Ruling on Leave For Judicial Review on January 16 For Grace Road's Daniel Kim

The decision to grant a leave for judicial review in the case of Grace Road president Daniel Kim and his co-accused Sung Jun Lee will be made during the ruling on January 16, 2024.

This was the order made by High Court Justice Anare Tuilevuka yesterday at the Tagimoucia Court Complex in Lautoka.

Ronald Gordon, Wasu Pillay, Nilesh Prasad and Kings Counsel Simon Ower represented Kim and Lee while Solicitor General Ropate Green and Ofa Solimailagi represented the State, Minister for Home Affairs and Immigration and the Permanent Secretary.

Defence

Mr Ower submitted that the application was based on a decision made by the Minister for Home Affairs and Immigration on August 13, 2023 declaring the applicants’ prohibited immigrants, the Permanent Secretary’s order directing the applicants leave Fiji and the applications filed by the applicants for extension of work permits to remain in Fiji.

He said Section 13 (2) G of the Immigration Act, states in the last part that the decision of the Minister shall be final and conclusive and should not be questioned in court.

This suggested that there could be no arguments as to what the Immigration Act was referring to however as a matter of Fijian law, all power must have limits.

“Each of the grounds that we have here will have in effect that the minister has exceeded their jurisdiction,” he said.

“As your lordship would know that period after the coups and the sitting of this parliament on the 6 th of October 2014, was a period of some uncertainty as the legality of various governments and the government of Fiji during that period,” he said.

Mr Ower submitted that Section 173 (4) of the Constitution seemed to immunize conduct that took place during that period of uncertainty.

Section 173 (4) of the Constitution states no court or tribunal shall have the jurisdiction to accept, hear, determine, or in any other way entertain, or to grant any order, relief or remedy, in any proceeding challenging the validity or legality of any Promulgation, Decree or Declaration, and any subordinate laws made between 5 December 2006 until the first sitting of Parliament which was in 2014.

“For those reasons, we respectfully submit that your lordship should grant leave in relation to this matter if there is a granted leave in relation to the matter, a full stay should follow,” he said.

The State

While giving his submissions in court, Mr. Green submitted that Fiji is a sovereign state and could not be dictated upon on how it applies its law and had a right as to whom it may prohibit from entering its borders.

Mr. Green told the court to consider the first is ouster clause under Section 13 (2) G of the Immigration Act, the ouster clause also of the Immigration Act 58 (8) and 173 (4) of the Constitution.

“We would like to submit that the Minister declaring these applicants as prohibited immigrants, did not act alone, in a silo so to speak but he consulted relevant agencies to convene a multi-agency to look into the matter,” he said.

Mr Green submitted that a multi-agency taskforce made up of the Fiji Financial Intelligence Unit, Fiji Revenue and Customs Authority, Fiji Police Force, Ministry of Home Affairs and Immigration and the Ministry of Justice to investigate the matter.

“We would like to emphasize the fact that the decision of the Minister was not one taken in isolation, the Minister did actually consult other agencies of government,” he said.

The court heard that the Korean Government issued a diplomatic note to the Fijian government this year for the six Korean nationals be deported at the earliest.

Mr Green submitted that applicant's passports had been revoked and this was admitted in the applicant’s affidavit.

“Their travel documents have been cancelled by their government, that is a valid point to consider that they are in Fiji without any valid passport from the Korean government,” he said.

The hearing on a separate application for the release of the applicants from immigration detention will be called on December 21.

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