IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

HBJ 08 OF 2023

IN THE MATTER of MINISTER FOR HOME AFFAIRS AND IMMIGRATION

AND

IN THE MATTER of the PERMANENT SECRETARY FOR HOME AFFAIRS AND IMMIGRATION

AND
IN THE MATTER of an application by SUNG JIN LEE, NAM SUK CHOI, BYEONGJOON LEE, BEOMSEOP SHIN, JUNG YONG KIM and JINSOOK YOON for a Judicial Review and with other reliefs including an Order of Certiorari to quash the decision made by the Minister for Home Affairs and Immigration purportedly pursuant to Section 13 (2) (g) of the Immigration Act on 31st August 2023 to deem SUNG JIN LEE, NAM SUK CHOI, BYEONGJOON LEE, BEOMSEOP SHIN, JUNG YONG KIM and JINSOOK YOON Prohibited Immigrants AND the orders made by the Permanent Secretary for Immigration pursuant to Section 15 (1) of the Immigration Act on 31st August 2023 directing SUNG JIN LEE, NAM SUK CHOI, BYEONGJOON LEE, BEOMSEOP SHIN, JUNG YONG KIM and JINSOOK YOON to leave Fiji and remain out of Fiji indefinitely AND the refusal or failure of the Permanent Secretary for Immigration to consider the applications of the 1st, 2nd and 6th Applicants dated 24 May 2019, 11 February 2019 and 9 February 2018 respectively for extensions of/or investor permits AND the refusal or failure of the Minister to consider and/or grant the application of the 5th Applicant dated 25 June 2019 for a certificate of naturalization under the Citizenship Act.

BETWEEN:
SUNG JIN LEE currently in immigration detention and/or unlawful custody of the Respondent.
FIRST APPLICANT

A N D:
NAM SUK CHOI currently in immigration detention and/or unlawful custody of the Respondent.
SECOND APPLICANT

A N D:
BYEONGJOON LEE unlawfully removed from Fiji and in South Korea.
THIRD APPLICANT

A N D:
BEOMSEOP SHIN unlawfully removed from Fiji and South Korea.
FOURTH APPLICANT

A N D:
JUNG YONG KIM currently in immigration detention and/or unlawful custody of the Respondent.
FIFTH APPLICANT

A N D:
JINSOOK YOON currently in immigration detention and/or unlawful custody of the Respondent.
SIXTH APPLICANT

A N D:
THE MINISTER FOR HOME AFFAIRS AND IMMIGRATION of 1st and 2nd Floor, New Government Wing, Government Building, 26 Gladstone Road, Suva.
FIRST RESPONDENT

A N D:
THE PERMANENT SECRETARY FOR HOME AFFAIRS AND IMMIGRATION of 1st and 2nd Floor, New Government Wing, Government Building, 26 Gladstone Road, Suva.
SECOND RESPONDENT

A N D:
THE ATTORNEY GENERAL OF AND FOR THE REPUBLIC OF FIJI
THIRD RESPONDENT

Appearances: Mr. Ower KC, Mr. R. Gordon, Mr. W. Pillay and Mr. Prasad for the Applicants
: Mr.  R. Green and Ms. M Motufaga-Lee for the Respondents
Date of Hearing: 29 September 2023
Date of Ruling: 09 October 2023

R U L I N G 

INTRODUCTION

1.	The applicants in this case are six persons of South Korean origin. On 20 September 2023, they filed in this Court an Application for Leave to Apply for Judicial Review (“application for leave”) and for an Order for Stay. The application for leave is filed pursuant to Order 53 Rule 3(2)(a)(i) of the High Court Rules 1988. The Application for stay is filed pursuant to Order 53 Rule 3(8) (a).

2.	The applicants came to Fiji at different points in time on a South Korean Passport. I understand that the Republic of South Korea has since cancelled their Passports.   

3.	The applicants are all directors/shareholders of a company which began operations in Fiji in 2014.  I will refer to this company as the Grace Road Group. It is fair to say that, at the present time, the Grace Road Group has a very strong presence in niche markets in Fiji such as agriculture, food processing, construction, retail - and a few others.

4.	The applicants are seeking leave for judicial review of two decisions. These two decisions were both made on 31 August 2023. The first of these was made by the Minister for Home Affairs and Immigration under section 13(2) (g) of the Immigration Act 2003 (“Act”). The effect of the said to decision is to deem all the applicants as “Prohibited Immigrants”. 

5.	The second decision was made by the Permanent Secretary for Immigration immediately after the applicants were deemed “prohibited immigrants” by the Minister. The Permanent Secretary, acting on his powers under section 15(1) and section 15(4) of the Act respectively, had directed (i) that the six applicants leave Fiji and that they remain out of Fiji indefinitely and (ii) that they be kept in the custody of the immigration officials pending removal.

6.	I gather that an interim injunction was granted by my brother Judge Mr. Justice Lyone Seneviratne in late August 2023. This injunction currently restrains the State from removing Jung Yong Kim (“Kim”) out of the jurisdiction. Kim however remains in custody to this day. There is an ongoing habeas corpus proceeding before Seneviratne J to determine the lawfulness or otherwise of Kim’s detention.

7.	I gather from the affidavits filed that two of the applicants, namely Byeongjoon Lee and Beonseop Shi, have since been deported to South Korea.  

8.	As for the remaining three applicants, namely Sung Jin Lee (“Lee”), Nam Suk Choi (“Choi”) and Jinsook Yoon (“Yoon”) - I gather that they were released from custody some days after they were initially taken into custody. 

9.	For the record, on Thursday 05 October 2023, Lee was allegedly retaken into custody by immigration officials. Apparently, this operation was carried out in execution of the process of removing Lee from the jurisdiction. 

10.	In response to that, an urgent ex parte application was filed by Gordon and Company late in the afternoon on the same day.  I did grant an interim stay of the Minister’s and the Permanent Secretary’s decisions in respect of Lee. The interim stay expires today.

11.	This means that, as of today, Lee, Choi and Yoon remain exposed to a risk of being removed from Fiji.

12.	The habeas corpus application with respect to Lee’s detention is marked for Ruling on 27 October 2023 by Seneviratne J. It is expected that the learned Judge will rule also on the question as to whether or not the High Court has jurisdiction to question or review any decision of the Minister under section 13(2) (g) of the Immigration Act. This point was fully argued by both counsel before Seneviratne J on 28 September 2023.

COMMENTS ON PROCEEDINGS

13.	The application for leave was first called before me on 28 September 2023, at 12.00 p.m. Mr. Ower KC was ready to argue both the leave and the stay application. He stressed that there was utmost urgency involved especially for Lee, Choi and Yoon.  They face an immediate threat of deportation as there is no injunction in place to restrain the State from deporting them.  

14.	Mr. Mainavolau however, sought time to file and serve an affidavit in opposition.

15.	Mr. Ower replied that there was really no need for the filing of any affidavit by the State. This is because the Rules do give the Court a discretion to determine leave ex-parte on the papers and also grant a stay accordingly. He added that if the State is willing to give an undertaking that no action will be taken by the Minister or the Permanent Secretary to deport Lee, Choi and Yoon until the leave application is determined, then he would be agreeable to giving time to the State to file an affidavit in opposition.

16.	The matter was then adjourned to Friday 29 September at 2.30 p.m. so that the Solicitor-General, Mr. Green, could be present in court to either confirm the State’s position on the giving of that undertaking, or, if not, then to participate in the hearing on leave and the stay orders which will be sought.

17.	On 28 September 2023, at 2.30 p.m., the Solicitor-General, Mr. Green, suggested at the outset that, as a matter of judicial comity, the proceedings before this Court may be held in abeyance until Seneviratne J has determined the question as to whether or not the High Court has jurisdiction to question or review any decision of the Minister under section 13(2) (g) of the Immigration Act.

18.	I did agree to Mr. Green’s suggestion. 

19.	The immediate concern for Lee, Choi and Yoon is the ever-present risk of deportation which they are exposed to daily since 31 August 2023. Mr. Ower suggested that if the Court is minded to hold off these proceedings pending Seneviratne J’s decision, then the State should be prepared to undertake not to deport Lee, Choi and Yoon in the interim.

20.	However, Mr. Green was in no position to give such an undertaking.  On that basis, I invited arguments from both counsel as to whether or not I should grant interim stay pending Seneviratne J’s decision.

ISSUE

21.	Both parties agree that, where the Court has granted leave to issue judicial review proceedings in any given case, the Court may then direct that the leave so granted shall also operate as a stay of the decision to be reviewed. In other words, the discretion to grant a stay only becomes exercisable if or after leave has been granted (Order 53 Rule 3(8) (a)).

22.	For now, the most pressing issue for this Court is whether or not I have the power to grant an interim stay pending Seneviratne J’s ruling. The legal quandary for this Court is whether or not granting an interim stay at this stage at a time before leave has even been argued, and at a time before the Minister and/or the Permanent Secretary has even filed an affidavit to oppose leave, will amount to an exercise of a jurisdiction which section 13 (2) (g) has said that this Court does not have.

APPLICANTS’ ARGUMENT

23.	Mr. Ower submits that if there is no interim stay granted at this stage, there will be no guarantee that the Minister will not act to deport Lee, Choi and Yoon. If the Minister should so act, then the current proceedings before this Court would be spent. He relies on the English Court of Appeal decision in R v Secretary of State for the Home Department ex-parte Muboyayi [1992] 1 QB 244, [1991] 4 All ER 72, [1991] 1 WLR 442 where Taylor LJ said as follows:

The Court should not permit a would-be immigrant to be compulsorily removed from its jurisdiction if he has sought its protection and assistance and the result would be to render any subsequent order less effective. It is within the jurisdiction of the Court to stay a decision of the Secretary of State, alternatively, the result might be achieved by the issue of a writ of habeas corpus quia timet or by the adaptation of the writ of ne exeat regno.

24.	Mr. Ower emphasizes that the Court, in Muboyayi, had said that the Courts could take steps to provide against its determination being in vain. 

25.	In Keppel v Attorney-General of Fiji [1998] FJHC 16; HBM0099j.1998s (13 February 1998),  Fatiaki J, citing  Taylor LJ in Muboyayi, said as follows:
In the present circumstances I am more than satisfied that his Court has the power through a Writ of Habeas Corpus, and the duty, to maintain the 'status quo' until the final determination of the applicant's challenge of the decision not to extend his work permit.
The maintenance of the 'status quo' of a 'sub judice' matter is a fundamental requirement of the due administration of justice and any conduct which is calculated to prejudice that requirement or undermine the public confidence that it will be observed borders on contempt of court and is punishable as such. (See: M. v. Home Office op. cit. at p.405 where the relevant Minister's contempt was said to be that he:
"interfered with the administration of justice by completing the removal from the Court's jurisdiction and protection of a litigant who was bringing proceedings against him."
26.	In State v Transport Control Board ex-parte Shore Buses Ltd [1995] FJLawRp 31; although Pathik J. refused to order stay or the continuance of the interim stay when he granted leave for judicial review, he did acknowledge that an interim stay order may be granted even before leave to move for judicial review has been obtained - in a case of especial urgency. 

27.	Mr. Ower relies on R v Ross Jones; ex-parte Green (1984) 156 CLR 185 at 215. The question which this case raises for this Court is - how does a Court of Record (which this Court is) protect its processes in circumstances where it is not in a position to make a final determination on jurisdiction, and where there is a risk that the subject matter of the application will be spent – if an interim stay is not granted. 

28.	As Wilson and Dawson JJ said in Green:

The power to determine the existence of jurisdictional facts is not a power which in any way extends the jurisdiction of the Court. If a matter is beyond the jurisdiction of a Court, it cannot be brought within jurisdiction for the purpose of granting interlocutory relief. That proposition appears to us to be self-evident and decisive.

Of course, there may be times when it is necessary for a court to determine, though not conclusively, the existence or otherwise of facts upon which its jurisdiction depends.

In such cases there may be times when a Court concludes on the material available and often upon an ex-parte application the prima facie there is jurisdiction and that the circumstances point compelling to a need to preserve the status quo as an interim measure pending a hearing to determine whether interlocutory relief should be granted. But even then an interim order, subject to the usual undertaking as to damages, should only be made against a third party, in respect of whom the Court’s jurisdiction may be in question, for such limited time as is necessary to enable that question to be determined, even if it means an alteration in the Court’s ordinary arrangements. It is only then that the granting of an interim injunction prior to the hearing and determination of the question of jurisdiction could be justified. And this limited possibility must not be allowed to obscure the basic principle that a decision concerning jurisdiction cannot be postponed at the same time as the very jurisdiction which is in question is exercised by the granting of an interlocutory injunction. 

On the other hand, an interim injunction granted in such circumstances and where jurisdiction is then found to be lacking will nevertheless have been effective in a practical rather than a legal sense in that the party to whom it is directed could have been disregarded it only at his peril. 

29.	Mr. Ower submits that, if, this Court was to have no jurisdiction to even order an interim stay until such time as Seneviratne J  determines the jurisdictional issue,  the Applicants would be exposed to deportation or removal at any given time. 

30.	Flowing from the above, Mr. Ower suggests that the question as to whether or not section 13 (2) (g) of the Act outs the jurisdiction of this Court is a part fact and law matter. 

31.	Hence, whilst Seneviratne J deliberates on the issue, this Court should have the power to grant an interim stay to preserve the status quo. 

32.	Mr. Ower submits that all that this Court need to consider at this stages are, firstly, the great risk of removal as identified and, secondly, that there is a good arguable case as may be inferred from the fact that Seneviratne J. has heard argument and is deliberating on the point. 

RESPONDENTS’ ARGUMENT

33.	Mr. Green reiterates that this Court does not even have jurisdiction to grant an interim injunction. Section 13 (2) (g) ousters the jurisdiction of this Court. Therefore, the substantive and interim issues which Mr. Ower raises in this Court are non-justiciable. 

34.	He submits that this Court cannot therefore exercise jurisdiction to grant an interim order which will stop the execution of the Minister’s or the Permanent Secretary’s decision.  He argues that this Court is bound by the precedent set by the Fiji Court of Appeal in One Hundred Sands Limited v Attorney General [2017] FJCA 19; ABU27 and ABU 31, 2015 (23 February 2017) and in Suva City Council v Saumatua [2019] FJCA 33; ABU73.2017 (8 March 2019). 

35.	Mr. Green argues further that, if in the event the Court were to hold that the granting of an injunction to preserve the status quo is not an exercise of jurisdiction over section 13 (2) (g), an injunction as such would still offered section 15 of the State Proceedings Act. 

36.	Section 15 (1) (a) of the State Proceedings Act provides:
(1) In any civil proceedings by or against the State, the court shall, subject to the provisions of this Act, have power to make all such orders as it has power to make in proceedings between subjects, and otherwise to give such appropriate relief as the case may require:
	Provided that-
(a)  where in any proceedings against the Crown any such relief is sought as might in  proceedings between subjects be granted by way of injunction or specific performance, the court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties.
37.	Mr. Green adds that, in any event, in judicial review proceedings, a stay can only be granted after or with leave at the discretion of the Court. 

38.	He submits that R v Ross Jone ex-parte Green (supra) was a Family Court matter. What this Court is dealing with here is an immigration issue which is a totally different matter.  As I understand it, the gist of Mr. Green’s submission here is to emphasise that matters concerning immigration lie at the heart of certain aspects of government policy and nationhood. Immigration matters impact the state’s bilateral diplomatic relations with other states. How a sovereign democratic state formulates its migration laws and policies and how the executive branch of Government acts in pursuit of those policies, are non-justiciable.   The reason why section 13 (2) (g) contains the ouster clause is to insulate such executive decisions which touch on policy and sovereignty from review.  

39.	Mr. Green than points to section 21 (5) (i) of the Constitution which provides:

A person must not be deprived of personal liberty except for the purpose of preventing the unlawful entry of the person into Fiji or of effecting the expulsion, extradition or other lawful removal of the person from Fiji.

40.	Mr. Green acknowledges that cases such as Anisminic Ltd v Foreign Compensation Commission [1969] 2AC 147 are authority that an error of law in the decision of a public body automatically renders the decision ultra vires and null and void. Accordingly, any ouster provision which aims to exclude judicial review for the decision of such public bodies will not be effective in excluding review on the ground of error of law. 

41.	He also argues that there is no undertaking as to damages in any of the affidavits filed. 

REPLY

42.	Mr. Ower replies as follows:

i.	the One Hundred Sands and Saumatua decisions are either distinguishable or they do not apply to the facts in this case. 

ii.	in any event, this Court is not in a position at this time to make a finding as to jurisdiction as both counsel had agreed that this Court should await the decision of Seneviratne J. 

iii.	the principle in R v Ross Jones ex-parte Green is relevant here as a matter of general application and does not only cover Family Law. 

iv.	the fact that this is an immigration case involving a state sovereign policy on immigration is acknowledged. However, there are questions of fact to be determined later as to whether or not there is an error of law involved in the decisions in question. Whether this is arguable is for later at leave stage. For now, the immediate dilemma facing this Court is whether or not to grant an interim stay pending leave and pending the decision of Seneviratne J. 

v.	the question of section 15 of the State Proceedings Act was dealt with by Lord Justice Taylor in Muboyayi, where His Lordship said that the UK provisions similar to Fiji’s section 15 does not prevent a stay. 

vi.	a stay restraining a deportation should not require an undertaking as to damages as it is difficult to see how the State would suffer any pecuniary loss if stay is granted. In any event, Mr. Ower stands in Court with full instructions of his client to give an undertaking as to damages if need be.

vii.	all the Constitutional provisions which Mr. Green relies on are premised on the assumption that the executive action in question are lawful. Any allegation of unlawfulness will involve a mixture of fact and law which only this court can determine.

viii.	the very purpose of these judicial review proceedings is to determine that very question i.e. whether or not the Minister had acted lawfully and to determine whether the applicants are entitled to the right to personal liberty and freedom of movement. 

COMMENTS

43.	The only question I am being asked to determine at this time is whether or not I can grant interim stay of the Minister’s and the Permanent Secretary’s decision in relation to Lee, Choi and Yoon pending the decision of Seneviratne J. I acknowledge that there is a real possibility that the immigration officials will act to remove Lee, Choi and Yoon out of the jurisdiction if an interim stay is not granted. I accept that if Lee, Choi and Yoon were to be removed out of the jurisdiction before the court sits to consider the merits or demerits of their cases, the process of this court would then be spent. I have considered the argument by Mr. Green that to grant an interim stay will be tantamount to an exercise of a jurisdiction which will be contrary to the ouster clause in section 13(2)(g). I have also considered the cases which Mr. Ower cites and relies on. 

44.	I accept that the maintenance of the status quo of a sub-judice matter is indeed a fundamental requirement of the due administration of justice. I note that Seneviratne J himself did grant an interim injunction which is currently in place against the State in relation to Kim.

45.	I am of the view that the granting of an interim stay does not in any way extend or lessen the jurisdiction of this court. It merely preserves the status quo. Its principal aim is to protect the process of this Court.

46.	I acknowledge the salient points raised by Mr. Green. In my view, they will be highly relevant during the argument for leave.

ORDERS

(i).	I grant interim stay of the Minister’s and the Permanent Secretary’s decision in relation to Lee, Choi and Yoon. This interim stay shall be in force until 27 October 2023.

(ii).	Parties to bear their own costs.

(iii).	This case is adjourned to 27 October 2023 at 2.30 p.m. for directions on the filing of affidavits on the Application for Leave to Apply for Judicial Review.

………………………………
Anare Tuilevuka
JUDGE
09 October 2023