Jomo Thomas v The Comptroller of Customs et al

.. . THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COURT OF JUSTICE SAINT VINCENT AND THE GRENADINES HIGH COURT CIVIL CLAIM NO. 331 OF 2008 BETWEEN: JOMOTHOMAS Applicant v THE COMPTROLLER OF CUSTOMS First Respondent THE DIRECTOR GENERAL OF FINANCE Second Respondent THE ATTORNEY GENERAL Third Respondent Appearances; Ms. Maia Eustace for the Applicant Mr. R. Williams for the Respondents 2010: April 19th October 20th JUDGMENT

[1]THOM, J: Mr. Jomo Thomas is a citizen of Saint Vincent and the Grenadines (St. Vincent). He resided in the United States for anumber of years. In April 1996 the Cabinet of S1. Vincent decided that citizens of St. Vincent who returned to St. Vincent to reside permanently would receive a duty concession of 75% of the duty payable on their motor vehicle imported into Sf. Vincent or purchased in S1. Vincent. [2) In March 2007 Mr. Thomas applied to the Customs Department pursuant to the decision of the Cabinet for duty free concession on the importation of household and personal effects and a motor vehicle. The Customs Department referred Mr. Thomas to submit his application to the Director General of Finance. Mr. Thomas made the application to the II Director General of Finance. On June 5, 2007 the Director General of Finanre wrote to Mr. Thomas informing him that he was not entitled to any concession since such application should have been made within one (1) year of his return to S1. Vincent

[3]Mr. Thomas seeks leave to apply for judicial review of the decision of the Comptroller of Customs of 27lh March 2007 refusing to deal with his application on the ground that such decision is unreasonable, irrational, erroneous in law and was procedurally improper.

[4]Mr. Thomas also seeks leave to apply for judicial review of the decision of the Director General of Finance dated June 5, 2007 on the ground 1hat the decision is unreasonable, irrational, erroneous in law and was procedurally improper.

[5]The Application was heard on April 19, 2010 and the parties were ordered to file submissions on or before April 26, 2010. Learned Counsel for Mr. Thomas filed submissions on September 23, 2010. No submissions were received from the Respondents.

[6]Learned Counsel for Mr. Thomas submitted that the mlilner in which the Comptroller of Custom dealt with Mr. Thomas' application was illegal aoo was procedurally improper and it amounted to fettering and delegation of discretion.

[7]Learned Counsel submitted that the procedure is for the application to be determined by the Comptroller of Customs. The procedure is contailed in the document for public information that was produced by the Customs Departmel1t entitled "Duty Free Concession for Returning Nationals General Conditions (The GuidElines)." The determination of an application for concession was not amatter for the DireciJr of Finance or the Cabinet. The Cabinet having divested itself of the power to determine whether to grant concession to the Comptroller of Customs it could not lawfully exercise the power on terms and conditions not known to the Applicant. Further the Comptroller of Customs could not delegate his , discretion to the Director General of Finance or to the Cabinet.

[8]Learned Counsel also submitted that Mr. Thomas was not given an application to be heard by either the Comptroller of Customs or the Director General of Finance.

[9]Learned Counsel further submitted that Mr. Thomas had a legitimate expectation that the application would be dealt with in accordance with the procedl.le set out in the Guidelines.

[10]Learned Counsel referred the Court to the case of R v Secretary of State for the Home Department exp Fire Brigade Union [1995] 1A.C p. 513 CIld Lanader v Minister of Housing and Local Government [1970] 1WLR.1231.

[11]Learned Counsel further submitted that there was no alternative redress. Sections 131 134 were not applicable. The sections only provide redress where the basis for the amount of duty paid is in dispute. It does not apply to a dispute concerning the interpretation of the scheme of duty free concession for returning citizens.

LAW AND ANALYSIS

[12]The grounds upon which judicial review maybe sought were set out by Lord Diplock in Council of Civil Service Union v Minister for the Civil Service to include: (a) illegality (b) irrationality (c) procedural impropriety Lord Diplock explained the terms in the following manner: "By "illegality" as aground for judicial review, I mean that the decision-maker must understand correctly the law that regulates his decisim-making power and must give effect to it. Whether he has or not par excellence is ajustifiable question to be decided in the event of dispute by those persons, the judges, by whom the judicial power of the state is exercisable. By "irrationality" I mean what by now can be succinctly referred to as Wednesbury unreasonableness (see Associated Provincial Picture House Ltd v Wednesbury Corp. [1947] 2 ARE p.680. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to 00 decided could have arrived at it. Whether adecision falls within this category is aquestion that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. I have described the third head as ·procedural impropriety" rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural mles that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice,"

[13]Mr. Thomas' application for judicial review is made on all of the grounds mentioned above.

[14]On an application for leave to seek judicial review the test to be applied by the Court is the test as stated by the Privy Council in the case of Satnarine Sharmer v Browne-Antoine P.C. Appeal No. 75 of 2006. The Privy Council stated the test in the following terms: "The ordinary nile now is that the Court will refuse leave to claim judicial review unless satisfied that there is an arguable ground for judicial review having a realistic prospect of success and not subject to a discretionary bar such as delay or alternative remedy: R v Legal Aid Board Exp. Hughes [1982] 5 Admin L. R623, 628; Fordham Judicial Review Handbook 4th ed. (2004) p.426. But arguability cannot be judged without reference to the nature and gravity of the issue to be argued. It is a test which is flexible in its application... It is not enough that a case is potentially arguable. An applicant cannot plead potential arguability to justify the grant of leave to issue proceedings upon aspeculative basis which it is hoped the interlocutory process of the court may strengthen."

[15]Applying the above mentioned test the Applicant must prove on abalance of probabilities: (i) that he has an arguable ground for judicial review with arealistic prospect of success; and (ii) the application is not subject to adiscretionary bar such as delay or alternative remedy.

ARGUABLE GROUND WITH REALlSl'IC PROSPECT OF SUCCESS

[16]The gravamen of the submission on behalf of Mr. Thomas is that the Comptroller of Customs did not observe the procedure in the Customs Guidelines and consider the application, he did not give Mr. Thomas afair hearing and he unlawfully delegated his duty to determine the application to the Director General of Finance. The Director General of Finance had no legal authority to determine the application and he did not give Mr. Thomas afair hearing.

[17]Under Section 17 of the Customs Act 1999 Cabinet is empowered to remit the duty payable on goods on such terms and conditions as n sees fit. On 17th April 1996 in the exercise of its powers under the Customs Act Cabinet decided that citizens of st. Vincent who had resided outside of St. Vincent for 10 years II" roore and had returned to St. Vincent to reside permanently would be granted a waiver of 75% of the duty payable on a motor car or jeep owned by him/her. On the 5th June 1006 the Cabinet decided inter alia that the application for concession must be decided by the Comptroller of Customs. Guidelines were issued by the Comptroller of Customs mguide persons how to apply for the concession.

[18]In view of Section 17 of the Customs Act and the decisims of Cabinet of 17th April 1996 and July 5th, 1996 in the issue whether the Comptroller could legally delegate the power given to him by the Cabinet to determine applications far duty concession to the Director General of Finance is an arguable ground with a reasooable prospect of success. Also whether the Director had any legal authority to deternile whether or not the Applicant qualified for concession as a returning citizen is an arguable ground with a realistic prospect of success. There is nothing on the record to show that Cabinet delegated any authority to the Director General of Finance to determine ~plications for concession by returning citizens pursuant to the Guidelines. DISCRETIONARY BARS (a) Delay

[19]The issue of delay is addressed in Rule 56.5 of CPR 2000 which reads as follows: "(1) In addition to any time limit imposed by ooy enadment, the judge may refuse leave or grant relief in any cause in which the judge considers that there has been unreasonable delay before making the~~ation. (2) When considering whether to refuse leave arto grant relief because of delay the judge must consider whether the granting of leave or relief would be likely to -: (a) be detrimental to good administration; (l' (b) cause substantial hardship to or substmfial prejudice to the rights of any person.

[20]While the application was filed one year after the decisions complained of Mr. Thomas, Mr. Thomas' evidence is that he by way of appeal requested the Director General of Finance to reconsider the application. No written response was received. Having regard to the nature of this case, I 'find that the grant of leave would not in any way be detrimental to good administration in this case nor would it cause substantial hardship or prejudice to the rights of any person. Ifind that the delay in this case is not abar to the grant of leave. (b) Alternative Remedy

[21]At the hearing it was submitted by Learned Counsel for the Respondents that Mr. Thomas has an alternative remedy under Sections 131-134 of the Customs Act. I agree that where there is an alternative remedy which is appropriate the Court may decide not to grant leave, the alternative remedy should be pursued.

[22]Section 131 of the Customs Act reads: ."131.(1) where the amount of duty requested by an officer-iS' disputed by the person required to pay the amount, that person shall pay the amount but they may before the expiration of three months from the date of payment, by notice in writing require the Comptroller to reconsider the amount of duty requested. (2) A notice under subsection (1) shall state that grounds for disputing the amount of duty requested. (3) The Comptroller after reconsidering the amount of duty requested and having taken into account the grounds contained in the notice may c • increase, decrease or confirm the amount and shall notify tbe person who paid the amount of his decision.

[23]The effect of Section 133 is that it makes provision for a person who is aggrieved by a decision under Section 131 to appeal to the Customs Appeal Commissioners. While Section 134 makes provision for either the Comptroller , or the Appellant to appeal the decision of the Customs Appeal Commissioners to the High Court on a point of law, or mixed fact and law and afurther appeal to the Court of Appeal. ""-'• .• '" (24] Sections 131-134 deals with persons who have been required to pay duty on items imported into Saint Vincent and they dispute the amount of duty l8:juested by the Customs Officer. This is not the situation in the present case. In this case. Mr. Thomas is a person who made application to qualify for exemption under the Retllfling Nationals Customs Exemption Programme. I find that Sections 131-134 do not proWie an alternative remedy to the Applicant. [251 In view of the above Ifind that Mr. Thomas has shown that he has an arguable ground with a realistic prospect of success and the discretionary bars of delay and alternative remedy are not applicable to his case. I will therefore grant leave to "'. Thomas to seek judicial review of the decision of the Comptroller of Custorns and the Director General of Finance.

[26]IT IS ORDERED: (a) That leave is hereby granted to the Applicant to file and serve aclaim for judicia.l review within fourteen (14) days hereof on fie grounds: (i) Judicial Review of the decision of the Comptrcjer of Customs of the 27th day of March 2007 refusing to deal with the ap~ation of the Applicant for duty free concession for returning nationals on the ground that such decision is unreasonable, irrational and procedurally improper in that it was arrived at without due consideration cj the Applicant's claim in accordance with the declared policies and guidelines of the Customs and Excise Department. -(ii) Judicial Review of the decision of the Director General of Finance of the 5th day of June, 2007 denying the Applicant the duty free concessions for returning nationals on the ground that such decision is unreasonable, irrational and was procedurally improper iI that it was arrived at without due consideration of the Applicant's claim il Cl:Cordance with the declared policies and guidelines of the Customs and E>l:ise Department. (b) The first hearing shall take place on the 22"d day of November, 2010. (c) The Respondents shall pay the Applicant cost in fie sum of $1000.00 -~ Gertel Thorn HIGH COURT JUDGE

.. . THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COURT OF JUSTICE SAINT VINCENT AND THE GRENADINES HIGH COURT CIVIL CLAIM NO. 331 OF 2008 BETWEEN: JOMOTHOMAS Applicant v THE COMPTROLLER OF CUSTOMS First Respondent THE DIRECTOR GENERAL OF FINANCE Second Respondent THE ATTORNEY GENERAL Third Respondent Appearances; Ms. Maia Eustace for the Applicant Mr. R. Williams for the Respondents 2010: April 19th October 20th JUDGMENT

[1]THOM, J: Mr. Jomo Thomas is a citizen of Saint Vincent and the Grenadines (St. Vincent). He resided in the United States for anumber of years. In April 1996 the Cabinet of S1. Vincent decided that citizens of St. Vincent who returned to St. Vincent to reside permanently would receive a duty concession of 75% of the duty payable on their motor vehicle imported into Sf. Vincent or purchased in S1. Vincent. [2) In March 2007 Mr. Thomas applied to the Customs Department pursuant to the decision of the Cabinet for duty free concession on the importation of household and personal effects and a motor vehicle. The Customs Department referred Mr. Thomas to submit his application to the Director General of Finance. Mr. Thomas made the application to the II Director General of Finance. On June 5, 2007 the Director General of Finanre wrote to Mr. Thomas informing him that he was not entitled to any concession since such application should have been made within one (1) year of his return to S1. Vincent

[3]Mr. Thomas seeks leave to apply for judicial review of the decision of the Comptroller of Customs of 27lh March 2007 refusing to deal with his application on the ground that such decision is unreasonable, irrational, erroneous in law and was procedurally improper.

[4]Mr. Thomas also seeks leave to apply for judicial review of the decision of the Director General of Finance dated June 5, 2007 on the ground 1hat the decision is unreasonable, irrational, erroneous in law and was procedurally improper.

[5]The Application was heard on April 19, 2010 and the parties were ordered to file submissions on or before April 26, 2010. Learned Counsel for Mr. Thomas filed submissions on September 23, 2010. No submissions were received from the Respondents.

[6]Learned Counsel for Mr. Thomas submitted that the mlilner in which the Comptroller of Custom dealt with Mr. Thomas' application was illegal aoo was procedurally improper and it amounted to fettering and delegation of discretion.

[7]Learned Counsel submitted that the procedure is for the application to be determined by the Comptroller of Customs. The procedure is contailed in the document for public information that was produced by the Customs Departmel1t entitled "Duty Free Concession for Returning Nationals General Conditions (The GuidElines)." The determination of an application for concession was not amatter for the DireciJr of Finance or the Cabinet. The Cabinet having divested itself of the power to determine whether to grant concession to the Comptroller of Customs it could not lawfully exercise the power on terms and conditions not known to the Applicant. Further the Comptroller of Customs could not delegate his , discretion to the Director General of Finance or to the Cabinet. 3

[8]Learned Counsel also submitted that Mr. Thomas was not given an application to be heard by either the Comptroller of Customs or the Director General of Finance.

[9]Learned Counsel further submitted that Mr. Thomas had a legitimate expectation that the application would be dealt with in accordance with the procedl.le set out in the Guidelines.

[10]Learned Counsel referred the Court to the case of R v Secretary of State for the Home Department exp Fire Brigade Union [1995] 1A.C p. 513 CIld Lanader v Minister of Housing and Local Government [1970] 1WLR.1231.

[11]Learned Counsel further submitted that there was no alternative redress. Sections 131 ­ 134 were not applicable. The sections only provide redress where the basis for the amount of duty paid is in dispute. It does not apply to a dispute concerning the interpretation of the scheme of duty free concession for returning citizens. LAW AND ANALYSIS

[12]The grounds upon which judicial review maybe sought were set out by Lord Diplock in Council of Civil Service Union v Minister for the Civil Service to include: (a) illegality (b) irrationality (c) procedural impropriety Lord Diplock explained the terms in the following manner: “By “illegality” as aground for judicial review, I mean that the decision-maker must understand correctly the LAW that regulates his decisim-making power AND must give effect to it. Whether he has or not par excellence is ajustifiable question to be decided in the event of dispute by those persons, the judges, by whom the judicial power of the state is exercisable. By “irrationality” I mean what by now can be succinctly referred to as Wednesbury unreasonableness (see Associated Provincial Picture House Ltd v Wednesbury Corp. [1947] 2 ARE p.680. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to 00 decided could have arrived at it. Whether adecision falls within this category is aquestion that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. 4 I have described the third head as ·procedural impropriety” rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural mles that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice,”

[13]Mr. Thomas' application for judicial review is made on all of the grounds mentioned above.

[14]On an application for leave to seek judicial review the test to be applied by the Court is the test as stated by the Privy Council in the case of Satnarine Sharmer v Browne-Antoine P.C. Appeal No. 75 of 2006. The Privy Council stated the test in the following terms: "The ordinary nile now is that the Court will refuse leave to claim judicial review unless satisfied that there is an arguable ground for judicial review having a realistic prospect of success and not subject to a discretionary bar such as delay or alternative remedy: R v Legal Aid Board Exp. Hughes [1982] 5 Admin L. R623, 628; Fordham Judicial Review Handbook 4th ed. (2004) p.426. But arguability cannot be judged without reference to the nature and gravity of the issue to be argued. It is a test which is flexible in its application... It is not enough that a case is potentially arguable. An applicant cannot plead potential arguability to justify the grant of leave to issue proceedings upon aspeculative basis which it is hoped the interlocutory process of the court may strengthen."

[15]Applying the above mentioned test the Applicant must prove on abalance of probabilities: (i) that he has an arguable ground for judicial review with arealistic prospect of success; and (ii) the application is not subject to adiscretionary bar such as delay or alternative remedy. ARGUABLE GROUND WITH REALlSl’IC PROSPECT OF SUCCESS

[17]Under Section 17 OF the Customs Act 1999 Cabinet is empowered to remit the duty payable on goods on such terms and conditions as n sees fit. On 17th April 1996 in the exercise of its powers under the Customs Act Cabinet decided that citizens of st. Vincent who had resided outside of St. Vincent for 10 years II” roore and had returned to St. Vincent to reside permanently would be granted a waiver of 75% of the duty payable on a motor car or jeep owned by him/her. On the 5th June 1006 the Cabinet decided inter alia that the application for concession must be decided by the Comptroller of Customs. Guidelines were issued by the Comptroller of Customs mguide persons how to apply for the concession.

[16]The gravamen of the submission on behalf of Mr. Thomas is that the Comptroller of Customs did not observe the procedure in the Customs Guidelines and consider the application, he did not give Mr. Thomas afair hearing and he unlawfully delegated his duty to determine the application to the Director General of Finance. The Director General of Finance had no legal authority to determine the application and he did not give Mr. Thomas afair hearing. 5

[18]In view of Section 17 of the Customs Act and the decisims of Cabinet of 17th April 1996 and July 5th, 1996 in the issue whether the Comptroller could legally delegate the power given to him by the Cabinet to determine applications far duty concession to the Director General of Finance is an arguable ground with a reasooable prospect of success. Also whether the Director had any legal authority to deternile whether or not the Applicant qualified for concession as a returning citizen is an arguable ground with a realistic prospect of success. There is nothing on the record to show that Cabinet delegated any authority to the Director General of Finance to determine ~plications for concession by returning citizens pursuant to the Guidelines. DISCRETIONARY BARS (a) Delay

[19]The issue of delay is addressed in Rule 56.5 of CPR 2000 which reads as follows: "(1) In addition to any time limit imposed by ooy enadment, the judge may refuse leave or grant relief in any cause in which the judge considers that there has been unreasonable delay before making the~~ation. (2) When considering whether to refuse leave arto grant relief because of delay the judge must consider whether the granting of leave or relief would be likely to -: (a) be detrimental to good administration; (l' (b) cause substantial hardship to or substmfial prejudice to the rights of any person. 6

[20]While the application was filed one year after the decisions complained of Mr. Thomas, Mr. Thomas' evidence is that he by way of appeal requested the Director General of Finance to reconsider the application. No written response was received. Having regard to the nature of this case, I 'find that the grant of leave would not in any way be detrimental to good administration in this case nor would it cause substantial hardship or prejudice to the rights of any person. Ifind that the delay in this case is not abar to the grant of leave. (b) Alternative Remedy

[21]At the hearing it was submitted by Learned Counsel for the Respondents that Mr. Thomas has an alternative remedy under Sections 131-134 of the Customs Act. I agree that where there is an alternative remedy which is appropriate the Court may decide not to grant leave, the alternative remedy should be pursued.

[22]Section 131 of the Customs Act reads: ."131.(1) where the amount of duty requested by an officer-iS' disputed by the person required to pay the amount, that person shall pay the amount but they may before the expiration of three months from the date of payment, by notice in writing require the Comptroller to reconsider the amount of duty requested. (2) A notice under subsection (1) shall state that grounds for disputing the amount of duty requested. (3) The Comptroller after reconsidering the amount of duty requested and having taken into account the grounds contained in the notice may c • increase, decrease or confirm the amount and shall notify tbe person who paid the amount of his decision.

[23]The effect of Section 133 is that it makes provision for a person who is aggrieved by a decision under Section 131 to appeal to the Customs Appeal Commissioners. While Section 134 makes provision for either the Comptroller , or the Appellant to appeal the decision of the Customs Appeal Commissioners to the High Court on a point of law, or mixed fact and law and afurther appeal to the Court of Appeal. 4 “”-‘ • .• 7 ‘” (24] Sections 131-134 deals with persons who have been required to pay duty on items imported into Saint Vincent and they dispute the amount of duty l8:juested by the Customs Officer. This is not the situation in the present case. In this case. Mr. Thomas is a person who made application to qualify for exemption under the Retllfling Nationals Customs Exemption Programme. I find that Sections 131-134 do not proWie an alternative remedy to the Applicant. [251 In view of the above Ifind that Mr. Thomas has shown that he has an arguable ground with a realistic prospect of success and the discretionary bars of delay and alternative remedy are not applicable to his case. I will therefore grant leave to “‘. Thomas to seek judicial review of the decision of the Comptroller of Custorns and the Director General of Finance.

[26]IT IS ORDERED: (a) That leave is hereby granted to the Applicant to file and serve aclaim for judicia.l review within fourteen (14) days hereof on fie grounds: (i) Judicial Review of the decision of the Comptrcjer of Customs of the 27th day of March 2007 refusing to deal with the ap~ation of the Applicant for duty free concession for returning nationals on the ground that such decision is unreasonable, irrational and procedurally improper in that it was arrived at without due consideration cj the Applicant’s claim in accordance with the declared policies and guidelines of the Customs and Excise Department. -(ii) Judicial Review of the decision of the Director General of Finance of the 5th day of June, 2007 denying the Applicant the duty free concessions for returning nationals on the ground that such decision is unreasonable, irrational and was procedurally improper iI that it was arrived at without due consideration of the Applicant’s claim il Cl:Cordance with the declared policies and guidelines of the Customs and E>l:ise Department. 8 (b) The first hearing shall take place on the 22″d day of November, 2010. (c) The Respondents shall pay the Applicant cost in fie sum of $1000.00 -~ Gertel Thorn HIGH COURT JUDGE