Ford v Immigration Appeals Tribunal

• Jurisdiction: Cayman Islands
• Judge: (Smellie, C.J.)
• Judgment Date: 19 July 2007
• Court: Grand Court (Cayman Islands)
• Date: 19 July 2007

Grand Court

(Smellie, C.J.)

FORD

and

IMMIGRATION APPEALS TRIBUNAL

R. D. Alberga, Q.C. and Ms. S. Bodden-Cowan for the appellant;

Ms. V. Ellis, Asst. Solicitor General, and W. Bardswell, Crown Counsel, for the respondent.

Cases cited:

(1) Lloyd v. McMahon, [1987] A.C. 625; [1987] 1 All E.R. 1118; [1987] R.V.R. 58; (1987), 84 L.S. Gaz. 1240; 131 Sol. Jo. 409; 85 L.G.R. 545, applied.

(2) R. v. Immigration Appeal Tribunal, ex p. Hassanin, [1986] 1 W.L.R. 1448; [1987] 1 All E.R. 74; [1986] Imm. A.R. 502; (1986), 83 L.S. Gaz. 3597; 130 Sol. Jo. 861, applied.

(3) R. v. Immigration Appeal Tribunal, ex p. Hubbard, [1985] Imm. A.R. 110, applied.

Legislation construed:

Immigration Law 2003 (Law 34 of 2003), s.15: The relevant terms of this section are set out at para. 16.

s.17(1): The relevant terms of this sub-section are set out at para. 17.

s.22(12): The relevant terms of this sub-section are set out at para. 16.

Immigration and Status-Immigration Appeals Tribunal-interrogatories-power to administer interrogatories, on issues not previously raised, before rehearing appeal against refusal of Caymanian status, even if ordered to confine rehearing to matters on record before Tribunal-‘matters before Tribunal’ impliedly includes all relevant matters in Immigration Law 2003 and policy guidelines

The appellant applied to the Immigration Board for the grant of Caymanian status.

The appellant”s application was refused and his appeal to the Immigration Appeals Tribunal was also refused. On further appeal, the Grand Court held that the Tribunal and the Board had acted in breach of natural justice by their unquestioning acceptance of an anonymous complaint that the appellant was not a person of good character, and ordered that the matter be referred back to the Tribunal. The terms of the order provided, inter alia, that the Tribunal should ‘consider the matter by way of rehearing’ and ‘confine its proceedings … only to the matters which are on the record …’

The Tribunal informed the appellant that it did not intend to rely on the concerns previously raised, but to consider other matters, including the appellant”s alleged use of multiple identities and whether he was actually resident in and committed to the welfare of the Islands. It set out its concerns in interrogatories and advised the appellant that his appeal would not be heard until he had answered them. The appellant refused to respond and brought the present appeal against the Tribunal”s decision to issue interrogatories.

On appeal, the appellant submitted that (a) the Tribunal had acted ultra vires as it had no power to administer the interrogatories nor to require that they be answered prior to hearing his appeal; (b) the questions went beyond the scope of the court”s previous order as they did not arise out of the reasons given by the Board for its decision; (c) the court should direct the Tribunal to grant Caymanian status to the appellant, since the reason for its previous decision had been declared invalid and his application was otherwise in order; and (d) alternatively, the Tribunal should be directed to hear the appeal within a reasonable time.

The Tribunal submitted in reply that (a) it was within its jurisdiction to require written answers to satisfy itself, as the body responsible for the

grant of Caymanian status, on the matters raised in relation to the appellant”s application; (b) the Immigration Law 2003, s.15(1) provided for an appeal ‘by way of rehearing,’i.e. a rehearing in the fullest sense, and it was not confined to consideration of the Board”s decision; and (c) although it had erred in its previous decision, the appeal was a rehearing de novo in which it exercised an original jurisdiction and it could therefore consider other matters, including any fresh evidence and change of circumstance or law at the time of the appeal.

Held, dismissing the appeal:

(1) The interrogatories were not unlawful and ultra vires the power of the Tribunal. The provision for an appeal ‘by way of rehearing’ in s.15(1) of the Immigration Law 2003 was to be given a wide construction, as to do otherwise would create an unnatural fetter on the Tribunal”s corresponding power, under s.17(1), to ‘make such order … as it thinks fit.’ The Tribunal exercised both an original and an appellate jurisdiction, and an appeal under s.15(1) was a rehearing de novo in which it exercised an original jurisdiction. It was not, therefore, confined to adopting the same approach as the Immigration Board and considering only the particular ground on which it had refused the application, but was, moreover, obliged to take into account all relevant matters in the Immigration Law and in policy guidelines. The interrogatories were addressed to those concerns and it was within the powers of the Tribunal to require that they be answered (para. 24; para. 28; paras. 34–36; para. 38).

(2) Nor did the interrogatories go beyond scope of the previous order of the court, since inquiries going to matters contemplated in the statutory provisions were impliedly matters before the Tribunal. However, in order to deal fairly with the appellant, the Tribunal was to ensure that he was notified of its remaining concerns and given the fullest opportunity to address them (paras. 39–40).

1 SMELLIE, C.J.: The resolution of immigration matters appears typically to follow a tortuous course. This one is no exception. It is the appellant”s second appeal to this court against decisions of the Immigration Appeals Tribunal. These decisions were given on an appeal to the Tribunal against the refusal by the Immigration Board (as that body was then called) of the appellant”s application for the grant of Caymanian status.

2 His first appeal to this court was successful. It was resolved by an order of November 23rd, 2005, made with the consent of the Tribunal, on the basis that the Tribunal (as then constituted) had acted in breach of the principles of natural justice upon refusing his appeal against the decision of the Board. That breach involved the Board”s-and then the Tribunal”s-uninquiring acceptance of an anonymous complaint against the appellant that he was not a person of good character, had been guilty of sharp business practices detrimental to the interests of Caymanians and had held a Caymanian company to ransom during negotiations which led to the settlement of a dispute with that company.

3 This result was reached without either the Board or the Tribunal having properly investigated the allegations upon which the complaint had been made or having afforded the appellant an opportunity to refute the allegations. The matter was therefore referred back to the Tribunal by this court for its proper consideration in observance of the rules of natural justice.

4 The order of November 23rd, 2005 provided, with the consent of the parties in this respect, as follows:

‘The Immigration Appeals Tribunal (“the Tribunal”) is directed to act in accordance with the following directions:

(i) The Tribunal shall consider the matter by way of rehearing, which means the Tribunal shall confine its proceedings, including any enquiry, only to the matters which are on the record in relation to the matter existing within the records of the Tribunal or any changes in the Law since this matter was last before the Tribunal.

(ii) Before making its decision, the Tribunal is to inform the applicant of the nature of the matters weighing against the grant of the application and afford the applicant an opportunity to address it in regard to any such concerns.

(iii) Such information in relation to the matters referred to at (ii)

above shall be the subject of a written communication to the applicant at least 21 days prior to the date fixed for the hearing of the matter.’

It followed that the appellant, by agreeing to the terms of that order, was anticipating having to meet the same allegations, but, on the rehearing, being given a full and fair opportunity to be heard before any unfavourable decision might be taken.

5 However, by a letter from its chairman to his attorney, Ms. Bodden, dated March 2nd, 2006, the Tribunal informed the appellant that it did not intend to rely upon the concerns which had been previously relied upon by the Board (or by the previously constituted Tribunal) in their respective refusal of his application and appeal. Other matters of concern to the Tribunal were said to have arisen. These were set out in the form of interrogatories which had...