Potential rights breaches by Immigration Department revealed

Nature of breaches not disclosed, to protect confidentiality of complainants

The Cayman Islands Human Rights Commission reviewed three potential cases of human rights breaches against the Immigration Department in 2015, a report made public Wednesday revealed.

The commission, which looked into 39 allegations of human rights breaches during the calendar year, flagged up five instances where “possible breaches have been deemed to have been taken place by the commission.”

In addition to the three potential breaches by the Immigration Department, one potential human rights breach apiece against the Health Practice Commission and one against the Medical and Dental Council were reported.

The nature of the breaches was not disclosed by the Human Rights Commission, which stated it was seeking to maintain the confidentiality of the complainants involved in the human rights claims.

However, commission chairman James Austin-Smith noted in his letter to lawmakers introducing the report that a number of complaints made to the Human Rights Commission pertained to section 19 of the Cayman Islands Constitution Order, 2009, which concerns lawful administrative action by government.

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“[The commission] continues to encourage government develop sound policies to manage the decision-making processes public officials engage in daily in order to properly uphold this most important right,” Mr. Austin-Smith said.

Section 19 of the constitution states that all decisions of government must be lawful, procedurally fair, rational and proportionate. That issue has arisen a number of times in regard to ongoing immigration-related appeals before the Grand Court.

One such writ, filed Oct. 19, 2015 on behalf of Cherine Amanda Rochester by law firm Travers Thorp Alberga, alleges that Ms. Rochester “was never personally served with the reasons” why the Caymanian Status and Permanent Residency Board denied her permanent residency application.

This failure to provide information “deprived” Ms. Rochester of the ability to formulate proper grounds for an appeal, the lawsuit alleges.

In addition, issues identified in an Aug. 28, 2015 court judgment from Chief Justice Anthony Smellie dealt with two major areas: The actions of the Immigration Appeals Tribunal in judging two earlier 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.

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.

That is essentially the same claim made in an Oct. 2, 2015 lawsuit, filed by Milton Arthur John Buchanan.

The writ filed on Oct. 2 2015 on Mr. Buchanan’s behalf by law firm Bodden and Bodden alleges that the Immigration Appeals Tribunal “acted unreasonably and/or contrary to the principles of natural justice” in denying an appeal of his permanent residence application after it was initially denied by the Caymanian Status and Permanent Residency Board.

Mr. Buchanan’s application essentially claims that the board erred in law by not correctly determining how many “points” he should have been awarded on his permanent residency application for his salary and occupation.

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  1. I suspect the HRC would be receiving a lot more complaints if their website and email address worked. Right now you can’t even download the complaints form. I believe this is probably in itself a breach of ECHR Article 13 – Right to an Effective Remedy – and it needs to be sorted out ASAP.