Nazary v R

JurisdictionCayman Islands
Judge(Smellie, C.J., Sanderson, J. and Kellock, Ag. J.)
Judgment Date01 January 2001
CourtGrand Court (Cayman Islands)
Date01 January 2001
Grand Court

(Smellie, C.J., Sanderson, J. and Kellock, Ag. J.)

NAZARY, HUSSAINI and YUSUFI
and
R.

M. Thompson and L. Aiolfi for the applicants;

S.W. Bulgin, Solicitor General, and Miss J. Wilson, Crown Counsel, for the Crown.

Cases cited:

(1) Inland Rev. Commrs. v. Rossminster Ltd., [1980] A.C. 953; [1980] 1 All E.R. 80, applied.

(2) Scott v. Baker, [1969] 1 Q.B. 659; [1968] 2 All E.R. 993.

(3) Tan Te Lam v. Tai A Chau Detention Centre (Superintendent), [1996] 4 All E.R. 256, applied.

Legislation construed:

Immigration Law (2001 Revision) (Law 12 of 1991, revised 2001), s.2: The relevant terms of this section are set out at para. 20.

s.52: The relevant terms of this section are set out at para. 20.

Immigration and Status-permission to land-detention-persons released following temporary detention may be redetained under Immigration Law, s.52(1)(b), as persons to whom permission to land deemed refused under s.52(3), if material change of circumstances occurs or new evidence discovered

Immigration and Status-permission to land-detention-discretion to detain temporarily under Immigration Law, s.52(1) to be exercised by Chief Immigration Officer personally, not on direction of Governor-in-Council-Governor-in-Council to approve place of detention once decision taken

Immigration and Status-permission to land-detention-detention of temporary detainee under Immigration Law, s.52(1) to be reviewed periodically-to be released if authorities unable to give acceptable estimate of time needed to resolve deportation or asylum issues

The applicants applied for an order of habeas corpus and a declaration that their detention by the immigration authorities was unlawful.

The three applicants arrived in Grand Cayman claiming to have come by ship from Turkey (believing they were travelling to Canada), after an overland journey from Afghanistan. They said they were refugees from the Taliban regime. The applicants were then identified as the same three men who had arrived at the Airport from Cuba, travelling on false Pakistani passports, two days before their alleged arrival by ship. They maintained their version of events at all times.

They were detained in prison under the Immigration Law (2001 Revision), s.52(1). Further enquiries established that their language was that of a minority ethnic group within Afghanistan and their professed religion was a cause for persecution there. Their ethnic and national status was later confirmed. Their individual identities were not conclusively established, but one month after their arrival the Afghan consulate in the United States issued them with travel documents in the names they had given. They expressed a wish to apply for asylum, first in Canada and later-enquiries having shown that this would not be possible-in the Cayman Islands. They applied for habeas corpus and were released almost a year later on the ground that their continued detention was unjustified. Restrictions were placed on their freedom of movement whilst enquiries into their identities continued. Their applications for asylum were refused.

Two days after the terrorist attacks on September 11th, 2001 in New York and Washington D.C., the applicants were again arrested and detained in prison under s.52(1)(b). The authorities had received an unsigned letter before September 11th, purporting to link the applicants to future terrorist activity in the United States. The contents of the letter had become known to the public locally, causing resentment and hostility toward the applicants. Although the author of the letter was subsequently identified and denied that it was anything more than speculation or premonition, the US authorities had been informed and had expressed a wish to interview the applicants. At a meeting with the Commissioner of Police and the Chief Immigration Officer, the Governor-in-Council had agreed that the applicants should be detained for their own security and the national security of the Cayman Islands. The applicants were interviewed whilst in detention by US officials, but no further action was taken in respect of them.

The applicants submitted that their re-arrest had been unlawful, since (a) the issue of the legality of their detention under s.52(1)(b) was res judicata, given the earlier orders of habeas corpus issued by the Grand Court; (b) the power vested in the Chief Immigration Officer under

s.52(1) had not been exercised independently of outside influence but instead under the direction of the Governor-in-Council; and (c) there had been no change in their circumstances since their release to justify their re-arrest. Furthermore, their continued detention was unreasonable in the absence of evidence linking them to terrorist activity, since the Chief Immigration Officer had a duty to determine any remaining issues and to release them within a reasonable time.

The Crown submitted in reply that the Chief Immigration Officer had lawfully redetained the applicants, since (a) they were liable to temporary detention under s.52(1)(b) as persons to whom permission to land in the Cayman Islands had been refused; (b) the Grand Court”s order of habeas corpus had not determined the legality of any future detention under s.52(1)(b), as had been acknowledged in its judgment; (c) the Chief Immigration Officer had taken the decision to redetain prior to his meeting with the Governor, and the Governor had merely approved the place of detention; and (d) the terrorist attacks in September and the letter indicating the applicants” involvement were new events which, together with the circumstances of their arrival in the Cayman Islands and the failure of efforts to identify them, justified their re-arrest in the interests of national security and their own safety. For the same reasons, their continued detention was reasonable.

Held, ordering the applicants” release:

(1) The Chief Immigration Officer had statutory authority under s.52(1)(b) of the Immigration Law to re-arrest and temporarily detain the applicants, as persons to whom permission to land was deemed to have been refused under s.52(3). Upon ordering their release from prison in June, the court had acknowledged that the applicants would be liable to further detention notwithstanding that it had granted writs of habeas corpus. However, it was implicit that the power to redetain was to be used only in the event of a material change in circumstances or new evidence coming to light justifying such action. Accordingly, the issue of the legality of detaining the applicants was not to be regarded as res judicata (paras. 21–22; para. 46; para. 52).

(2) The court was also satisfied that the Chief Immigration Officer had personally decided to exercise his discretion under s.52(1). It was essential for the proper and regular exercise of the power to detain that the officer vested with it by the legislation had been independently satisfied of the appropriateness of its use. It could not simply be presumed that this was so. The Chief Immigration Officer”s evidence had shown that he had already decided to detain the applicants pending further investigations, and had informed their attorneys of this, prior to his meeting with the Executive Council. He had been present at that meeting to brief the Council of his decision or at least his recommendations that the applicants be re-arrested. In the light of this, the Council”s ‘agreement’ that the applicants be detained in prison could be seen as its

approval of a decision already taken and related to the place of detention, as was contemplated by s.52(1) (paras. 25–28; paras. 56–57).

(3) In the circumstances prevailing at the time, the decision to re-arrest the applicants had been reasonable and therefore their temporary detention had been lawful. The terrorist attacks in the United States had heightened global awareness of terrorist activities. Members of the Al Qaeda group were said commonly to operate in teams of three, and the three applicants, as yet unidentified but having connections with Afghanistan, had entered the Islands apparently by deception at the same time as some of the known terrorists had entered the United States. Furthermore, the letter alleging a link between the applicants and the events there had never been satisfactorily explained (paras. 29–30; para. 58).

(4) However, the Chief Immigration Officer was obliged by s.52 to review the applicants” detention and resolve within a reasonable time any issues which stood in the way of their release and/or removal from the jurisdiction. The fact that their appeals against the refusal of asylum were still pending and the immigration authorities intended to deport them if they were unsuccessful did not justify detaining them indefinitely. The factors relevant to the outcome of their asylum claims were not themselves a basis for detention. The authorities had made little progress in verifying the applicants” credentials, and no evidence had come to light linking them with terrorist activities. The US authorities had declined to interview them further for the time being. Given the inability of the authorities to give an acceptable estimate of the duration of any further detention, the applicants” detention was unlawful and they would be released (paras. 32–42; paras. 59–64).

1 SMELLIE, C.J.: On October 9th, 2001 the court granted these applications and ordered the immediate release of the applicants from

detention at Northward Prison. Because of the public interest in this matter and because of the apparent possible need to re-visit issues already considered by this court upon an earlier application, we decided that the court should sit en banc, as a full court. These are our reasons for the decision.

2 The applicants arrived in the Cayman Islands some time in August 2000. There are conflicting accounts about the circumstances of their arrival. On or around August 22nd, 2000, immigration officials...

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