[1988] 2SLR(R) SINGAPORE LAW REPORTS (REISSUE) 165

Re Siah Mooi Guat

[1988] SGHC 72
High Court Originating Motion No 60 of 1986
T S Sinnathuray J
12 September 1988
Administrative Law Judicial review Minister for Home Affairs declaring that
applicant an undesirable immigrant Minister rejecting appeal Applicant
applying for order of certiorari to quash decision Whether decision breached rules
of natural justice Whether rules of natural justice applicable to aliens Whether
principle of legitimate expectation violated Whether Ministers decision
unreasonable Sections 8(3)(k) and 14 Immigration Act (Cap 133, 1985 Rev Ed)
Facts
The applicant, a Malaysian citizen, was granted a re-entry permit and
employment pass valid until 6 March 1987. However, on 5 September 1986, the
Controller of Immigration (Controller) informed her by letter that she was
declared a prohibited immigrant and her re-entry permit and employment pass
were cancelled. The applicant appealed to the Minister for Home Affairs (the
Minister) to reconsider the matter, but the Minister rejected her appeal. The
applicant took out this application for an order of certiorari to quash the
decision of the Minister and Controller on the basis that they had breached the
rules of natural justice, that the applicant had a legitimate expectation to
continue to reside in Singapore until the expiry of her permit and that the
Ministers decision was so unreasonable that it was open to review by the courts.
Held, dismissing the application:
(1) At common law, legitimate, or reasonable, expectation might arise either
from an express promise given on behalf of a public authority or from the
existence of a regular practice which the claimant could reasonably expect to
continue. In the present case, no promise whatsoever was made to the applicant
that her stay in Singapore was to be conditioned by any considerations other
than those provided in the Immigration Act (Cap 133, 1985 Rev Ed) and the
regulations thereunder. Therefore, no question of any legitimate expectation
arose in the applicants favour: at [24] and [30].
(2) In providing for appeals by aggrieved persons against the decisions of the
Controller and of the Minister, the Immigration Act gave statutory recognition
and protection to the right to be heard, which was a procedural safeguard
afforded by the rules of natural justice. The applicant who was declared a
prohibited immigrant and whose re-entry permit had been cancelled had availed
herself of that right of appeal, which was rejected by the Minister. There was no
requirement, at common law or under the Immigration Act, for the Minister to
give reasons for his decision: at [34].
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166 SINGAPORE LAW REPORTS (REISSUE) [1988] 2SLR(R)
(3) The rules of natural justice did not apply to aliens in the administration of
Singapores immigration laws. For these rules to apply to aliens, there had to be
specific legislation, and there was no such legislation in Singapore: at [35].
(4) The burden was on the applicant to make out her case against the Minister
on the ground that his decisions were irrational or unreasonable. On the facts,
the applicant had failed to establish her case: at [40].
Case(s) referred to
AG of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629 (distd)
Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948]
1 KB 223 (refd)
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374
(refd)
J P Berthelsen v Director-General of Immigration, Malaysia [1987] 1 MLJ 134
(not folld)
Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149 (refd)
Legislation referred to
Evidence Act (Cap 97, 1985 Rev Ed) ss 125, 126
Immigration Act (Cap 133, 1985 Rev Ed) ss 8(3)(k), 14 (consd);
ss 10, 11, 15
Immigration Regulations 1972 (GN No S 259/1972) reg 16
Rules of the Supreme Court 1970, The O 53 r 1(2)
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 13
Immigration Act 1951 (Malaya)
Immigration Act 1971 (c 77) (UK)
Louis Blom-Cooper QC and Vinod Kumar Dube (Dube & Co) for the applicant;
Fong Kwok Jen and Ng Yuen (Attorney-Generals Chambers) for the respondents.
12 September 1988 Judgment reserved.
T S Sinnathuray J:
1 This is an application by Siah Mooi Guat (the applicant) for an
order of certiorari to remove into the High Court and quash:
(a) the decision of the Minister for Home Affairs made pursuant to
s 8(3)(k) of the Immigration Act on 5 September 1986, declaring the
applicant to be an undesirable immigrant;
(b) the declaration and cancellation made by the Controller of
Immigration on 5 September 1986 whereby the Controller: (i) under
s 14(4) of the Immigration Act, declared the applicants presence in
Singapore unlawful; (ii) under s 14(3) of the Immigration Act,
cancelled the applicants re-entry permit dated 6 March 1984; and
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[1988] 2SLR(R) Re Siah Mooi Guat 167
(iii) under reg 16 of the Immigration Regulations 1972, cancelled the
applicants employment pass issued on 6 March 1984; and
(c) the decision of the Minister for Home Affairs on 16 September
1986 made under s 14(5) of the Immigration Act whereby he
dismissed the applicants appeal against the declaration and
cancellation made by the Controller.
2 The applicant raised ten grounds on which she sought relief in the
statement filed pursuant to O 53 r 1(2) of the Rules of the Supreme Court
1970, but as her counsel, Mr Blom-Cooper QC, did not take each of them
separately at the hearing, it is not necessary to set them out here. Broadly,
the grounds were that the Minister for Home Affairs (the Minister) and
the Controller of Immigration (the Controller) had breached the rules of
natural justice; that the applicant had a legitimate expectation to continue
to reside in Singapore at least until the expiry of her permit; and that the
Ministers decisions were so unreasonable that it was open to review by the
courts under the Wednesbury principles (in Associated Provincial Picture
Houses Limited v Wednesbury Corporation [1948] 1 KB 223).
3 The facts on which arguments were raised at the hearing are these.
The applicant, a Malaysian citizen, and holder of a Malaysian passport, first
came to Singapore in 1973. Her stay in Singapore was therefore subject to
immigration control. In April 1974, she was granted a temporary
employment pass and, on 14 June 1974, an employment pass for one year,
renewable yearly, subject to the validity of her passport. On 2 September
1975, the applicant was granted an entry permit which required her
continued employment with the Singapore Sports Council for a period of
six years. On or about 21 October 1976, she returned her entry permit as
she had resigned from the Sports Council.
4 The applicant subsequently gained employment with Times
Publishing Bhd. Again, she applied and obtained a temporary employment
pass which permitted her to remain in Singapore. On 30 November 1977,
she was issued with an employment pass valid for one year. This pass was
renewed from time to time until 30 November 1980.
5 On 19 November 1979, the applicant applied for permanent
residence. It was explained in an affidavit for the Controller that
permanent residence is a nomenclature referring to those persons issued
with entry permits pursuant to s 10 of the Immigration Act (Cap 133) (the
Act). Such persons are permitted to remain in Singapore without any
restriction as to their period of residence, subject, however, to ss 11, 14 and
15 of the Act, the first section of which deals with the grant of re-entry
permits, the second concerns cancellation and declaration regarding
permits, and the third makes it unlawful to enter or remain in Singapore
after cancellation or declaration. The applicant was issued an entry permit
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168 SINGAPORE LAW REPORTS (REISSUE) [1988] 2SLR(R)
number 32188 with effect from 8 April 1980, subject to the condition that
she served Times Publishing Bhd for a period of three years from the date of
the issue of the permit.
6 On 9 March 1984, through her then solicitors, Lee & Lim, the
applicant applied for a renewal of her re-entry permit which was to expire
on 17 March 1984. I should explain here that a person residing in Singapore
pursuant to an entry permit issued under s 10 of the Act who seeks to leave
Singapore temporarily must apply for a re-entry permit under s 11 of the
Act, which will allow his re-entry into Singapore. With their letter to the
Controller, the solicitors sent a letter of confirmation of employment of the
applicant by Times Publishing Bhd. By a letter dated 28 April 1984, the
solicitors were informed that the applicant has been issued with a re-entry
permit valid till 6 March 1987. She was also issued with an employment
pass for a period of three years expiring on the same day, 6 March 1987.
7 The applicant, however, left the service of Times Publishing Bhd in
May 1984. On 24 October 1984, her solicitors inquired of the Controller
whether she had to notify the Immigration Department of any change of
her employer. Having sought information from Times Publishing Bhd that
there had been no break in service of the applicant with the company
between 8 April 1980 and 8 April 1983, on 12 November 1984, the
Department wrote to the applicants solicitors that it was not necessary for
her to notify the Department of her change of employer.
8 By then the applicant was employed as an associate of Russell
Reynolds Inc. She also owned an apartment in which she had purchased in
May 1979. In September 1985, she was informed by way of a routine letter
by the Professionals Information and Placement Service, a division of the
Ministry of Finance, that as she had been a permanent resident of Singapore
for more than five years she was eligible to apply for Singapore citizenship.
On 30 January 1986, an officer in the Singapore Citizenship Registry wrote
to the applicant inviting her to call at the Registry to determine her
eligibility to apply for Singapore citizenship. The applicant, however, did
not respond to this letter.
9 According to the applicant, nothing untoward happened to her, as
regards her residence in Singapore, until 5 September 1986, when suddenly,
without any prior warning, she received the following letter from the
Controller:
ENT/100837/79
5 September 1986
Miss Siah Mooi Guat alias Mei Siah
31, Tomlinson Road, #11-35
Beverly Mai Singapore 1024
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Dear Madam,
Your presence in Singapore has been declared unlawful and your re-
entry permit and employment pass have been cancelled on the ground
that you are a prohibited immigrant under para (k) of sub-s (3) of s 8
of the Immigration Act (Cap 81, 1970 Ed). A copy each of the
declaration and cancellation notices are attached for your retention.
You may, if you so wish, appeal against the declaration and
cancellation of your re-entry permit by petition in writing to the
minister for Home Affairs, Singapore, through the Controller of
Immigration, within seven days of the date of receipt of this letter.
Yours faithfully
Sgd
Lim Ek Hong
Controller of Immigration Singapore
10 Her then solicitors, Chu Chan Gan & Ooi, by a letter dated
11 September 1986, lodged an appeal to the Minister. The letter reads as
follows:
GCB/bt
September 1986
The Honourable the minister of Home Affairs, through the Controller
of Immigration.
Dear Sir,
Re: Miss Siah Mooi Guat alias Mei Siah
We act for Ms Siah Mooi Guat.
We are instructed to refer to the letter of Controller of Immigration
dated 5 September 1986 together with its enclosures.
We are instructed by our client to appeal to you on her behalf to
reconsider the declaration made against our client under s 14(4) of the
Immigration Act and to discover what is the reason or reasons that led
to this action.
Our client has worked and lived in Singapore since 1973. She is a
person of independent means and has bought her own home in
Singapore.
To her knowledge, she has not been engaged in any activity, that is,
inimical to the interests of Singapore. Indeed as late as September 1985,
she was invited to apply for Singapore citizenship under the
accelerated citizenship (AC) scheme of the government.
For many years our client was a senior executive in the Times
Organization. She was largely responsible for the Groups
diversification of its publishing interests into Hong Kong, Thailand
and Australia. Her capabilities were recognized by the top
management of the Times Group and at a very early stage, she was
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170 SINGAPORE LAW REPORTS (REISSUE) [1988] 2SLR(R)
given very responsible management tasks in the group. There is no
doubt that she is a person of exceptional talent.
She is now about to embark on a new career by going abroad to work
in a US investment bank in the field of funds management.
To be declared as an undesirable immigrant would damage her career
and future. We would therefore urge you to reconsider this matter in
the light of the evidence available to you regarding her status and also
having regard to the fact that in any event she would be going away to
work abroad. We would urge that consideration be given to her
previous contribution to the corporate expertise of the Times Group
and to the publishing industry of Singapore, and that having regard to
such contribution, she should be spared the stigma of an undesirable
immigrant.
We also enclose our clients two re-entry permits and green
disembarkation card.
Yours faithfully
Sgd
11 Within a week, the applicants solicitors were informed by letter that
the Minister had rejected the appeal. That letter reads as follows:
MHA (ID) 1/9/06
16 September 1986
M/s Chu Chan Gan & Ooi Advocates & Solicitors
93 Market Street
CYS Building #09-00
Singapore 0104
Dear Sirs
Appeal Against Declaration Under Section 14(4) of The Immigration
Act 1970
Miss Siah Mooi Guat alias Mei Siah
I refer to your letter to the Minister for Home Affairs through the
Controller of Immigration on 11 September 86. 2 The Minister has
considered your appeal and decided that the decision should stand.
Miss Siah Mooi Guat is required to leave Singapore on or by
22 September 86.
Yours faithfully
Sgd
Koh Geok Eng (Miss)
for Permanent Secretary
(Home Affairs)
12 For the purpose of these proceedings, Mr Lim Siam Kim, a Deputy
Secretary who, in September 1986, when the appeal was before the Minister,
was covering the duties of the Permanent Secretary has filed two affidavits.
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[1988] 2SLR(R) Re Siah Mooi Guat 171
In paras (3) and (4) of the first affidavit of four paragraphs, he states as
follows:
(3) The Ministry of Home Affairs received the applicants appeal
to the minister through the Controller of Immigration. When we
received the appeal I submitted the appeal together with all relevant
documents to the minister for his consideration. The minister gave due
and careful consideration to the appeal by the appellant before
deciding that the decision taken earlier deeming her to be an
undesirable immigrant and the Controllers declaration that her
presence in Singapore is unlawful should stand.
(4) The powers given to the minister under s 8(3)(k) of the
Immigration Act (Cap 81, 1970) are exercised carefully and very
sparingly. Since 1982 to date, a period of four years and nine months,
no more than a dozen non-citizen residents have been deemed by the
minister to be undesirable immigrants.
13 In the shorter second affidavit, he explained that at the material time,
he was covering the duties of the Permanent Secretary who was on leave
and said:
(3) The minister in his consideration under s 8(3)(k) of the
Immigration Act (Cap 81, 1970 Ed) considered the information, from
a reliable source about the applicants conduct and activities. The
information if disclosed would endanger the confidentiality of the
source and that would not be in the public interest.
14 For ease of reference, I reproduce below the relevant provisions of ss 8
and 14 of the Act:
8(1) Any person who, in the opinion of the Controller, is a member
of any of the prohibited classes as defined in subsection (3) and is not a
citizen of Singapore is a prohibited immigrant.
(3) The following persons are members of the prohibited classes:

(k) any person who, in consequence of information received

from any source deemed by the Minister to be reliable, or from
any government through official or diplomatic channels, is
considered by the Minister to be an undesirable immigrant;
14(3)Where at any time, during the period of validity of any permit
or certificate, the Controller is satisfied that the holder of the permit or
certificate is a prohibited immigrant, the Controller shall cancel the
permit or certificate.
(4) Where any person has entered Singapore by virtue of a permit or
certificate, and the Controller is satisfied
(b) that the person is a prohibited immigrant;
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172 SINGAPORE LAW REPORTS (REISSUE) [1988] 2SLR(R)
the Controller may declare at any time after the date of the entry, that
the presence of that person in Singapore is unlawful.
(5) On making any cancellation under subsection (3) or on
making any declaration under subsection (4) the Controller shall, by
notification, which, if the address of the person is known, shall be sent
to him at that address and otherwise shall be published in such manner
as the Controller thinks fit, inform the person affected thereby of the
grounds on which the cancellation or declaration has been made and
that person may appeal against the cancellation or declaration, as the
case may be, within such time and in such manner as may be
prescribed, to the Minister, whose decision shall be final.
15 The main argument for the applicant was that these facts attracted the
application of the principle of legitimate expectation. Mr Blom-Cooper said
that as on 5 September 1986, the applicant was lawfully resident in
Singapore on a re-entry permit which was valid till 6 March 1987, the
applicant had a legitimate expectation that she would be allowed to stay in
Singapore until the expiry of the re-entry permit. Another submission was
that as the applicant was a permanent resident of more than five years
standing and was therefore potentially eligible to apply for Singapore
citizenship, she had a further legitimate expectation to stay in this country.
However, at the close of the hearings on 7 April 1987, Mr Blom-Cooper
conceded that since the applicants permit to stay in Singapore had come to
an end, she no longer had any legitimate expectation to remain in the
country. That being the correct position in law, no further consideration is
required on this second argument on legitimate expectation.
16 According to counsel, the legitimate expectation had by the applicant
gave her at least two separate procedural rights. One was an opportunity to
afford to the applicant the right to make representations, either orally or in
writing, to the Minister before he considered her case under s 8(3)(k) of the
Act; and the other was that it imposed a duty on the Minister to give
reasons for the two decisions made by him, in deeming the applicant to be
an undesirable immigrant. Counsel said that it would follow that if the
decision of the Minister was rendered invalid, then the declaration by the
Controller on 5 September 1986 that the presence of the applicant in
Singapore was unlawful and the two cancellations made by him, of the re-
entry permit and the employment pass, would likewise be invalid and of no
effect.
17 By way of summary, the submission for the applicant was that,
because the principle of legitimate expectation applied to the facts of her
case, and there was no claim by the Minister that his decisions of 5 and
16 September 1986 involved matters of national security, the Minister was
bound to comply with the rules of natural justice in toto.
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[1988] 2SLR(R) Re Siah Mooi Guat 173
18 In support of this submission, counsel relied on the Privy Council
decision in Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629
and more emphatically on the decision of the Supreme Court of Malaysia in
J P Berthelsen v Director-General of Immigration, Malaysia [1987]
1 MLJ 134. He urged upon me that as the immigration laws of Malaysia and
Singapore were identical in kind, I should have no difficulty in accepting
Berthelsens case. This optimism on the part of Mr Blom-Cooper was not
shared by Mr Fong Kwok Jen for the respondents who joined issue with
him on the submission made by him on both the cases. I therefore have to
deal with the two cases at some length.
19 Ng Yuen Shius case ([18] supra) is not a difficult one to understand.
The applicant, born in China in May 1951, and taken to Macau by his
parents at the age of three, entered Hong Kong illegally from Macau in
1967. In 1976, when he applied for an identity card, he was detained and
removed to Macau; but within a month he re-entered Hong Kong illegally
and remained there. By 1980 he was a part owner of a small garment factory
in Hong Kong.
20 In October 1980, the Hong Kong Government announced a change in
the immigration policy. It explained that all illegal immigrants from China
would be liable to be repatriated. This caused anxiety to the illegal
immigrants of Chinese origin who had entered Hong Kong from Macau.
They sent a petition to the Governor. A senior immigration officer was
instructed to respond and he made an announcement outside the
Government House. Among other things, he said, Those illegal
immigrants from Macau will be treated in accordance with procedures for
illegal immigrants from anywhere other than China. They will be
interviewed in due course Each case will be treated on its merits.
Lord Fraser of Tullybelton, who delivered the judgment of the Privy
Council, said of this statement, The promise that each case would be
treated on its merits is at the root of the applicants argument before the
Board.
21 The question in the appeal was formulated as: whether an alien, who
had entered Hong Kong without permission and contrary to the laws of the
Colony, has a right to a hearing by the Hong Kong authorities, conducted in
accordance with the rules of natural justice, either in every case or in the
particular circumstances of the case.
22 Having regard to their decision, on the particular circumstances of
the case, Lord Fraser said at 636:
it is unnecessary for them to decide the general question. They will
therefore assume, without deciding, that the Court of Appeal rightly
decided that there was no general right in an alien to have a hearing in
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174 SINGAPORE LAW REPORTS (REISSUE) [1988] 2SLR(R)
accordance with the rules of natural justice before a removal order is
made against him.
23 The learned Law Lord observed that this is a very narrow case on its
facts and the Governments promise to the applicant has not been
implemented. He enunciated the proposition that when a public
authority has promised to follow a certain procedure, it is in the interest of
good administration that it should act fairly and should implement its
promise, so long as implementation does not interfere with its statutory
duty. He then applied the proposition to the facts of the case. In dismissing
the appeal brought by the Attorney-General, he said at 638:
In the opinion of their Lordships the principle that a public authority is
bound by its undertakings as to the procedure it will follow, provided
they do not conflict with its duty, is applicable to the undertaking given
by the Government of Hong Kong to the applicant, along with other
illegal immigrants from Macau, in the announcement outside the
Government House on 28 October, that each case would be considered
on its merits. The only ground on which it was argued before the Board
that the undertaking had not been implemented was that the applicant
had not been given an opportunity to put his case for an exercise of
discretion, which the director undoubtedly possesses, in his favour
before a decision was reached. The basis of the applicants complaint is
that, when he was interviewed by an official of the Immigration
Department who recommended to the director that a removal order
against him should be made, he was not able to explain the
humanitarian grounds for the discretion to be exercised in his favour.
In particular he had no opportunity of explaining that he was not an
employee but a partner in a business which employed several workers.
24 This concept of legitimate expectation was considered more recently
in the House of Lords in Council of Civil Service Unions v Minister for the
Civil Service [1985] AC 374 (the GCHQ case). Again, Lord Fraser made
clear that, in the field of public law, more familiar to us as administrative
law, legitimate expectation arises either from an express promise given on
behalf of a public authority or from the existence of a regular practice which
the claimant can reasonably expect to continue. He explained the matter
thus at 401:
But even where a person claiming some benefit or privilege has no legal
right to it, as a matter of private law, he may have a legitimate
expectation of receiving the benefit or privilege, and, if so, the courts
will protect his expectation by judicial review as a matter of public law.
This subject has been fully explained by my noble and learned friend,
Lord Diplock, in OReilly v Mackman [1983] 2 AC 237 and I need not
repeat what he has so recently said. Legitimate, or reasonable,
expectation may arise either from an express promise given on behalf
of a public authority or from the existence of a regular practice which
the claimant can reasonably expect to continue. Examples of the
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[1988] 2SLR(R) Re Siah Mooi Guat 175
former type of expectation are R v Liverpool Corporation, ex p
Liverpool Taxi Fleet Operators Association [1972] 2 QB 299 and A-G of
Hong Kong v Ng Yuen Shiu [1983] 2 AC 629 (I agree with
Lord Diplocks view, expressed in the speech in this appeal, that
legitimate is to be preferred to reasonable in this context. I was
responsible for using the word reasonable for the reason explained in
Ng Yuen Shiu, but it was intended only to be exegetical of legitimate).
An example of the latter is R v Board of Visitor of Hull Prison, ex p St
Germain [1979] QB 425 approved by this House in OReilly, at p 274D.
The submission on behalf of the appellants is that the present case is of
the latter type. The test of that is whether the practice of prior
consultation of the staff on significant changes in their conditions of
service was so well established by 1983 that it would be unfair or
inconsistent with good administration for the government to depart
from the practice in this case. Legitimate expectations such as are now
under consideration will always relate to a benefit or privilege to which
the claimant has no right in private law, and it may even be to one
which conflicts with his private law rights. In the present case the
evidence shows that, ever since GCHQ began in 1947, prior
consultation has been the invariable rule when conditions of service
were to be significantly altered. Accordingly, in my opinion if there
had been no question of national security involved, the appellants
would have had a legitimate expectation that the minister would
consult them before issuing the instruction of 22 December 1983.
25 It is also useful that I refer to what Lord Roskill said in this case on the
same subject at 415:
The introduction of the phrase reasonable expectation into this
branch of our administrative law appears to owe its origin to
Lord Denning MR in Schmidt v Secretary of State for Home Affairs
[1969] 2 Ch 149, 170 (when he used the phrase legitimate
expectation). Its judicial evolution is traced in the opinion of the
Judicial Committee delivered by my noble and learned friend,
Lord Fraser of Tullybelton, in A-G of Hong Kong v Ng Yuen Shiu
[1983] 2 AC 629, 636638. Though the two phrases can, I think, now
safely be treated as synonymous for the reasons there given by my
noble and learned friend, I prefer the use of the adjective legitimate in
this context and use it in this speech even though in argument it was
the adjective reasonable which was generally used. The principle may
now be said to be fully entrenched in this branch of the law. As the
cases show, the principle is closely connected with a right to be heard.
Such an expectation may take many forms. One may be an expectation
of prior consultation. Another may be an expectation of being allowed
time to make representations especially where the aggrieved party is
seeking to persuade an authority to depart from a lawfully established
policy adopted in connection with the exercise of a particular power
because of some suggested exceptional reasons justifying such a
departure.
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176 SINGAPORE LAW REPORTS (REISSUE) [1988] 2SLR(R)
26 So much then on the subject of legitimate expectation, a principle
applicable in public law, which is being developed in England as part of
their common law, on a case-by-case basis, by way of judicial review under
the English O 53. I now revert to Ng Yuen Shius case ([18] supra). It is clear
to me that it did not alter the general law relating to immigration control of
aliens. If not for the public promise made by the Hong Kong Government,
beyond the statutory duty imposed on it under the immigration laws that it
would decide the case of each of the illegal immigrants from Macau on
individual merits, Ng Yuen Shiu would have lost his case in the Privy
Council.
27 I turn now to the Berthelsen case ([18] supra) on which, I think it is
right to say, the submission for the applicant was anchored. This case has
troubled me greatly. Here the appellant, a citizen of USA, was granted an
employment pass on 2 November 1984 for a period of two years, valid until
2 November 1986, for employment as a staff correspondent of the Asian
Wall Street Journal in Kuala Lumpur. However, on 26 September 1986,
about five weeks before the pass was due to expire, he was served with a
notice of cancellation forthwith. Three grounds were recited in the notice of
cancellation, including that the appellant had failed to comply with the
conditions imposed in respect of the pass or the instructions endorsed
thereon, and that his presence in the Federation was or would be prejudicial
to the security of the country. Upon the dismissal of the appellants
application to the High Court for leave to apply for orders of certiorari and
prohibition, he appealed to the Supreme Court. The court held that as the
appellant had not been afforded an opportunity to be heard before the
cancellation of his employment pass, certiorari would issue to quash the
cancellation. Abdoolcader SCJ, who delivered the judgment of the court,
said at 137:
The appellant was lawfully in the country under the sanction of an
employment pass validly issued for a stipulated period, and he clearly
had a legitimate expectation to be entitled to remain in this country at
least until the expiry of the prescribed duration, and any action to
curtail that expectation would in law attract the application of the rules
of natural justice requiring that he be given an opportunity of making
whatever representations he thought necessary in the circumstances.
28 I have already said that our Immigration Act is the same as the
Malaysian Immigration Act 1951, but Mr Fong Kwok Jen for the
respondents has raised several grounds in his written submission as to why
I should not follow the decision in Berthelsens case ([18] supra). To begin
with, he said that it was unfortunate that the learned judges in the Supreme
Court did not have the benefit of full arguments presented for the
respondents in that case. This is a fair comment, for in the judgment, after
stating the facts, the court said at 135:
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[1988] 2SLR(R) Re Siah Mooi Guat 177
At the outset of the hearing of the appeal before us we were of the view
ex facie that leave should in fact have been granted in the court below
as the point taken by the appellant was not frivolous to merit refusal of
leave in limine and justified argument on a substantive motion for
certiorari.
We accordingly allowed the appeal, and granted leave to the
appellant to apply for an order of certiorari. We then turned to a
consideration of the substantive motion for certiorari on an
undertaking by counsel for the appellant to formally file this in the
registry.
We asked Mr Selventhiranathan, Senior Federal Counsel appearing for
the respondents, to address us in the first instance on one point only,
scilicet, whether the appellant should have been afforded an
opportunity to be heard before the cancellation of his employment
pass. He was unable to give any effective answer to this question.
29 Next, Mr Fong Kwok Jen submitted that in Berthelsens case ([18]
supra), no argument appears to have been raised as to whether it was proper
for the court to infer that the rules of natural justice may properly be
applied to the provisions of the Malaysian Immigration Act. He said that it
would appear that the learned judges had assumed that the rules of natural
justice were applicable to those provisions relating to the removal of aliens
from the country. He, however, has given no less than five reasons as to why
the rules of natural justice do not apply to our Immigration Act. On the
subject of legitimate expectation, the submission was that the learned
judges had assumed that legitimate expectation, which is now part of the
common law of England, would also form part of the common law of
Malaysia.
30 For myself, I leave these submissions without expressing any views on
them because I can decide on Berthelsens case ([18] supra) on another
ground which has also been identified by counsel for the respondents. It is
this. Though the learned judges in Berthelsens case did not say so in so
many words, it is clear enough to me, from the passage in the judgment I
have quoted earlier, that they had founded their decision on Ng Yuen Shius
case ([18] supra). But I am of the view that Ng Yuen Shius case is of no
assistance to me. The vital difference between that case and the present case
is that whereas in Ng Yuen Shius case there had been an express promise
made to him, no promise whatsoever was made to the applicant that her
stay in Singapore was to be conditioned by any considerations other than
those provided in the Immigration Act and the regulations thereunder.
Therefore, no question of any legitimate expectation arises in the
applicants favour as had been made available to Ng Yuen Shiu. In as much
as I take a different view from that of the learned judges in Berthelsens case
of Ng Yuen Shius case, I cannot accede to Mr Blom-Coopers request that I
decide this case on Berthelsens case.
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178 SINGAPORE LAW REPORTS (REISSUE) [1988] 2SLR(R)
31 What then are the principles that govern the administration of our
immigration laws? It is not in dispute in this case that the scheme of our
immigration legislation is not dissimilar to the English Aliens Acts and the
orders made thereunder. When these immigration laws were in force in
England, it was finally settled by the Court of Appeal in Schmidt v Secretary
of State for Home Affairs [1969] 2 Ch 149 that:
(a) an alien has no right to enter the country except by leave and the
Home Secretary can refuse leave without giving any reason;
(b) an alien, given leave to enter the country for a limited period,
has no right to stay, and no legitimate expectation of being allowed to
stay, for a day longer than the permitted period; and
(c) the rules of natural justice do not apply and the extension of stay
of an alien can be refused without reasons and without a hearing.
32 However, in Schmidts case ([31] supra), Lord Denning in his
judgment said obiter that where the permit to stay of an alien is revoked
before the time limit expires, he ought, I think, to be given the opportunity
of making representations: for he would have a legitimate expectation of
being allowed to stay for a permitted time. Thus, Mr Blom-Cooper
submitted that an alien who is in possession of an entry permit which has
not yet expired is in the country lawfully until the date of expiry and,
therefore, he has an interest during the unexpired portion that carries with
it a public law right to a fair procedure, if and when the Minister desires to
terminate that leave to stay prematurely.
33 This argument for the applicant based on Schmidts case ([31] supra)
is an attractive one. I accept the factual premise that the applicant who had
a permit valid till 6 March 1987 was lawfully in the country and could, in
the normal course of events, remain in the country until the date of expiry
of the permit. But the legal consequence of a public law right or interest
claimed for the applicant, for the unexpired portion of her stay in
Singapore, has not been supported by any English authority. Even the Privy
Council, when it had the opportunity, in Ng Yuen Shius case ([18] supra)
did not approve the obiter of Lord Denning in Schmidts case. It merely
noted that the phrase legitimate expectation originated in the judgment of
Lord Denning in that case. In any event, Lord Denning did not explain in
his obiter when the opportunity to make representations ought to be given
to an alien. He noted that in practice the Home Secretary did consider
representations, though it is not clear from the judgment whether the
representations are made to the Home Secretary before or, for review, after
he has made the order. He also observed that there was a Command Paper
that had recommended a system of appeals against exclusion of aliens.
34 Now, the position in Singapore is quite different. Parliament has
provided in our Immigration Act for appeals by aggrieved persons against
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[1988] 2SLR(R) Re Siah Mooi Guat 179
the decisions of the Controller and of the Minister. The substance of these
provisions is that the right to be heard, a procedural safeguard afforded by
the rules of natural justice, has been given statutory recognition and
protection in the Act. So far as the applicant is concerned, there is s 14(5) of
the Act which I have set out above. The applicant who was declared a
prohibited immigrant and whose re-entry permit was cancelled by the
Controller had a right of appeal to the Minister. And, the applicant had by
letter availed herself of that right. The Minister had carefully considered her
appeal and had rejected it. Neither in common law nor under the Act was
the Minister required to give reasons for his decision.
35 Next, on the authorities, and subject to the foregoing, I am satisfied
that the rules of natural justice do not apply to aliens in the administration
of our immigration laws. For these rules to apply to aliens, there has to be
specific legislation: For the present position in the United Kingdom,
reference can be had to the provisions in the Immigration Act 1971; and, as
regards the position in Australia, there is a statute of general application,
the Administrative Decisions (Judicial Reviews) Act 1977. The long title of
this Act states that it is [a]n Act relating to the review on Questions of Law
of certain Administrative Decisions. In particular s 5 provides that any
person who is aggrieved by a decision to which the Act applies, (it includes
an alien facing an order of deportation) may apply to the court for an order
of review on the grounds, inter alia, that a breach of the rules of natural
justice occurred in connection with the making of that decision. Also,
under s 13, an aggrieved person may, by notice in writing given to the
decision maker, request him to furnish the reasons for his decision. The
onus is then on the decision maker to give his grounds of decision. Needless
to say, there is no such legislation in Singapore.
36 There remains for me to deal with two other topics which were
referred to in the arguments at the hearings. The first relates to confidential
information. It is laid in the second affidavit for the Minister that he had
considered information from a reliable source on the applicants conduct
and activities, and that he was of the view that the information, if disclosed,
would endanger the confidentiality of the source and that would not be in
the public interest. On this, the submission for the applicant was that, it
having been conceded for the respondents that this is not a case of national
security, the respondents are bound to adduce satisfactory evidence that
disclosure would breach confidentiality and harm public interest. On the
other hand, counsel for the respondents countered that even in the United
Kingdom the law recognised that there are matters of state not involving
national security which are confidential and may not be disclosed, if the
disclosure will injure public interest. For the respondents, reliance was also
had on ss 125 and 126 of the Evidence Act (Cap 97). All I need say on this
subject is that, having regard to what is provided in s 8(3)(k) of the Act, that
the Minister may receive information about an alien from any source
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180 SINGAPORE LAW REPORTS (REISSUE) [1988] 2SLR(R)
deemed by the minister to be reliable, or from any government through
official or diplomatic channels, the sources of the information and the
nature of the information received by the Minister can be of a highly
confidential nature. Without the benefit of full argument on this provision,
it seems to me that any information received by the Minister about an alien
from any government through official or diplomatic channels, would be
information which would not be in the public interest to disclose. And, as
regards information received from any other source, as it is the Minister
who is in possession of all the information, and Parliament has burdened
him with the responsibility to decide on the reliability of the information, I
take the view that it is for the Minister, and not the court, to decide whether
it is in the public interest that the information should be disclosed. The
Minister would, of course, be answerable to Parliament.
37 The other topic is the fallback argument for the applicant, to challenge
the decisions of the Minister on the ground of irrationality. In the GCHQ
case ([24] supra) at 410, Lord Diplock said:
By irrationality I mean what can by now be succinctly referred to as
Wednesbury unreasonableness (Associated Provincial Picture Houses
Ltd v Wednesbury Corporation [1948] 1 KB 223). It applies to a
decision which is so outrageous in its defiance of logic or of accepted
moral standards that no sensible person who had applied his mind to
the question to be decided could have arrived at it.
38 The learned Law Lord went on to say that irrationality can now
stand upon its own feet as an accepted ground on which a decision may be
attacked by judicial review. As to what is meant by Wednesbury
unreasonableness, one must go back to 1948, to the judgment of
Lord Greene MR in that case (Associated Provincial Picture Houses Limited
v Wednesbury Corporation ([2] supra) where he said at 233234:
The court is entitled to investigate the action of the local authority with
a view to seeing whether they have taken into account matters which
they ought not to take into account, or, conversely, have refused to take
into account or neglected to take into account matters which they
ought to take into account. Once that question is answered in favour of
the local authority, it may be still possible to say that, although the local
authority have kept within the four corners of the matters which they
ought to consider, they have nevertheless come to a conclusion so
unreasonable that no reasonable authority could ever have come to it.
In such a case, again, I think the court can interfere. The power of the
court to interfere in each case is not as an appellate authority to
override a decision of the local authority, but as a judicial authority
which is concerned, and concerned only, to see whether the local
authority have contravened the law by acting in excess of the powers
which Parliament has confided in them.
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[1988] 2SLR(R) Re Siah Mooi Guat 181
39 It was not clear to me when I heard Mr Blom-Cooper on this
argument as to whether he was relying on the Wednesbury
unreasonableness or the GCHQ irrationality. However, as that does not
matter in this case, the submission was there was no basis upon which the
Minister could properly have rejected the applicants appeal. He put the
applicants case on two factual bases: (a) her assertion in her affidavit that
throughout her stay in Singapore she had obeyed, followed and complied
with the laws of the Republic and has not contravened or conducted
[herself] in a manner detrimental to the interests of the Republic has not
been controverted by the respondents; and (b) as at that time, having been a
permanent resident for more than five years, she was eligible for Singapore
citizenship and had been invited to apply for it, it must be assumed that she
had an unblemished record. Moreover, it was submitted, as the Minister
had not furnished the court with the information to substantiate the
decisions he made under s 8(3)(k) of the Act, the court should infer that his
decisions were irrational or unreasonable.
40 I reject this submission. Whatever the ground relied on may be, the
burden is on the applicant to make out her case against the Minister. The
fact that the applicant believed that she had been a law-abiding resident in
Singapore does not prove that the Minister had done her wrong. She was
not to know of the reliable information the Minister had against her.
Equally, the fact that an officer in the Public Service Division of the
Ministry of Finance and a clerical officer in the Registry of Citizens had sent
routine letters to the applicant informing her that she was eligible to apply
for Singapore citizenship was not proof that the applicant was a person of
unblemished record. It was not the duty of those two officers to inquire into
the character of the applicant or investigate into the conduct of the
applicants stay in Singapore. They were merely monitoring the length of
stay of permanent residents in the country. For these reasons, I find as a fact
that the two factual bases do not and cannot support the fallback argument
for the applicant.
41 As for the respondents case, I accept the evidence of the Deputy
Secretary that when he submitted the applicants appeal he sent all relevant
documents to the Minister for his consideration. I accept the evidence for
the Minister that he gave due and careful consideration to the appeal of the
applicant before he rejected it. As was said, the fact that between 1982 and
February 1987, a period of four years and nine months, though there were
many tens of thousands of foreigners resident and working in Singapore,
not more than a dozen aliens had been deemed by the Minister to be
undesirable immigrants under s 8(3)(k) of the Act shows that the Minister
exercises his powers under this provision most carefully and very sparingly.
Since the Minister, responsible to Parliament, had given the applicants case
his personal consideration, and there was no evidence to show that he had
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182 SINGAPORE LAW REPORTS (REISSUE) [1988] 2SLR(R)
acted unfairly, the application for an order of certiorari to quash the
decisions of the Minister and the Controller must be dismissed with costs.
Headnoted by Vincent Leow.
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