Hs v Immigration Appeals Tribunal
| Jurisdiction | Cayman Islands |
| Judge | (Mangatal, J.) |
| Judgment Date | 03 July 2019 |
| Date | 03 July 2019 |
| Court | Grand Court (Cayman Islands) |
(Mangatal, J.)
Civil Procedure — appeals — leave to appeal — further appeals — Grand Court cannot grant leave to appeal against judgment granted in exercise of appellate jurisdiction — application for leave to be made to Court of Appeal — leave may be granted by Grand Court judge sitting as single judge of Court of Appeal
Held, ruling as follows:
(1) The Grand Court could not grant leave to appeal in respect of a judgment given in the exercise of its appellate jurisdiction. Section 29(1) of the Court of Appeal Law clearly applied in the present case albeit that the term “tribunal” did not appear in the provision. Rule 11(4A) and (4B) of the Court of Appeal Rules, which specifically addressed the matter of leave to appeal in relation to s.29(1) appeals, were the operative provisions of the Rules in respect of the present application. Rule 11(5) was a general provision which must be taken as applying only to other types of cases than s.29(1) appeals, where no leave was required. The purpose of the Law and the Rules was to keep a check on further appeals after the exercise by the Grand Court of its appellate jurisdiction. The policyappeared to be that the Court of Appeal was best placed to decide whether the appeal (which had to be solely on a point of law) raised an important point of principle or practice, or there was some other compelling reason why a second appeal should be heard by the court. The first preliminary point therefore succeeded and the court ruled that an application for leave to appeal in respect of proposed appeals pursuant to s.29(1) of the Court of Appeal Law must be filed in the Court of Appeal, and the Grand Court could not grant leave to appeal in the circumstances of the present case (paras. 31–40).
(2) In respect of the second preliminary point, a Grand Court judge sitting as a single judge of the Court of Appeal could grant leave to appeal in the circumstances but the present judge could not do so because the issue had been raised before her as a Grand Court judge and she was not therefore sitting as a single judge of the Court of Appeal. An application for leave to appeal pursuant to r.11(4A) was an interlocutory application and therefore fell within the authority of a single judge to hear and determine. The application for leave pursuant to r.11(4A) was incidental to a civil case and did not involve the hearing or determination of an appeal. It therefore fell within the powers that could be exercised by a single judge as described in s.31(2) of the Law and within r.24 of the Rules. The application for leave to appeal was plainly not the hearing of an appeal within the meaning of s.31(2) of the Law and the respondent’s argument to that effect was rejected. Pursuant to s.33 of the Law, in respect of an application filed in the Court of Appeal, a Grand Court judge could exercise the powers of a single Judge of Appeal and hear an application under r.11(4A) for leave to appeal. The applicant’s application would have to be pursued by filing the relevant application in the Court of Appeal (paras. 41–48).
(1)Gilbert v. Endean (1875), 9 Ch. D. 259, considered.
(2)Panier S.A. v. Burns, 2001 CILR N [27], distinguished.
(3)Pretty v. Solly (1859), 26 Beav. 606; 53 E.R. 1032; 33 L.T. (O.S.) 72, considered.
(4)Streeter v. Immigration Bd., 1999 CILR 264, distinguished.
Court of Appeal Law (2011 Revision), s.2: The relevant terms of this section are set out at para. 29.
s.6: The relevant terms of this section are set out at para. 29.
s.29: The relevant terms of this section are set out at para. 29.
s.31: The relevant terms of this section are set out at para. 29.
s.33: The relevant terms of this section are set out at para. 29.
Court of Appeal Rules (2014 Revision), r.11: The relevant terms of this rule are set out at para. 30.
r.15A: The relevant terms of this rule are set out at para. 30.
r.21: The relevant terms of this rule are set out at para. 30.
r.21A: The relevant terms of this rule are set out at para. 30.
r.24: The relevant terms of this rule are set out at para. 30.
Immigration Law (2015 Revision), s.17(2):
“An appeal may be made to the Grand Court from a decision of the Immigration Appeals Tribunal on a point of law only.”
Interpretation Law (1995 Revision), s.12(2): The relevant terms of this sub-section are set out at para. 9.
The applicant and others sought asylum in the Cayman Islands.
The applicant and others sought asylum on the basis that they were refugees. Their applications were rejected by the Chief Immigration Officer, and their appeals were dismissed by the Immigration Appeals Tribunal. On appeal, the Grand Court found that the tribunal had committed important errors, including the failure to state the burden and standard of proof clearly. The court remitted the applications to the Refugee Protection Appeals Tribunal for proper consideration.
The applicant applied for leave to appeal against an aspect of the Grand Court’s judgment. The respondent raised two preliminary points: (a) could the Grand Court grant leave to appeal in respect of a judgment given in the exercise of its appellate jurisdiction? and (b) could a Grand Court judge sitting as a single judge of the Court of Appeal grant leave to appeal in such circumstances?
The respondent referred to s.29(1) of the Court of Appeal Law (2011 Revision) which provided:
“Any person . . . aggrieved by any judgment given or made by the Grand Court in the exercise of its appellate or revisional jurisdiction, whether such judgment has been given or made upon appeal or revision from a court of summary jurisdiction or any other court, board committee or authority exercising judicial powers . . . may appeal, subject to this Law, to the Court . . .”
The respondent submitted that the present appeal fell within s.29(1). Reference was also made to the Court of Appeal Rules (2014 Revision), r.11(4A) of which provided that “leave of the Court shall be required for an appeal under section 29(1) of that Law from any decision of the Grand Court in the exercise of its appellate jurisdiction in civil proceedings . . .” The respondent submitted that the application for leave should be made to the Court of Appeal, not to the Grand Court. The respondent also referred to r.11(5), which provided that “in any case in which leave to appeal is required, an application for leave shall be made to the court below . . .” butsubmitted that the generalibus specialia derogant principle applied, so that r.11(5) did not apply to appeals covered by r.11(4A).
On the second preliminary point, the respondent submitted that s.33 of the Court of Appeal Law provided that a Grand Court judge could exercise any of the powers exercisable by a single judge of the Court of Appeal, and that s.31(2) provided that “any jurisdiction exercisable in any proceedings incidental to any civil case and not involving the hearing or determination of an appeal may, so far as may be prescribed by rules of court, be exercised by a single Judge in the same manner as it may be exercised by the Court and subject to the same provisions.” The respondent submitted that (a) the present application for leave to appeal did not fall within s.31(2) because it involved a hearing and because the issue of leave was integral rather than incidental to the proceedings; (b) alternatively, the application involved the final determination of the matter if leave were denied; (c) alternatively, the single judge’s jurisdiction was only exercisable “so far as may be prescribed by rules of court,” and the general powers afforded to a single judge were set out in r.24 and did not include the determination of leave applications, and they were not interlocutory matters; (d) if the Rules Committee had intended to allow a single judge to determine a leave application, that could have been stated unambiguously in r.24; and (e) the leave application could not be heard by a single judge of the Court of Appeal under s.31(2) and therefore could not be heard by a Grand Court judge sitting as a single judge of the Court of Appeal.
The applicant submitted in reply that in respect of the first preliminary point, the application for leave to appeal was properly before the judge pursuant to r.11(5). In respect of the second point (a) if the court were to decide that the application for leave...
To continue reading
Request your trial