IN THE HIGH COURT OF FIJI
(AT SUVA)
JUDICIAL REVIEW

NO. HBJ0025 OF 1995

BETWEEN:

VIKTOR JAN KAISIEPO
aka VICTOR JAN KAISIEPO
aka JAN VICTOR KAISIEPO
of Isa Lei Road, Suva, Fiji
Applicant

AND

MINISTER OF IMMIGRATION
Government Buildings, Suva, Fiji
Respondent

S. Matawalu for the Applicant
S. Banuve for the Respondent

Dates of Hearing: 1st, 5th November 1996
Date of Decision: 20th November 1996

DECISION ON APPLICATION FOR STAY

The Applicant applies for Stay of Execution on the order I made in my judgment in this case delivered on the 18th of October 1996 that the application for Judicial Review be refused.

Following my judgment, on the 21st of October 1996 the Immigration Department wrote to the Director of the Pacific Concerns Resource Centre the potential employer of the Applicant advising it that the Applicant and his family were required to leave Fiji no later than the 28th of October.

On the 25th of October the Applicant filed Notice of Appeal to the Court of Appeal against my judgment and gives three present grounds of appeal:

(i)	That I erred in finding that the Director of Immigration made no promise of a work permit to the Appellant;

(ii)	That I erred in holding that Immigration cases are in a class of their own and not subject to judicial review;

(iii)	That I erred in holding that there was no evidence that the Minister took into account irrelevant matters or failed to take into account relevant matters.

The application for stay is opposed and I shall now deal as briefly as possible with the submissions I have received from the parties.

I remarked in my judgment that I had seldom received such copious citation of authorities in an application for judicial review; I believe it fair to make the same comment in respect of the authorities which the Applicant has cited in support of his Motion for Stay. I have considered these and will comment on some of them in the course of this decision but say immediately that most of the cases cited by the Applicant concern the doctrine of legitimate expectations. I have already held in my judgment that the Applicant could not rely on the doctrine in this case and I say no more about it now.

It seems to me reading the Applicant's written submissions that the basic attack on my judgment is the view I expressed that immigration cases are in a category of their own and not subject to Judicial Review. I relied particularly on the decision of the English Court of Appeal in Schmidt v. Secretary of State for Home Affairs (1969) 2 Ch. 149 and in oral argument before written submissions were filed I invited the Applicant to make submissions on the status of Schmidt's case.

The Applicant has done so and has supplied a list of cases in which Schmidt's decision was applied, considered or distinguished. 

Many of the cases referred to by the Applicant are Australian and only a comparatively few of them are what may be termed immigration cases. In one of them however, Barbaro v. The Minister for Immigration [1982] 71 FLR 198 at 205 Smithers J. remarked that as a result of the changes made in Australia by the Administrative Appeals Tribunal Act and the Administrative Decisions Judicial Review Act, the A.A.T ACT creates a legitimate expectation that the recommendations of the Tribunal will be implemented, at any rate, where considerations of national security are not involved. I have commented in my judgment on the differences between the legislation in Australia and England made in immigration cases following the establishment of Immigration Review Tribunals and the legislation in Fiji and I consider I need say nothing further on the subject in this application.

As to this the Applicant argues that I should grant a stay to allow the determination on appeal of the following issues:

(a)	the continuing challenge confronting Courts in striking an appropriate balance between safe-guarding individual rights, interests and expectations while not erecting unacceptable barriers to efficient and effective public administration;

(b)	whether the doctrine of legitimate expectations which has been developed by the Courts over the last 25 years to expand the requirements of natural justice provides a sufficiently coherent and acceptable basis for curial intervention; 

(c)	the role of international law in the further development and application of procedural fairness; and

(d)	the potential for the application of procedural fairness to operate partly to redress what can be described as the present imbalance in the citizen-state relationship whereas here a person is induced to rely upon the representation that the state will accord procedural fairness.

He submitted that such is the stigma that deportation will involve for the Applicant that it will present an impediment to his future employment in United Nations based or subsidised agencies in the South Pacific or else where. He said that the prospect, no matter how remote, to have the appeal determined where the Applicant's movements can be monitored and he has committed no crime or been the source of civil unrest must on balance weigh in his favour.

It is further said the removal of the Applicant and his family could well jeopardise their prospects of returning to Fiji. In those circumstance the grant of a stay pending appeal would not be such an excessive exercise in the discretion reposed in the Court nor would it in the absence of appropriate conditions represent a denial of the State's interests as to the concerns (if any) of and concerning the Applicant.

I have considered the submissions but remain unconvinced that a stay should be granted in this case.

A reading of my judgment will show that the principal reason why I refused Judicial Review was that any sovereign nation has the right to decide whom it will admit or refuse to admit to its borders. I also said on page 15 of the judgment that the decision to admit any person to a sovereign nation is an executive decision and normally not subject to judicial review. I would add now that in none of the cases cited to me by the Applicant is any distinction made on the right of a sovereign nation to deport a person based on his occupation or his prospective employer. This only reinforces the view I expressed in my judgment that the decision to deport or admit any person to a country is a political decision based on government policy and not reviewable by the courts. Rightly or wrongly I remain of the opinion that in making a decision to deport any person from a country the Minister is not responsible to any court of law but only to the Parliament, possibly taking into account the possible international consequences of his action.

Without wishing in any way to pre-empt the decision of at least the Court of Appeal, given the existing legislation in Fiji on immigration I believe that the Court would be breaking entirely new ground if it were to hold that it could interfere with the right of a sovereign nation to decide the composition of its residents or citizens.

I therefore consider that to grant a stay in the present case would only serve to thwart what I have stressed in my judgment, namely the sovereign right of the Minister for Immigration representing the government of Fiji to make an executive decision requiring the Applicant to leave the country. That in my clear opinion would be wrong.

JOHN E. BYRNE
JUDGE