the Courts ensure that 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.
The case before me involves the interpretation of the various provisions of the Immigration Act (Cap. 88) (the 'Act') and this application requires me to consider whether the "process" by which the decision was reached is authorised or valid. I am not here to consider the merits or otherwise of the ultimate decision;
but sometimes the distinction between the decision-making process and examination of the merits of the decision itself is difficult
to make.
Like in any judicial review the basic question is has the decision-maker acted intra vires or within the discretion conferred reasonably
and fairly.
The Applicant's history reveals that he has been legally in Fiji from 21 July 1989 until 15 September 1997 when he was told to leave
the country. It appears that there was no impediment in that period for his work permit to be renewed from time to time. There was
the legitimate expectation that his application will be renewed further. However, much to his astonishment he is told to leave Fiji
by letter dated 15 September 1997 without any indication as to any adverse report against him.
The circumstances which led to this decision are outlined in the Affidavit in Reply of MOHAMMED YUNUS, the Principal Immigration Officer
in the Immigration Department sworn 28 November 1997 and filed the same day.
On whether there is need for the Minister to give reasons for his decisions, Mr. Yunus said that he "is not obliged to provide reasons as there is no provision under the Act which requires him to do so". No doubt as a general rule he is not required to state the reason for his decision but in the case history of this Applicant who
has been in Fiji for so long without any adverse report, it would have been prudent to have done so on the part of the Immigration
Officer so that the Applicant could have had the opportunity of answering any adverse report against him. Most of the authorities
(immigration cases) that I have looked at all emphasise the need to give an applicant the opportunity to reply to any adverse report
against him before a decision is made (SALAMAT ULLAH KHAWAJA and SECRETARY OF STATE FOR THE HOME DEPARTMENT [1982] UKHL 5; (1983) 2 W.L.R. 321 (HL) DAGANAYASI v MINISTER OF IMMIGRATION (1980) 2 NZLR 130 (CA)), REGINA v SECRETARY OF STATE FOR THE HOME DEPARTMENT, Ex parte MUGHAL (1974) 1 Q.B. 313 (CA), IN re H.K. (An Infant) (1967) 2 QB 617 (CA).
Mr. Yunus says that "the Applicant should have assessed his chances of success bearing in mind his adverse records". How can he, unless he was informed of the "adverse records" which were taken into consideration in rejecting the application. If anything, looking at the granting of work permit in the past
he had good reason to believe that further extension of work permit would be granted him but instead he was hit below the belt with
complete denial of natural justice.
Mr. Yunus stated how armed with certain information against the Application received in June 1996 and after certain procedures were
adopted to consider the allegations culminated in the Minister 'agreeing' with the Working Committee recommendation (MY3) that the Applicant's work permit extension be refused.
On MY3 the Minister endorsed as follows:
"I agree with recommendation to decline extension - particularly with what we know about the man - but it will be useful to get
confirmation from the German authorities or INTERPOL". (underlining mine for emphasis)
My view on the above is that it was a conditional refusal. The Immigration Officers should have gone back to the Minister after "confirmation" as required by him as that would have been the proper thing to do. This they did not do. What the Minister would have done if the
matter was referred back to him is anybody's guess particularly in the light of the fact that the matter of "false death certificate" was not pursued to ascertain how it all came about and also as stated in MY3 that "the German counterpart has confirmed that they will not request for extradition of Keppel" for alleged fraud.
On the facts before me I find that there was unfairness in the manner in which the decision was reached. This is an important head
of challenge. The Applicant had not been given a fair opportunity to make representation so that the decision-maker may become fully
acquainted with all the relevant considerations before reaching a decision. The Applicant should also know the case he has to answer.
Hence there is a duty to act fairly. On the aspect of 'fairness' I find the following passage from the judgment of LORD MUSTILL in DODDY v SECRETARY OF STATE FOR THE HOME DEPARTMENT (1995) 3 All E R 92 at 106 pertinent:
(1) Where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which
is fair in all the circumstances.
(2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application
to decisions of a particular type.
(3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on
the context of the decision, and this is to be taken into account in all its aspects.
(4) As essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of
the legal and administrative system within which the decision is taken.
(5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make
representations on his own behalf either before the decision is taken with a view to producing a favourable result, or after it is
taken, with a view to procuring its modification, or both.
(6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests
fairness will very often require that he is informed of the gist of the case which he has to answer."
Statutory provisions
In the Immigration Act (Cap.88)(the 'Act') there are specific provisions regarding permits to enter and reside in Fiji (s8). The said s8 provides:
"8. - (1) The Permanent Secretary may issue a permit in the appropriate form to any person entitling him to enter and reside
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 within 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:
Provided that, except with the approval of the Minister, no such permit may be issued to any person who is unlawfully in Fiji, is
in lawful custody or is a patient in a mental hospital.
(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 the Permanent Secretary who is empowered to issue a permit and all communications in this regard should be signed by him unless
otherwise provided by law.
Furthermore, the Act makes specific provision in s18 for a person aggrieved by a decision of an immigration officer to appeal to the
Minister. Section 18 provides:
"18. - (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.
(2) The Permanent Secretary may grant to any person, not being a prohibited immigrant, and to any member of his family, who intends
to appeal to the Minister under the provisions of subsection (1) or who seeks to take action available to him, before a court, to
obtain redress against the decision of an immigration officer, an interim permit allowing him to enter or to remain in Fiji pending
the determination of such appeal or action:
Provided that any such appeal or action is lodged or commenced within fourteen days of such decision.
(3) No permit shall be granted under this section unless the Permanent Secretary is satisfied that the person concerned is unlikely
to become a charge on the public during the currency of the permit. Any such permit may be cancelled by the Permanent Secretary if
the person concerned appears likely to become a charge on the public or if the appeal or action is not prosecuted within such period
of fourteen days, and if not cancelled shall expire on the giving of a decision by the Minister."
In this case the Immigration Officer and/or the Permanent Secretary has not followed the procedure laid down in the Act. Parliament
had entrusted the Minister with responsibility for making the relevant decision. Sadly, in this case he made no firm decision but
told the Immigration Officer and/or Permanent Secretary to confirm certain allegations. This confirmation if any was not referred
to the Minister at all. Hence it cannot be said that the Minister himself had made the final decision. It is quite obvious from the
Affidavits that it was the Immigration Officer who made the decision and communicated same to the Applicant. What is of great concern
is the fact that the Immigration Officer has taken away the Applicant's right of appeal to the Minister.
Therefore, the whole procedure in arriving at the alleged decision was ultra vires the provisions of the Act. On the facts of this
case all the arguments put forward by Mr. Kumar regarding the Applicant being a "prohibited immigrant" and the applicability of s11(g) of the Act have no relevance to this case. His application should have been considered under s8 by
the Permanent Secretary and not by-pass it and at the same time denying the Applicant his rights under s18. However in an appropriate
case provisions relating to "prohibited immigrant" could apply but not on the facts of this case.
Upon a careful analysis of the facts of this case and the procedure adopted by the Immigration Officer (as described by him in his
said affidavit) I find that the decision in this case is "Wednesbury unreasonable". It was said by LORD TEMPLEMAN in the House of Lords BRIND v SECRETARY OF STATE [1991] UKHL 4; (1991) 1 All E.R. 720 at 725:
"The English courts must, in conformity with the Wednesbury principles (see Associated Provincial Picture Houses Ltd v Wednesbury
Corp [1947] EWCA Civ 1; (1947) 2 All ER 680, (1948) 1 K.B. 223) discussed by Lord Ackner, consider whether the Home Secretary has taken into account all relevant matters and has ignored irrelevant
matters ...... If these conditions are satisfied, then it is said on Wednesbury principles the court can only interfere by way of
judicial review if the decision of the Home Secretary is 'irrational' or 'perverse'.
In BRIND (supra) at 737 LORD LOWRY talking of "Wednesbury unreasonableness" stated that statements in cases pertaining to this principle "emphasise the legal principle that judicial review of administrative action is a supervisory and not an appellate jurisdiction". He goes on to say on "Wednesbury unreasonableness" that:
"I believe that the subject is nowhere better discussed than by Sir William Wade in his authoritative textbook Administrative
Law (6th edn, 1988) ch 12 'Abuse of Discretion' pp 388-462. The learned author, with the aid of examples covering more than a century,
clearly demonstrates that what we are accustomed to call Wednesbury unreasonableness is a branch of the abuse, or misuse, of power:
the court's duty is not to interfere with a discretion which Parliament has entrusted to a statutory body or an individual but to
maintain a check on excesses in the exercise of discretion. That is why it is not enough if a judge feels able to say, like a juror
or like a dissenting member of the Cabinet or fellow-councillor: 'I think that is unreasonable: that is not what I would have done.'
It also explains the emphatic language which judges have used in order to drive home the message and the necessity, as judges have
seen it, for the act to be 'so unreasonable that no reasonable minister etc would have done it'. In that strong, and necessary, emphasis
lies the danger. The seductive voice of counsel will suggest (I am not thinking specifically of the present case) that, for example,
ministers, who are far from irrational and indeed are reasonable people, may occasionally be guilty of an abuse of power by going
too far. And then the court is in danger of turning its back not only on the vigorous language but on the principles which it was
intended to support. A less emotive, but, subject to one qualification, reliable test is to ask: 'Could a decision-maker acting reasonably
have reached this decision?' The qualification is that the supervising court must bear in mind that it is not sitting on appeal,
but satisfying itself whether the decision-maker has acted within the bounds of his discretion. For that reason it is fallacious
for those seeking to quash administrative acts and decisions to call in aid decisions of a Court of Appeal reversing a judge's finding,
it may be on a question of what is reasonable. To say what is reasonable was the judge's task in the first place and the duty of
the Court of Appeal, after giving due weight to the judge's opinion, is to say whether they agree with him. In judicial review, on the other hand, the task of the High Court is as described above, and the task of the Court of Appeal and, when necessary this House is to decide whether the High Court has correctly exercised its supervisory jurisdiction." (underlining mine for emphasis)
I have relied heavily on the principles enunciated in the above-quoted passage in coming to the decision to which I have come. The
facts and circumstances of this case called for an answer from the Applicant particularly on matters of alleged false death certificate
and alleged assertion that the Applicant is wanted elsewhere on fraud charges. I should not be taken to be understood that the Immigration
Officer has to give reasons for refusal in every case for there are very wide powers vested in the Officers in immigration matters.
In cases where such wide discretionary powers are given the Courts will be loathe to intervene. At common law, there is no general
requirement that reasons be given for administrative decisions, even those made in the exercise of a statutory discretion and liable
adversely to effect the interest, or defeat the legitimate or reasonable expectations of others (PUBLIC SERVICE BOARD OF NEW SOUTH WALES v OSMOND (1985-1986) 159 CLR 656. But the situation here, as I see it, is such that the decision is reviewable. I think the situation such as the present has been
summed up very well as follows in the immigration case, and I adopt it here, by LORD LANE CJ in REGINA v IMMIGRATION APPEAL TRIBUNAL, ex parte KHAN (MAHMUD) (1983) 2 W.L.R. 759 at 762-3 when he said:
"Speaking for myself, I would not go so far as to endorse the proposition set forth by Sir John Donaldson that any failure to
give reasons means a denial of justice and is itself an error of law. The important matter which must be borne in mind by tribunals
in the present type of circumstances is that it must be apparent from what they state by way of reasons first of all that they have
considered the point which is at issue between the parties, and they should indicate the evidence upon which they have come to their
conclusions.
Where one gets a decision of a tribunal which either fails to set out the issue which the tribunal is determining either directly
or by inference, or fails either directly or by inference to set out the basis upon which they have reached their determination upon
that issue, then that is a matter which will be very closely regarded by this court, and in normal circumstances will result in the
decision of the tribunal being quashed. The reason is this. A party appearing before a tribunal is entitled to know, either expressly
stated by the tribunal or inferentially stated, what it is to which the tribunal is addressing its mind. In some cases it may be
perfectly obvious without any express reference to it by the tribunal; in other cases it may not. Secondly, the appellant is entitled
to know the basis of fact upon which the conclusion has been reached. Once again in many cases it may be quite obvious without the
necessity of expressly stating it, in other cases it may not."
I find in this case the Permanent Secretary and/or the Immigration Officer (Mr. Yunus) in refusing the Applicant the opportunity to
respond to the allegations, on the basis on which the decision was made have acted beyond the powers conferred upon them by Parliament.
They have denied the Applicant natural justice. They also erred in law. The manner in which they went about dealing with this matter
they have denied the Applicant his right to appeal to the Minister in accordance with s18 of the Act by telling him so in so many
words.
In regard to the strict provisions regarding compliance with s18 and s8 of the Act, the observations of the Fiji Court of Appeal in
KAISIEPO (supra) are quite pertinent. There the Court observed that counsel for the Respondent could not "point to any material in the record which showed that the Minister himself considered the matter" (p6 of Judgment). What the Court said is worth noting when it said:
"It appears to us that this is a fatal defect. On the face of it there appears to be an undisposed of appeal to the Minister.
There certainly does not appear to be before us a decision by the Minister, made in accordance with the statutory provisions, to
which an order for certiorari could apply. In our view, though such an order was not included in the application for judicial review,
the Court should make a declaration that there is an undetermined appeal from the Permanent Secretary to the Minister and that it
is his duty to consider and determine that appeal in accordance with s.13 of the Act."
Similarly in this case apparently the Minister refused the permit but suggested "confirmation" of the allegation from appropriate sources. Thereafter, what decision was there by the Minister is not before this Court. So there
was this abrupt end to the investigation culminating in the said decision without requiring the Applicant to answer to the allegations
which as I have already stated was procedurally wrong and ultra vires. The Immigration Officer proceeded the way he did despite the
fact that the Applicant had admitted to the Respondent when he was first granted permit disclosed a prior conviction and that he
was sentenced for a term of 3½ years but was released after serving 28 months. For further details in this regard I refer to FATIAKI
J's Judgment of 13 February 1998 in RAPHAEL KEPPEL and THE ATTORNEY GENERAL OF FIJI (Habeas Corpus Action No. 99/98). The Applicant made a full and frank disclosure and that was all the more reason why the Applicant
should have been given the opportunity to answer the allegations against him rather than acting under the provisions of the Act dealing
with prohibited immigrants.
To conclude, in this case the Officers under the Act were required to exercise a statutory power and make a decision affecting the
basic rights of the Applicant and this imposed on them a duty to act fairly. Their decision is of great importance to the Applicant
in this case and it is implicit in the statutory provisions of the Act that the Officers exercising these powers must act in accordance
with the principles of natural justice. This I find they have failed to do.
In the result, for the above reasons I will grant judicial review of the Respondent's decision declining the Applicant's application
for extension of his work permit on or about 15 September 1997.
It is ordered that certiorari go to quash the purported decision of the Minister for the Applicant "to leave the country within seven (7) days from the date of this letter" (15th September 1997) and that the Respondent is at liberty to deal with the Applicant afresh in accordance with the law; and since
the Applicant's sons were both granted permits co-extensive with their father the order for them to leave the country is also quashed.
I further make the declarations sought, namely, (a) the Minister's decision to decline the Applicant's applications for extension
to his work permit on or about 15 September 1997 is null and void and of no effect, and (b) the decision that there is no provision
for appeal is null and void and of no effect.
I reserve the question of costs until I hear counsel on it.
D. Pathik
Judge
At Suva
9 April 1998
Hbj0032j.97s
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