Fiji Law Reports

[1984] 3 All ER 939; [1985] AC 374

Motir Jud Review.

P. Samusamuvodre for ther the Applicant
Ms. G.Phillips&#or the Respondent

Lyons J:<160;On the 26th August 1995, the Aphe Applicants commenced proceedings for Jul RevThe application fion for leave to apply was granted on the the 26th August 1995 (ex-parte) and as such relief included an order for certiorari, the proceedings of the Respondent were stayed pursuant to the provisions of 0. 53 r. 3 (8) (a).

By Notice ofon filed thed the 12th September 1995, the Respondent opposed the Judicial Review and seeks a discharge of the stay incumbent ingrant of leave of the 26 August 1995.

I will very briefll witl with the applicpplication for discharge of the stay as a preliminary matter.

I de to discharge the sthe stay as applied for in the Notice of Motion. My reasons are identicah those in the matter ofofCantila (43 FLR 6). That Decision bill be delivered at the same time as this Decision as both of these matters were heard on the same day due to their similarity.

In short my reasons art that I hold there is a dition between injunctive rele relief and a stay and as there is such a distinction, section 15 of the Crown Proceedings Act #160;(Cap. 24) h relates toes to injunctions) does not preclude a stay beidered against the Crown pursuant to RHC O.53 r.3 (8)(a).

I tuw to the sube substsubstantive matter of Judicial Review. I the benefit of written subn submissions from the Applicants and the oral submissions of the Respondent.

The Applicants hillinato nationals. All call came to Fiji with the express intention of working for Ghimli Fashions Limited (GHIMLI).

Tplicaufil came on a vi a visitor’s permit which was later issued as a Work Permit cont conditional that she work for GHIMLI. Hevices with GHIMLI were terminated before the Administrative matters attached to the Work Perk Permit were completed.

Theicant Aquila enteredtered on a Work Permit conditional that he be employed by GHIMLI and to be current until the 18th March 1995ween the 7th March 1995 and the 15th March 1995, his services with GHIMLI were terminated.
The Applicant Cruzada entered on a Work Permit that was conditional that he work for GHIMLI. The Permit was extended to include that he worked for BloomApparel (Fiji) Limited, a subsidiary of GHIMLI. This Permit was nt until the 18th 18th 18th May 1996. Between the 7th and 15th March 1995, his services with Bloomtime and GHIMLI were terminated.

The Applicant Cuarez crst came to Fiji on a Wormit. She left and then re-e re-entered on the 10th March 1994 as a visitor. She then applied for a Work Permit. It was granted condit that she worked for GHIMLI. It was valid until the 14th Seth September 1996. Her services with GHIMLI were terminated in March 1995.

The Applicant Macuiginaiginally entered Fiji in 1989 on a Work Permit which was extended until December 1994. She then left the country and returned on a Visitor’s Permit on the 16th February 1995. She stated that she was on a holiday. She was granted a Visitor’s Permit until the 16th June 1995. In fact she worked, contrary to her Visitor’s Permit, with GHIMLI. Her services were also terminated in March 1995.

The Applicant Ocsan, was issued with a Work Permit to enter Fiji to work with GHIMLI. This Permit, conditional on her working with GHIMLI was valid until the 7th July 1995. Her services wHIMLI was also terminated in March 1995.

The AThe Applicalisay esay entered Fiji on a Visitor’s Permit on the 17th March 1994 and subsequently applied for and was granted a Work Permit conditional that she worked for GHIMLI. The application das the 3rd May 1994. It wast was for two years. The Permit has never passed the administrative stage. Her employment with GHIMLI ceased in March of 1995.

There is no (in fact iact it is not disputed) that all the Applicants are, by virtue of expiry of their permits and the conditions attached thereto, unlawfully in Fiji. (RSection 14 of the Immigration Act (Cap 88)).

Assa reof that unlawfulawful status, the Respondent moved in August 1995 to deport the Applicants pursuant to the provisions of Se 15 o Immigration Act.

The Applicants claim that the Respondent is actutside the procedure in that the Applicants have now found ound new employment and should, as a matter of procedure, be granted furthrmit. This argument can quickly be disposed of. There is nois not a scrap of evidence before me to support it.

The Appli claim it is u is unfair that they not be able to stay in Fiji whilst litigation over their contractual claims are before the CoI am not referred to any authorities specifically on this point and nor do I know of one. Ine. In my opinion it would be a mischief to create a precedent that would of necessity provide that, as of right, a litigant can remain illegally in a country until the litigation is complete (if ever). I do not consider it unfair that the Applicant, by admission being unlawfully in the country, should litigate from outside Fiji and re-enter for the purposes of the hearing. Such practice is common.

The Applicalaim that that the Respondent acted on an irrelevant consideration in deciding to deport the Applicants. This presumably relateshe deposition of Uday Nath (for the Respondent) that the slow payment by the Applicants (ass (as litigants) of security for costs was a consideration taken into account by the Respondent when deciding to deport. With respect I do not see it that way. It is clear on the material before me that, as of the end of March 1995, the Applicants were unlawfully in Fiji and subject to a deportation order. By letter to GHIMLI of the 14th March 1995, the Respondent clearly evidenced its position in insisting that the Applicants leave Fiji.

Itot being suggested, aed, and nor should it be, that the Applicants have a legitimate expectation that a courtesy would and should be extended to enable them to remain in Fiji and continue to litigate. Even if argued, I do not see how the Applicants could be said to have had a legitimate expectation of an extension of the “grace period” (courtesy) as would suit the well known definition put forward by Lord Diplock in The Council oil Service vice Unions v. The Minister for the Civil Services [1984] 3 All ER 939; [1985] AC 374.
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Bearhis in mind, I d, I do not consider that the Respondents could be said to have extended a grace period to the Applicants so as to allow them to remain in Fiji tigate the contract claims. As at the 14th March 1995, the dthe decision had been made to request the Applicants to leave voluntarily. The letter of the 30th June 1995 and the 31st July 1995 to the Prime Minister and the Respondent respectively can be seen only as attempts to negotiate such as a grace period. I accept that the Respondent examined the request and declined it for the reasons of delay deposed to in paragraphs 19 to 24 of Mr. Nath’s Affidavit.

Thus thad arisen no cauo cause for the Applicants to expect anything other than the request for a grace period would be considered (which it was) and that,
Turno the allegation ofon of bi accept that GHIMLI may well be biased as against the Applicants but I fail to find any eviy evidence which would cause a reasonable n to conclude that the Respondent is, or is suspected of beof being, similarly biased. This submission is lacking in evidentiary support.

I do not consihe Responespondent has acted capriciously or unreasonably. This submission seems to revolve around the denial by the Respondent in not acceding to a request from the Applicant to remain in Fiji whilst litigating. This area has already been covered and I do not intend to repeat it.

In general terms, and gith greatest of respect to the Applicants, it appears to me that their submissions simply “throw the textbook” at the Court in what can be termed the “scatter gun” app. The danger of this apps approach is that it so often denies proper focus on the Applicants’ strongest points and rather exposes the weakest.
thAugust 1995 is thereby discharged.

I order the Appls to pato pay the Respondent’s costs to be taxed if not agreed.

(Motion for Judicial Review dismissed.)