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Leung v Interim Minister for Home Affairs and Immigration [2007] FJHC 110; HBJ 19.2007 (25 July 2007)

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTlON NO.: HBJ 19 OF 2007

BETWEEN:

GRAHAM LEUNG
APPLICANT

AND:

INTERIM MINISTER FOR HOME AFFAIRS AND IMMIGRATION
FIRST RESPONDENT

DIRECTOR OF IMMIGRATION
SECOND RESPONDENT

INTERIM ATTORNEY-GENERAL
THIRD RESPONDENT

Mr. J. Apted for the Applicant
Mr. C. Pryde with
Mr. S.D. Turaga for the Respondents

Date of Hearing: 18^th July 2007
Date of Ruling: 25^th July 2007

DECISION ON LEAVE

Graham Leung is a Fiji citizen and solicitor by profession. He alleges that his work requires him to make frequent overseas trips for professional education and training programmes.

As a result of enquiries he caused to be made on 5^th July 2007, he learnt that his name appeared on the immigration watch list which prevented him from leaving Fiji. He made enquiries and sought assistance from various persons in authority namely the Director of Immigration, Viliame Naupoto, the then Deputy Commander of Fiji Military Forces and the acting Deputy Commissioner of Fiji Independent Commission against Corruption, Captain Esala Teleni and the Permanent Secretary in the Prime Minister's Office, Parmesh Chand.

In his supplementary affidavit the applicant alleges that on 16^th July 2007, he tried to get on a flight to Wellington, New Zealand to attend a meeting but he was turned back at the Immigration counter because his name appeared on the banned list.

The application for judicial review was filed on 16^th July 2007. The application for leave also sought that the grant of leave to operate as a stay. The issue of leave was fixed for 18^th July 2007 for short hearing. Just before the commencement of hearing Mr. Apted informed the court that the travel restriction on the applicant had been lifted.

My immediate reaction was that the action would be withdrawn as the matter was purely academic. Mr. Apted, however, stated that he still sought leave. His ground was that even though the court could not grant certiorari or mandamus to rescind the decision, the applicant is still pursuing two declarations. He submitted that the declarations are important in the public interest as they deal with freedom to travel, a human right issue. He also submitted that the applicant has been scheduled to travel again in near future and there is nothing in the letter given that there would be no future bans placed on the applicant. He also submitted that the application also sought damages and costs which were a live issue.

Mr. Pryde submitted that the applicant's travel ban was no longer a live issue in face of the letter lifting the ban. He submitted that the present application is personal to Graham Leung devoid of any public interest. Damages and costs he submitted could be settled by discussions between the parties. He also submitted that there was no absolute right to travel.

The reliefs sought by the applicant are as follows:

"(a) AN ORDER OF CERTIORTARI to remove the Decision into this Honourable Court and the same be quashed

(b) A DECLARATION that the Decision is unlawful, void and of no effect

(c) A DECLARATION that the First and Second Respondents acted unlawfully and or unreasonably in breach of the legitimate expectations of the Applicant in placing a travel ban on the Applicant.

(d) AN ORDER OF MANDAMUS directing the First and Second Respondents to immediately rescind the Decision.

(e) FURTHER DECLARATIONS or other relief as this Honourable Court may deem just

(f) DAMAGES.

(g) COSTS of this action on an indemnity basis.”

The Order for certiorari and mandamus in view of the new development are no longer in issue. One of the remaining issues is whether the making of the declarations would serve any practical consequences or purpose. In Naidu v. The Attorney General of Fiji - ABU 39 of 1998 the Court of Appeal concluded after considering a number of New Zealand and English decisions that “even though the actual issue between the parties may no longer be outstanding, the courts will nevertheless make a decision where there is a practical advantage in doing so, or where the issue is one of general public interest”.

I was referred to the decision of the Court of Appeal in Reverend Akuila Yabaki & Others v. The President of the Public of the Fiji Islands and the Attorney General -- ABU 61 of 2001. One of the judges of Appeal Davies J relying on Naidu v. The Attorney General confirmed that in Fiji the approach taken in the United Kingdom is followed. In Yabaki the Court refused to grant certain declarations because the appellants were concerned citizens with no special interests. Further the complex political factual matrix made the return to the status quo not feasible. An election had taken place before the appeal was heard and a new government had been set in place. Yabaki therefore is an example of a case where declarations were refused because of complicated facts. It does not interfere with principles expressed in Naidu. It endorses those principles.

Therefore, an exception to the rule against courts deciding purely academic issues arises in public law cases. The position in England is set out in R. v. Secretary of State for the Home Department, ex- parte Salem - [1999] UKHL 8; (1999) 2 ALL ER 42 at 47 where Lord Slynn stated:

“... where there is an issue involving a public authority as to a question of public law, your Lordships have a discretion to hear the appeal, even if by the time the appeal reaches the House there is no longer a lis to be decided which will directly affect the rights and obligations of the parties inter se. The decisions in the Sun Life case and Ainsbury v. Millington (and the reference to the latter in r 42 of the Practice Directions Applicable to Civil Appeals (January 1996) of your Lordships' House) must be read accordingly as limited to disputes concerning private law rights between the parties to the case.

The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future.”

In R. v. Kensington & Chelsea Royal London BC ex-parte Kujtim - (1999) 4 ALL ER 161 the English Court of Appeal heard a housing appeal by an asylum seeker even though he had left the country. The issue was academic. The appeal was entertained because he might return and there were a number of pending cases raising the same issue.

The Salem principle, that a court had a discretion to hear an appeal concerning a public law issue even if by the time of hearing there was no longer any lis pending which directly affected the rights and obligation of the parties, was extended to private law cases of public importance in Bowan v. Fels - (2005) 4 ALL ER 609 where important and difficult point of law arising from the interpretation of a statute was involved and parties wanted it to be decided.

At the core of the application in this matter is the freedom of a Fiji citizen to travel overseas. Article 34(3) of the Fiji Constitution is also referred to in Leung's application. The powers of the Director of Immigration or of any of the respondents and the source of those powers are matters of public importance. The manner in which those powers are exercised whether after or without reference to the affected parties is also a matter of public concern. Hence there
is an issue of public importance here.

Additionally the defendant intends to travel in near future so the nature of relief sought is of some utility to the applicant. Further damages are sought at
the substantive hearing. These provide additional reasons for granting leave.

I remind myself that this is an application for leave to apply for judicial review. I only need to be satisfied that the material at present before me discloses what might, on further consideration, turn out to be an arguable case in favour of granting the relief.

In the exercise of my discretion I give leave to the applicant to apply for judicial review but confined to the two declarations, damages and costs.

[Jiten Singh]
JUDGE

At Suva
25^th July 2007