Nazary v R

JurisdictionCayman Islands
Judge(Graham, J.)
Judgment Date05 June 2001
Date05 June 2001
CourtGrand Court (Cayman Islands)
Grand Court

(Graham, J.)


M. Thompson and L. Aiolfi for the first and second plaintiffs;

D.T. McGrath for the third plaintiff;

S.W. Bulgin, Solicitor General, and A. Roberts, Senior Crown Counsel, for the Crown.

Cases cited:

(1) Grant v. John A. Cumber Primary School (Principal), 2001 CILR 78, followed.

(2) R. v. Ministry of Defence, ex p. Smith, [1996] Q.B. 517; [1996] 1 All E.R. 257, followed.

(3) R. v. Turnbull, [1977] Q.B. 224; [1976] 3 All E.R. 549; (1976), 63 Cr. App. R. 132.

Legislation construed:

Immigration Law (2001 Revision) (Law 12 of 1991, revised 2001), s.52(1):

‘Under the authority of an immigration officer-

(a) a person who may be required to submit to examination under section 50(1), pending his examination and pending a decision to give or refuse him permission to land;

(b) a person to whom permission to land has been refused;

(c) a prohibited immigrant on any vessel not intending or seeking permission to land,

may be temporarily detained at some place approved by the Governor for such purpose, and whilst so detained, shall be deemed to be in legal custody and not to have landed. A person on board a vessel may, under the authority of an immigration officer, be removed for detention under this subsection.’

s.52(2): The relevant terms of this sub-section are set out at para. 11.

Immigration and Status-permission to land-detention-immigration officer to review periodically detention of person temporarily detained under Immigration Law (2001 Revision), s.52(1)-s.52(2) requires conscious reconsideration of circumstances and if detention to continue, formal written order to be sent to Prison Director and detainee

Human Rights-international conventions-relevance to judicial review-may assess legality of detention under Immigration Law (2001 Revision) in accordance with provisions of Geneva Convention on Status of Refugees unless conflicts with Law, since deprivation of liberty at stake

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

The three plaintiffs claimed to have come to Grand Cayman 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. Their language was found to be that of a minority ethnic group within Afghanistan, and their professed religion was known to be 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 travel documents in the names they had given.

The plaintiffs were 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, and stayed a night at a guesthouse in Grand Cayman. There was no record of the three having left at the end of their stated eight-day visit. They were also found to be carrying Cayman Islands dollars at the time of their alleged arrival, which they could not have obtained in any of the countries through which they claimed to have travelled on their way here.

The plaintiffs were detained, by the authority of an immigration officer under the Immigration Law (2001 Revision), s.52(1), at Northward Prison. The detention orders were for a period of some 15 weeks commencing on the day of their arrival. The detention orders were not renewed upon their expiry, but the Prison Director was told a number of times by the Immigration Department that it intended that the three plaintiffs should continue to be detained. The plaintiffs then formally

claimed political asylum. They had been detained for nine months when their application for habeas corpus was heard.

They submitted that (a) s.52(2) of the Immigration Law required that the immigration officer who had authorized their detention should actively review that detention periodically and, if the circumstances justified it, convey a written order for continued detention to the Prison Director and to the detainees; and (b) the Immigration Department had long since established the genuineness of their ethnic and national status, and, in accordance with the Geneva Convention Relating to the Status of Refugees, they should not have been detained further after the expiry of the initial detention order.

The Crown submitted in reply that (a) the prolonged detention of the plaintiffs had been necessary for inquiries to be made to establish their true identities and the authenticity of their claim to political asylum; (b) once the Immigration Department”s intention to continue detention had been ascertained, s.52 did not require that the decision be put into writing; and (c) in any event, the plaintiffs could lawfully be detained under s.53 which imposed no limit on the period of detention.

Held, ordering the plaintiffs” release:

(1) The initial period of detention ordered by the Immigration Department under the Immigration Law (2001 Revision), s.52(1) had been justified as a temporary measure to allow the authorities to inquire into the plaintiffs” circumstances. Since the plaintiffs had deceived the Department by giving demonstrably false information, it was understandable that establishing the true facts took some time. However, the Department could have reached the conclusion much sooner that they were Afghans and therefore deportable to an appropriate and safe country (para. 17; para. 19).

(2) Even after the expiry of the detention order, it would have been permissible to detain the plaintiffs further-especially since they then claimed political asylum, and their identities would have to be established before any such asylum could be granted-but only if the matter had been formally reconsidered and expressed in an order communicated to the Prison Director and to the plaintiffs. The Geneva...

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