Section 17(2) of The Immigration Law (2013 Revision) an Application for Permanent Residence and Employment Rights by Michelle Jean Hutchinson-Green an Application for Permanent Residence and Employment Rights by Alisha Myriah Racz

• Jurisdiction: Cayman Islands
• Court: Grand Court (Cayman Islands)
• Judge: The Hon. Anthony Smellie, Chief Justice
• Judgment Date: 28 August 2015
• Docket Number: CAUSE NO. G0386 OF 2013
• Date: 28 August 2015

In The Matter of Section 17(2) of The Immigration Law (2013 Revision)

and

In The Matter of an Application For Permanent Residence and Employment Rights by Michelle Jean Hutchinson-Green

and

In The Matter of an Application For Permanent Residence and Employment Rights by Alisha Myriah Racz

[2015] CIGC J0828-2

Before:

The Hon. Anthony Smellie, Chief Justice

CAUSE NO. G0386 OF 2013 CAUSE NO. G0387 OF 2013

IN THE GRAND COURT OF THE CAYMAN ISLANDS

Appeals against refusal of grants of permanent residence and employment rights — duty of Immigration Appeals Tribunal to observe the rules of natural justice and the duty of full and frank disclosure — duty of heightened scrutiny of the Court when considering such issues — whether Tribunal acted in breach of the principle of doubtful penalization — Tribunal directed to rehear the matter — whether Tribunal required to do so by application of the current Law or the Law in place at time of the application.

APPEARANCES:

Mr. Robin McMillan of HSM Chambers for the Applicants in both Causse

Mrs. Suzanne Bothwell, Senior Crown Counsel for the Respondent in both Causes

IN CAUSE NO. G0386 OF 2013

1 In Cause 0386 of 2013, Mrs. Hutchinson-Green (‘the Applicant’) appeals against a decision of the Immigration Appeals Tribunal (‘the I AT’) delivered on 17 ^th October 2013, by which the IAT refused the Applicant's application for permanent residence and employment rights (‘PR’).

2 The Applicant is a citizen of Jamaica and a resident in the Cayman Islands since 19 February 1996. She is married to Mr. Garfield Green, who is also a citizen of Jamaica. They live in a home on Grand Cayman which is jointly owned by them. They have a son, bom on 21 October 2001 in the Cayman Islands and a daughter bom on 21 November 2007, in the United States of America.

3 The Applicant is employed as assistant supervisor and propagator with Growing Beauty Wholesale Nursery Ltd., a business company in which she owns 40% of the shareholding (‘the business’).

4 The decision of 17 October 2013 of the IAT, against which she appeals, was arrived at upon the rehearing on 4 ^th April 2013 of the Applicant's earlier application to the Caymanian Status and Permanent Residency Board (‘the Board’) for a grant of PR.

5 Upon the rehearing, the IAT in refusing her application for PR, awarded the Applicant 92 points while the Board (in its decision of 1 ^st May 2009) had awarded her 81 points. An award of a minimum 100 points by reference to the Points System promulgated in the Second Schedule to the Immigration Regulations issued under the Immigration Law, was required for a grant.

6 The IAT had conducted its proceedings in two stages. First, by determining on 1 ^st November 2012 by oral decision, that valid grounds of appeal had been made out against the decision of the Board and later by way of a rehearing de novo of the Applicant's application, on 4 ^th April 2013.

7 The Applicant takes no issue with the IAT's conduct of the proceedings in that manner in two stages and accepts that, in keeping with the applicable case law 1, the IAT was entitled to proceed in that way.

8 The gravamen of the Applicant's complaint is that the IAT determined to reduce the number of points awarded to her on three crucial factors and did so without first notifying her of its intention to do so and therefore without affording her the opportunity to persuade the IAT otherwise.

9 The three crucial factors — Occupation, Skills and Funds and Salary — with the points first awarded by the Board juxtaposed with those awarded by the IAT, are highlighted as follows:

		Board	Tribunal
1.	Occupation	18	16
2.	Knowledge and Experience	15	25
3.	Skills	17	14
4.	Financial Assessment	0	5
5.	Funds and Salary	10	6
6.	Contribution to the Community	4	9
7.	History/Culture Test	17	17
8.	Close Caymanian Connection	0	0
9.	General	0	0
		81	92

10 The resultant reduction in the three crucial factors by 9 points meant that the Applicant's award of 92 points would have otherwise satisfied the minimum of 100

points required. Thus, notwithstanding that the IAT had increased the award of points in other factors to raise the total from the Board's award of 81 to 92 points, the effect of the reduction of the 9 points without first hearing from the Applicant, was to deny her application for PR. The Applicant complains that this was a breach of the rules of natural justice; more specifically that the IAT failed to observe and apply the audi alteram partem rule.

11 The Applicant also complains about the irrationality of the award, a concern she had raised with the IAT itself prior to the bringing of this appeal. In an email dated 22 October 2013 addressed to the Secretary to the IAT and copied to the Chairman OF the IAT, the Applicant requested that the points recalculation be further considered. She also enquired how ‘Occupation’ could have been reduced from 18 to 16 points when her occupation had not changed; how ‘Skills’ had been reduced from 17 to 14 points when they had not changed except to increase by way of her further training and education, and how ‘Funds and Salary’ had been reduced from 10 to 6 points when her salary had increased and her husband and herself had come to receive a dividend of 40% profit share in relation to their shares in the business every six months. She received no response from the IAT.

12 It is also emphasized by Mr. McMillan on the Applicant's behalf, that while no complaint is made about the IAT's decision to allow the appeal against the Board's decision, no reasons have been given by the IAT as a basis against which to understand the approach which it took at the second stage; that is: upon the ultimate rehearing de novo of her application. The IAT simply allowed the appeal in its appellate capacity — it gave no reasons why it thought the Board had made mistakes.

13 There is yet a further concern about procedural fairness of which the Applicant complains as follows.

14 The Applicant's appeal to the IAT was filed on 7 ^th May 2009 and so some four and a half years had in fact transpired between that date and the ultimate rehearing of her appeal and decision of the IAT on 17 ^th October 2013.

15 As a consequence, when the IAT came to consider de novo the Applicant's appeal, it appears to have done so by reference to the Law that was in place in October 2013 and by reference to certain materials — the then current Employment Relations Department database and report and the Board's points calculations chart. Provided that the appropriate versions were used and applied fairly, reference to the first two categories of materials — the database and report — was authorized by the Second Schedule to the Immigration Regulations but reference to the third — the Board's point calculation chart — was not. This was a chart which had been created by the Board subsequent to the Board's original decision upon the Applicant's application but was nonetheless relied upon by the IAT. These three categories of materials will together herein be referred to as the ‘logistical materials’.

16 The Applicant complains that the reliance of the IAT upon later versions of the database and report which were not the same as those relied upon by the Board and upon the unauthorized points calculation chart of the Board, redounded to her prejudice and detriment in ways to be examined below.

17 The Applicant further contends through Mr. McMillan, that the adoption of the later or unauthorized versions of the logistical materials, without regard to the penalizing consequences of thereby reducing the points which were awardable to her, was itself also an unlawful exercise of authority. Alternatively, even if this course was in principle open to and was being considered by the IAT, the IAT should at least have properly informed and alerted her to the facts and invited submissions as to the appropriateness of the logistical materials to be deployed. Hence, a further breach of the rules of natural justice, says Mr. McMillan.

18 From the foregoing, there are discernible three distinct grounds of appeal raised by the Applicant:

• (i) The alleged breaches of the rules of natural justice in the IAT's determination to reduce the points awarded by the Board on the three crucial factors without first giving the application notice of that intention and an opportunity to respond.

• (ii) The irrationality of the award of points in the face of and contrary to the objective evidence showing that she had enhanced her occupational position, increased her skills by way of further training and education and increased her funds and salary by way of her acquisition of 40 per cent equity in the business and the commensurate dividends paid (or to be paid) to her.

• (iii) The IAT'S reliance upon later versions of the logistical materials (only some of which were authorized and promulgated under the Regulations) to the detriment of the Applicant and all in breach of the principles of ‘doubtful penalization’ and retrospectivity, as developed and explained in the case law.

19 I will come below to deal with each of these grounds of complaint in turn. Before doing so, I must set out the rest of the relevant factual background.

20 In her first affidavit dated 22 November 2013, the Applicant sets out her complaints which I have summarized above. The IAT responds by way of the first affidavit of 14 January 2014 of Mr. Buck Grizzel sworn in his capacity of Deputy Chairman of the IAT.

21 Mr. Grizzel states in paragraph 4 of his first affidavit in response to the Applicant's arguments, that the IAT calculated the points awarded for ‘Occupation’, ‘ with reference to the Employment Relations Departments' database as required by Schedule 2 of the Points System in the Immigration Regulations’. While he later confirms in his second...