1. The
Letter from the Commissioner dated 15th July 1998.
This was the letter relied on by the Commissioner as giving sufficient
notice to the Applicant about the issue of false
entries. In analysing that
letter however, it would seem that the allegations contained therein refer
to a false declaration
having been made with respect to the question whether
the Applicant had ceased employment with her former employer Super China
Town Restaurant (Fortune Restaurant) amicably and with consent. It was not
immediately clear, that the false declaration
referred to false entries made
some sixteen months earlier, in the application form of the Applicant when
she applied
for a new work permit. But even if it could be concluded that
the false declaration could only have referred to the application
form, it
did not state with sufficient clarity what was referred to. Without the aid
of the affidavit of Ronald Unusi
filed 7th December 1998, it
would not be clear what the false declaration was about. I agree with
learned Counsel Mr. Nori that
the letter of the 15th July 1998,
was vague and ambiguous.
No one
can blame the Applicant, even with the assistance of her lawyer, for
�mis-interpreting� or rather, correctly interpreting
the meaning of that
letter. Paragraph 1 mentioned something about the Applicant having left her
former employment (Fortune
Restaurant) without notification and their
consent. Nothing specific was mentioned about any false entries in the
application
form. Paragraph 2 referred to a false declaration having been
made when applying for her work permit that she had ceased employment
with
her former employer amicably. Whilst
it
is possible to argue that the false declaration could be construed as
referring to her Work Permit Application filed sixteen
months earlier, one
must seriously ask why the necessary details were not specified if they were
known. The Commissioner
knew about them, or at least someone in his Office
knew. We now know what they are. But how could one expect the Applicant
to
know what was meant if they were not spelled out to her in the first place
and thereby given opportunity to make a
proper response? Even if she may
have correctly concluded that the false declarations pertained to her
application form,
one must seriously question whether she would be expected
to recall what she had written some sixteen months earlier; unless
she was
able to get a copy of her Work Permit application and the discrepancies
pointed out to her. It is my respectful
view that taken on their face value,
the Applicant was entitled to conclude that the false declaration pertained
to her
resignation with her former employer, that is whether it had been
done amicably and with consent.
That
issue I am satisfied was adequately responded to by Briawyers in their
letteletter of 16th July 1998 (see �GL5�
annexed
to the affidavit of Guan Lixia filed 10th August 1998 - note also
copies of the resignation letter dated 7 February 1997 and acceptance letter
dated 5th March 1997
were
included).
But even
if that response was inadequate, it would seem immaterial and irrelevant for
the purposes of the Commissioner,
whether resignation had been obtained
amicably or with the consent of the former employer. There is no law to
prevent
her from resigning from her former employment
with
Fortune Restaurant. The only requirement under Rule 6(1)(d) of the Work
Permit Rules is for her to get prior approval
from the Commissioner if she
is to do any work for any other employer other than the employer stated in
her Work Permit.
There is no suggestion that this rule had been breached. In
any event, it would seem that she had first resigned before applying
for a
new work permit to work for J B. Leong Store.
So
whether her formeroyer had accepted her resignation or not makes little
difference to the right of the employee
to call it quits with her employer.
If the employer disagrees and wishes to take the matter further with any
appropriate
authority, it can do so. But he cannot and in fact has no right
to stop the employee from resigning. Whether it is amicable
or not, or with
consent or not, is a matter between themselves to sort out. It would have
little to do with the Commissioner.
If Patrick Leong of Fortune Restaurant
had felt there was something not right with her resignation,
(bearing
in mind
this
occurred in early March of 1997 well before her fresh
application
for
renewal
of
her work
permit was
lodged on
11th March 1997),
why
didn�t he lodge a complaint with the Commissioner at that time. It took him
more than sixteen (16) months to lodge
a complaint with the Commissioner
about the resignation. Something must be drastically wrong with such a
complaint and
should have alerted the Commissioner to the genuineness of
such
a
complaint. At least by 8th April 1997, it was acknowledged the
Applicant was no longer working for Fortune Restaurant (see annexure �RU4�).
If there
was therefore any allegations of breaches of the Work Permit Rules,
then this should have been made clear to her from the beginning
so that she
can be accorded opportunity to explain. The fact of resignation therefore
appears not to have been in contention
at all. At least we know by the time
she lodged an application for a new work permit, she did so under the name
of a
new employer, J. B. Leong Store.
The
letter of the 15th Jul8 therefore was not only valy vague and
ambiguous, but actually did not raise any valid or live issue about the
resignation
of the Applicant from her former employer. It is also important
to take note of what the last paragraph in the letter from
Bridge Lawyers
dated 16th July 1998 (�RU6�) says. I quote:
class="Mso="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
�Please, advise us
if you
accept
this
explanation as being
sufficient to
allow our
client to
continue
in
her present employment.�
This
paragraph in my respectful view, required a response from the Commissioner.
It was a relevant matter for him to take
into account. If the explanation
tendered was insufficient or unsatisfactory, to say so and perhaps indicate
further
what was expected or required. If anything, simply out of courtesy,
in that a specific and polite request had been made. If
done, most likely
the Applicant would have gone to great lengths to provide any further
explanations that may be needed.
It wasn�t the case where the Applicant was
being evasive or trying to avoid the issues raised. Unfortunately no
response
was given. I am satisfied the Commissioner erred in not responding
to that letter and thereby failed to take into account a
relevant matter in
the exercise of his discretion. This would have been a relevant factor in
the issue of reasonableness
had it been raised.
The
crucial fact remained, the Applicant was never given a proper opportunity to
be heard before being condemned. That
included being informed that the
letter of explanation of 16th July 1998 was unacceptable or
unsatisfactory, making clear to her what the false declaration was about and
giving her
the opportunity to be heard. I am not satisfied this had been
done.
2. THE
AFFIDAVIT OF RONALD UNUSI FILED 7TH DECEMBER 1998:
p class="MsoNormal"rmal" style="margin-top: 1; margin-bottom: 1">
As
pointed out er, it was only in this affidavit of Ronald Unusi filed 7th
December 1998, at paragraph 4, that we are told in clear and plain terms
what the false declaration was all about. This
too was more or less the
first time the Applicant became fully aware what the allegation was about.
See paragraphs 3
and 4 of the affidavit of Ronald Unusi. I quote:
�3.
In
early July
1998, I
had
cause to
review Guan Lixie�s case, when a letter from Mr.
Dickson
Chan,
General
Manager
of
Fortune Restaurant
[former
Super China Town
Restaurant]
came
across my
desk. He
requested
my office
to investigate Mr. Yu Yue Qin and
Guan
Lixia, both employed by
Fortune
Restaurant.
It was
reported that
Guan
Lixia had left her employment without prior notice
and
consent
on 8/4/97
Copy of this is annexed �RU4�.
class="Mso="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
4. In reviewing the applicant�s work permit application under J
B Leong I noted that the application lodged on
11/3/97
had a couple of false
entries. On part 1, (6) that requires the applicant to state the date of first
employment in
S.I, there the applicant stated NO. This means she had never been employed
anywhere, anytime in S.I prior to that application.
Also on Part 1, (7)
where the applicant is required to state his/her previous employment in S.I. and
the dates and
job
title and the date of expiry of current work permit if an. Again
it was stated No. The application was so constructed I believe
so that I
would not notice that she was already employed in the country and question
the status of her current employment
then at the time of application.�
lass="MsoNormal"rmal" style="margin-top: 1; margin-bottom: 1">
Whilst I
partly agith the learned Commissioner the answer to item 6 of Part 1art 1 of
the application implied the Applicant
had never been employed in Solomon
Islands, the significance of that discrepancy or irregularity would have
been watered
down by the fact the Commissioner already had a file opened on
this particular applicant. She was not a new-comer. This meant
it would have
been possible to trace her previous employment records within a short time
after the application was lodged.
But even if that were not possible, when
the discrepancy was discovered, and the previous file(s) on the Applicant
eventually
brought up, it would have been possible then to trace what her
previous employment records were and any other details that
might have
required. This would include the details required under item 7 of Part 1 of
her application form. Once these
had been ascertained, the next logical step
in the circumstances would have been to point these discrepancies out to the
Applicant and require her to provide an explanation. I accept this was what
was sought to be done in the letter of the
15th July 1998.
Unfortunately it did not go far enough.
As
pointed out, that affidavit made clear for the first time the real issue ssue and
the reason behind the revocation
of the Applicant�s Work Permit. It
articulated with sufficient clarity what the real issues were. It follows
from this
the Applicant had never been given opportunity to address those
matters prior to cancellation of her Work Permit.
In the
hearing before this Court on 7th December 1998 Applicant
sought to t to explain for the first time it seems, how the Application form had
been incorrectly
filled in. This was the very thing that would have been
done before the Commissioner had she been given opportunity to do so
and for
what she now seeks relief. The decision to accept her explanation or not is
a matter for the Commissioner alone
to determine. This Court would have had
no right to interfere in the merits of his decision.
SIDE
ISSUE:
A side
issue which could also have been raised in respect of this this case is the
question whether the Commissioner had
acted reasonably (applying the
�Wednesbury Principle�- see the case of Associated Provincial Picture
Houses Ltd v. Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1
KB 223) in the
exercise of his discretion, bearing in mind the peculiar facts of this case;
that is, (i) the time lapse of sixteen
months (inordinate delay), (ii) the
letter of complaint from Dickson Chan raising matters which would appear to
be totally
irrelevant; that is the issue of resignation and whether it had
been done amicably and with the consent of her former Employer
(taking
into account extraneous matters), (iii) failing to make clear from the
beginning what the real allegations against her were (breach
of
natural justice),
and (iv) failing to take into account the letter of the Applicant dated 16th
July 1998 (that is, failing to take into account a relevant factor).
I do not need to rule on this however as it had not been specifically raised
but simply point out that this could also
have been an alternative ground
against the decision of the Commissioner.
CONCLUSIONan>
It should
be made clear, the power of the Csioner is not in issue. It . It is clear
beyond doubt he had the power to revoke
the Work Permit at any time pursuant
to Rule 5(a) of the Work Permit Rules. What he failed to do was to give
opportunity
to the Applicant to be heard before being condemned. I am not
satisfied the letter of 15th July 1998 was sufficient notice of
what the allegation was about. His decision therefore must be quashed on the
grounds
of breach of natural justice. Subsequent orders must also follow in
respect of the decision of the Director of Immigration
which I am satisfied
simply follow on from the decision of the Commissioner, to cancel her permit
to enter and reside
in Solomon Islands.
ORDERS
OF THE COURT:
1. ;&nspp; IsSUE ORDER OF
CERTIORARI AND DIRECT THAT THE DECISIONS OF THE COMMISSIONER OF LABOUR DATED
28TH
JULY 1998 AND OF THE DIRECTOR OF IMMIGN DATH AUG998 B RE INTO THIS COURT ANRT AND QUAD QUASHED SHED FORTHFORTHWITH.WITH.
2. COSTS OF THE
CPPLITONT TO BE BORNE BY THE &&;bsppspnbbRES .
&nbs> <
THE COURT
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