Scott Murray Aitken Applicant v The Immigration Appeals Tribunal (the ‘IAT’) Respondent
| Jurisdiction | Cayman Islands |
| Judge | The Hon. Anthony Smellie |
| Judgment Date | 21 January 2015 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | CAUSE NO. 471 OF 2012 |
| Date | 21 January 2015 |
In Chambers as Open Court
The Hon. Anthony Smellie, Chief Justice
This matter came before the Court by way of an application by Mr. Aitken for judicial review of the IAT'S decision. By that decision, the IAT refused his appeal against an earlier decision of the Caymanian Status and Permanent Residency Board (‘the Board’) by which the Board had refused his application for permanent residence.
By his judicial review application, Mr. Aitken sought the usual discretionary remedies of certiorari, mandamus and injunction; respectively to quash the IAT's decision, to direct the IAT to reconsider his appeal against the Board's decision andinjuncting the Department of Immigration from taking any further action to bring about his removal from the jurisdiction until the determination by the IAT of his resubmitted appeal.
In light, however, of the statutory right of appeal given to him by section 17(2) of the Immigration Law (2010 Revision) (‘the Law’)1 to appeal to this Court against decisions of the IAT, I was obliged to enquire whether he had exercised that right before the institution of his judicial review application.
Judicial review is not normally available where there is an alternative remedy by way of appeal. While the Court retains a discretion even where there is an alternative remedy, to entertain an application by way of judicial review, it will do so only exceptionally: seeKirk Freeport Plaza Limited v Immigration Board et al 1997 CILR 502. In that case, the Court of Appeal adopted the settled principle that an application for judicial review may be entertained ‘where the alternative…remedy (of appeal) is nowhere near so convenient, beneficial and effectual’ or ‘where there is no other equally effective and convenient remedy’ (at 515 and 516). The principle has often been followed and applied in subsequent cases; see for example: Proprietors Strata Plan No. 103 v Development Advisory Board and Dios Mar Limited 2000 CILR 489 and Ford v Immigration Appeals Tribunal 2007 CILR 258.
In this case, far from there being a showing of such exceptional reasons to justify departure from the settled principle, it appears that the statutory right of appeal was simply overlooked. This, although not expressly admitted on the part of Mr. Aitken, is the reasonable inference to draw when his real ground of complaint, which is a point of law, is understood. It is that the IAT misconstrued and misapplied the Law
in its insistence that he first established one of four grounds of appeal set out in the Law, before he was entitled to have his appeal against the decision of the Board heard by the IAT by way of rehearing.Such an argument of construction is one which is obviously suitable for being taken by way of the statutory right of appeal rather than by way of judicial review — the latter requiring the showing either of illegality, irrationality or procedural irregularity2 tainting the administrative decision which is to be reviewed. What is involved here is the notion instead that the IAT misunderstood and so misapplied the statutory right of appeal. This is a pure issue for construction of the Law, well given to being argued and resolved by way of appeal.
These concerns having been brought to the attention of Ms. Rankine, it was accepted by her on behalf of Mr. Aitken, that the right of appeal must first be exhausted and that — as a practical matter — I should proceed to dismiss the judicial review application and hear the application as if by way of the statutory appeal.
Mrs. Bothwell appearing for the IAT did not object to this course and as it would save time and the significant costs of Mr. Aitken having to start over, I decided to adopt it.
This judgment is therefore rendered following the hearing of his appeal on the identified point of law alone, pursuant to section 17(2) of the Law.
On 8th July 2010 the Applicant Mr. Aitken made his application to the Board for the grant of permanent residence pursuant to section 6(2) of the Law.
On the 4th January 2011, the Board refused his application on the basis that he had attained only 95 points under the Permanent Residence Assessment Points System prescribed by the Immigration Regulations (2010 Revision).
The Points System required a minimum of 100 points for the making of a grant,
In its assessment, the Board awarded the applicant zero points under Factor 4 of the Points System –‘Financial Assessment’– for which a maximum of 20 points could have been awarded. The Board appears to have awarded zero points because the applicant had failed to show that he came within either of the two sub-factors identified by Factor 4; that is:
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(a) Investment in property in the Islands; or
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(b) Investment in a local company.
The material put before the Board by the Applicant and in light of which his application was considered, revealed that although he and his wife (now estranged) were then in the course of transacting for the purchase of a residence in Grand Cayman, that transaction had not yet been completed.
On 17th January 2011, the Applicant appealed by letter to the IAT on the single ground that the decision of the Board was ‘unreasonable’. He enclosed his own points assessment by which he asserted that the Board should have awarded him 106 points. It is to be noted, however, that while he proffered an explanation for not having completed the acquisition of a property (viz: the unwillingness of the local banks to lend to persons whose permanent residence is in doubt), he did not propose that the Board should have awarded him any points under the Financial Assessment Factor 4.
His assertion of unreasonableness on the part of the Board was therefore in respect of the Board's failure to have awarded more points (11 more, according to him); in respect of other Factors.
Thus, in essence, his single ground of appeal to the IAT — unreasonableness on the part of the Board — joined issue not with the legality of the Board's decision but with the Board's discretionary factual assessment of the relevant factors.
Having received his letter of 17 January 2011, the IAT wrote to the Applicant on 7 February 2011 enclosing the Board's Appeal Statement — that which outlines the Board's reasons for the refusal of his application. The IAT advised that pursuant to sections 15( 2) and 16(4) of the Law, detailed grounds of appeal were required to be submitted by him to the IAT for further consideration. The IAT further advised that it had the right to dismiss the appeal on the basis of the Applicant's failure to comply with section 16(4) of the Law which required that the Applicant, within 28 days of receipt of the lAT's letter, file his grounds of appeal with the IAT. This letter concluded: ‘Kindly advise if you wish to attend the hearing of the matter.’
In response by letter dated 28 February 2011, the Applicant acknowledged receipt of the IAT's letter of the 7th February 2011 as he saw it, ‘advising me of the additional requirements pertaining to the Appeal process in respect of my Permanent Residency Application.’
In this letter, the Applicant goes on to inform the IAT about his change of circumstances including employment with a new employer, an updated letter from his wife's employer and advising that he and his wife had recently made another offer to purchase a property (enclosing a copy of the offer document but explaining thatalthough unfortunately even that offer had not come to fruition, they were continuing to search for something suitable). Additionally, that they had also been ‘liaising with others of the Cayman based financial institutions, to ensure that funding is in place, prior to any contract being entered into.’
The Applicant in this letter also went on to explain that he had contacted ‘Big Brother Big Sisters’, to enroll himself in their mentoring programme; participation in such programmes being a factor to be considered under the Points System.
He concluded: ‘If the Board deem it appropriate that I attend the hearing, please advise of such date and time and I will, of course endeavor to appear in person. Alternatively, I am also agreeable to the Board processing the Appeal in my absence.’
It must be noted that the Applicant raised no further ground of appeal beyond that of ‘unreasonableness’ raised in his first letter of appeal.
On 2nd March 2011, the IAT acknowledged his letter of 28th February 2011 which it described as his ‘Detailed Ground of Appeal Statement’ and advised the Applicant that its decision will be remitted pursuant to Section 16(11) of the Law, with the least possible delay.
In the meantime, on 1st June 2011, the Applicant wrote to the Board providing that body with a further update of his personal circumstances, in particular that he and his wife had made an offer to purchase a property which had been accepted. Further, that the property would be held in his wife's name, as he was a personal director of multiple entities and was anxious to ensure asset preservation should any of those directorship appointments become litigious. On 18th July 2011, he also wrote to the IAT stating that the property purchase had finally been settled and confirmed that the property would be in his wife's name, explaining again that this was to protect against the property being subjected to attack in the event of his being sued as a personal director of companies.
Eventually, on 10th October 2012, the IAT met and considered the Applicant's appeal and, concluding that no grounds of appeal had been made out against the Board's decision under section 15( 2) and 16(4) of the Law, dismissed his appeal.
He was...
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