A recent court decision in permanent residence cases by Cayman’s chief justice may be a game-changer, not only for immigration-related matters, but for many other areas in which appointed boards make rulings and hear appeals on a plethora of matters, from business licensing to planning issues.
One such area was identified by former government senior legislative counsel Bilika Simamba on Wednesday evening while he was speaking to a group of Cayman Islands business owners about upcoming changes in the Trade and Business Licensing Law.
The law, among many other changes, creates a five-member appeals board to hear challenges to decisions made by the Trade and Business Licensing Board.
“If that [Aug. 28 ruling by the chief justice] stands, the members of this appeals tribunal as well have to study that decision and see how it impacts them,” Mr. Simamba told the audience at the Government Administration Building in George Town.
The issues identified in an Aug. 28 court judgment from Chief Justice Anthony Smellie dealt with two major areas: First, the actions of the Immigration Appeals Tribunal in judging two cases where non-Caymanians had applied for permanent residence – the right to remain in the territory for the rest of their lives – in which the tribunal’s actions were determined to be a “miscarriage of justice.” Those applications were made under a former version of the Immigration Law. The Immigration Appeals Tribunal was ordered to re-hear the applications of the two workers, one of whom had applied for residency status in 2006.
The second matter involved the current permanent residence system and how points toward that status are awarded to applicants.
It was the first issue that concerned Mr. Simamba, a former legislative draftsman for the Cayman Islands government and senior counsel within the attorney general’s office.
Essentially, the court judgment involving the two non-Caymanian workers stated that the decision by the Immigration Appeals Tribunal to deny their permanent residence applications was “irrational” because the tribunal could not properly explain or identify the criteria it used to rule on the applications.
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.
The Cayman Islands Constitution Order (2009) Bill of Rights, in section 19, requires that all decisions of government be legal, rational, proportionate and procedurally fair. If a government-appointed body cannot show that for any decision it makes, it can become a human rights issue, Mr. Simamba said.
Moreover, the chief justice’s ruling required a re-hearing of the two non-Caymanian workers’ permanent residence applications.
“What the ruling said was ‘we are rehearing everything’ [in the two appeals cases],” Mr. Simamba said. “If you are going to do that, then the court will require more explanation from you as to what your reasoning was … this is a human rights issue.”