Legal Opinion On Minister's Removal Order Under Immigration Act No.10 Of 2000 - Essay.

Write a legal opinion critically examining the Minister’s decision to issue the Removal Order. The legal
opinion should rely on the following:
(a) Reading material from LW 309 course;
(b) Case law - you are expected to refer to case laws provided in reading material (if relevant) as well as undertake additional case law research in the jurisdiction of your choice. Remember to identify whether a case law has binding or persuasive value in the jurisdiction of your choice (representing Pacifika); and
(c) Refer solely to the legislation set out in this Assignment Question (Immigration Act No. 10 of 2000) and no other Immigration Acts that you may believe are relevant. The purpose of the assignment is to see how well you have understood critical administrative law principles and able to use them to critically analyze relevant facts. 

Abusu is a citizen from the Republic of Dudu. In 2014, he relocated to Pasifika and established a Computer Company. He has a valid residence and business permit. His partner Melody is from Pasifika.It was alleged that Abusu is a wanted man in the Republic of Dudu. This was based on an email correspondence on 7 August 2018 between the Mr. Tati, Pasifika Police Commissioner and Mr. Holland Mafu, Chairman of the Republic of Dudu Independent Commission Against Corruption that Abusu is a wanted man.

There was no extradition request from the Republic of Dudu. However, on 10 August 2018 Tumu the Minister of Immigration of Pasifika signed a Removal Order pursuant to the powers conferred to the Minister by section 666A (1)(b) of the Immigration Act No. 10 of 2000. The Minister decided not to give Abusu any prior notice before issuing the Removal Order on 10 August 2018. He had become concerned that in respect of Removal Orders issued by him that his intentions to issue Removal Orders had been ‘leaked’ to the subjects of the Removal Orders before the Orders were
issued. 

The Minister was concerned if prior notice was given to Abusu he might escape to another country to avoid facing charges in the Republic of Dudu.To substantiate the contents of the email correspondence on 7 August 2018, Mr. Tati travelled to the Republic of Dudu on 15 August 2018 to meet with Mafu. Following that meeting Mr. Tati returned to
Pasifika and produced a sworn statement.

Attached with the sworn statement were documents from the Independent Commission Against Corruption in relation to Abusu including previous conviction records.The information contained in Mr. Tati’s sworn statement was drawn upon by the Minister of Immigration to justify his decision to issue the Removal Order on 10 August 2018. The Minister is now in the process to proceed to enforce the Removal Order.Advise Abusu on whether the decision of the Minister can be challenged through judicial review.

Immigration Act No.10 of 2000

Abusu should move to the court to defend himself against the actions taken upon him by the minister. Such a decision can be challenged in the court through a judicial review. A judicial review typically is a process in which the decisions made by a particular authoritarian body is reviewed in the court. The courts have often emphasized that only those authorized to take a particular action against another as contained in the law (Bell, 2017 p.233). In the circumstance in which an unauthorized person takes action, the courts responds to it by declaring that the decision which was made is invalid and also that the physical act is unlawful and thus should be stopped through an order of injunction.

Immigration Act No.10 of 2000

The act lays down the rights of an immigrant from a particular country and this is in relation to court cases. Just like any other citizen, the immigrants also have certain rights granted to them which protects them from any form of discrimination. For example, the immigrants can appeal in a high for decisions which have been taken against them and they must have a representation to act on their behalf. However the minister of immigration has been granted certain powers which enables them to remove a non-citizen who has committed criminal offense and an activity which is detrimental to the security of the country. According to this act such a person should not be consulted by the minister but instead be deported out of the country. Further the section of the immigration act applies not withstanding any other of the provisions in the act.

According to Bradley, Ewing, and Knight (2018 p.100), there are various grounds for seeking judicial review. Some of the grounds to seek for judicial review may include, non-consultation with the person who is likely to be affected by the decision made. The other ground is associated with the acceptance of the courts to prosecute senior government ministers and this is unlike previously where there was fear to arraign such individuals in the courts. One of the key remedies pertaining to the case study is on the erosion of limited concept of jurisdiction. The remedy could be as a result of the breach of natural justice.

According to the court of Queen's Bench, the breach of natural justice occurs when the parties involved are not made aware of their offenses and also the evidence produced against them. Like in the case, Abusu was not told about the proceedings, and even the offenses he had committed that would warrant his arrest, and this is, therefore, a violation of the principles of natural justice (Okpaluba, 2015 p.400). Just like in the case of Errington v. Minister of Health (1935), the minister was provided with additional evidence form the local authority to confirm the housing scheme and not from the objectors. Such an action was considered as a violation of the principles of natural justice.

According to the law, there are certain conditions and things which must be done before taking a particular action usually of a government nature. Such actions are typically considered as compulsory, and in the event that they are not adhered to, the action is considered to be  unauthorised.The court can, therefore, stop action through the judicial review. The law, therefore, prescribes some of the requirements which would indicate that a particular action is unauthorized (Cohn, 2014 p.23). For example, when a document is filed by an individual who is not a moral authority to do so, the action is considered to be unauthorised.

Grounds for Judicial Review

In the case of R v Paddington and St. Marylebone Rent Tribunal, Ex parte Bell Properties Ltd [1949], there was an application made by a particular local authority for the review of the rent of 310 tenancies was owned by a company. The court made a decision which prevented the tribunal set to decide on the case, and this was because the applications were to be made by tenants only and not just several applications by the local authority (French, 2014 p.1).

There is also another requirement that a copy of a document of the arrest should be provided to the individuals who could be affected by the decisions made. Such a copy is necessary to enable the individuals to be aware of the case concerning them. In the event that the copy is not provided to the person, then it is considered that the action was not legal and this is as illustrated in the following cases;

Howard v. Bodington (1877) 2 PD 203

            In the case, there was the issue that the bishop of the Church of England was to be issued with a copy of the document within 21 days. However, that did not happen. The judge on his ruling said that he had no jurisdiction and this was because the complainant had already been provided with the document after the expected time.

R v Lancashire Justices (1857)

In the case, the legislation of England allowed that in the event that the various justices had given approval for the public highway to remain closed, then there would be a possibility of appealing such a decision in ten days' notice to the local authorities and thereafter to the Quarter Sessions. However, the Quarter Session made a decision even before the ten-day notice, and this was against the law.

There is another requirement that the individual who is likely to be impacted by the action be consulted before a particular action is taken against him or her. The written law requires that a public official who takes an action which is governmental must consult the individual who is likely to be affected by the action. Additionally, the individual must be provided with adequate information about the issue upon which legal action will be taken against him or her (Cooper, 2017 p.45). The significance of this requirement is that it will enable the person likely to be affected to adjust his or her affairs appropriately when a particular action is taken. Also, it provides the individual taking the legal action to obtain relevant and adequate information before taking any legal action against another individual.

 The courts emphasize that there has to be a wider consultation by a person intending the legal action and thus without consultation, the action is regarded as that which has no legal jurisdiction (Sloan and Chand, 2015 p.34). The case of Wilkinson v Education Board of Otago (1888) is an example where there was no consultation at all by the authority. In the case, a head teacher from a school was sacked by the board in New Zealand. However, the court reinstated the head teacher on the grounds that there was no consultation done with the school committee (O'Brien and Farran, 2015 p.227).

Breach of Natural Justice

The case to illustrate the requirement was that of R v Social Services Secretary, Ex parte Metropolitan Authorities Association [1986].In the case based on the requirements of the Social Security and Housing Benefits Act 1982, the social service secretary was expected to consult all the metropolitan authorities association of their actions. However they failed as was stipulated in the Act and this is because they had indeed consulted the association, but they failed to offer adequate information including the time for the association to respond to the action (Galligan, 2017 p.40)

Just like in the case study, Abusu was never consulted by the migration minister on the action which had been taken against him, and therefore Abusu has the right to challenge the decision through a judicial review. Before a decision is taken by an individual, the law requires that a person who is likely to be affected by the action should be an opportunity to make representations (Langford, 2015 p.80).

Such a requirement is considered as a compulsory statutory requirement. In the event that, the individual taking action fails to take into account, then it is considered that there is no legal power to make a particular decision. Just like in the case, Abusu was never given the time to make a representation before the decision was made by the minster of immigration (Woolf et al., 2014 p.231). The following cases illustrate why such a requirement is compulsory and its absence makes a decision invalid.

Akbar Buses Ltd v Transport Control Board Civil App. 9/1984, Fiji

 In the case, the transport control board was authorized by the legislation to allow or prevent the provision of a road license only upon receiving the representations on the application. However, a bus company was given a license, and this was done without listening to the goals of the rival firm. The court, however, ruled that such a decision had no legal authority and was therefore invalid.

Ridge v Baldwin [1964]

In the case, a chief constable was dismissed by a watch committee in England. However, they did not allow him to make his representations even though it was a requirement by the subsidiary legislation. The dismissal was declared unauthorized by the House of Lords.

During the judicial review of the actions of various public officers, the unreasonable exercise of discretion has been applied. However, the exercise of discretion is applied to both the local authorities and the national government. Ealier, the courts were reluctant to apply it to the national government, but that has changed. The cases below is an indication of the perceptions of the courts based on the issue;

Shiu Ram v Reginam (1964)

In the case, there was a traffic regulation made by the Governor in Council in Fiji which compelled all the vehicles carrying heavy loads to have the light on the sides of the load and at the height of the floor of a vehicle. A truck driver who had failed to adhere to this rule was convicted. He therefore appealed, and his base of argument was that the regulation was invalid since it was unreasonable. The court, on the other hand, held that the regulation was unreasonable.

Unauthorised Actions

The courts are today applying the test of unreasonableness action against the central government. However such cases are found to be few but the ministers of the central government are today subject to the judicial review, and this is on the basis of unreasonableness (Ismael, 2018 p.320). The cases which display the willingness of the courts to take legal action against the central government officials are as discussed below;

Reg v Health Secretary [2001] 1 WLR 292.

In the case, a particular doctor had been convicted because he had murdered some patients and this, therefore, compelled the Health Secretary to set an inquiry into the details of the murder. However, such an inquiry was decided by the health secretary to be private, and close relatives of the murdered victims did not accept this. In the ruling, the court held that the health secretary was irrational in his decision and this is because he never consulted the family members who did not want the investigations to be done privately.

R v Ministry of Defence [1966] QB 517.

In the case, all the individuals who were homosexuals were to be sacked, and this was a directive by the Ministry of Defence in Britain. The decision of the court was that the decision which had been taken by the ministry was irrational on the grounds of being unreasonable. It was not clear whether the heads of armed services approved the decision or not.

Abusu should also seek judicial review based on the extensions of unreasonableness to the other determinations of fact made by various government officials. The courts recently have stipulated that the ground due to the absence of supporting evidence can be applied to the decisions made by various government officials (Griffiths, 2017 p.1). The following case is an illustration of cases exhibiting the applications to the actions of government officials due to lack of reasonable supporting evidence;

Education Secretary v Tameside Borough Council [1977] AC 1014; [1976]

            In the case, a directive was given to the education secretary to check if a local education authority had acted unreasonably. Additionally, the education secretary told the local education authority to avoid making the changes that had been proposed in schools of its district.The court through the house of Lords considered the directive to be invalid since there were no facts to judge that the local authority had acted unreasonably.

Based on the cases analyzed above, it is clear that Abusu can appeal to the court for judicial review based on the actions taken against him by the minister of migration. For example, he can go to court for judicial review on the grounds that an individual must be provided with adequate information about the issue upon which legal action will be taken against him or her. However, that was not the case in the case study since Abusu was not informed about the intentions deport him back to his country to answer to certain allegations placed against him (Law, 2017 p.40).

The other ground which Abusu can use as a defense and hence opt for a judicial review is based on the fact that the courts are today applying the test of unreasonableness action against the central government. The minister being a government official can also be challenged in the court for his unreasonable actions against an individual who in this case is Abusu (Von Berg, 2014 p.67).

The other ground upon which Abusu can challenge the decision by the minister of migration is on the non-provision of the necessary documents to him, and this was to enable him to prepare for the case appropriately.

References

Bell, V., 2017, September. Judicial legitimacy and the limits of review. In Judicial Review: Selected Conference Papers: Journal of the Judicial Commission of New South Wales, The (Vol. 13, No. 3, p. 233). Judicial Commission of NSW.

Bradley, A., Ewing, K. and Knight, C., 2018. Constitutional and administrative law. Pearson Higher Ed.

Cohn, M., 2014. Pure or Mixed? The Evolution of Three Grounds of Judicial Review of the Administration in British and Israeli Administrative Law.

Cooper, B., 2017. Democratic stability in deeply divided states: The case of Vanuatu and Fiji (Master's thesis).

Corwin, E.S., 2017. The Doctrine of Judicial Review: its legal and historical basis and other essays. Routledge.

French, R., 2014. Singapore Academy of Law Annual Lecture 2013-The Rule of Law as a Many Coloured Dream Coat. SAcLJ, 26, p.1.

Galligan, D.J., 2017. Judicial Review and Democratic Principles: Two Theories. In Bills of Rights (pp. 37-48). Routledge.

Griffiths, J., 2017, July. Judicial review of administrative action in Australia. In AIAL Forum (No. 88, p. 9). Australian Institute of Administrative Law.

Ismael, A.Y., 2018. THE EVOLUTION OF THE GROUNDS OF JUDICIAL REVIEW OVER THE ADMINISTRATIVE DECISION IN THE ENGLISH LEGAL ORDER. Journal of Duhok University, 21(1), pp.309-331.

Langford, M., 2015. Why Judicial Review?. Oslo Law Review, 2(01), pp.36-85.

Law, D. S. 2017. The anatomy of a conservative court: Judicial review in Japan. In Public Law in East Asia (pp. 3-44). Routledge.

O'Brien, D. and Farran, S., 2015. A New Dawn for Human Rights in Fiji-Learning from Comparative Lessons. J. Int'l & Comp. L., 2, p.227.

Okpaluba, C., 2015. Judicial review of executive power: legality, rationality and reasonableness (2). Southern African Public Law, 30(2), pp.379-405.

Sloan, J. and Chand, K., 2015. A review of near shore fisheries law & governance in Fiji. David and Lucille Packard Foundation. 30p.

Von Berg, P. ed., 2014. Criminal Judicial Review: A Practitioner's Guide to Judicial Review in the Criminal Justice System and Related Areas. Bloomsbury Publishing.

Woolf, R.H.L., Jowell, J., Le Sueur, A., Hare, I. and Donnelly, C., 2014. De Smith? s Judicial Review: First Supplement to the 7th edition. Sweet &