Streeter v Immigration Bd

• Jurisdiction: Cayman Islands
• Judge: (Smellie, C.J.)
• Judgment Date: 31 December 1998
• Court: Grand Court (Cayman Islands)
• Date: 31 December 1998

Grand Court

(Smellie, C.J.)

STREETER and K COAST DEVELOPMENT

and

IMMIGRATION BOARD and GOVERNOR-IN-COUNCIL

R.D. Alberga, Q.C. and C.G. Quin for the applicants;

Ms. J. Wilson, Crown Counsel and A. Warner, Crown Counsel, for the respondents.

Cases cited:

(1) Associated Provncl. Picture Houses Ltd. v. Wednesbury Corp., [1948] 1 K.B. 223; [1947] 2 All E.R. 680, considered.

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

(3) Garland v. British Rail Engr. Ltd., [1983] 2 A.C. 751; [1982] 2 All E.R. 402, applied.

(4) Jacques Scott & Co. Ltd. v. Moxam, 1998 CILR 323.

(5) R. v. Barnsley Metropolitan Council, ex p. Hook, [1976] 1 W.L.R. 1052; [1976] 3 All E.R. 452, applied.

(6) R. v. Home Secy., ex p. BrindELR, [1991] 1 A.C. 696; sub nom. Brind v. Home Secy., [1991] 1 All E.R. 720, considered.

(7) R. v. Lewisham Borough Council, ex p. Shell U.K. Ltd., [1988] 1 All E.R. 938, applied.

(8) R. v. Statutory Cttee. of Pharmaceutical Socy. of Great Britain, ex p. Pharmaceutical Socy. of Great Britain, [1981] 1 W.L.R. 886; [1981] 2 All E.R. 805.

(9) Roper, In re, 1980–83 CILR 181.

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

Legislation construed:

Immigration Law (1997 Revision), (Law 13 of 1992, revised 1997), s.2: The relevant terms of this section are set out at page 378, lines 26–32.

s.30(1): The relevant terms of this sub-section are set out at page 370, line 28 – page 371, line 13.

s.72: The relevant terms of this section are set out at page 386, lines 17–18.

Immigration Directions (1996 Revision), Direction 5(1): The relevant terms of this paragraph are set out at page 377, lines 39–41.

Direction 9(f): The relevant terms of this paragraph are set out at page 386, lines 12–15.

International Covenant on Civil and Political Rights (New York, December 16th, 1966; UK Treaty Series 6 (1977)), art 23: The relevant terms of this article are set out at page 387, lines 31–38.

Administrative Law-judicial review-grounds for review-decision of administrative body exercising statutory discretion may be quashed if irrational, i.e. so defiant of logic or morality that no reasonable body could have reached it, or illegal, i.e. contravenes enabling power or pursues object outside that for which discretion conferred-lack of proportionality not widely recognized as separate ground

Immigration and Status-gainful occupation licences-revocation-under Immigration Law (1997 Revision), s.30(1)(h) ‘hardship’ to worker”s Caymanian spouse to be considered independently of worker”s conduct-priority given to spouse of Caymanian in grant of permit under Immigration Directions (1996 Revision), Direction 5(1) relevant to Immigration Board”s decision

Immigration and Status-gainful occupation licences-revocation-unlawful for Immigration Board to seek to compel worker to leave Islands by revocation following conviction-Governor alone may expel ‘convicted and deportable person’ following recommendation by court-increased punishment of worker sentenced leniently by court is improper exercise of Board”s discretion

Immigration and Status-gainful occupation licences-revocation-worker”s Cayman employer to be considered amongst ‘local interests’ under Immigration Law (1997 Revision), s.30(1)(d)-revocation to allow equal opportunities for Caymanian unemployed irrational given strict criteria for grant of work permits

Immigration and Status-gainful occupation licences-revocation-policy of revocation following conviction not prescribed by Immigration Directions (1996 Revision), Direction 9(f) and may be contrary to principles of International Covenant on Civil and Political Rights, art. 23-Board to consider attaching warning conditions to work permit where appropriate, taking into account worker”s rehabilitation and previous good character

The applicant sought judicial review of the Immigration Board”s decision to revoke his work permit.

The applicant, a British citizen, pleaded guilty to theft from his employer and was sentenced by the Grand Court to a six-month suspended prison sentence and ordered to pay a fine and compensation.

The Crown did not apply for his deportation. However, the Immigration Board, on learning of his conviction and sentence, informed the applicant that it had revoked the work permit issued to his new employer. Without such a permit, the applicant would be unable to earn a living in the Islands and would have to seek work elsewhere. His wife had Caymanian status, having been born in the Islands to long-standing Cayman residents, had been educated abroad but was now employed here.

The Board later agreed to reconsider its decision and heard oral and written representations from his attorney and received character references from his colleagues and family friends, but ultimately refused to alter its decision. An appeal to the Governor-in-Council failed.

In seeking judicial review, the applicant submitted that (a) the Board”s decision was unreasonable, since it had applied the relevant criteria for the grant or revocation of work permits in an irrational manner; (b) it was illegal, since the power to revoke had been used for purposes other than those prescribed by the legislature and in disregard of certain treaty obligations; and (c) there was also a lack of proportionality between the applicant”s behaviour and what would effectively amount to his deportation.

The Board submitted in reply that (a) the priority to be given to the various issues which it was obliged to consider under s.30(1) of the Immigration Law when granting or revoking a permit was a matter for its dis-cretion, and the court should not seek to substitute its own view of those priorities; and (b) any errors of law into which it had fallen had not materially affected its decision and therefore should be disregarded by the court.

Held, quashing the decision:

(1) The court had power to quash a decision of the Board which was either irrational or tainted by illegality. The decision would be irrational if the Board had exercised its discretion in a manner which was so outrageous in its defiance of logic or accepted moral standards that no sensible body which had applied its mind to the question in hand could have arrived at it. However, since judicial review was not a means of appeal on the merits of the case, the court could not simply substitute its own opinion for that of the Board and the order of importance to be ascribed to the various factors under s.30(1) was a matter for the Board alone. An illegal decision would be one which contravened the terms of the enabling power or pursued an objective other than that for which the power was conferred. The concept of lack of ‘proportionality’ as a reason for quashing a decision was not widely recognized as a separate ground for judicial review and it was unhelpful and unnecessary to apply it in the context of this case (page 370, lines 19–26; page 371, line 42 – page 372, line 7; page 372, lines 18–26; page 373, lines 10–15; page 388, lines 35–38; page 389, lines 19–25).

(2) The decision of the Board was irrational, since (a) in failing to consider the possible hardship to the applicant”s wife, under s.30(1)(h), it had ascribed the applicant”s misdeeds to her and made unfounded suggestions that she was not closely attached to the Islands; (b) on the

pretext of protecting the Cayman community and preserving its moral standards, under s.30(1)(k), it had treated the applicant as an habitual criminal and sought to impose its own more draconian penalty by way of condemnation of the leniency shown by the court; (c) it had rejected out of hand the applicant”s character references and potential for rehabilitation, on the basis that once convicted of an offence he could not be of good character and was likely to re-offend; and (d) it had sought to remove the perceived advantage which he would enjoy over native Caymanians in obtaining employment following conviction, on the mistaken assumption that Caymanians were rarely re-employed in those circumstances and that the applicant was depriving a Caymanian of his job (page 377, line 18 – page 378, line 15; page 380, lines 19–21; page 380, line 40 – page 381, line 13; page 381, line 28 – page 382, line 6; page 382, lines 34–45; page 383, lines 25–31).

(3) The Board”s decision was also illegal, since it had (a) sought to bring about the applicant”s removal from the Islands, which was a matter for the Governor alone, and had wrongly treated him as a ‘convicted and deportable person’ within the meaning of the Immigration Law (1997 Revision), s.2, although the court convicting him had not recommended his deportation; (b) ignored Direction 5(1) of the Immigration Directions (1996 Revision), which provided that priority should be given to the spouses of Caymanians in obtaining work permits; and (c) construed too narrowly its duty under s.30(1)(d) to protect local interests as referring only to individual Caymanians and not to local businesses such as the applicant”s current employer (page 378, lines 23–35; page 379, lines 3–10; page 379, line 33 – page 380, line 2; page 384, lines 10–35).

(4) Furthermore, the revocation of work permits for foreigners convicted of serious offences, which the Board asserted was its policy, based upon Direction 9(f), was not prescribed by the legislature or the executive and had not been applied in practice, since there were cases comparable to the applicant”s in which the Board had merely attached warning conditions to a work permit. Such a policy was, in any event, when applied to a married person, contrary to the Board”s obligation under international law to construe Cayman legislation in accordance with art. 23 of the Inter-national Covenant on Civil and Political Rights if it were capable of such construction. When reviewing the Board”s decision, such errors of law could not be isolated from matters validly...