IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. HBJ0038 OF 2003

Between:

State

v.

THE DIRECTOR OF IMMIGRATION
PUBLIC SERVICE COMMISSION
ATTORNEY GENERAL OF FIJI
Respondents

Ex parte: MOHAMMED YUNUS
f/n Mohammed Yusuf
Applicant

Mr. S.P. Sharma for the Applicant
Mr. S.N. Sharma with Ms. N. Karan for the Respondents

Date of Judgment: 7 .9.05

JUDGMENT

This is an application by Mohammed Yunus f/n Mohammed Yusuf (the “applicant”) filed on 13 October 2003 for judicial review of the decisions of the Director of Immigration (the ‘R1’) made on 18 September 2001 and those of the Public Service Commission (the ‘PSC’) made on 1 February 2002 and 14 February 2002.

Notice of opposition to the application was filed on 30 October 2003.

This file should have been brought to me shortly after the said 31 October 2003. For reasons best known to the High Court Registry it did not come to me until 4 June 2004 when I granted leave to apply for judicial review out of time (I have noted it to this effect on the file).

Notice of motion was filed on 11 June 2004.

Affidavit in Reply was filed by the Respondents on 20 July 2004; and a Supplementary Affidavit was filed on 21 July 2004.

An affidavit in reply was filed by the applicant on 18 August 2004.

Written submissions were filed by 29 March 2005. There was Open Court hearing of the judicial review on 26 April 2005.

The decisions impugned

The decisions impugned are:

(a)	Decision of the Director of Immigration on 18 September 2001 to lay disciplinary charges against the Applicant. (annexure 1 in the affidavit of Joseph Brown, filed in this Honourable Court on 21 July 2004).

(b)	Decision of the Public Service Commission on 1 February 2002, finding the Applicant guilty of the disciplinary charges. (annexure 4 in the affidavit of Joseph Brown, filed in this Honourable Court on 21 July 2004)

(c)	Decision of the Public Service Commission on 14 February 2002, wherein the commission took disciplinary action against the Applicant and reduced his rank and transferred him to Ministry of Home Affairs. (annexure 6 in the affidavit of Joseph Brown, filed in this Honourable Court on 21 July 2004).

Grounds for review

The applicant has raised the following grounds for judicial review:

i.	Excess of Jurisdiction in that the First Respondent has no powers to lay disciplinary charges against the Applicant.

ii.	The decision by the First Respondent is arbitrary and
 unreasonable.

iii.	The Applicant committed no disciplinary offence.

iv.	The First and Second Respondent failed to comply with principals of Natural Justice and Fairness in rendering their decisions on the Applicant.

v.	The Respondents failed to take into account relevant considerations in reaching its decisions.

vi.	The First and Second Respondent failed to give reasons for their decisions and acted in breach of legitimate expectation of the Applicant.

It is to be noted that although arguments have only been addressed by the applicant’s counsel against ground (i) hereabove, the Respondents have addressed the Court on all the Grounds including two preliminary objections raised by them.

Affidavits for Court’s consideration

The Court has before it for its consideration the following affidavits:

(i)	Applicant’s affidavits sworn 13 October 2003 and 17 August 2004
(ii)	Joe Bisavakauca’s affidavit sworn 20 July 2004
(iii)	Joseph Browne’s affidavit sworn 21 July 2004.

About the Applicant

The applicant has been and still is in the service of the Government of Fiji for over 33 years.

On 18 September 2001 he held the position of Principal Immigration Officer (compliance and investigation) in the Department of Immigration. He stands downgraded at the moment. 

On 18 September 2001, the then Director of Immigration, Mr. Navendra Prasad purported to lay two disciplinary charges against the applicant.

The issue

The applicant says that he will rely on all the grounds advanced in the said motion for Judicial Review.

He submits that the key issue before the Court is as in Ground (i) which is in the following terms:

“That the 1st Respondent in proceeding to lay disciplinary charges against the Applicant on 18th September 2001 did not have the requisite legal authority, power or jurisdiction to do so under legal Notice No. 102 of 1999 or under any other delegated legislation.” 

It is the Respondents’ contention that firstly, the applicant has unduly delayed filing this application and secondly, that the application is an abuse of the process of the Court as it does not disclose any arguable case and is merely an attempt to seek a rehearing of merits.

I had already granted leave out of time in the circumstances stated above.

Consideration of the application

In considering this application for Judicial Review it is only right that I deal first of all with the second, ‘preliminary issue’ of ‘abuse of process’ on the part of the applicant raised by counsel for the Respondents in their written submission.

I see a lot of merit in his arguments in this regard. Forgetting for the moment the issue of ‘delay’ as a preliminary objection, counsel’s submission is as follows:

‘the Applicant has abused the process of this Honourable Court by only seeking to challenge the original decisions made by the Respondents, and not challenging the decision made on appeal by the Public Service Appeal Board. In his application, the Applicant is only seeking to challenge the decision of the Director of Immigration (made in September 2001) and the decisions of the Public Service Commission (made in February 2002). No challenge is made against the decision of the Public Service Appeal Board (made on 24 July 2002), in which the Public Service Appeal Board dismissed the Applicant’s appeal against the decisions of the Public Service Commission.’

This application was filed on 13 October 2003; the three decisions impugned were given on 18 September 2001, 1 February 2002 and 14 February 2002 respectively. As was his right the applicant appealed the decision of the Commission on his downgrading to the Public Service Appeal Board.

As submitted by Mr. S.N. Sharma (counsel for the respondents), if a decision has been challenged on appeal to the Board and a subsequent decision on the merits is made by the appellate Board, then judicial review should normally be only sought against the decision made on appeal, and not the initial decision.

I am in full agreement with Mr. S.N. Sharma in this regard.

It is quite clear from the proceedings before the Board that the applicant expressly admitted his guilt on the charges laid against him and he only sought to challenge the penalty that was imposed on him by the Commission.

Can the applicant apply for judicial review?

The applicant could have applied for judicial review from the decision of the Board which was made on 14 February 2002. But he did not do so. He was well out of time when he made this application on 13 October 2003 to review the three decisions referred to earlier.

I agree with Mr. Sharma that the present application is certainly an abuse of the process of the Court.

Having appealed to the Board against the decisions and having admitted his guilt and after an unsuccessful appeal to the Board he now wants to turn the clock back. He missed the boat when he didn’t apply on 1st decision and again on failing to apply on 2nd and 3rd decisions in time. He wants now to go over the whole process by going back to square one. By no stretch of imagination can he be allowed to proceed with his judicial review on the facts of this case. This Court on an application for judicial review, if allowed to proceed, cannot delve into the merits of the case as that has already been gone into and then of course it is not the province of this Court to do so. It only deals with the process by which a decision is made. In any case, subject to what I say hereafter, there was nothing wrong with the process by which the Board reached its decision.

Mr. Sharma referred the Court to a similar situation as in this case which arose in R v Secretary of State for the Home Department Ex parte Ssennyonjo [1994] Imm AR 310. In that case the Applicant had sought judicial review against the decision of the Secretary of State not to grant refugee status to the Applicant. The Applicant had already appealed this decision of the Secretary of State to the Special Adjudicator and also to the Immigration Appeal Tribunal. In his judicial review application, the Applicant only sought to challenge the first decision made by the Secretary of State, and did not challenge the decisions made on appeal by the Special Adjudicator or the Immigrations Appeal Tribunal. The High Court stated:

“I take into account also the fact that this applicant, who has exhausted his rights of appeal, does not challenge the adverse decisions made by the special adjudicator and the Immigration Appeal Tribunal, but seeks now to challenge the original underlying decision. In my judgment, cases in which it would be right to give leave to challenge the original decision, where the appellate process has been exhausted and unsuccessfully, must be rare indeed. I see nothing to justify exercising my discretion in favour of the applicant. I also take account of the delay that has occurred.” 

On this ground alone, on Mr. Sharma’s submission, the application could be dismissal for being an abuse of process, inter alia, for the applicant having failed to challenge the decision of the Public Service Appeal Board made on an appeal against the original decisions of the Respondents.

Dealing with the substantive grounds

In case I am held wrong in my decision on “abuse of process’, I should now consider the substantive grounds of judicial review and particularly the said ground (i).

I am of the view that this ground and other grounds amount to the applicant doing a post-mortem examination attempting to revive a dead body when he failed initially to do a resuscitation. This I will not allow for the reasons which I give hereunder.

This ground (i) raises the question of ultra vires or excess of jurisdiction.

Counsel for the applicant submits that a decision on this issue will effectively dispose off the entire application.

The applicant’s argument on this ground is contained on pages 4-8 of his written submission. In that it boils down to this that Legal Notice No. 102 of 1999 which came into effect on 1 August 1999 did not include ‘powers of discipline’ and in particular to lay charges.

Therefore counsel for the applicant says that a Permanent Secretary or Head of Department does not have the legal power, authority or jurisdiction to exercise or institute disciplinary proceedings against a Public Officer.

Counsel goes on to submit that the Director of Immigration was in exactly this legal position when he purported to lay disciplinary charges against the applicant on 18 September 2001. He had no legal authority, power or jurisdiction to institute disciplinary proceedings against the applicant. Hence, he says the exercise of the purported power is a nullity in that it is ultra vires Legal Notice No. 102 of 1999 and therefore void. Hence he submits that all subsequent proceedings including the subsequent decision of the Public Service Commission in finding the applicant guilty is also void and of no legal effect. Similarly, the decision of the Commission to downgrade him is also a nullity.

The Respondents’ response to this is contained in pages 13-21 of their written submission. It is not proposed to set out their argument except to say that I agree with their counsel’s submissions.

I have considered the arguments put forward in the submissions and I must say that Counsel for the Respondents has dealt with the issue very well.

I find that there was nothing wrong with the procedure adopted by the Commission as it was merely a procedural step in the exercise of the Commission’s functions.

I agree with Counsel Mr. Sarvada Nand Sharma that a delegation of powers is not the only means by which the Commission can prescribe as to how its constitutional powers are to be exercised under section 20(1) of the Public Service Act 1999. The issue of Public Service Circulars No. 29 & 30 of 1999 set out the procedure for institution of disciplinary proceedings and Heads of Departments are given the authority to lay disciplinary charges against employees in the relevant departments.

As far as the criticism by counsel regarding the P.S.C Circular No. 29/99 relating to delegation of powers of the Commission is concerned, the following passage from the judgment of Court of Appeal in Anuradha Charan v Public Service Commission & Others ABU0002.1992 hits the nail on the head and is the answer to adverse comments about the force and effect of the Circular:

“In general terms administrative circulars do not have statutory force and are not enforceable by judicial review. However, the Courts have frequently held that the public are entitled to expect an authority to follow guidelines it lays down itself in published circulars.…. It would be unrealistic to attempt to enforce every detail of such circulars. The Court will look at the document and consider whether the authority has followed the principles set out if it has failed in any particular aspect, it will only negative the whole decision if it makes it unreasonable”.

In view of what I have stated hereabove, the Director of Immigration had full authority (by way of express direction from the Commission) to lay disciplinary charges against the applicant.

I see no merit whatsoever in this ground. If anything all these arguments should have been raised in the initial stages when the decisions were made. In any case the decisions were appealed to the Board and objections could have been raised there. But they were not, the applicant participated fully in the proceedings.

In the Board the applicant expressly admitted committing the disciplinary offences in the written submissions to the Public Service Appeals Board.

Throughout the disciplinary proceedings the applicant was given full opportunity to be heard in his defence and penalty. In the Board he was represented by a senior counsel through whom he admitted his wrong-doing and did not challenge the finding that he was guilty of the disciplinary offences but he only appealed the penalty.

In the outcome, for the above reasons, I have no hesitation in dismissing ground (i) as being devoid of merits.

Other grounds

Although my dismissal of grounds (i) should be end of the action before me, however, having found against the applicant on the first ground, Counsel for the applicant still wants me to consider the other grounds raised by him.

Answers to other grounds have been comprehensively and very clearly and aptly dealt with by Mr. Sarvada Sharma and I must commend him for his industry in the presentation of his argument with authorities.

I accept his arguments in toto. Here again I must dismiss all the other grounds for the reasons given by counsel to the Respondents which I adopt for this application.

Conclusion

To sum up, on the preliminary issues of ‘delay’ and ‘abuse of process’ I accept the arguments put forward by counsel on behalf of the respondents.

Clearly the applicant was well out of time when he made this application for judicial review. As stated already I granted leave to apply for judicial review out of time in the circumstances stated hereabove, but that does not prevent me to consider this aspect of ‘delay’ at the hearing of this application.

I would therefore refuse leave to apply for judicial review.

The application is definitely an abuse of the process of the Court.

The applicant has endeavoured to come in through the back door as a wolf in sheep’s clothing metaphorically. He missed the boat by not raising issues, which he is raising now, before the Appeal Board. He admitted his guilt and now introduces new ground of error of law in an attempt to circumvent the Board’s decision. There was no error of law; everyone knows this court is not here to consider the merits of the case as that is not in its province in a judicial review.

The present application is more in the nature of an appeal based on the main issue that the actions of the first respondent were ultra vires as being without jurisdiction as explained hereabove. It is said that ‘certiorari will not issue as the cloak of an appeal in disguise’ (R v Northumberland Compensation Appeal Tribunal ex p.Shaw [1952] 1 KB 338, 357 – Morris L.J). Also ‘certiorari is not an appellate power’ (Lord Wright in General Medical Council v Spackman [1943] A.C. 627m 640). This ground was never raised right upto the Appeal level. How can it be introduced at this late hour and particularly in the guise of an application for judicial review. This, in my considered view is not possible at all.

On this aspect I quote from the book “Judicial Review Handbook” 3rd Ed by Michael Fordham at p.251 where he stated in the Notes to 15.2 as follows which is pertinent in the context of the present application.

“R v Greater Manchester Coroner, ex p Tal [1985] QB 67, 80G-H (“when a divisional court is constituted to hear an application for judicial review, it is not sitting in an appellate capacity. It is not hearing an appeal from another court, nor is it considering a question of law on a case stated by another court… It is exercising what is often called a supervisory jurisdiction”); R v Inland Revenue Commissioners, ex p Rossminster [1980] AC 952, 1013E-H (Lord Diplock: “Where Parliament has designated a public officer as decision-maker for a particular class of decisions the High Court, acting as a reviewing court under Order 53 [now CPR Part 54] is not a court of appeal”); Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 234 (Lord Greene MR: “The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them”). (emphasis mine).

In a judicial review it is not for the Court to entertain an appeal from the said decisions or to substitute the court’s discretion for theirs. It is in the Court’s powers to consider whether respondents have exceeded their powers. I have already held that they have not.

I am of the view, that the metaphor a drowning person clutches at a straw fits the applicant in this case.

For these reasons the application for judicial review is dismissed with costs in the sum of $500.00 to be paid within 21 days.

D. Pathik
Judge

At Suva
7 September 2005