Aitken v Immigration Appeals Tribunal

• Jurisdiction: Cayman Islands
• Judge: (Smellie, C.J.)
• Judgment Date: 09 February 2015
• Court: Grand Court (Cayman Islands)
• Date: 09 February 2015

Grand Court

(Smellie, C.J.)

AITKEN

and

IMMIGRATION APPEALS TRIBUNAL

Ms. M.S. Rankine for the applicant;

Mrs. S. Bothwell, Senior Crown Counsel, for the I.A.T.

Cases cited:

(1) Att. Gen.”s Ref. (No. 5 of 2002), [2005] 1 A.C. 167; [2004] 3 W.L.R. 957; [2004] 4 All E.R. 901; (2005), 1 Cr. App. R. 20; [2004] UKHL 40, applied.

(2) British Oxygen Co. v. Minister of Technology, [1971] A.C. 610; [1969] 2 W.L.R. 892; [1970] 3 W.L.R. 488; [1970] 3 All E.R. 165, applied.

(3) Central Planning Auth. v. Mirage Dev. Ltd., Grand Ct., Cause No. 611 of 2007, August 14th, 2009, unreported, referred to.

(4) Council of Civil Service Unions v. Minister for Civil Service, [1985] A.C. 374; [1984] 3 W.L.R. 1174; [1984] 3 All E.R. 935, referred to.

(5) Ford v. Immigration Appeals Tribunal, 2007 CILR 258, referred to.

(6) Kirk Freeport Plaza Ltd. v. Immigration Bd., 1997 CILR 502, referred to.

(7) Lavender (H.) & Son Ltd. v. Minister of Housing & Local Govt., [1970] 1 W.L.R. 1231; [1970] 3 All E.R. 871, considered.

(8) Proprietors, Strata Plan No. 103 v. Development Advisory Bd., 2000 CILR 489, referred to.

(9) R. v. Chief Const. (N. Wales Police), ex p. AB, [1999] Q.B 396; [1998] 3 W.L.R. 57; [1998] All E.R. 310; [1998] F.C.R. 371; [1998] F.L.R. 571, referred to.

(10) R. v. Home Secy., ex p. Simms, [2000] 2 A.C. 115; [1999] 3 W.L.R. 328; [1999] 3 All E.R. 400, considered.

(11) R. v. Port of London Auth., ex p. Kynoch, [1919] 1 K.B. 176, considered.

(12) R. (Daly) v. Home Secy., [2001] 2 A.C. 532; [2001] 2 W.L.R. 1622; [2001] 3 All E.R. 433; [2001] H.R.L.R. 49; [2001] UKHL 26, considered.

(13) R. (WL (Congo)) v. Home Secy., [2010] 1 W.L.R. 2168; [2010] 4 All E.R. 489; [2010] EWCA Civ 111, referred to.

(14) Sagnata Invs. v. Norwich Corp., [1971] 2 Q.B. 614; [1971] 3 W.L.R. 133; [1971] 2 All E.R. 1441, referred to.

(15) Stringer v. Minister of Housing & Local Govt., [1970] 1 W.L.R. 1281; [1971] 1 All E.R. 65; (1971), 22 P. & C.R. 255, referred to.

Legislation construed:

Immigration Law (2010 Revision), s.15: The relevant terms of this section are set out at para. 36.

s.16: The relevant terms of this section are set out at para. 39.

Immigration and Status-Immigration Appeals Tribunal-appeal procedure-appellant required by Immigration Law (2010 Revision), s.15(1) to demonstrate prima facie that appeal based on ground listed in s.15(2)-consideration of whether s.15(2) satisfied not fetter on Tribunal”s discretion under s.16(7) to decide appeals, and appellant”s right to full rehearing not undermined

Immigration and Status-Immigration Appeals Tribunal-appeal to Grand Court-right of appeal to Grand Court under Immigration Law (2010 Revision), s.17(2) suitable alternative to judicial review-judicial review of Tribunal only exceptionally available where alternative remedy available

The applicant applied for judicial review of a decision of the Immigration Appeals Tribunal (the ‘I.A.T.’) and an injunction to prevent his removal from the Cayman Islands.

In 2010, the applicant applied for permanent residence in the Cayman Islands. This was rejected on the basis that he only attained 95 points under the permanent residence assessment points system, a minimum of 100 points being required for granting permanent residence. Zero points had been awarded under the financial element of the assessment on the basis that the applicant had no investments in Cayman property or companies. The applicant had entered into a transaction to purchase property, but this had not been completed.

On appeal to the I.A.T., the applicant submitted that the rejection of his application was unreasonable in that he should have been awarded 106 points on the basis of his changed circumstances, including new employment, a settled agreement to purchase property and enrolment in a mentoring programme. In considering the appeal, the I.A.T. adopted a two-stage process, according to which it would first consider whether the appeal was based, prima facie, on one of four grounds of appeal listed under the Immigration Law (2010 Revision), s.15(2) and, if so, would then conduct a full rehearing. It did not find any of the grounds to be established and dismissed the appeal without conducting a rehearing.

On appeal to the Grand Court, a preliminary point was raised concerning whether judicial review was the appropriate procedure for considering the I.A.T.”s decision. Both parties agreed that the appropriate procedure

was not judicial review, but rather a statutory appeal under the Immigration Law (2010 Revision), s.17(2). It was accepted by the I.A.T. that the court should proceed by way of an appeal.

On the substantive merits of the case, the applicant submitted that the adoption of the two-stage process did not allow the I.A.T. to consider properly any new information submitted by an appellant. This unlawfully fettered its discretion and was contrary to s.16(7), which stated that appeal to the I.A.T. was to be by way of a rehearing. The I.A.T. argued that the two-stage process did allow it to consider appeals fully, its discretion was not therefore fettered, and the procedure adopted complied with s.16(7).

Held, dismissing the appeal:

(1) Although the applicant had sought judicial review, it was more appropriate to proceed by way of an appeal. The application concerned a point of law, and the applicant had a statutory right of appeal under the Immigration Law (2010 Revision), s.17(2). Judicial review would ordinarily not be available if an applicant had an alternative means of seeking a remedy. Given that the applicant would incur significant costs if he were required to start his application again as an appeal, however, the application would not simply be dismissed but instead the court would proceed as if it were an application for leave to appeal (paras. 2–9).

(2) The applicant had been afforded careful consideration of his ground of appeal at the first stage of the I.A.T.”s two-stage process. The I.A.T. had not fettered its discretion or infringed the right to a full rehearing under the Immigration Law (2010 Revision), s.16(7) by first considering whether s.15(2) was satisfied. It was bound by s.15(1) and (2) of the Law, which required the applicant to demonstrate, prima facie, that one of four grounds of appeal had been satisfied. In adopting the two-stage policy, the I.A.T. was seeking to reconcile these seemingly conflicting provisions, and its approach should not be criticized. The alternative would be for the I.A.T. to conduct a full rehearing on every appeal, which would be contrary to the wording and purpose of the legislation (paras. 58–73; para. 84).

(3) The I.A.T. was entitled to find that no valid ground of appeal had been made out, and in particular it was justified in concluding that the refusal to grant residency was reasonable. The material provided by the applicant when making his residency application was inconclusive in so far as it concerned his having investments in the Islands. The material on his changed circumstances did not alter the reasonableness of the refusal to grant residency as it, too, was inconclusive (paras. 74–77).

1 SMELLIE, C.J.: This matter came before the court by way of an application by Mr. Aitken for judicial review of the I.A.T.”s decision. By that decision, the I.A.T. refused his appeal against an earlier decision of the Caymanian Status and Permanent Residency Board (‘the Board’), by which the Board had refused his application for permanent residence.

2 By his judicial review application, Mr. Aitken sought the usual discretionary remedies of certiorari, mandamus and injunction, respectively, to quash the I.A.T.”s decision, to direct the I.A.T. to reconsider his

appeal against the Board”s decision and injuncting the Department of Immigration from taking any further action to bring about his removal from the jurisdiction until the determination by the I.A.T. of his resubmitted appeal.

3 In light, however, of the statutory right of appeal given to him by s.17(2) of the Immigration Law (2010 Revision) (‘the Law’) to appeal to this court against decisions of the I.A.T., I was obliged to enquire whether he had exercised that right before the institution of his judicial review application.

4 Judicial review is not normally available where there is an alternative remedy by way of appeal. While the court retains a discretion, even where there is an alternative remedy, to entertain an application by way of judicial review, it will do so only exceptionally: see Kirk Freeport Plaza Ltd. v. Immigration Bd. (6). In that case, the Court of Appeal (1997 CILR at 515) adopted the settled principle that an application for judicial review may be entertained ‘where the alternative . . . remedy [of appeal] is “nowhere near so convenient, beneficial and effectual” or “where there is no other equally effective and convenient remedy.”’ The principle has often been followed and applied in subsequent cases; see, for example Proprietors, Strata Plan No. 103 v. Development Advisory Bd. (8) and Ford v. Immigration Appeals Tribunal (5).

5 In this case, far from there being a showing of such exceptional reasons to justify departure from the settled principle, it appears that the statutory right of appeal was simply overlooked. This, although not expressly admitted on the part of Mr. Aitken, is the reasonable inference to draw when his real ground of complaint, which is a point of law, is understood. It is that the I.A.T. misconstrued and misapplied the Law in its insistence that he first establish one of the four grounds of appeal set out in s.15(2) of the Law before he was entitled to have his appeal against the decision of the Board heard by the I.A.T. by way of rehearing.

6 Such an argument of construction is one which is obviously suitable for being taken by way of the statutory right of appeal, rather than by way of judicial review-the latter requiring the showing either of...