Re an Application for Permanent Residence by Hutchinson-Green

• Jurisdiction: Cayman Islands
• Judge: (Smellie, C.J.)
• Judgment Date: 28 August 2015
• Court: Grand Court (Cayman Islands)
• Date: 28 August 2015

IN THE MATTER OF AN APPLICATION FOR PERMANENT RESIDENCE BY HUTCHINSON-GREEN

IN THE MATTER OF AN APPLICATION FOR PERMANENT RESIDENCE BY RACZ

(Smellie, C.J.)

Grand Court

Administrative Law—judicial review—grounds for review—decision not rational if no evidence offered by public body indicating reasons for its conclusions, as court then unable to conclude that body acted reasonably—right to lawful administrative action (as set out in Constitution, s.19(1)) engaged—court to apply standard of ‘heightened scrutiny’ requiring decision-making body to justify its decision

Immigration and Status—Immigration Appeals Tribunal—rehearing—if Grand Court orders I.A.T. to reconsider appeal, Tribunal to do so according to law and materials applicable at time of original consideration of application (s.15(3)(A) of Immigration Law (2015 Revision)), and not those applicable at time of rehearing (s.16(6)), if use of later materials likely to penalize applicant—clear statutory authority to use later materials needed—apparent inconsistency between s.15(3)(A) and s.16(6) reconcilable as latter procedural in ambit whereas former identifies applicable substantive law

Held, allowing the appeals:

(1) The I.A.T.”s decisions were irrational and the applications would be remitted to it for reconsideration. The dismissal of the appeals by the I.A.T. had by default to be considered irrational since it had not provided the court with the materials on which it had relied in reaching its conclusions, and had therefore failed to provide any rational explanation for the number of points it had awarded, particularly as it seemed that the first applicant should have been awarded more points at the time of her appeal, making it impossible for the court to conclude that the I.A.T.”s

decisions were reasonable. This was particularly so given that the court had to apply a standard of heightened scrutiny in considering the appeal, as the right to lawful administrative action (as set out in s.19(1) of the Bill of Rights) was engaged, requiring a public decision-making body to make clear its reasons for reaching its conclusions, which the I.A.T. had failed to do, and reducing the usual margin of appreciation given to administrative bodies so that the evidential burden would be on the body to establish the rationality of its decision (para. 31; para. 37; paras. 43–47; para. 51; paras. 54–56; paras. 149–150).

(2) The I.A.T. has also clearly failed to satisfy the requirements of procedural fairness in reaching its decision as it had not warned the applicants that it would rely on the materials it had used, which adversely affected the number of points they received, and no opportunity had been given to challenge its reliance on them (para. 58; para. 65; para. 69).

(3) When reconsidering the applicants” appeals, the I.A.T. should apply the law and materials which were applicable at the time of the hearing of the applications by the Board and the first hearing by the I.A.T. as it would be impermissible to apply retrospectively any law or materials which would be detrimental to the applicants. The current points system, as established by the Immigration (Amendment) Regulations 2013 and 2015, was significantly different from the points system which had been applicable when the applicants originally applied to the Board as (a) it allowed more discretion in awarding points for the applicant”s ‘occupation,’ particularly for priority occupations, which could result in fewer points being awarded to the applicants; (b) it required ‘skills’ to be determined according to internationally or nationally recognized qualifications, which was more restrictive than the previous points system; and (c) the calculation of points to be awarded for investments in the Islands relative to the applicant”s salary had become less discretionary. There was therefore a possibility that application of the current points system could be detrimental to the applicants, which would be contrary to the principles against doubtful penalization (i.e. that no individual should be penalized unless clear statutory authority for penalization were established) and retrospectivity. The apparent discrepancy between s.15(3)(A) of the Immigration Law (2015 Revision)—which required the I.A.T. to apply the law as it stood at the time of the application to the Board—and s.16(6)—which required the I.A.T. to apply the law as it stood at the time of the appeal—was explicable on the basis that s.16(6) was procedural in ambit whereas s.15(3)(A) identified the applicable substantive law (para. 84; para. 95; para. 98; paras. 101–105; para. 111; para. 118; para. 120; paras. 125–127).

Cases cited:

(1) Aitken v. Immigration Appeals Tribunal, 2015 (1) CILR 27, referred to.

(2) Associated Provncl. Picture Houses Ltd. v. Wednesbury Corp.,

[1948] 1 K.B. 223; [1947] 2 All E.R. 680; (1947), 177 L.T. 641, referred to.

(3) Axis Intl. Ltd. v. Civil Aviation Auth., 2014 (1) CILR 12, referred to.

(4) Bertoli v. Malone, 1990–91 CILR 58; on appeal, 1992–93 CILR N[1], applied.

(5) Bugdaycay v. Home Secy., [1987] A.C. 514; [1987] 2 W.L.R. 606; [1987] 1 All E.R. 940, referred to.

(6) Chowtee v. Immigration Appeals Tribunal, Grand Ct., Cause No. 423 of 2013, March 6th, 2015, unreported, referred to.

(7) Davidson v. Immigration Appeals Tribunal, Grand Ct., Cause No. 468 of 2011, October 15th, 2013, unreported, not followed.

(8) Ford v. Immigration Appeals Tribunal, 2007 CILR 258, followed.

(9) HL v. United KingdomHRC(2004), 40 EHRR 34; 81 BMLR 131; 17 BHRC 418, referred to.

(10) Lloyd v. McMahon, [1987] A.C. 625; [1987] 2 W.L.R. 821; [1987] 1 All E.R. 1118, followed.

(11) R. v. Home Secy., ex p. DoodyELRWLR, [1994] 1 A.C. 531; [1993] 3 W.L.R. 154, sub nom. Doody v. Home Secy., [1993] 3 All E.R. 92, applied.

(12) R. v. Ministry of Defence, ex p. Smith, [1996] Q.B. 517; [1996] 2 W.L.R. 305; [1996] 1 All E.R. 257, applied.

(13) R. v. Z, [2005] 2 A.C. 645; [2005] 2 W.L.R. 1286; [2005] 3 All E.R. 95; [2005] Crim. L.R. 985; [2005] UKHL 35, referred to.

(14) R. (Daly) v. Home Secy., [2001] 2 A.C. 532; [2001] 2 W.L.R. 1622; [2001] 3 All E.R. 433; [2001] H.R.L.R. 49; [2001] UKHL 26, referred to.

(15) Streeter v. Immigration Bd., 1998 CILR 357, referred to.

(16) Wiseman v. Borneman, [1971] A.C. 297; [1969] 3 W.L.R. 706; [1969] 3 All E.R. 275, followed.

(17) Yew Bon Tew v. Kenderaan Bas Maria, [1983] 1 A.C. 553; [1982] 3 W.L.R. 1026; [1982] 3 All E.R. 833, referred to.

Legislation construed:

Immigration (Amendment) (No. 2) Law 2006, s.20(1B): The relevant terms of this sub-section are set out at para. 88.

Immigration Law (2015 Revision), s.15(3)(A): The relevant terms of this paragraph are set out at para. 122.

s.16(5): The relevant terms of this sub-section are set out at para. 123.

s.16(6): The relevant terms of this sub-section are set out at para. 123.

s.114(1): ‘Nothing in this Law shall adversely affect the right of any person . . . acquired under any earlier Law . . .’

s.114(2): ‘Where prior to the commencement of the Immigration (Amendment) (No. 2) Law, 2013 an application for the right to reside permanently in the Islands was made and is still pending . . . the Board . . . shall deal with such application in accordance with the law in effect immediately prior to such commencement.’

s.114(7): The relevant terms of this sub-section are set out at para. 126.

Immigration Regulations (2010 Revision), Second Schedule: The relevant terms of this Schedule are set out at paras. 23, 28, 96 and 110.

Cayman Islands Constitution Order 2009 (S.I. 2009/1379), Schedule 2, s.19(1):

‘All decisions and acts of public officials must be lawful, rational, proportionate and procedurally fair.’

The applicants sought judicial review of the Immigration Appeals Tribunal”s dismissal of their applications for permanent residence.

The first applicant moved to the Islands in 1996 and was employed as an assistant supervisor for a company in which she owned 40% of the shares. On its consideration of her application for permanent residence, on an appeal from the Caymanian Status and Permanent Residency Board (‘the Board’), the I.A.T. awarded 92 points according to the points system contained in the Second Schedule to the Immigration Regulations (2004 Revision), a minimum of 100 points being necessary for a grant of permanent residence. The I.A.T. significantly increased the points awarded in a number of categories, such as ‘knowledge and experience,’ but reduced the points awarded for ‘occupation,’‘skills,’ and ‘funds and salary,’ by reference to the Board”s points calculation chart and an Employment Relations Department database and report (‘the materials’).

No opportunity was provided for the first applicant to make representations as to the number of points to be awarded or the I.A.T.”s use of the materials.

The second applicant moved to the Islands in 1999 and was employed as an executive secretary. She was awarded 95 points by the I.A.T., which significantly increased the points awarded in a number of categories but awarded fewer points in other categories; the second applicant was also given no opportunity to make representations. As her application raised similar issues to the first application, they were considered together.

The applicants submitted that the I.A.T.”s decisions were (a) irrational on the basis that no reasons were given to justify its reduction in the number of points awarded to the applicants; and that (b) this failure required the court to conclude that the I.A.T.”s decisions were unjustified, since a standard of ‘heightened scrutiny’ was applicable, given that s.19(1) of the Bill of Rights (which established a right to lawful administrative action) was engaged; (c) that the I.A.T.”s failure to give the applicants an opportunity to make representations was clearly a breach of the requirements of procedural fairness; (d) that the use of the points calculation...