TaxTMI 
TaxTMI 
1979 (7) TMI 250
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....ied in Nassau in 1951 a lady who is a citizen of The Bahamas by birth. It is, and has been at least since 1966, his intention of making his permanent home in The Bahamas; and, what is most relevant to the Constitutional right that he claims to be registered as a citizen of The Bahamas, there was issued to him on 2 February 1966 by the Immigration Board a certificate that he belonged to the Bahama Islands for the purposes of the Immigration Act, 1963. The relevant sections of the Immigration Act, 1963, were replaced by corresponding sections in the Immigration Act, 1967, and persons to whom such certificates of belonging to the Bahama Islands had been issued under either of those two Acts have since 1969 been referred to as possessing " Bahamian Status " The current Constitution of the Commonwealth of The Bahamas is contained in the Schedule to the Bahamas Independence Order 1973, which came into operation on 10 July 1973. By Article 2 of the Constitution it is the supreme law of The Bahamas and, subject to its provisions, " if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall. to the extent of the inco....
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....d by legislation which will provide machinery for applying for and granting registration as a citizen of The Bahamas, and which may make subject to exceptions or qualifications the prima facie entitlement of a person who possessed Bahamian Status on 9 July 1973 to be registered as a citizen. In fact such legislation had already been enacted by the Legislature of the Bahama Islands in anticipation of the coming into force of the new Constitution. This was done under powers conferred upon that Legislature by section 4(2) of The Bahamas Independence Order 1973. It is to be found in The Bahamas Nationality Act, 1973, of which the long title is : " An Act to provide for the Acquisition, Certification, Renunciation and Deprivation of citizenship of The Bahamas and for purposes incidental thereto or connected therewith ". The relevant sections of this Act which deal with applications for registration as a citizen under Article 5(2), (3) and (4) of the Constitution are as follows : - " 7. Any person claiming to be entitled to be registered as a citizen of The Bahamas under the provisions of Article 5, 7, 9 or 10 of the Constitution may make application to the Minister in the pr....
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....ere made by the Minister on 31 August 1973. They provide among other things for the maintenance of registers and for the forms in which applications to the Minister for registration are to be made. On 27 June 1974 Mr. Ryan duly lodged with the Minister an application form for registration as a citizen of The Bahamas under Article 5(2) of the Constitution. On 24 October 1974 he was invited by Mr. Walkine, an Under Secretary in the Ministry of Home Affairs, to attend at the Ministry for an interview accompanied by his wife. He did so on 7 November 1974 and was then interviewed by Mr. Walkine who asked bim a number of questions about his whereabouts and occupation from 1947 onwards. It is, however, common ground that at no time was it suggested to him that he had done anything that was capable of bringng bim within any of the categories of undesirable persons set out in paragraphs (a) to (e) of the proviso to section 7 of The Bahamas* Nationality Act, 1973, or anything else that might make it not conducive to the public good that he should become a citizen of The Bahamas. Nevertheless on 16 June 1975. he received a letter from the Permanent Secretary to the Ministry, info....
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....; If the answer to Question (l) or (2) is that the Minister's decision of 28 May 1975 to reject Mr. Ryan's application for registration is a nullity, is Mr. Ryan entitled to a declaration that at the inception of these proceedings on 7 April 1976 he " was entitled to be registered as a Citizen of the Commonwealth of The Bahamas, subject to his compliance with paragraph (3) of Article 5 of the Constitution of the said Commonwealth of The Bahamas? " (1) Applicability of the Principles of Natural Justice In the Supreme Court both judges were of the opinion 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; and that a failure to accord him this rendered the Minister's decision a nullity. This means that he was at least entitled to be informed of the nature of the case against acceptance of his application and to be given a reasonable opportunity of answering it. It does not mean that there must necessarily be an oral hearing conducted in accordance with procedures appropriate to trials....
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....thing which could bring him within any of those paragraphs and the Minister had filed no evidence to contradict this, Graham J. regarded himself as entitled to find as a fact that none of those disqualifications was applicable. He would have made a declaration of Mr. Ryan's right to be registered as a citizen in terms which were subsequently adopted by the Court of Appeal. The Chief Justice, on the other hand, consistently with his view that the last part of the proviso was valid. considered that the Minister's rejection of the application might have been for some other reason of public policy which in reliance on section 16 of The Bahamas Nationality Act, 1973, he had not been willing to disclose and which, in consequence, Mr. Ryan had not been able to deal with in his affdavits that were before the court. The Chief Justice would have ordered the matter to be remitted to the Minister for him to consider Mr. Ryan's application according to law. There was thus agreement between the two judges of the Supreme Court that the Minister's purported rejection of Mr. Ryan's application for registration as a citizen was a nullity, but disagreement as to the appropriate....
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....t be " provided by or under an Act of Parliament In their Lordships' view this entails that the exceptions and qualifications must be spelt out clearly in legislation, either primary or subordinate; they may not be left to the discretion of the Executive. The description of the circumstances the existence of which in relation to an applicant are to deprive him of his legal right to insist on being registered as a citizen must be set out in an Act of Parliament either in full detail in the Act itself or in more general terms in an Act which also confers power upon some executive authority to make subordinate legislation providing for more detailed descriptions of particular circumstances falling within those general terms. The circumstances so far as they involve matters of fact must be described in the legislation (whether it be primary or subordinate) in such terms that whether they exist or not can be determined objectively, so that a would-be applicant upon reading the legislation can know whether he falls within a category of persons whose applications for registration may lawfully be refused notwithstanding that they satisfy the requirements of Article 5(2) and (3), ....
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....was. It underlines the importance of that ground. (3) The Effect of the Ouster Clause The relevant ouster provisions of section 16 of The Bahamas Nationality Act, 1973, are : the decision of the Minister on any such application [sc. for registration as a citizen of The Bahamas] . shall not be subject to appeal or review in any court." Appeal " in the context of an ouster clause means re-examination by a superior judicial authority of both findings of fact and conclusions of law as to the legal consequences of those facts made by an inferior tribunal in the exercise of a jurisdiction conferred upon it by statute to decide questions affecting the legal rights of others, and the substitution of the superior judicial authority's own findings of fact and conclusions of law for those of the inferior tribunal, In " review " the function of the superior judicial authority is limited to re-examining the inferior tribunal's conclusions of law as to the legal consequences of the facts as they have been found by the inferior tribunal. It is by now well-established law that to come within the prohibition of appeal or review by an ouster clause of this type, the d....
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....with the two main propositions of law that were initially advanced on his behalf in the Supreme Court and persisted in to the very end both before the Court of Appeal and before this Board. These were, first, that he had a wide discretion to refuse Mr. Ryan's application to be registered as a citizen if, for any reason at all, he thought this to be desirable from the point of view of public policy; and, secondly, that the discretion to refuse the application was a purely administrative discretion untrammelled by any principles of natural justice and, accordingly, that Mr. Ryan was not entitled to be told the reasons which actuated the Minister in coming to his decision, let alone to be given an opportunity to attempt to answer them before the decision was reached. As propositions of law, the first depended largely upon the presence at the end of the proviso to section 7 of The Bahamas Nationality Act, 1973, of the provision which their Lordships, in agreement with the Court of Appeal and Graham J., have held to be inconsistent with the Constitution and consequently void; with the result that the only valid grounds upon which the Minister could have rejected Mr. Ryan's ap....
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....rovincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223 at p. 229, and it would be right to make the declaration, since any decision other than one to grant the application would be a nullity. But unfortunately it was not so. The only contents of the file that were before the court were Mr. Ryan's application form and the notes made by Mr. Walkine of his interview with Mr. Ryan and his wife on 7 November 1974. For all their Lordships know, " the whole file " may have contained material which contradicted or conflicted with Mr. Ryan's subsequent denials on affidavit that any of the paragraphs (a) to (e) of the proviso applied to him. The Minister, consistently with the submissions as to the law to which his counsel have adhered throughout this litigation, has refused to reveal whether there was any such material or not. No doubt when the Minister determines Mr. Ryan's application of 27 June 1974 according to law, which he has not done yet, he will be obliged, if he is contemplating refusing the application, to inform Mr. Ryan of the grounds on which he relies as justifying this course and giving to Mr. Ryan a reasonable opportunity of answering or re....