Marks v Minister of Home Affairs
| Jurisdiction | Bermuda |
| Judge | H.L. DaCosta, J.,Blair-Kerr, P. |
| Judgment Date | 06 April 1984 |
| Neutral Citation | BM 1984 CA 1 |
| Docket Number | Civil Appeal No. 12 of 1983 |
| Court | Court of Appeal (Bermuda) |
| Date | 06 April 1984 |
Court of Appeal (Civil Jurisdiction)
Blair-Kerr, P.; Summerfield, J.A.; daCosta, J.A.
Civil Appeal No. 12 of 1983
Administrative law - Validity of administrative act — Appellant's application for extension of work permit refused by Minister — Procedural principles to be followed by Minister out-lined — Whether Minister exercised his discretion in accordance with rules of natural justice — Whether in exercise of his discretion Minister exempted from following procedural principles where the decision to be made affects rights of appellant — Appeal allowed.
Certiorari - Application to quash a decision of the Minister of Home Affairs refusing applicant an extension of his work permit — Application dismissed by trial judge — Whether principles of natural justice apply — Whether breach of Audi Alteram Rule ousted the application of the rules of the Minister when exercising his discretion, if the rules are applicable — Appeal allowed.
Natural justice - Audi Alteram Rule — Exercise of discretion by Minister of Government — Psychiatrist refused extension of work permit without a hearing — Previous history of automatic renewals — Necessity for exercise of power which affects rights, to be exercised judicially — Finding that appellant's case one of legitimate expectation and appellant therefore entitled to fair opportunity to be heard — Finding that character of Minister's discretionary power under Bermuda and Immigration Protection Act, 1956 as amended did not permit Minister to disregard the rules of natural justice — Appeal allowed.
The appellant is a psychiatrist. He has-resided in Bermuda continuously since June 1976. Since that time he has also practised continuously in Bermuda as a consultant psychiatrist in private practice by virtue of a work permit numbered 013119 and its revalidations. On February 23, 1983, the appellant was informed that his work permit would not be renewed beyond June 30, 1983. He attempted personally and through his attorney to get the Minister of Home Affairs to change his mind. He did not succeed. His efforts in this direction are recounted in his affidavit sworn on July 15, 1983.
Finally the appellant sought an Order of Certiorari to remove into the Supreme Court to quash orders or directives dated 20th December 1982, 23rd February 1983, 16th June 1983 and 29th June 1983 made by the Minister of Home Affairs terminating and/or refusing to extend the appellant's work permit beyond 30th June 1983; and an Order of Mandamus compelling the Minister to consider the appellant's application for an extension of his permission to engage in gainful occupation as a consultant psychiatrist in private practice, according to law.
The application came before the learned Chief Justice. On September 7, 1983, in a reasoned judgment the learned Chief Justice refused to make the orders sought. The appellant appealed to this court. On November 17, 1983, we allowed the appeal and declared to be a nullity the purported decision of the Minister refusing the appellant an extension of permission to engage in gainful occupation beyond June 30, 1983, as communicated in the letter of June 29, 1983, sent on behalf of the Chief Immigration Officer, together with any earlier purported decisions in similar terms.
The court however appropriately refrained from making an order of mandamus requiring the Minister to determine the application for renewal of permission beyond June 30, 1983, which is now before him being confident that in view of the court's decision the Minister would now proceed to consider and determine the application according to law.
The facts of this case have been meticulously set out in the Reasons for Judgment by my Lord, the President, which I have had the advantage of reading in draft; accordingly I doge not propose to rehearse them here.
The court had the benefit of extensive argument from both counsel. In the final analysis, however, in my opinion this case raises two fundamental questions. The first is do the principles of natural justice and in particular audi alteram partem apply to this type of case and, if so, has there been a breach. Secondly, if prima facie they are applicable, does the character of the Minister's discretionary power under the Bermuda Immigration and Protection Act 1956 as amended (hereinafter referred to as the “ Immigration Act”) permit him to discard them.
Natural justice as Professor Wade reminds us “is concerned with the exercise of power, that is to say, with acts or orders which produce legal results and in some way alter someone's legal position to his disadvantage”. (Wade: Administrative Law, 5th Edn. p.504) Many authorities in a state exercise power. But the character of the authority is not what matters; what matters is the character of the power exercised. If it adversely affects legal rights or interests, it must be exercised fairly. (See Cooper v. Wandsworth Board of Works (1863) 14CB N.S. 180; approved in Ridge v. Baldwin [1964] A.C. 40; Durayappah v Fernando [1967] 2 A.C. 337; Wiseman v. Borneman (1971) A.C. 297.)
But as Lord-Denning M.R, observed in Reg. v. Gaming Board Ex p. Benaim (1970) 2 Q.B. 417 at 430:
“It is not possible to lay down rigid rules as to when the principles of natural justice are to apply: nor as to their scope and extent. Everything depends on the subject-matter: see what Tucker L.J. said in Russell v Norfolk (Duke of) [1949] 1 All E.R. 109, 118 and Lord Upjohn in Durayappah v. Fernando [1967] 2 A.C. 337, 349. At one time it was said that the principles only apply to judicial proceedings and not to administrative proceedings. That heresy was scotched in Ridge v. Baldwin (1964) A.C. 40. At another time it was said that the principles do not apply to the grant or revocation of licences. That too is wrong. Reg. v. Metropolitan Police Commissioner Ex parte Parker (1953) 1 W.L.R. 1150 and Nakkuda Ali v. Jayaratne [1951] A.C. 66 are no longer authority for any such proposition. See what Lord Reid and Lord Hodson said about them in Ridge v. Baldwin [1964] A.C. 40, 77–79, 133.”
Then Lord Denning proceeded to approve the guiding principle laid down in a case of an immigrant by Lord Parker C.J. in In re H.K. (An Infant) [1967] 2 Q.B. 617 at 630:
“…. even if an immigration officer is not in a judicial or quasi-judicial capacity, he must at any rate give the immigrant an opportunity of satisfying him of the matters in the subsection, and for that purpose let the immigrant know what his immediate impression is so that the immigrant can disabuse him. That is not, as I see it, a question of acting or being required to act judicially, but of being required to act fairly.”
Then turning to the facts of the case before him Lord, Denning M.R. said at pp 430-431:
“Those words seem to me to apply to the Gaming Board. The statute says in terms that in determining whether to grant a certificate, the board ‘shall have regard only’ to the matters specified. It follows, I think, that the board have a duty to act fairly. They must give the applicant an opportunity of satisfying them of the matters specified in the subsection. They must let him know what their impressions are so that he can disabuse them. But I do not think that they need quote chapter and verse against him as if they were dismissing him from an office, as in Ridge v. Baldwin [1964] A.C. 40; or depriving him of his property, as in Cooper v. Wandsworth Board of Works (1863) 14 C.B.N.S. 180. After a11, they are not charging him with doing anything wrong. They are simply inquiring as to his capability and diligence and are having regard to his character, reputation and financial standing. They are there to protect the public interest, to see that persons running the gaming clubs are fit to be trusted.”
A decade later Lord Denning in Payne v Lord Harris of Greenwich and another [1981] 2 All E.R. 842 dealt again with the question of natural justice. Payne the plaintiff was convicted of murder and sentenced to life imprisonment in 1968.As a life-sentence prisoner he did not qualify for any remission of sentence although he might be released on licence by the Secretary of State acting under section 61 of the Criminal Justice Act 1967 after consultation with the Parole Board which in turn made recommendations to the Secretary of State after studying a report made by the local review committee. The plaintiff was a model prisoner who had been placed in the lowest security category in prison. He made a number of requests for release on licence but these were refused. He issued a writ against the chairman of the Parole Board, the Secretary of State and the local review committee claiming, inter alia, a declaration that he was entitled to know the reasons for the refusal to release him on licence. He contended that he was entitled to know the reasons for the refusal in order to be in a position to make representations for his release and that it was contrary to natural justice for him not to be informed of the reasons. The judge refused the declaration sought and the plaintiff appealed to the Court of Appeal. His appeal was dismissed.
In dealing with the issue of natural justice Lord Denning said at p.845:
“No doubt it is the duty of all those concerned, from the member of the local review committee, to the Parole Board, to the Secretary of State, to act fairly. That is the simple precept which now governs the administrative procedure of all public bodies. But the duty to act fairly cannot be set down in a series of set propositions. Each case depends on its own circumstances. As Sachs LJ said in Re Pergamon Press Ltd. [1971] 3 All E.R, 535 at 142, (1971) Ch 388 at 403:
‘In the application of the concept of fair play, there must be real flexibility, so that very different situations may be met without producing procedures unsuitable to the...
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