1979 (7) TMI 250 - Other - Customs

Board varies Court of Appeal's declaration, Minister's decision null, Mr. Ryan's application reconsidered.

The Attorney-General Versus Thomas D'Arcy Ryan

The Board advised allowing the appeal to the extent of varying the terms of the declaration made by the Court of Appeal. The Minister's decision was ... - Issues Involved:1. Applicability of the Principles of Natural Justice2. Validity of the Proviso to Section 7 of The Bahamas Nationality Act, 19733. The Effect of the Ouster Clause4. The Form of the DeclarationIssue-Wise Detailed Analysis:(1) Applicability of the Principles of Natural JusticeThe Supreme Court judges agreed that Mr. Ryan had a constitutional right to a fair hearing in accordance with the principles of natural justice before his application to be registered as a citizen was rejected by the Minister. This means he was entitled to be informed of the nature of the case against his application and given a reasonable opportunity to answer it. The Minister's failure to observe this requirement rendered his decision a nullity. The Minister was legally required to observe the principles of natural justice when exercising his authority under sections 7 and 8 of The Bahamas Nationality Act, 1973. The failure to do so made his decision a nullity, as established in Ridge v. Baldwin [1964] A.C.40.(2) Validity of the Proviso to Section 7 of The Bahamas Nationality Act, 1973The Court of Appeal and Graham J. agreed that the last part of the proviso to section 7 of The Bahamas Nationality Act, 1973, which allowed the Minister to refuse registration if it was not conducive to the public good, was ultra vires the Constitution and void. Article 5(2) and (3) of the Constitution gave every person who possessed Bahamian Status on 9 July 1973 a prima facie legal right to be registered as a citizen, subject to exceptions or qualifications in the interests of national security or public policy. However, these exceptions or qualifications must be clearly defined in legislation and not left to the discretion of the Executive. The last part of the proviso effectively gave the Minister sole discretion to refuse registration, which was inconsistent with the Constitution.(3) The Effect of the Ouster ClauseSection 16 of The Bahamas Nationality Act, 1973, stated that the Minister's decision on any application for registration as a citizen 'shall not be subject to appeal or review in any court.' However, it is well-established law that an ouster clause does not prevent the court from inquiring into the validity of a decision if the decision-making authority acted outside its jurisdiction. A decision affecting the legal rights of an individual that is arrived at by a procedure offending against the principles of natural justice is outside the jurisdiction of the decision-making authority. Therefore, the ouster clause did not prevent the court from reviewing the Minister's decision on the grounds that it was made without jurisdiction and was ultra vires.(4) The Form of the DeclarationThe Court of Appeal declared that Mr. Ryan was entitled at the inception of the proceedings to be registered as a citizen of The Bahamas. However, the Board disagreed with this declaration. The Minister's refusal of the application could have been based on one of the grounds specified in paragraphs (a) to (e) of the proviso, and the court did not know whether this was the case. The Minister had refused to reveal his reasons for the refusal, and the court could not assume that all factual material before the Minister was also before the court. The Board concluded that Mr. Ryan's application must go back to the Minister to be decided according to law, with the Minister obliged to inform Mr. Ryan of the grounds for any contemplated refusal and give him a reasonable opportunity to answer them. The Board advised that the Minister's decision of 28 May 1975 to refuse Mr. Ryan's application was null and void and that the final words of the proviso to section 7 of The Bahamas Nationality Act, 1973, were inconsistent with the Constitution and void. Mr. Ryan was entitled to have his application reconsidered by the Minister according to law.ConclusionThe Board advised that the appeal be allowed to the extent of varying the terms of the declaration made by the Court of Appeal. The Minister's decision was null and void, and the final words of the proviso to section 7 of The Bahamas Nationality Act, 1973, were void. Mr. Ryan was entitled to have his application reconsidered by the Minister according to law. The defendant/appellant must pay the plaintiff/respondent's costs of the appeal to this Board, and the Court of Appeal's order awarding costs to the plaintiff/respondent will not be disturbed.