R v Immigration Bd, ex p Kirk Freeport Plaza Ltd

• Jurisdiction: Cayman Islands
• Judge: (Smellie, J.)
• Judgment Date: 25 October 1996
• Court: Grand Court (Cayman Islands)
• Date: 25 October 1996

Grand Court

(Smellie, J.)

R.

and

IMMIGRATION BOARD, ex parte KIRK FREEPORT PLAZA LIMITED and ISLAND COMPANIES LIMITED

J. Jowell, Q.C. and A.J. Taylor for the first applicant;

R.D. Alberga, Q.C. and S.T. McCann for the second applicant;

I.F. Archie, Solicitor General, for the respondent.

Cases cited:

(1) -Anisminic Ltd. v. Foreign Compensation Commn., [1969] 2 A.C. 147; [1969] 1 All E.R. 208.

(2) -Att.-Gen. v. Ryan, [1980] A.C. 718; (1979), 123 Sol. Jo. 621, followed.

(3) -Att.-Gen. (Gambia) v. N”Jie, [1961] A.C. 617; [1961] 2 All E.R. 504, distinguished.

(4) -Attridge v. Caymanian Protection Bd., 1986–87 CILR 246.

(5) -British Oxygen Co. Ltd. v. Minister of Technology, [1971] A.C. 610; [1970] 3 All E.R. 165.

(6) -Butcher v. Petrocorp Exploration Ltd., [1992] L.R.C. (Const.) 901, followed.

(7) -Buxton v. Minister of Housing & Local Govt., [1961] 1 Q.B. 278; [1960] 3 All E.R. 408, followed.

(8) -Calvin v. Carr, [1980] A.C. 574; [1979] 2 All E.R. 440.

(9) -Chief Const. (N. Wales) v. Evans, [1982] 1 W.L.R. 1155; [1982] 3 All E.R. 141.

(10) -Council of Civil Service Unions v. Minister for Civil Service, [1985] A.C. 374; [1984] 3 All E.R. 935.

(11) -De Raedt v. India (Union), [1992] L.R.C. (Const.) 412.

(12) -De Verteuil v. Knaggs, [1918] A.C. 557, followed.

(13) -Ealing Corp. v. Jones, [1959] 1 Q.B. 384; [1959] 1 All E.R. 286, followed.

(14) -Haoucher v. Minister of State for Immigration & Ethnic Affairs, [1991] L.R.C. (Const.) 819.

(15) -Harley Dev. Inc. v. Inland Rev. Commrs., [1996] 1 W.L.R. 727.

(16) -Kanda v. Malaya (Govt.), [1962] A.C. 322; (1962), 106 Sol. Jo. 305, dicta of Lord Denning applied.

(17) -Lloyd v. McMahon, [1987] A.C. 625; [1987] 1 All E.R. 1118.

(18) -McInnes v. Onslow-Fane, [1978] 1 W.L.R. 1520; [1978] 3 All E.R. 211, distinguished.

(19) -Preston, In reELR, [1985] A.C. 835; sub nom. Preston v. Inland Rev. Commrs., [1985] 2 All E.R. 327.

(20) -R. v. Birmingham City Council, ex p. Ferrero Ltd., [1993] 1 All E.R. 530; (1991), 89 L.G.R. 977, dicta of Taylor, L.J. applied.

(21) -R. v. Chief Const. (Merseyside), ex p. Calveley, [1986] 1 Q.B. 424; [1986] 1 All E.R. 257.

(22) -R. v. Gaming Bd. for G.B., ex p. Benaim, [1970] 2 Q.B. 417; [1970] 2 All E.R. 528.

(23) -R. v. Health Secy., ex p. US Tobacco Intl. Inc., [1992] Q.B. 353; [1992] 1 All E.R. 212, followed.

(24) -R. v. Home Secy., ex. p. Golam Mowla, [1992] 1 W.L.R. 70.

(25) -R. v. Home Secy., ex p. Onibiyo, [1996] Q.B. 768; [1996] 2 All E.R. 901.

(26) -R. v. Huntingdon District Council, ex p. Cowan, [1984] 1 W.L.R. 501; [1984] 1 All E.R. 58, dicta of Glidewell J. applied.

(27) -R. v. Inland Rev. Commrs., ex p. M.F.K. Underwriting Agents Ltd., [1990] 1 W.L.R. 1545.

(28) -R. v. Liverpool Corp., ex p. Liverpool Taxi Fleet Operators” Assn.ELR, [1972] 2 Q.B. 299; sub nom. Re Liverpool Taxi Owners” Assn., [1972] 2 All E.R. 589, distinguished.

(29) -R. v. Paddington Valuation Officer, ex p. Peachey Property Corp. Ltd., [1966] 1 Q.B. 380; [1965] 2 All E.R. 836, dicta of Lord Denning, M.R. applied.

(30) -R. v. West Oxfordshire District Council, ex p. Pearce Homes Ltd.UNK, [1986] J.P.L. 522N, followed.followed.

(31) -Ridge v. Baldwin, [1964] A.C. 40; [1963] 2 All E.R. 66, dicta of Lord Reid applied.

(32) -Schmidt v. Home Secy., [1969] 2 Ch. 149; [1968] 3 All E.R. 795.

(33) -Smith v. Commr. of Police, 1980–83 CILR 126.

(34) -Spackman v. Plumstead District. Bd. of WorksELR(1885), 10 App. Cas. 229.

(35) -Thompson v. Liquor Licensing Bd., 1988–89 CILR 28.

Legislation construed:

Immigration Law (Law 13 of 1992), s.5: The relevant terms of this section are set out at page 292, lines 24–27.

s.10: The relevant terms of this section are set out at page 292, lines 33–41.

Local Companies (Control) Law (1995 Revision) (Law 24 of 1971, revised 1995), s.4(1):

‘Subject to subsection (3), no company shall carry on business in the Islands unless it is so empowered by its Memorandum of Association and-

(a) -it is a local company which, at the relevant time, is complying with section 5 or is a wholly owned subsidiary of such a company.’

s.5(1): ‘For the purpose of section 4(1)(a) a local company is complying with this section if-

(a) -it is Caymanian controlled;

(b) at least sixty per cent of its shares are beneficially owned by Caymanians; and

(c) -at least sixty per cent of its directors are Caymanians.’

s.8(2): The relevant terms of this sub-section are set out at page 287, lines 23–29.

s.10: The relevant terms of this section are set out at page 287, line 39 – page 288, line 3.

s.11: The relevant terms of this section are set out at page 288, line 12 – page 289, line 7.

Companies-administrative control of companies-change in status of local company-local company”s application for Immigration Board”s approval of share transfers under Local Companies (Control) Law (1995 Revision), s.8(2) must precede application for licence to trade as non-local company under s.10-combined application not recognized by Law

Companies-administrative control of companies-change in status of local company-local company”s application under Local Companies (Control) Law (1995 Revision), s.8(2) should explain commercial background-Immigration Board”s approval to remind applicant of necessity for separate application under s.10 for licence to trade-approval in principle of licence not binding

Companies-administrative control of companies-change in status of local company-applicant for approval of share transfers to non-Caymanians under Local Companies (Control) Law (1995 Revision), s.8(2) has implied right of appeal from Immigration Board”s decision as a ‘person aggrieved’ under Immigration Law, s.10-no such right in third party objector

Immigration and Status-Immigration Board-judicial review-judicial review available to applicant with right of appeal from Board”s decision under Local Companies (Control) Law (1995 Revision) since appeal process inappropriate to remedy decision potentially void for procedural unfairness

Immigration and Status-Immigration Board-procedure-applicant for Board”s approval of share transfers to non-Caymanians or grant of licence to trade under Local Companies (Control) Law (1995 Revision) entitled to opportunity to respond to third party objections likely to influence Board”s decision

Immigration and Status-Immigration Board-procedure-Board to observe rules of procedural fairness in administrative process following decision under Local Companies (Control) Law (1995 Revision)-applicant has legitimate expectation of written confirmation of decision communicated verbally in ordinary course of events-no such right in third party objector

The first applicant applied for an order of prohibition to prevent the Immigration Board from rehearing an application by the second applicant. The second applicant sought orders of certiorari to quash two decisions of the Board and a declaration that an intervening decision was valid.

The second applicant (‘ICL’) applied to the Immigration Board for approval in principle of the grant of a licence to trade in the Cayman Islands as a non-local company. Since, at the time of its application, less than 40% of its shares were held by non-Caymanians it was required under the Local Companies (Control) Law (1995 Revision), s.8(2) to obtain approval for the transfer of more shares to non-Caymanians before a licence to trade could be granted under s.11.

The Board received objections to the application from the first applicant (‘KFL’), alleging improper conduct by ICL. These were considered by the Board before making its decision to refuse ICL”s application, which was communicated orally to both KFL and ICL shortly afterwards.

Upon ICL”s request, it was then given the opportunity to make representations to the Board at a meeting, though it was not informed of the substance of KFL”s objections, and the Board reversed its decision, once again informing both companies orally.

Following a letter of complaint to the Board from KFL”s attorneys, arguing that KFL ought to have been asked to attend the Board”s meeting with ICL and make further comments, the Board, upon legal advice, reinstated its original decision to refuse ICL”s application on the basis that it should not have altered that decision without new evidence.

When the Board informed ICL that its application had been refused after consideration of the criteria relevant to an application under s.10 for a licence to trade, ICL requested a complete rehearing at which it would present a fresh application and all interested parties would be heard. The Board agreed to this, prompting KFL to apply for prohibition of such a rehearing, and subsequently ICL”s application for orders of certiorari and a declaration of the validity of the Board”s grant in principle of a licence to trade.

KFL submitted that (a) ICL was not entitled to judicial review of the Board”s original decision, since it had not exhausted the alternative remedies available to it on appeal under (i) the Immigration Law, s.10 as ‘a person aggrieved by . . . any decision of the Board,’ if the decision were taken under s.8(2) of the Local Companies (Control) Law (1995 Revision) or (ii) s.11 of the latter Law if the decision were taken under that section; (b) in any event the decision to refuse the application was not invalid by reason of any procedural unfairness by the Board, since ICL had no right upon an application to a public body for the granting of a benefit-rather than a challenge to the removal of a benefit-to be informed of objections to the application or given the opportunity to respond; (c) the decision gave rise to a legitimate expectation in KFL as an interested person at least of consultation if any further deliberations took place, and consequently the Board”s reversal of the decision was in

breach of the rules of natural justice and was invalid; and (d) since the restoration of the original decision...