Magistrate Nova Hall is expected to deliver a ruling in Court today on a no-case-to-answer submission with regard to charges stemming from alleged immigration offences committed by Androgroup Elevators Ltd. and Canadian-national Allister Hayes.
Another charge against Androgroup Elevators’ owner Alan Roffey was withdrawn on Thursday after Crown Counsel Scott Wilson conceded the charge had been ‘poorly framed’.
Mr. Hayes has been charged with working for Androgroup Elevator without permission to do so during the period of 1 August through 6 September 2004, and for overstaying during that time period.
Androgroup Elevators was charged with employing Mr. Hayes without a work permit.
One of the key issues of the case concerns what company was Mr. Hayes’ employer and what company submitted a full work permit application for him.
Androgroup Ltd., a company related to Androgroup Elevator Ltd, had a temporary work permit for Mr. Hayes, and submitted a one-year permit for him prior to the expiration of the temporary permit.
However, the Crown had contended that because the permit was submitted with a covering letter on Androgroup Elevator letterhead, it was that company that had submitted the application. Under the Immigration law, Mr. Hayes only had the right to continue working after his temporary permit expired if the full permit was submitted by the same company that held the temporary permit.
Chairman of the Work Permit Board David Ritch testified last week that he believed the permit was in fact submitted by Androgroup Ltd.
The Crown subsequently conceded the permit was submitted by Androgroup Ltd., but questioned whether the law that would allow Mr. Hayes to continue working until his full work permit application was determined was in effect at the time.
Mr. Hayes’ temporary permit expired 1 August. His full permit was submitted 28 July, one day after the Legislative Assembly passed the law that would allow people in Mr. Hayes’ position to remain on the island until their full work permit applications were heard.
The law, however, only went into effect on 9 August when it was published in the Cayman Islands Gazette, meaning Mr. Hayes technically was overstaying between 2 August and 9 August.
QC Ramon Alberga, who was instructed by Attorney Stuart Diamond on behalf of Mr. Hayes, said it would be ‘vexatious’ to prosecute Mr. Hayes for such an infraction when Cayman’s Legislators clearly wanted to facilitate allowing people in Mr. Hayes’ position to remain on the island until their full permit application was heard.
Another major issue in the case concerned one cheque paid to Mr. Hayes by Androgroup Elevators for salary.
Mr. Wilson said the cheque proved Mr. Hayes was employed by Androgroup Elevators Ltd. and not Androgroup Ltd.
‘The cheque is not only prima facia evidence, but solid gold evidence that Mr. Hayes was accepting a reward from Androgroup Elevators,’ he said.
Mr. Wilson said that it was permissible under the law for Mr. Hayes to be subcontracted out by Androgroup Ltd., but that he had to be paid by that company.
‘If he starts being paid by another company, he is in breech of the Immigration Law,’ he said. ‘The cheque is clearly payable from (Androgroup) Elevator to Hayes. There is no clearer evidence to show he was working for (Androgroup) Elevator.’
Stephen Hall-Jones, representing Androgroup Ltd., responded that many people do work for others, such as employees of janitorial services or staffing companies, but that does not make them the employees of the people for whom they are doing the work
Mr. Alberga said that, standing alone, paying someone one cheque does not make them an employee of the company paying them the cheque.
‘Is that the only inference that cane be drawn?’ he asked.
Citing case law, Mr. Alberga said that when a judge or jury is presented with having to make an inference adverse to an accused person, it can only do so if it is the only inference that can be drawn.
‘The judge or jury must draw the most favourable inference to the accused, not the worst,’ he said. ‘In this case, (that Mr. Hayes was an employee of Androgroup Elevators Ltd.) it is not the only inference that can be drawn.’
Mr. Alberga cited some other reasons why Androgroup Elevator might have paid the cheque to Mr. Hayes.
Those reasons included Androgroup Elevators owing money to Androgroup Ltd. or that the cash flow level of Androgroup was low and the company requested Androgroup Elevator to make the payment and adjust the books accordingly.