Walters J
shall grant permanent residence to all applicants attaining one hundred and ten points
or more.
39.
The First Appellant's application was considered pursuant to schedule 2 of the Immigration
Regulations (201 7 Revision) ("the 2017 Regulations")24.
40.
On 6 February 2018, the First Appellant appealed against the decision of the CIO.
41.
On 28 February 2018, the CIO served upon the First Appellant a document entitled "Appeal
Statemenf'. This document set out the rationale behind the decision to reject the First Appellant's
PR application. Mr David makes the point that no reference was made to considering the Appellant's
constitutional rights in the Appeal Statement. In particular, he says, Section 9 of the BOR was not
mentioned nor seemingly considered.
42.
In an affidavit in support of his claim for PR, dated 19 August 2020, the First Appellant provided
further information to the First Respondent.
43.
In a decision dated 11 December 2020, the: First Respondent upon considering matters de novo
rejected the First Appellant's application for PR due to the fact that it only awarded him 74 points.
44.
The First Respondent did go on to say in its decision that it had considered the Appellant's
constitutional rights:
"The Tribunal further considered the Cayman Islands Constitution Order 2009 and the
Cayman Islands Bill of Rights and the Appellant's Rights under "Section 9 - Private and
family life [2] Nothing in any law or done under its authority shall be held to be contravene
this section to the extent that it is reasonably justifiable in a democratic society-" and"( e)
to regulate the right to enter and remain in the Cayman Islands." There is no indication that
the Appellant has established a family unit within the Islands in accordance with the Court
Ruling of '1an Fernando Ellington V The Chief Immigration Officer 29tl' April 2020".
Therefore, the Tribunal determined having reviewed all the correspondence before it from
the Applicant, his agent and WORC that there is nothing which indicated that his right is
engaged".
24 The current version is the 2019 Revision but the relevant provisions do not vary from the 2017 Regulations.
220608 Joey Buray and Leon D'Souza v Immigration Appeals Tribunal and Attorney General - Judgment
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45.
On 15 January 2021, the First Appellant requested that the First Respondent reconsider its decision.
In a letter dated 16 February 2021, the First Respondent notified the First Appellant that his
reconsideration request was denied. The rationale given was that the Tribunal" ...did consider the
Appellant's Right to a Private and Family Life and determined that its decision does not in any way
adversely affect his Private Life." The First Appellant appeals against that decision25.
The Second Appellant
46.
On 7 November 2018, the Second Appellant applied for PR and on the 25 January 2019, the Second
Appellant sat the history and culture test.
47.
On 12 March 2019, the Board rejected the Second Appellant's application for PR. The relevant law
which was in force as of 12 March 2019, was the the 2018 Act. The relevant regulations were the
201 7 Regulations. Section 3 7 (3) of the 2018 Act stated:
"(3) In considering an application for permanent residence under subsection (]), the
Board or the Director of WORC upon applying the criteria set out in the points system
shall only grant permanent residence to all applicants attaining one hundred and ten
points or more. "
48.
On 29 March 2019, a notice of appeal was filed on behalfofthe Second Appellant. In that notice, it
was requested that the Board/Director of WORC disclose the history and culture test questions and
answers the Appellant sat/gave.
49.
On 15 April 2019, an Appeal Statement was provided to the Second Appellant. The history and
culture test questions and answers were not provided. On 10 May 2019, grounds of appeal were
submitted setting out why it was believed that the Board had erred in law.
50.
By letter dated 9 June 2020 the IAT confirmed that the appeal was dismissed and therefore did not
rehear the matter. The Second Appellant was awarded 99.5 points by the Board and that decision
stands.
25 Wben the First Appellant filed his Originating Motion, the relevant law was the Immigration (Transition) Act (2021
Revision) ("the Act").
220608 Joey Buray and Leon D'Souza v Immigration Appeals Tribunal and Attorney General - Judgment
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98.
The Appellants argue that the First Respondent has wide discretionary powers as confirmed by
Section 23 (1) of the Act to make any such order that it deems fit in relation to the appeal and suggest
that, if it so wished, it could even call upon the Chairman of the Board, the Director of WORC or the
Appellants to address it (Section 22 (3) of the 2022 Act).
99.
It is the Appellants' position that the First Respondent could if it wished require the Board or the
Director of WORC to provide disclosure of the test questions and answers. By the First Respondent
not doing this, it is the Appellants' position that the Board acted unreasonably and bas failed to ensw-e
that the Appellants have received a fair hearing of their case.
100.
The 2022 Act is silent as to what should be disclosed as part of the Appeal Statement, save for the
fact that reasons have to be disclosed46. It is the Appellant's case that in the absence of policies or
clear guidance, the common law principles of fairness and Section 19 of the BOR applies, requiring
all decisions and acts of public officials to be lawful, rational, proportionate and procedurally fair.
l O 1.
In the case of Streeter v IAT'7 the Chief Justice held that:
"Since the main issue in this case was whether the Board's decision was
unreasonable, the Board's duty would not be met merely by disclosing the record
of its decision. All documents should be disclosed which related to the factors
considered, including minutes of proceedings before it and before the Executive
Council, any record of their reasoning and the material particulars of case /a'w
actually relied on or presented to them during the decision-making process."
102.
Whilst the Appellants accept that Streeter related to disclosure in the Grand Court, it is argued that a
similar duty applies at the appeal stage before the First Respondent as a matter of procedural
fairness48, one of the statutory grounds of appeal being "reasonableness•·49.
103.
The Appellants say that as recently as 2015 in the case of Hutchison Green & Racz v IAT5° the Grand
Court confirmed what was said in Streeter with the Chief Justice saying:
46 Section 26 (6) of the 2022 Act.
47 [1998] CILR 357
48 Section 19 (1) of the BOR.
49 Which is a ground which can be advanced in the Grand Court on an appeal pursuant to GCR 0.55.
50 (2015 (2) CILR 75].
220608 Joey Buray and Leon D'Souza v Immigration Appeals Tribunal and Attorney General - Judgment
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results to the Appellants or to the IA T and, in tum, the IA T acted reasonably in not requesting them
from the Board (assuming that it had power to do so). In my view, in these cases, neither the Board
nor the IAT erred in law or acted unreasonably or unfairly in relation to the provision of the completed
test results to the Appellants.
Conclusion
116.
In my view, there are no grounds upon which to remit the two appeals in question back to the IAT;
the only available course of action therefore is to dismiss both.
117.
I should add that both counsel argued fully the issues raised by them in relation to the respective
positions of their clients. Finding, as I do, means that I do not have to consider a number of those
arguments but that is not to discount the work that was put into preparing them.
118.
The parties are invited to file written submissions in relation to costs within 14 days after the date of
this judgment.
!l.LA-
Hon Mr. Justice Alistair Walters
Acting Judge of the Grand Court
220608 Joey Buray and Leon D'Souza v Immigration Appeals Tribunal and Attorney General - Judgment
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