A Cuban migrant is challenging the Immigration Appeals Tribunal’s decision last month to deny him asylum, arguing that he did not receive a fair hearing of his application.
According to court documents, the migrant arrived here in April 2017 and applied for asylum. His application was refused in August 2017, and his appeal was also unsuccessful.
Now, the migrant has taken his case to the Grand Court, arguing that the Immigration Appeals Tribunal violated his right to a fair hearing.
The Cuban’s writ, which is posted on the financial services site OffshoreAlert, includes the Immigration Appeals Tribunal’s written decision to deny him asylum.
According to the writ, the tribunal denied him asylum because it was not satisfied that he was at risk of being politically persecuted by Cuban authorities.
“He travelled to Havana with his sick child for surgery, despite indication from the authorities to the contrary, without being punished. He disobeyed his superiors without being sent to the Military tribunal as per the policy explained by him of the Cuban regime,” the appeals tribunal stated, according to court documents. “And when asked about the type of threats he would face in Cuba, he said the first thing is to get me fired, suggesting that losing his job was paramount in his mind to persecution.”
Therefore, the tribunal concluded that the Cuban did not show that he has a well-founded fear of political persecution, nor did he show that he would face any risk of suffering serious harm if he returns to Cuba.
However, the Cuban migrant strongly disagrees with those decisions. His writ states that the appeals tribunal failed to consider the treatment he will face from him deserting the Cuban military, leaving Cuba illegally, and presenting an asylum application in Cayman.
The Cuban also argues that he has had his legal rights breached during his asylum hearings.
“The Appellant is a Cuban National, who speaks little or no English. He has been required to conduct his own application to the Immigration Department, and subsequently Appeal to the Respondent, without the assistance of an attorney-at-law. He has been assisted by a Mackenzie friend, unqualified in law, and for whom English is a second language,” the Cuban’s writ states. “The Appellant has not had his right of a fair trial protected, and the policy refusing to allow Legal Aid in [Immigration Appeals Tribunal] matters is, it is submitted, in contravention of Article 16 of the Refugee Convention.”
The Cuban is seeking to have the court overturn the Immigration Appeals Tribunal’s decision, and to have his application remitted there for a hearing in accordance with the law.
This Cuban’s challenge comes after seven other Cuban migrants also appealed their cases to the Grand Court, with a hearing taking place last November.
Those migrants made similar arguments as the ones laid out in the latest challenge: that they did not have a fair hearing in front of the appeals tribunal.
Their attorney, Alastair David, argued in court that they did not have access to an attorney at their initial hearings, and that the Immigration Appeals Tribunal did not follow international conventions when considering their applications. The attorney further argued that the Immigration Law may be unconstitutional because it allows government to grant asylum to refugees, but not to allow “limited leave” to stay here for non-refugees who may have their rights violated if they’re returned to the country they fled.
Rights violations could indeed be in store for the seven migrants if they are returned to Cuba, Mr. David said at the November hearing.
Government for its part, has argued that the Cuban migrants do not qualify as political refugees.
“Simply not liking your country’s government does not make you, a priori, a refugee,” Crown counsel Michael Smith said at the November hearing. “Otherwise, Cayman would be full of U.K. asylum seekers fleeing Brexit and U.S. asylum seekers fleeing Trump.”
Mr. Smith also addressed Mr. David’s argument that the Immigration Appeals Tribunal did not sufficiently explain its reasons for denying the Cubans’ applications.
While admitting that the three- to four-page decisions – compared to decisions that are typically 20 pages or more in the U.K. – are not “exemplars of judicial drafting,” he said that they were sufficient in explaining why the Cubans should be denied asylum.
For the decisions to be unlawful, the Cubans would have to prove that they were “substantially prejudiced” by the lack of details in the judgments, Mr. Smith said last November.
If those Cubans’ legal challenge is successful, the Grand Court does not have power to grant asylum but would send the cases back to the Immigration Appeals Tribunal with orders to reconsider the applications. Mr. David mentioned that he might push for new members to be on the next tribunal, too.
A decision in that case has not been publicly announced.