LAUB V. ATTORNEY-GENERAL AND ANOTHER

019-SLLR-SLLR-1995-2-LAUB-V.-ATTORNEY-GENERAL-AND-ANOTHER.pdf


88
Sri Lanka Law Reports
[1995] 2 Sri L.R.
LAUB
v.
ATTORNEY-GENERAL AND ANOTHER
COURT OF APPEALISMAIL, J,
C. A. 556/93
SEPTEMBER 8 AND 20, 1994.
Immigrants and Emigrants Act (Cap. 235) – Foreign National – Visa – Extension -Legitimate Expectation – Natural Justice – Uberrima tides – Should a hearing begiven before an application for the extension of the Visa, is refused.
The Petitioner, a German National holding a German Passport arrived in Sri Lankaon 8.2.93, on a one month Visit Visa. This Visa was subsequently extended till7.7.93. An application for a further extension of the Visa was refused by theController; and the Petitioner was asked to leave the country on or before 4.8.93.
The Petitioner seeks to quash the said Order of the Controller.
Held:
The Petitioner has not acted with uberrima tides, he has suppressed materialfacts – this application could be dismissed in limine.
Though reasons need not have been given for the non-extension of the visa,the 2nd Respondent has in his affidavit set out the matters taken into account byhim in exercising his discretion. The contention that he had the legitimateexpectation of a right to be present in Sri Lanka to oversee his business cannotbe justified. The demand of procedural justice in such a case do not include aright to a hearing or to be provided with reasons for a decision.
The Controller has the sole discretion in the matter of issuing visas and ofconsidering applications for extensions. An alien has no right to an audiencebefore the Controller or Authorised Officer before he decides not to extend hisvisa.
“A foreign alien has no right, no legitimate expectation of being allowed to stay.He can be refused without reasons given and without a hearing – once his timehas expired, he has to go.”
APPLICATION for a Writ of Mandamus/Prohibition.
Laub v. Attorney-General and Another (Ismail, J.)
89
CA
Cases referred to:-
Alphonso Appuhamy v. Hettiarachchi 77 NLR 131.
King v. The General Commissioners for the purpose of Income Tax.
Ex parte Princess Edmond de Poignac 1917-1 KBD 4864.
Castelli v. Cooke (1848) 7 Hare 89.94.
Kusumawathie v. Aitken Spence and Another CA 895/85 C.A.M. 29.5.92.
R. v. Lancastshire-cc-exp. Huddleston -1986 2 AER 941.
Attorney-General of Hong Kong v. Ng Yuen Shiu -1983 2 AER 346.
Re Westminster CC -1986 ACC 688.
Schmidt v. Secretary of State, Home Affairs 1969 2 Ch. D. 149,171.
Aage Gunner Hansen v. Siriwardane 1986 2 CALR 195.
V. E. Selvarajah with Asoka Lokugamage for Petitioner.
A. Gnanathasan, S.C. for Attorney-General.
Cur. adv. vult.
September 27, 1994.
ISMAIL, J.
The petitioner is a German national holding a German passportbearing No. L1052136. He arrived in Sri Lanka on 8.2.93 and a visitvisa was granted to him initially for a period of one month. The visawas extended on his application to be valid for three months till8.5.93 and then for a further period of two months till 7.7.93. Thereason for the extension of the visa being that he was awaitingapproval for a “GCEC (BOI) project” – 2R5 and 2R6. He then madean undated application (2R7) for a further extension of the visa to bevalid for a further period of one month. This application was refusedand the Controller for Immigration and Emigration advised him toleave the country on or before 4.8.93 (P4).
This application is for a writ of prohibition to restrain the Controllerfrom interfering with the petitioner’s stay and taking steps to removehim from Sri Lanka, and a writ of mandamus directing the Controllerto grant him the extension of his visa.
The petitioner obtained an order from this Court on 30.7.93 interms of which he was permitted to remain in this country till the finaldetermination of this application.
90
Sri Lanka Law Reports
[1995] 2 Sri L.R.
Learned State Counsel submitted that the petitioner was notentitled to be granted ‘interim relief or a ‘stay order’, in view of hisnon-compliance with the Court of Appeal (Appellate Procedure)Rules 1990, regulating the grant of interim relief. It was pointed outthat he has not even prayed for such relief in his petition. However, inview of the 'stay order’ issued by this Court on 30.7.93 the petitionerhas enjoyed a privileged stay in this country for a period of about oneyear and three months without a valid visa on a German Passportwhich has now expired.
It was the submission of State Counsel that the petitioner hassuppressed relevant material facts in regard to his previous visits toSri Lanka.
The petitioner appears to have visited Sri Lanka even in 1989, as itappears from the affidavit (P6) of the parents of a person namedLakmal Munindradasa that he was taken by the petitioner with theirconsent to Germany and brought back after an year’s stay there. Hehas been a frequent visitor to this country since then and hismovements into and out of Sri Lanka are set out in detail in theaffidavit of the Controller. He arrived in Sri Lanka on 27.6.91 andobtained a visit visa valid for period of one month. It was extendedfrom time to time till 26.9.91 and in view of several complaintsreceived against his conduct during his stay here, the AssistantController requested him to leave the country by 24.9.91 (2R1) dated9.9.91).
He came back to Sri Lanka three days later on 29.9.91 andobtained a visit visa which was extended up to 20.11.91.
His next visit to Sri Lanka was on 26.11.91 and he was issued witha visit visa which was periodically extended up to 25.5.92. TheDeputy Director-General of the Greater Colombo EconomicCommission by his letter dated 26.5.92 (2R3) informed the Controllerthat the petitioner is a Director of BNS Software Corporation (Pvt)Ltd., a project approved by the GCEC for the export of PC customsoftware, in collaboration with M. I. M. Naleem Hadjiar and CompanyLtd. He recommended that as the petitioner’s services were essentialfor the project that he be granted a residence visa for a period of oneyear. The petitioner was thus issued a residence visa valid up to25.11.92. The project referred to did not materialize and it appears tohave been abandoned.
CA
Laub v. Attorney-General and Another (Ismail, J.)
93
The present application of the petitioner before this Court is one inwhich the principles set out in the case of R. v. Kensington IncomeTax Commissioners {supra) could be followed and the applicationdismissed in limine. However, as counsel for the petitioner hasreferred to the legitimate expectation of the petitioner of beingpermitted to stay in this country, and of being afforded a hearing, itwould be appropriate to deal with this aspect of his case.
The petitioner has stated that he applied to the Board ofInvestment for the approval of an investment project for theestablishment of a German Speciality Restaurant on 5.3.93 and that itwas approved on 14.5.93. A company named Lak-Mahals GermanRestaurant (Pvt) Ltd. (P1 and P2) was incorporated for this purposeand the petitioner brought in Rs. 3.5 million and invested same in thepurchase of land and in the construction of the building. It appearsthat the application for approval for the project was made in the nameof Lakmal Munindradasa with the petitioner being named as hisforeign collaborator.
The petitioner has this to say about Munindradasa in his counter-affidavit.
“Munindradasa is a person who comes from a respectablefamily from Aluthgama. His parents are retired teachers andgood family friends and I had implicit trust in him. As I wasimpressed with his talent for business I have spent money onhis education and training in Hotel Business so that he couldbecome the Manager of the Hotel Business, which I wasproposing to set up in Colombo and hence I enlisted him as mynominee in my business operations in Sri Lanka and as suchnominee I got him to apply and obtain the necessary approvalfor my projects in Sri Lanka and the approval has been grantedon his name”.
After the present application was filed in this Court, the Director ofthe Board of Investment in Sri Lanka, who appears not to have beeninformed of these proceedings, wrote to Controller of Immigration andEmigration on 26.10.93 – P8. He stated that the temporary visagranted to the petitioner has expired (on 7.7.93) and that the
94
Sri Lanka Law Reports
[1995] 2 Sri L.R.
petitioner is the foreign investor in an approved enterprise. Herecommended that the petitioner be issued with a residence visavalid for a period of six months from the date of the expiry of thecurrent visa. It must be observed that even if the recommendation ofthe Director was accepted and acted upon by the Controller, the visathat would have been issued to the petitioner would have lapsedabout six months ago.
The petitioner in his application has stated that no reasons havebeen given for the refusal of the extension of the visa and that theController has not given him a hearing before taking a decision torefuse the extension of the visa. Although there is no general rule oflaw requiring the giving of reasons, an administrative authority maybe unable to show that it has acted lawfully unless it explains itself.Though the petitioner has not demanded reasons for such refusal inhis application, the 2nd respondent has in his affidavit set out thematters taken into account by him in exercising his discretion. Thisappears to be in conformity with the guidelines set out by this Courtrecently in Kusumawathie v. Aitken Spence and Another w, followingthe statement of Sir John Donaldson M. R. in R v. Lancastshire ex p.Huddleston(5). It was held in that case, that though reasons need notbe given for the refusal by the local authority to make a discretionarygrant to a student, once leave to apply for judicial review had beengiven, then it is the duty of the authority to make a full and fairdisclosure, ‘to explain fully what has occurred and why’.
It does not appear that the Board of Investment has given anyassurance to the petitioner that as a foreign investor he would begiven a residence visa to oversee his business. It was certainly not acondition upon which the approval for the enterprise, the GermanSpeciality Restaurant, was granted to Lak-Mahals GermanRestaurant (Pvt) Ltd. by the Board of Investment of Sri Lanka.
The contention of the petitioner that he had the legitimateexpectation of a right to be present in Sri Lanka to oversee hisbusiness cannot be justified. He may have had a hope of a favourand having failed to obtain it has lost nothing save an advantage towhich he had a legitimate expectation. The demands of proceduraljustice in such a case do not include a right to a hearing or to beprovided'with reasons for a decision.
CA
Laub v. Attorney-General and Another (Ismail, J.)
95
Learned counsel for the petitioner relied on the decision inAttorney-General of Hong Kong v. Ng Yuen Shiu(6), decided by thePrivy Council, for his submission that the petitioner had a legitimateexpectation that his visa would be extended to enable him to overseehis business upon an implied assurance given to the petitioner by theBoard of Investment. The judgment in this case is not applicable tothe circumstances of the petitioner's situation as I would endeavour toshow.
The principles of natural justice undeniably apply to a situationwhere some legal right, liberty or interest is affected but goodadministration demands their observance also where a person maylegitimately expect to be treated fairly. As Lord Bridge explained inRe Westminister CC (7) – "The Courts have developed a relativelynovel doctrine in public law that a duty of consultation may arise froma legitimate expectation of consultation aroused either by a promiseor by an established practice of consultation".
An example of a ‘promise’ is the case AG of Hong Kong v. NgYuen Shiu {supra) relied upon by counsel. In this case theGovernment of Hong Kong announced that certain illegal immigrantswho were liable to deportation, would be interviewed individually andtreated on their merits in each case. The Privy Council quashed adeportation order where the immigrant had only been allowed toanswer questions without being able to put his own case, holdingthat when a public authority has promised to follow a certainprocedure, it is in the interest of good administration that it should actfairly and should implement its promise, so long as implementationdoes not interfere with its statutory duty.
In the present case the Controller of Immigration has the solediscretion in the matter of issuing visas and of consideringapplications for the extension of visas in terms of the Immigrants andEmigrants Act (Cap. 235 L.E.C.) Revised Edition (unofficial). TheController has not prescribed a procedure that he would follow in thisregard. The principle laid down in the case referred to above andrelied on by the counsel for the petitioner is applicable to a personhaving a legitimate or reasonable expectation of being accorded ahearing, where some statement to that effect has been made or
96
Sri Lanka Law Reports
[1995] 2 Sri LR.
undertaking given by or on behalf of an authority who had the duty ofmaking the decision.
Lord Denning M.R. used the term legitimate expectation in thefollowing passage for the first time in elucidating the position inregard to aliens in Schmidt v. Secretary of State, Home Affairs (8>.
“He has no right to enter this country except by leave; and, if heis given leave to come for a limited period, he has no right tostay for a day longer than the permitted time. If his permit isrevoked before the time limit expires, he ought, I think to begiven an opportunity of making representations; for he wouldhave a legitimate expectation of being allowed to stay for thepermitted time. Except in such a case, a foreign alien has noright, – and I could add, no legitimate expectation – of beingallowed to stay. He can be refused, without reasons given andwithout a hearing once his time has expired, he has to go.”
This judgment was followed in Aage Gunner Hansen v.Siriwardanei9) in which it was held that an alien has no right to anaudience before the Controller or Authorised Officer before hedecides not to extend his visa.
The petitioner’s time on the extended visa has expired: it expired along time ago on 7.7.93. He has to leave the country, now.
The interim order made by this Court on 30.7.93 has now no effect.
The application of the petitioner is dismissed with costs fixed atRs. 5,000/-.
Application dismissed.