THE IMMIGRATION ACT (2012 REVISION) and an APPEAL AGAINST THE JUDGMENT of THE GRAND COURT DATED 6 TH MARCH 2015 on APPEAL FROM THE DECISION of THE IMMIGRATION APPEALS TRIBUNAL DATED 14 TH OCTOBER 2013 Between: Carmen Jack-Chowtee Appellant v Immigration Appeals Tribunal Respondent
| Jurisdiction | Cayman Islands |
| Judge | Sir Bernard Rix JA,Sir Alan Moses, JA,Sir John Goldring, President |
| Judgment Date | 16 September 2022 |
| Docket Number | CICA (Civil) Appeal 008 of 2015 |
| Court | Court of Appeal (Cayman Islands) |
IN THE MATTER OF THE IMMIGRATION ACT (2012 REVISION)
AND
IN THE MATTER OF AN APPEAL AGAINST THE JUDGMENT OF THE GRAND COURT DATED 6 TH MARCH 2015 ON APPEAL FROM THE DECISION OF THE IMMIGRATION APPEALS TRIBUNAL DATED 14 TH OCTOBER 2013
Sir John Goldring, President
Sir Bernard Rix, Justice of Appeal
Sir Alan Moses, Justice of Appeal
CICA (Civil) Appeal 008 of 2015
(Formerly G0423 of 2013)
IN THE CAYMAN ISLANDS COURT OF APPEAL
Ms Kathleen Ryan (by video-link) for the Appellant
Mr. Michael Smith, Senior Crown Counsel, Attorney General's Chambers for the Respondent
This is an appeal which time has unfortunately forgot, as may be seen from the title of this action. After many years in which the Appellant, Mrs Carmen Jack-Chowtee, has sought to persuade the Attorney-General to concede her appeal, without substantive reply from the Attorney-General, new counsel in the Attorney-General's Chambers, Mr Michael Steven Smith, has taken action to bring the matter to a hearing in this Court, for which all concerned must be grateful.
The judgment of the Grand Court from which this appeal arises is the judgment of Justice Richard Williams published on 6 March 2015.
Ms Carmen Jack came to these Islands from Jamaica on 21 February 1997, on a work permit. She was then 28 years old. She was employed as a domestic helper, for various employers, and then as a kitchen helper/dish-washer in a restaurant.
On 6 February 2005 she married her husband, Deonairne Chowtee, a waiter. They had a son, Nicholas, who was born on 7 December 2004 in Grand Cayman. He is now 17.
In February 2005, Mrs Jack-Chowtee first applied for permanent residence, with her husband and their son as her dependents. Her application was refused by the Caymanian Status and Permanent Residency Board (the Board) by letter dated 10 August 2007: it would have succeeded if she had scored 100 points under the applicable point system, but she was awarded only 90 points. She appealed on 29 August 2007, and the Immigration Appeal Tribunal (the IAT) awarded her further points for community service, taking her to 95 points, but that was still not quite enough. She learned of this result by letter dated 10 May 2012. She was advised to apply for a final 1 year work permit, and she worked under that until 15 May 2013. As she was entitled to say, and did say, in her affidavit in support of her later appeal to the Grand Court: “ I have no social or criminal problems, we are law-abiding citizens.”
On 7 May 2013 she made her second application for permanent residency, which is the application from which this appeal derives. As part of that application she relied on evidence of the impending purchase of a parcel of land on which a home was to be built. This purchase became the dominant issue in her application, as will appear below. Prima facie, this purchase could have earned her up to a maximum of 20 points as showing “investment” in these Islands, under the head of “Financial Assessment”. 1 However, she received no points under this head. The Board on this occasion awarded her only 84 points, by its decision dated 4 July 2013. She scored highly under the heads of “Occupation”, “Knowledge/Experience”, “Skills” and “History/Culture Test”, but scored zero points under other heads such as not only “Financial Assessment” but also “Close Caymanian Connection” and “General”.
As for “Financial Assessment”, Mrs Jack-Chowtee had scored 15 points on her original application. However, the Board appears to have held against her her failure to proceed, after the failure of her original application, in the purchase of a parcel of land which she had said she had intended to buy as part of her evidence at that first application. As the Court now knows
from the Board's Appeal Statement on her second application (referred to in the paragraph immediately below), the Board reasoned as follows:“ The Appellant did not provide evidence of any investment in property in the Islands nor in a local business, therefore no points were awarded under this category…”
Upon review of the Appellant's file, the Board noted that her first application for Permanent Residence indicated no Financial Investment. A further letter was submitted by the agent dated 3 March 2006, advising that the Appellant was in the process of purchasing property and that the transfer of land and land register would be submitted under separate cover once the sale had been closed. The records show that only a copy of an “Offer to Purchase” between the Appellant and the vendor dated 17 February, 2006, was ever provided. It was also noted that the initial deposit on signing the “Offer” was only CI$100.00. The Board apparently used its discretion, believing she would honour and fulfil the terms of the purchase document, generously awarded her 15 points for the property. The Board took note that the property now being claimed as her financial investment is not this first property, but another one. In addition, the Appellant only entered into the contract for this new property approximately 3 months prior to the submission of her new application for Permanent Residence. The timing of this proposed purchase was suspect.
Nevertheless, in an effort to give the Appellant every opportunity to provide more substantive evidence of her clear ownership of the property, the matter was deferred in order for her to obtain an affidavit from the agent on behalf of the developer to confirm ownership by the couple, in addition other information. Unfortunately, the key piece of information was never submitted, namely an affidavit confirming ownership of the Sliver Hill property. Instead, a letter was provided highlighting the basis of the deposit paid, stamp duty information, Scotia Bank loan pre-approval etc.
In view of the previous purchase history and the developers being unable to confirm ownership by the Appellant, the Board was not minded to award points for Financial Investment on the basis of the minimal deposit of CI$2,500 on a transaction which has no guarantee of being completed and in which the Appellant has no proof of ownership.
The holding against Mrs Jack-Chowtee of her first failure some six years earlier to follow through on a purchase of property was a tough decision, essentially accusing her of a double deceit (“suspect”). I would recognise, nevertheless, the Board's general experience in such matters. In the present case, however, as will appear below, Mrs Jack-Chowtee's further evidence to the IAT went far to meet and potentially overcome the Board's scepticism.
On 15 July 2013 Mrs Jack-Chowtee filed a notice of appeal to the IAT. The Board prepared an Appeal Statement dated 1 August 2013, setting out the reasons for its decision, of which Mrs Jack-Chowtee was provided with a copy on 11 September 2013.
The appeal hearing was held on 26 September 2013. As part of the appeal the IAT was asked to consider further evidence of Mrs Jack-Chowtee's purchase of a home: namely, (a) a draft transfer of land certificate dated 30 August 2013, signed by both the seller, a Mr Pierre Foster (being the registered owner of the parcel of land concerned), and Mr and Mrs Jack-Chowtee, as buyers; (b) an extract from the Land Registry dated 5 August 2013 showing Mr Foster as the registered owner of the parcel; (c) a certificate of fitness of occupancy of the home which had been built on the parcel of land; (d) a residential full appraisal report of the home, together with photographs; (e) a final valuation of the value of the house and property, dated 2 August 2013; and (f) a Certificate of Occupancy granted by the Central Planning Authority dated 6 August 2013. All these documents, being dated after the hearing and decision of the Board, could not have been presented to the Board, and could only first have been presented to the IAT on appeal.
The IAT, which was entitled to hold a de novo hearing of Mrs Jack-Chowtee's claim, did not do so, saying that although it had “ noted” the new material, it had not “ considered” it, as it “ would have” done if it had proceeded to a de novo hearing. In effect, the IAT dismissed Mrs Jack-Chowtee's appeal summarily, on the basis that no ground of appeal had been made out. The proceedings before the IAT and its decision are described in an affidavit prepared by Mr Buck Grizzel, deputy chairman of the IAT, sworn on 25 February 2014. Before that, however, the IAT's decision was given to Mrs Jack-Chowtee's legal representatives by letter dated 14 October 2013.
The IAT's letter dated 14 October 2013 stated as follows:
“The Tribunal having carefully considered the Notice of Appeal dated 15th July 2013, including the grounds of appeal dated 26th September 2013 and all other submissions made by or on behalf of the above named appellant for this appeal, determined that insufficient grounds of appeal had been made out pursuant to Section 15(2) and 16(4) of the Immigration Law (2012 Revision). Accordingly, the appeal was dismissed.”
However, it is Mr Grizzel's affidavit which throws further light on this letter's bald statement that the Tribunal had “ carefully considered” the Notice of Appeal, the grounds of appeal “ and all other submissions” of the appellant.
Thus relevant extracts from Mr Grizzel's affidavit are as follows:
“ 24. In considering the appeal, the Respondent [ie the IAT] took into account the submissions of the Applicant's Counsel, Mr Dennis Brady, that the Board could have contacted the Applicant to obtain further evidence regarding the purchase of property in the Cayman Islands. It also considered the Board's reasoning that the Transfer of Land form dated April [ sic, but presumably August] 30, 2013, though signed by both transferor and transferees (the Applicant and her...
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