The Lautoka High Court granted leave for judicial review on the decision of the Minister for Home Affairs and Immigration and its Permanent Secretary, dated August 2023, in the matter of Jung Young Kim, Sung Jin Lee, Nam, Suk Choi, Byeong Joon Lee, Jin Sook Yoon and Beom Seop Shin.
High Court Judge Justice Anare Tuilevuka has adjourned the case to 15 February in the ruling on the application for the release of the applicants.
In his ruling, Justice Tuilevuka said, “Suffice it to say that the applicants have raised a good arguable case on the restrictions which they suggest ought to be placed on these clauses – I will reserve this for further argument at the substantive hearing and for ruling later.”
Justice Tuilevuka said he is of the view that, except for the allegation that the Minister had acted in bad faith under the dictation of the Korean Government – but the question remains whether the existence of the ouster clauses should insulate the Minister’s decision from review.
“On the wording, section 13(2)(g) of the Immigration Act 2003 and section 173(4)(d) of the Constitution do appear to ouster the Courts’ jurisdiction in their own ways.
“Kings Counsel Simon Ower argued that Parliament provided that the Minister can only declare one a prohibited immigrant under section 13(2)(g) if he or she is a risk to Fiji. This, itself, is a limitation provided by law. The Court is ordinarily the guardian of the restriction enacted by Parliament. Accordingly, the courts, should be able to review any executive decision which exceeds the restrictions set by Parliament.”
Justice Tuilevuka said in the case of One Hundred Sands Limited v AG Civil Appeal in the Court of Appeal… the impugned decision in that case in 2015 under the provisions of the Gaming Decree of 2009.
He said while the decision itself was made outside the relevant period, it was made pursuant to a decree which came into existence within the relevant period… it was overturned by the Court of Appeal.
KC Ower submits section 173(4)(d) only protects the decisions made within the interim period under any law which was promulgated within the same period.
He said the first part gave the Minister the powers to declare a person a prohibited immigrant. This part was enacted in 2003 outside the interim period in question.
However, Solicitor-General Ropate Green said that the two powers are not severable – The PS does not exercise his powers under section 15 unless the Minister has made appropriate orders under section 13(2)(g).
“Section 13(2)(g) of the Act as amended by section 2 of the Immigration Act (Amendment) Promulgation 2008 in its relevant part is… notwithstanding anything contained in the act, the decision of the Minister made under this paragraph shall be final and conclusive and shall not be questioned or reviewed in any court,” Green said.
The matter has been adjourned to 15 February for ruling on the release of the six applicants.