Hs and Six Others v Immigration Appeals Tribunal

• Jurisdiction: Cayman Islands
• Judge: (Mangatal, J.)
• Judgment Date: 10 May 2019
• Court: Grand Court (Cayman Islands)
• Date: 10 May 2019

HS and SIX OTHERS

and

IMMIGRATION APPEALS TRIBUNAL

(Mangatal, J.)

Grand Court, Civil Division (Cayman Islands)

Immigration and Status — immigration — asylum — Immigration Appeals Tribunal to state burden and standard of proof clearly — error of law to use term “on balance” when rejecting asylum application, without stating proper standard of proof — test for well-founded fear of persecution is lower, i.e. reasonable degree of likelihood or real and substantial risk of occurrence/reoccurrence

Held, allowing the appeal:

(1) Section 84(6) of the Immigration Law was somewhat unclear, as the Refugee Convention was a rights-based instrument and the Bill of Rights was paramount. Applying the interpretation obligations set out in s.25 of the Constitution, s.84(6) should be read as suggested by the respondent, namely to construe the sub-section as ending with the words “against the refusal on the grounds that requiring him to leave the Islands would be contrary to the Refugee Convention” followed by the words “or the Bill of Rights.” This would give s.84(6) a possible meaning that was compatible with the Bill of Rights. Alternatively, even if s.84(6) did limit the powers of the tribunal to the determination of refugee status, that did not render it incompatible with the Bill of Rights because such breaches that did not overlap with the Refugee Convention could be considered under other provisions of the Law and be the subject of humanitarian treatment (paras. 117–118).

(2) Although the Refugee Convention provided that a refugee should have free access to the courts, this did not amount to an obligation on the Cayman Islands to provide legal aid to asylum seekers at the tribunal stage. The right of access to a court was intended to guarantee practical and effective rights in view of the fundamental importance of a fair trial. However, that right of access was not absolute. Additionally, it was not incumbent on the state to seek through the use of public funds to ensure total equality of arms between the assisted person and the opposing party. The important thing was that there be a reasonable opportunity given for each side to present their case under conditions that did not place him or her at a significant disadvantage. The court had to look at the proceedings as a whole in order to determine whether the inability to obtain legal aid denied the appellants free access to a court. As the respondent pointed out, the Chief Immigration Officer was not represented at any of the hearings and therefore the appellants were not at any, or any substantial, disadvantage due to lack of legal aid. The appellants all had the assistance of a translator, and were permitted to present their case and supporting evidence to the tribunal. In addition, three of the appellants were represented by a McKenzie friend. It was true that under the present system, if there had been unfairness in the interview process and the approach by the tribunal, the appellants and others like them only had access to public funding when seeking an appeal to the Grand Court thereafter. However, nothing about the system itself up to this point had been demonstrated to be unfair. Any potential unfairness was susceptible to control which the law provided by way of access retrospectively to the appeal to the Grand Court if the wrong approach or due process had not been observed. It was to be remembered that the process in the Cayman Islands involved anappeal to the Grand Court and whilst it was in essence a judicial review type appeal it was not simply limited to the aspects of the process whereby this court examined the lawfulness of the decision of the tribunal only in the sense of where it was illegal, irrational or there had been procedural impropriety and a lack of proportionality in approach. This court had the power and duty to remit the matter if it so saw fit, with directions as to the proper approach to be taken and retained some control over issues of fact. There was nothing sufficient to satisfy the high threshold for systemic unfairness, namely unfairness inherent in the system itself. The Legal Aid Law was therefore not incompatible with the appellants’ right to a fair trial (paras. 120–129).

(3) The tribunal had committed important errors in failing to state the burden and standard of proof clearly. These were basic matters that had to be clearly expressed and communicated. The use of the term “on balance” had to be viewed in context. Whilst in some circumstances it could mean things were considered in the round, its use was confusing because nowhere in the decisions did the tribunal state the appropriate standard of proof. Using the term “on balance” without stating the proper test did suggest that the tribunal had adopted a balance of probabilities test, which would mean that it had placed a higher standard or burden on the appellants and this amounted to an error of law. The test that should be applied for well-founded fear of persecution, i.e. a reasonable degree of likelihood or a real and substantial risk of occurrence/reoccurrence, was a lower one. The problem was compounded because there was a lack of directions as to the definition of persecution; when prosecution could amount to persecution; the special care that had to be given to aspects of the credibility of asylum seekers; past persecution; and imputed political belief. The combination of the lack of clarity and directions being shared with the appellants and the fact that they did not have access to legal aid at the stage before the court made it all the more important for the tribunal members to be knowledgeable and to keep undergoing training and evaluation in this complex area. The court was unable to conclude that the errors made by the tribunal had caused no miscarriage of justice and thus the matters would be remitted to the Refugee Protection Appeals Tribunal for proper consideration (paras. 131–135).

Cases cited:

(1)Day v. Governor, Civ. Cause Nos. 111 and 184 of 2018, Grand Ct., March 29th, 2019, unreported, referred to.

(2)Gomez v. Home Secy., [2000] UKIAT 00007; [2000] INLR 549; [2001] 1 W.L.R. 549, referred to.

(3)HJ (Iran) v. Home Secy., [2010] UKSC 31; [2011] 1 A.C. 596; [2010] 3 W.L.R. 386; [2010] Imm. A.R. 729, referred to.

(4)Home Secy. v. AH (Sudan), [2007] UKHL 49; [2008] 1 A.C. 678; [2007] 3 W.L.R. 832; [2008] 4 All E.R. 190; [2008] INLR 100; [2008] Imm. A.R. 289, considered.

(5)Home Secy. v. Fernandez, [2011] UKUT 00343, considered.

(6)Inland Revenue Commrs. v. Joiner, [1975] 1 W.L.R. 1701; [1975] 3 All E.R. 1050; [1975] STC 657, considered.

(7)NJDB v. United Kingdom, App. No. 76760/12, E.Ct.H.R., October 27th, 2015, considered.

(8)Nairne, In re, 2013 (1) CILR 345, considered.

(9)National Roads Auth. v. Bodden, 2014 (2) CILR 47, referred to.

(10)Nenni v. Home Secy., [2004] EWCA Civ 1077, referred to.

(11)Poyser & Mills Arbitration, Re., [1964] 2 Q.B. 467, considered.

(12)R. v. A, [2001] UKHL 25; [2001] 2 W.L.R. 1546; [2001] 3 All E.R. 1; [2001] HRLR 48; [2001] UKHRR 825, referred to.

(13)R. v. Army Board of the Defence Council, ex p. Anderson, [1992] Q.B. 169; [1991] 3 W.L.R. 42; [1991] 3 All E.R. 375, considered.

(14)R. v. Home Secy., ex p. Sivakumaran, [1988] A.C. 958; [1988] 2 W.L.R. 92; [1988] 1 All E.R. 193, considered.

(15)R. (Howard League for Penal Reform) v. Lord Chancellor, [2017] EWCA Civ 244; [2017] 4 W.L.R. 92, applied.

(16)R. (Refugee Legal Centre) v. Home Secy., [2004] EWCA Civ 1481; [2005] 1 W.L.R. 2219, referred to.

(17)R. (Tientchu) v. Immigration Appeal Tribunal, [2000] EWCA Civ 385; C/2000/6288, referred to.

(18)R. (Xhelollari) v. Immigration Appeal Tribunal, [2002] EWHC 2451 (Admin), considered.

(19)R.C. v. Sweden, Application No. 41827/07; E.Ct.H.R., March 9th, 2010, referred to.

(20)Ridge v. Baldwin, [1963] UKHL 2; [1964] A.C. 40; [1963] 2 All E.R. 66; (1963), 61 LGR 369, referred to.

(21)SM (Section 8: Judge’s process) Iran, [2005] UKAIT 00116; [2005] Imm. A.R. 673; [2006] INLR 149, considered.

(22)Seddon Properties Ltd. v. Environment Secy., [1978] 2 EGLR 148; (1981), 42 P. & C.R. 26, referred to.

(23)South Bucks. D.C. v. Porter (No. 2), [2004] UKHL 33; [2004] 1 W.L.R. 1953; [2004] 4 All E.R. 775; [2005] 1 P. & C.R. 6; [2004] 4 P.L.R. 50, referred to.

Legislation construed:

Cayman Islands Constitution Order 2009 (S.I. 2009/1379), Schedule 2, Part I, introductory paragraph: The relevant terms of this introductory paragraph are set out at para. 23.

ss. 1–3: The relevant terms of these sections are set out at para. 23.

s.5: The relevant terms of this section are set out at para. 22.

s.7: The relevant terms of this section are set out at para. 23.

s.9: The relevant terms of this section are set out at para. 23.

s.19: The relevant terms of this section are set out at para. 23.

ss. 23–26: The relevant terms of these sections are set out at para. 23.

Convention and Protocol Relating to the Status of Refugees (1951), Introductory Note: The relevant terms of this Introductory Note are set out at para. 17.

art. 16: “1. A refugee shall have free access to the courts of law on the territory of all Contracting States.”

Grand Court Rules 1995 (Revised), O.55, r.7(1):

“In addition to the power conferred by rule 6(2), the Court when hearing an appeal to which this Order applies shall have the powers conferred by the following provisions of this rule.”

O.55, r.7(5): The relevant terms of this paragraph are set out at para. 124.

O.55, r.7(7): The relevant terms of this paragraph are set out at para. 124.

Immigration Law (2015 Revision), s.2: The relevant terms of this section are set out at para. 8.

s.11: The relevant terms of this section are set out at para. 9.

s.17: The relevant terms of this section are set out at para. 10.

s.72(1): The relevant terms of this sub-section are set out at para. 11.

ss. 84–86: The relevant terms of these sections are set out at para. 12.

s.89: The relevant terms of this section are set out at para. 13.

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