Fijileaks: Unlike the Australian government which allowed Julian Moti his legal right to fight all the way up to Australia's highest court, the then illegal coupist Fijian regime under Aiyaz Sayed Khaiyum gazetted a DECREE barring any challenge to Hunter's deportation from Fiji in 2008
"TAKE NOTICE that the Applicants (Russell Douglas Hunter and the Fiji Sun) seek leave of the Court pursuant to O 53 r 3(2) of the High Court Rules to apply for Judicial Review of the decision of the First Respondent, being Removal Order No 07/08 made 25 February 2008, requiring the First Applicant to leave and remain out of Fiji indefinitely whereupon the First Applicant was arrested, detained and conveyed from Suva to Nadi and further detained and then deported to Sydney, Australia on 26 February 2008. THE APPLICANT SEEKS: (i) An Order in the nature of Certiorari to remove into this Court and quash the said decision. (ii) A Declaration that the said decision was erroneous in law, unlawful, invalid, void and of no effect. (iii) An order in the nature of Mandamus, requiring the First Respondent to reconsider the decision according to law and such direction(s) as are made by this Honourable Court. (iv) Damages. (v) Costs. (vi) Such further or other relief as may seem just."
Unlike Julian Moti (right photo), Fiji regime and its kidnappers had not allowed any photos of Russell Hunter being shoved onto the plane, bound for Australia
Ironically, Dr Shaista Shameem, the then Director of the Fiji Human Rights Commission, had controversially supported Hunter's deportation, and had called for the arrest of Victor Lal, if and when he stepped on the Fijian soil, for contempt of court under the relevant provisions of the 1997 Constitution, and the recommendation was made to protect public safety, judiciary, and national security (Fijileaks founding Editor-in-Chief Victor Lal: 'I do not know if the recommended charge had been drafted and is gathering dust in DPP's office, awaiting my fateful arrival in Fiji"); the conclusion in 2008 to charge Lal for contempt of court was based on the contents of the hacked e-mails between Russell Hunter and Victor Lal that were released to the international and local media by one Nikhil Singh, a Mahendra Chaudhry lackey, shortly after the plane carrying Hunter had taken off from Nadi. Again, IRONIES abound! While Fijian-born Julian Moti is back in Fiji working alongside Shaista Shameem at the University of Fiji, Victor Lal still has charges and legal writs pending that were filed against him for revealing the then interim Finance Minister Chaudhry's secret millions stashed away in Australia
Again, unlike the Australian government which allowed Julian Moti his legal right to fight all the way up to Australia's highest court, the Fijian regime under Aiyaz Sayed Khaiyum gazetted a DECREE barring any challenge to Hunter's deportation, and KHAIYUM lied through his gritting teeth:
The then interim Attorney-General Aiyaz Khaiyum not only abused the due process of the law but made the excuse at the time that the High Court order wasn't served by Fiji Sun lawyer Suruj Sharma; Khaiyum was lying to the world. It was certainly served on Air Pacific and also on Captain Savenaca Siwatibau (guarding the then Fiji Sun publisher Russell Hunter) whose response was: 'Do you want me to bring the whole f_____g army down here?' Hunter: "When everyone, it seemed to me, had boarded, Captain Savenaca told me to get up; then he escorted me with his hand in the small of my back, much like a revolver which he pointed and held in place while he walked me to the plane."
JUSTICE DELAYED AND JUSTICE DENIED - FILED IN 2008 - ITS 2017:
Russell Hunter on how regime sent army thugs to his house in the night: "I said "I won't come". I then picked up the phone and rang Suruj Sharma, my lawyer. No sooner had I got on the phone when five (5) men got out of the car. They were dressed in uniform and one of them said to me I had to come now. At this stage I was still talking to Mr Sharma I was bundled into the vehicle and I could not see the look of anguish on my wife's face as I was forcibly taken by the man from my home and forced into the vehicle. My daughter, I recall, was visibly upset and shaken. I still had my phone in my hand as I was pushed into the vehicle. Mr Sharma was asking me where I was being taken and sought from me details of the destination and the men in uniform, which I sought from them and they declined to supply."
"Unknown to me, the Interim Government had passed the Immigration Act (Amendment) Promulgation 2008 / No 3 of 2008) which in my understanding made it impossible to appeal a decision of the Minister concerning people declared to be prohibited, such as myself, and further sought to prevent or preclude any appeal from such a decision. A copy of the Promulgation is annexed hereto and marked "RDH-4". If what seems conveniently coincidental, the passing of Promulgation was dated, and appears to be published in the Gazette, on 26 February 2008, but is said to come into force on 25 February 2008. In essence, it deprived me of any right of review or appeal. It was retrospectively said to deprive me of my rights for appeal or review but promulgated on the very day of deportation. I say it was both unreasonable and misleading in the manner in which it came to be promulgated. I crave leave to refer to the Removal Order annexed hereto as "RDH-1". It is singularly significant as it does not have a reason or reasons on its face to enable me to understand or comprehend why it was being served, or what it was that I had done to warrant its issue. I seek the relief sought in the Application for Leave to Apply for Judicial Review and say that the grounds relied on are to the best of my knowledge, information and belief true and correct. " Russell Hunter, in his affidavit filed by Fiji Sun lawyer Suruj Sharma in the Fiji High Court
AT SUVA CIVIL JURISDICTION
Judicial Review No__________of 2008
IN THE MATTER of the Immigration Act 2003
AND IN THE MATTER of the Immigration Act (Amendment) Promulgation 2008
AND IN THE MATTER of the Constitution Amendment Act 1997 (the Constitution)
AND IN THE MATTER of Removal Order No 07/08 dated 25 February 2008
RUSSELL DOUGLAS HUNTER
SUN (FIJI) NEWS LIMITED, a limited liability company having its registered office at 12 Amra Street, Walu Bay, Suva, Fiji Islands
PERMANENT SECRETARY FOR IMMIGRATION, Immigration Department, Suva, Fiji Islands
ATTORNEY-GENERAL OF FIJI, Attorney-General's Chambers, Suva, Fiji Islands
APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW
TAKE NOTICE that the Applicants seek leave of the Court pursuant to O 53 r 3(2) of the High Court Rules to apply for Judicial Review of the decision of the First Respondent, being Removal Order No 07/08 made 25 February 2008, requiring the First Applicant to leave and remain out of Fiji indefinitely whereupon the First Applicant was arrested, detained and conveyed from Suva to Nadi and further detained and then deported to Sydney Australia on 26 February 2008.
THE APPLICANT SEEKS:
(i) An Order in the nature of Certiorari to remove into this Court and quash the said decision.
(ii) A Declaration that the said decision was erroneous in law, unlawful, invalid, void and of no effect.
(iii) An order in the nature of Mandamus, requiring the First Respondent to reconsider the decision according to law and such direction(s) as are made by this Honourable Court.
(vi) Such further or other relief as may seem just.
THE GROUNDS upon which the Applicants seek the above-mentioned relief against the Respondents are as follows:
(A) That the First Respondent erred in the manner and exercise of such discretion that was reposed in him and further erred in the purported exercise of his jurisdiction and/or misconstrued his powers under the Immigration Act 2002 and the Immigration Act (Amendment ) Promulgation 2008 (the Act and the Promulgation, respectively) by:
(i) committing an error on the face of the record, both in the analysis of and the construction of his power to make the decision;
(ii) denying the First Applicant procedural fairness to be heard prior to the making of the decision;
(iii) in implementing the decision whereby he caused the First Applicant to be arrested and detained and held against his will and thereafter to be removed from Fiji, he acted in excess of any or all such jurisdiction as was reposed in him pursuant to the Act;
(iv) insofar as he acted in coming to the decision made with respect to the First Applicant he acted ultra vires and committed an error of law in doing so;
(v) the First Respondent in making the decision, failed to take into account all relevant considerations and took into account irrelevant considerations, making the decision void and of no effect;
(vi) the First Respondent erred in the making of the decision and the service of the Removal Order by committing a jurisdictional error in coming to the decision for the wrong reason(s);
(vii) the First Respondent committed jurisdictional error by failing to ask and receive answers to the right questions, consider relevant material and disregard irrelevant material;
(viii) the First Respondent failed to properly construe the Act in respect of the criteria relied upon to determine the decision arrived at, as a result the decision was or involved a jurisdictional error and is regarded in law as no decision at all;
(ix) the First Respondent fell into jurisdictional error by deciding the threshold requirement under s.13(2) of the Act and as amended subsequently by the Promulgation, viz that the First Applicant was a member of a prohibited class, was not satisfied but based upon a misconstruction of the expression "prohibited person" in s.13(2)(g);
(x) the First Respondent fell into jurisdictional error by failing to take into account a relevant consideration in the exercise of the discretion under s.13(2)(g), namely:
(aa) the nature and extent of the circumstances warranting the First Applicant's inclusion in the class of prohibited persons;
(bb) the weakness or strength of the evidence supporting the alleged conduct of the First Applicant;
(cc) the hardship to the First Applicant as a result of the decision.
(xi) the First Respondent fell into jurisdictional error by taking irrelevant considerations into account in the exercise of the discretion to make the decision, namely:
(dd) that the Interim Government of the Fiji Islands has a strong interest in deterring non-citizens from exercising freedom of expression through the press and media when the First Applicant had not been convicted of any offence involving a limitation on such freedom in the interests of national security or public safety.
(B) The Respondents' purpose in issuing and enforcing the Removal Order by the First Respondent on 25 February 2008 and passing the Promulgation on 26 February 2008 was to allow the First Applicant to be detained when he had no right of appeal from a decision of the First Respondent pursuant to s.58(8) of the Act, as amended, and that was an improper purpose because -
(1) the Respondents knew that upon arrest and detention pursuant to the decision, no appeal could be lodged;
(2) the Respondents expressly took into account the fact that the arrest of the First Applicant on 25 February 2008 would, by reason of the Promulgation, despite being dated 26 February 2008, was said to come into effect on 25 February 2008, thereby preventing any appeal or review of the decision;
(3) the First Applicant had not been previously notified by the First Respondent that he was considering removal of the First Applicant and cancellation of his work permit to reside in the Fiji Islands;
(4) the purpose of the Respondents is to be inferred from the matters set out above.
PATEL SHARMA LAWYERS
Solicitor for the Applicants
Dated: May 2008
This Application for leave to apply for Judicial Review was filed by Messrs Patel Sharma Lawyers, Barristers and Solicitors, 1st Floor, 18 Waimanu Road, Suva