PR history and culture test to remain under wraps

Details of the history and culture test for permanent residency will remain secret in order to respect the non-disclosure policy of the government department in charge of immigration.

The decision was made in the Court of Appeal after two applicants suggested there may have been errors in their tests which led to them receiving lower overall scores.

Appeals court president Sir John Goldring in his judgment said full disclosure should be made where it is relevant, and where fairness and transparency so demand.

However, “absent any evidence of error, an applicant is not entitled to an order for the purposes of creating a case of which there is no evidence whatever”.

Procedural unfairness

Joey Buray and Leon D’Souza, from the Philippines and India, respectively, applied for permanent residency in the Cayman Islands in 2017 and 2018 after nine years on work permits.

Both failed to achieve the necessary 110 points as prescribed by Cabinet, which included a possible 20 points from the multiple-choice history and culture test.

Buray was awarded 12 points in the test while D’Souza received 14.5.

The men appealed to the Immigration Appeals Tribunal but their case was dismissed.

The case was dismissed again when they took it to Justice Alistair Walters at the Grand Court to appeal on matters of law.

Alastair David of HSM Chambers, representing the appellants, presented two arguments against Walters’ judgment in the Court of Appeal.

The first was that the men had established a private life in Cayman. The Immigration Appeals Tribunal’s failure to consider that was contrary to the Bill of Rights, he said.

This is further examined in a separate Compass article.

The second was that there was procedural unfairness in the application of statutory provisions, meaning details of the history and culture test were not disclosed.

Past errors

In arguing the case on 7 Dec. 2022, David said the Immigration Appeals Tribunal should have made the department in charge of permanent residency, now known as Workforce Opportunities and Residency Cayman, disclose test details.

He argued that in the light of evidence of past errors, the obligations of fairness and transparency demand disclosure.

Failure to do so was an error of law, he said, and, in both cases, a new hearing should have been ordered.

In his judgment, Goldring said there is some evidence of mistakes having been made in the past, though not when the appellants took their tests.

Integrity

The test consists of 40 multiple choice questions generated randomly for each testing session from a bank of 300 to 400 questions.

Test results are recorded on a WORC database, said a representative from the Ministry of Border Control and Labour.

Neither the board nor the Immigration Appeals Tribunal sees the questions and answers. They simply report the score, obtained from the database.

The test is to assess the applicant’s integration into Caymanian society by reference to knowledge of local history, tradition, customs and current events, they said.

Disclosure is limited to prevent applicants learning the questions and answers rather than seeking to learn the history and culture of the Islands.

In response, the appellants argued the questions and answers could be obtained online – but they did not submit the online versions as evidence.

‘Unjustified’

In his judgment on Thursday, 30 March, the appeal’s court president said the decision as to how to administer the tests is a matter for those responsible.

If the tests were claimed to be inaccurate at the time taken, the court would have expected a positive, sworn assertion that they were not.

“But no such assertion has been made,” Goldring said. “The highest the case made… is that if they saw the questions and answers they might be able to detect some error.

“That is not a basis for ordering disclosure, in particular where the consequence is that the policy of non-disclosure would be undermined.”

He said full disclosure should be made where it is relevant and where fairness and transparency so demand.

The judge added that Buray got a total of 74 points and D’Souza a total of 99.5, and even if they had attained maximum points for the test, neither would have reached 110.

“Accordingly, to undermine the policy decision when nothing could be gained by the appellants would be unjustified.”

The appeal was dismissed.