Cites ‘miscarriage of justice’ by Immigration Appeals Tribunal
The permanent residence applications of two workers – one of which was filed in 2006 – will be sent back to the Cayman Islands Immigration Appeals Tribunal for reconsideration following a ruling on Friday by Chief Justice Anthony Smellie.
Justice Smellie concluded in the cases of both long-term residents, one a Jamaican and the other a Canadian, that the Immigration Appeals Tribunal’s decisions denying their permanent residence appeals were substantially wrong and a “miscarriage of justice.”
Moreover, the chief justice’s lengthy commentary on the permanent residence application of one of the workers, Michelle Hutchinson-Green, called into question some of the factors used to determine points awarded to PR applicants.
Justice Smellie concluded there are “immediate and obvious concerns” about the current two-tiered system for awarding permanent residence applicants a total of 15 points for their occupation and another 15 points if their job is considered a “priority occupation” according to regulations attached to the Immigration Law.
“It is difficult to imagine a policy that could be more opaque, uncertain and prone to arbitrariness than one by which points are to be allocated to occupations based upon merely subjective assessments of their importance in the context of the local economy,” the chief justice wrote in his 40-page judgment.
The judgment also served to clarify a significant point of contention in immigration appeals cases during which the legislation is amended – often more than once – before an applicant’s appeal is heard.
Justice Smellie essentially ruled that applicants cannot be disadvantaged by the newly amended law if they applied under an earlier version of the Immigration Law. Basically, the law the person applied under should be the one used to determine his or her appeal.
The issue in the cases decided Friday was that both Ms. Hutchinson-Green and Alisha Racz had what amounted to arbitrary appeals rulings against them by the Immigration Appeals Tribunal.
In both cases, the women’s permanent residence applications were denied by the Caymanian Status and Permanent Residency Board. Their cases were appealed to the tribunal, which in both cases increased the number of points awarded to the applicants in some categories. However, the appeals board inexplicably reduced points awarded in other categories below what the immigration board initially had ruled.
In Ms. Hutchinson-Green’s case, points were deducted from her occupation, even though her job had not changed; her skills, though she had engaged in additional training during the period of her appeal; and her salary, even though her pay had increased during the period.
In addition, some of the materials used by the Immigration Appeals Tribunal to judge Ms. Hutchinson-Green’s application were not included in the law or regulations and appeared to be “policy documents” created by the board, Justice Smellie wrote. These “policy documents” were never shown to the applicant at the time and she was never given a chance to respond to them, Ms. Hutchinson-Green’s attorney Robin McMillan said.
In Ms. Racz’s case, points were reduced for her occupation and salary in a manner which Mr. McMillan said “created the appearance of bias” in the appeals tribunal’s deliberations.
Also noted in the chief justice’s ruling was what he described as “unconscionably long delays” in hearing one of the cases. Ms. Hutchinson-Green’s PR application was submitted in November 2006 and wasn’t finally rejected by the appeals tribunal until October 2013. During that period, the Immigration Law was amended more than 10 times, the judgment stated.
Justice Smellie ruled that in both cases the Immigration Appeals Tribunal “impeded the course of justice” by using materials to judge the permanent residence applications without allowing either applicant to speak to that material.
The tribunal also failed to show the applicants, or even the court, how it had used those materials in judging the applications, so the court could not determine the legal “reasonableness” of the appointed body’s decision-making.
This led Justice Smellie to declare the appeals decisions “irrational” under section 19 of the Cayman Islands Constitution Order, which states that all decisions of public bodies must be rational, proportionate, legal and procedurally fair.
Justice Smellie also ordered that the government pay costs for the applicants’ attorneys.