Hall J
2 I N THE GRAND COURT OF THE CAYMAN ISLANDS 3 HOLDEN AT GEORGE TOWN, GRAND CAYMAN 4 5 CAUSE NO. 6467 OF 2012 7 I N THE MATTER OF THE IMMIGRATION LAW (2011 REVISION) AND i E MATTER OF AN APPLICATION FOR A DECLARATION AND I N THE MATTER OF THE CAYMAN ISLANDS CONSTITUTION ORDER 2009 AND I N THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW BETWEEN MANAOLA DE LA PENA VALLO lST PLAINTIFF AND PAUL ANDREW RAMOON 2ND PLAINTIFF AND THE CHIEF IMMIGRATION OFFICER RESPONDENT Appearances: Mr. Dennis Brady appearing on behalf of the Plaintiffs Ms. Dawn Lewis instructed by the Attorney General's Chambers appearing for the Respondent. Vallo v The Attorney General / G467/2012 / NH / JYGM Page 1 JUDGMENT 3 At the commkncement of proceedings, the Honourable Attorney General; 4 who-had previously been named Second Respondent in this cause; was with the consent of all parties, removed as a party to proceedings. Background The following facts are not in dispute.
The First Plaintiff had previously worked in the Cayman Islands for over one year, arriving in March 2005 and departing in July 2006.
A work permit was approved on June 12, 2012 for the First Plaintiff to work for the Second Plaintiff.
The work permit was subject to several conditions including "the employee is required to have satisfactory working knowledge of the English Language. Failure to do so will result in the work permit approval being cancelled."
The First Plaintiff, a native of the Philippines arrived in the Cayman Islands on September 11, 2012. Upon arrival he proceeded to take Vallo v The Attorney General / G467/2012 / N H / JYGM Page 2 1 the English language test administered by the Immigration 2 Department. 3
The First Plaintiff failed the test. Both he and the Second Plaintiff 4 were subsequently advised that he would have to return to the 5 Philippines. 7
On September 17, 2012 the Second Plaintiff sent a request by email 8 to the Chief Immigration Officer requesting that the First Plaintiff be 9 allowed to retake the test. Therein, he cited long period of travel 10 and delays as having contributed to the First Plaintiff not functioning 11 at optimum level. The Second Plaintiff stated that he would be 12 losing two employees permanently at the end of the month and 13 further that he was not in a position to purchase a return ticket for 14 the First Plaintiff. 16
The Second Plaintiff subsequently additionally argued that the First 17 Plaintiff had previously succeeded in obtaining a Cayman Islands 18 Drivers Licence as an additional basis for the Respondent to allow 19 the First Plaintiff to retake the test.
After communicating with several officers of government; including the Deputy Governor, on November 8, 2012, the Second Plaintiff received an email from the Deputy Chief Officer of the Portfolio of Internal & External Affairs stating that the decision of the Chief Vallo v The Attorney General / G467/2012 / N H / JYGM Page 3 1 Immigration Officer denying the request that the tests be re- administered to the First Plaintiff, was supported by the Portfolio. The Second Plaintiff was also advised therein that "it is the policy of the Department to only allow resits in exceptional circumstances. Mr Vallo signed a declaration that he was fit to take the test, and as such this case does not fit the exceptional circumstances category". The ADDlication On December 6, 2012, the Grand Court of the Cayman Islands granted ex-parte leave for an application for judicial review. Additionally the court made an order restraining the Chief Immigration Officer from requiring the First Plaintiff to leave the Cayman Islands or prosecuting him for remaining until the determination of the application or further order of the court. By their claim, the Plaintiffs seek the following relief. 1. An order of Mandamus under the provision contained in GCR Order 77A, directing the first Respondent, whether by his/her servants, agents or otherwise to refrain from any and all actions pursuant to the provisions of section 13(2) and 13(2)(a-c) of the Cayman 23 Islands Constitution Order 2009, unless and or until the . - , % 24 protections afforded to the First Applicant, in the provisidns 25 contained within section 13(2)(d)(iii) and 13(3)(a-d) of the said Vallo v The Attorney General / G467/2012 / NH / JYGM Page 4 1 Constitution Order are observed, and this Judicial Review application is determined. 2. A Declaration that the First Respondent whether by his/her servant, agents or otherwise be restrained and prohibited from any and all actions the objective of which is the detention of the First Applicant, under any provision of the Immigration Law (2011 Revision) until this Judicial Review application is determined. 3. A Declaration that the First Respondent whether by his/her servants, agents or otherwise be restrained and prohibited from any and all actions the objective of which is the detention of the Second Applicant, under any provision of the Immigration Law (2011 Revision), until this Judicial Review application is determined. 4. A Declaration that the First Respondent permit the First Applicant to re-sit the mandatory English Test, on the basis that the circumstances surrounding the request for a re-sit, does qualify as satisfying the definition of "exceptional circumstances category" as per the Immigration Department Policy standard in that regard, and that his/her decision was therefore Wednesbury unreasonable Val10 vThe Attorney General / G467/2012 / NH / JYGM Page 5 1 5. A Declaration that the assertion made to the Second Applicant by the First Respondent, that whether the First Applicant left the Cayman Islands of his own volition or otherwise, there was no point in the Second Applicant re-applying for any further grant of a work permit, in respect of the First Applicant, as it will be denied, because of the position taken by the Portfolio of Internal Affairs, was a demonstration and an expression of bias against the First and Second Applicants and in breach of natural justice. Costs and such further, consequential, or other relief as this 11 Honourable Court seems just. 15 1. WEDNESBURY UNREASONABLENESS: The decision of the First 16 Respondent to refuse the request of the First Applicant and to re- 17 sit the mandatory English Test, was a fettering and an improper 18 exercise of his/her discretion, by applying a policy and failing to 19 adequately or at all consider the peculiar circumstances of the First 20 Applicant, is Wednesbury Unreasonable and should be set aside, 2 1 for the reasons that he/she concluded that the circumstances of 22 the First Applicant did not fall to be considered as 'exceptional ' 23 circumstances:, and which reasons failed to take into account:- Vallo v The Attorney General / G467/2012 / NH / JYGM Page 6 1 (i) That the First Applicant had been travelling for four days prior 2 to his arrival in the Cayman Islands and the First Applicant denies the assertion by the First Respondent, of having been offered the option by the processing Immigration Officer, upon arrival in the Cayman Islands, to do the test some other time, and that despite this, he obtained a score of 14.5 questions correct out of 2 1 questions, to achieve a score of 65% when the pass score is set at 8O0/0, was in any event unreasonable conduct on the part of the First Respondent, his/her servant or agent. (ii) That the First Applicant had worked previously in the Cayman Islands, for two different employers, over the period of a year and three months, and was also the holder of a Cayman Islands Group 3 Licence, which licence permitted him to drive passenger type vehicles, to include trucks and buses, conveying up to twenty five (25) passengers, was a fact that was not adequately considered or at all by the First Respondent in the exercise of his/her discretion to refuse to permit the First Applicant the opportunity to re-sit the mandatory English Test. 23 (iii) That the First Applicant had to have been, by virtue of the 24 history of his travel, which was at all material times known to Vallo v The Attorney General / G467/2012 / NH / JYGM Page 7 the First Respondent, appear in the professional opinion of the agent of the First Respondent and by extension the First Respondent, despite any appearance to the contrary, mentally and physically less capable, in the circumstances of, and under which he was asked to take this English test, and therefore the First Applicant, should have been told in the first instance, of the option to sit this Test at some future time, by the attending Immigration Officer, who was at all material times the agent of the First Respondent, and who processed the First Applicant upon his arrival in the Cayman Islands. (iv) That the First Applicant, at the time of his request to re-sit the said English Test, posed no threat to the interests of the state's defences, public safety, public order, public morality or public health, to provide grounds for derogation from the provisions of the protections offered by section 13(2)(d) and (3) of the Cayman Islands Constitution Order 2009, nor had he been fairly and properly examined in accordance with section 44(3)€ of the Immigration Law (2011 Revision), and . -- that the main objective for which the mandatory English Test ;-:: . was designed, was not by any means in jeopardy of compromise, so that the refusal of the First Respondent in the circumstances, was a disproportionate response to the request 24 for a re-sit of the said test, and that the said decision of the Vallo vThe Attorney General / G467/2012 / NH / JYGM Page 8 1 First Respondent was not : objectively and reasonably justifiable in a democratic society ... between the means employed and the purpose sought to be realized"; as provided for in section 16(4)(d) of the Cayman Islands Constitution Order 2009. 2. PREJUDICIAL DISCRIMINATORY AND BIASED STATEMENT (i) The declaration made by the First Respondent to the Second Applicant, that whether the First Applicant departed the jurisdiction voluntarily or was forced to depart then, based upon the position taken by the Portfolio of Internal and External Affairs, on the appeal made to them by the Second Applicant, on behalf of the First Applicant regarding the English Test re-sit request, meant there was no point in the Second Applicant applying for any other work permit in 17 respect of the First Applicant, as same will be denied; was for all intents and purposes a prejudicial, disproportionate, biased and discriminatory declaration/decision taken against the First and Second Applicant, and one not "objectively and reasonably justifiable in a democratic society ... between the means employed and the purpose sought to be realized:, as is provided for in section 16(4)(d) of the Cayman Islands Constitution Order 2009. Vallo v The Attorney General / G46712012 / NH / JYGM Page 9 (ii) The Second Applicant had, in an effort to resolve the matter, following upon the refusal of the request to re-sit the English test suggests that the Second Applicant make a new application for a work permit, in respect of the First Applicant and in those circumstances, he would make every effort to have the First Applicant depart, to facilitate the new application, as by Immigration Law, the First Applicant's current status was that of "visitor" the effect of which prohibited any application being made, whilst this status applied to the First Applicant, and that it was more practicable to have the First Applicant travel to Jamaica, instead of all the way back to the Philippines, being met by the statement attributed to the First Respondent in this regard, was a statement made with prejudice, discrimination and bias towards the Second Applicant, and to the First Applicant, who had committed no breach of any law whether locally or, ., internationally, nor did he have any previous conviction, to disqualify him from holding or being granted a work permit' within the Cayman Islands, and therefore such a statement demonstrated a policy position, which was in breach of natural justice, disproportionate, and a violation of the Second Applicant's rights as a Caymanian insofar as those rights entitles the Second Applicant to earn a living from ... "the Vallo v The Attorney General / G4,67/2012 / NH / JYGM Page 10 employment, engaging in any business or profession, movement or residence within the Cayman Islands of persons who are not Caymanian ..." as provided for in section 16(4)(b) of the Cayman Islands Constitution Order 2009. Leaislation It was submitted on behalf of the Respondent that the Chief Immigration Officer is required to take certain matters into consideration, specific to a prospective employer and specific to a prospective employee; when considering an application for a work permit. The applicable provision on September 11, 2012 was found in Sections 44 of the existing Immigration Law (2011 Revision) which provided as follows. "44. ( 1 The Work Permit Board, the Business Staffing Plan Board or the Chief Immigration Officer, as the case may be, in considering an application under section 42 - (a) shall, in respect of an application for a grant; or (b) may, inrespectofanapplicationfora renewal, 2 1 22 subject to any general directions which the Governor may, from time to 23 time, give in respect of the consideration of such application, take into 24 account the matters listed in subsections (2) to (4). Vallo v The Attorney General / G467/2012 / NH / JYGM Page 11 (2) I n relation to the prospective employer, that - (a) he has demonstrated his genuine need to engage the services of the prospective worker; (b) he has, unless he has been exempted by the Governor or by the Board, sought, by advertising in at least two issues for two consecutive weeks in a local newspaper, to ascertain the availability of any one or more of the following in the order in which they are listed- (i) acaymanian; (ii) the spouse of a Caymanian; (iii) the holder of a Residency and Employment Rights Certificate; and (iv) a person legally and ordinarily . .. resident in the Islands who is qualified and::: ;: . .. . . willing to fill the position; and . <- i t - ., , (c) in the case of an application in respect of a. . . professional, managerial or skilled occupation, the Board or the Chief Immigration Officer, as the case may be, is satisfied as to the extent to which Vallo vThe Attorney General / G467/2012 / NH / JYGM Page 12 1 he has established adequate training or scholarship programmes for Caymanians. ( 3 ) In relation to the worker- (a) his character, reputation and health, and where relevant, the character, reputation and health of his dependants; (b) his professional and technical qualifications and his experience and competence to undertake the position applied for; (c) the economic and social benefits which I-- may bring to the Islands; (d) the sufficiency of the resources or the proposed salary of the worker and, where his spouse is employed within the Islands, those of his spouse, and his or their ability to adequately maintain his or their dependants; (e) his facility in the use of the English language; and Vallo v The Attorney General / ~46712012 / NH / J Y ~ 1 (f) the location, type and suitability of the 2 accommodation available for the worker and his dependants, if any, throughout the term of the work permit. (4) Generally- 7 (a) the protection of local interests and in particular of 8 Caymanians, including without limitation and where 9 applicable, the pro visions set out in section 44(2) (c); 11 (b) the availability of the services of a suitable person 12 already legally and ordinarily in the Islands; an (c) the requirements of the community as a whole, the demographics referred to in section 24(j) and such other matters that may arise from the application. _. ' . (5) General directions given under this section shall be published in the Gazette. 20 . - 21 The following provisions of Section 48 (10) of the said law deals w%h the 22 power to revoke a work permit based on certain grounds. 23 "48. "(10) An application for the grant or renewal of a work permit may 24 be refused and a work permit may be revoked on any of the following 25 grounds- -- Vallo v The Attorney General / G467/2012 / NH / JYGM Page 14 1 (a) that there is refusal or inability on the part of the applicant and his spouse, if relevant, to properly support his dependants; (6) that there are reasonable grounds for suspecting that the applicant uses or is involved in illegal drugs; (c) that the applicant has a background of subversive political activity, racism or any illegal activity; (d) that the applicant has committed an act of insolvency or bankruptcy or been as a shareholder or director of any company or other entity that has been the subject of liquidation especially where the creditors have been adversely affected; (e) that the applicant has been convicted of an offence or has been fined by an immigration officer of the rank of Assistant Chief Immigration Officer or above; Vallo v The Attorney General / G467/2012 / NH / JYGM Page 15 (f) that the work permit holder has been promoted or re-designated by his employer without the prior approval of the Board; (g) that the applicant is in the Islands as a tourist visitor; (h) that the Board or the Chief Immigration Officer considers that the applicant has not fully met any of the requirements of section 44; (i) for any of the matters referred to in section 44(2) to (4) that the Board or the Chief Immigration Officer in its discretion considers appropriate; (j) that, in respect of an appli~ati6n'~Ar a ?#w" . u temporary work permit, the Chief 1mn3~l-a tion Officer is of the opinion that th@.,numbey -or . - . - frequency of temporary work i)revio;sly obtained or continuing to be sought in respect of a worker suggests more than temporary employment and constitutes a deliberate attempt to circumvent the operations of the provisions of section 52(1) and (20); or Vallo vThe Attorney General / G467/2012 / NH / JYGM Page 16 (k) that the applicant failed to give the written undertaking referred to in section 42(4)(b). " The decision whether or not to revoke a work permit required that the procedure set out in Section 48 (11) of the said law be followed. "48. (1 1) Prior to the revocation of, or refusal to renew, a work permit- (a) all objections shall be considered; (b) the applicant shall be given notice of all objections and allegations relating to him and he shall be afforded an opportunity to make written representation to the Board in respect thereof or, at the discretion of the Board, to appear before the Board to address such objections and allegations; an inquiry shall be made into the applicant; and all allegations that are taken into account considering the application shall so far as reasonably practicable be corroborated and a full Vallo v The Attorney General / G467/2012 / NH / JYGM Page 17 investigation of such allegations shall so far as reasonably practicable, be carried out." 2 3 4 It was noted that Section 48 (10) was amended in 2011 by Section 4(c) 5 of the Immigration (Amendment) No.3) Law 2011. The amendment 6 provided: 7 "4. The principal Law is amended in section 48 as follows- 8 (d) in subsection (1 0) 9 (i) in paragraph (h) by inserting before the 10 word "requirements" the word "applicable"; and (ii) in paragraph (i) by inserting before the word "matters: the word "applicable"." 16 Evidence 17 There is a dispute on the evidence concerning the mechanics of the test 18 which was administered to the First Plaintiff. ' ;,- . . 19 , _ 1 ' , 20 I n her affidavit, Senior Immigration Officer Josefina ~ c i e a n - s h a q a ~ i . .. _ . _ _ I ' 21 stated that it was she who administered the test to the First plaintiff. She. 22 stated in her affidavit that on the date in question, she advised the First 23 Plaintiff that he had the option of sitting the test at once or the next day. Vallo vThe Attorney General / G467/2012 / N H / JYGM Page 18 She also stated that she told him that she would authorise that he rest on llth september 2012, if he opted to sit the test the next day. According to Officer McLean-Shaqaqi, the First Plaintiff indicated to her that he would sit the test that day and not take it on the following day. There is a declaration which is the preamble to the test and which stated that the person about to do the test was prepared and comfortable to sit the test at that time. According to Officer McLean-Shaqaqi, this was read to the First Plaintiff and he was asked if he understood it and that he had to attain a test score of 75% or more. The First Plaintiff allegedly indicated that he understood by nodding and then signing the document. Officer McLean-Shaqaqi further stated that when he was advised that he had failed the English test, the First Plaintiff did not ask her for a re-sit. I n any event she stated, she is not the person who determines whether or not any person gets the opportunity to re-sit failed language tests. I n contrast to this evidence, in his second affidavit, which was filed in response to the affidavit filed by the Acting Chief immigration Officer, the First Plaintiff asserted that while he was given a form to sign, it had not been explained or read to him. As such he stated that although he signed a form stating that he was comfortable and able to do the test, essentially all he did was to follow the instructions to sign the form. He also stated . . that it was not the officer who administered the test who had advised him Vallo vThe Attorney General / G467/2012 / NH / JYGM Page 19 ,. . - ,. , . 1 that he was able to take the test either then or the next day. This was ... , , 2 told to him he stated, by the first Officer that he spoke to when he -~ . 3 arrived. The First Plaintiff asserted that the Immigration Officer who administered the test did not observe the stated policy because there was a failure by that Officer to tell him that he could have done the test another day. The First Plaintiff did state that he agreed to take the test at the time of his arrival in the Cayman Islands because he believed that he would have passed it; having worked in the Cayman islands before. He also stated that he knew that he would not have transportation to return to the airport the next day. I n his First Affidavit, the First Plaintiff had asserted that prior to his arrival in the Cayman Islands on September 11, 2012; he had been travelling for four days and he that was mentally tired upon arrival. He also stated that when asked by the Immigration Officer if he wished to take the exam upon arrival, he replied in the affirmative "because I didn't want to have to return to do it, plus I had worked in Cayman before, and I knew I could speak and write English". He also stated in this Affidavit that while previously living in the Cayman Islands, he had been issued with a Group 3 Drivers Licence (on May 19, 2005) and that the test for same included a written test. o vThe Attorney General / G467/2012 / NH / JYGM Page 20 1 I n his affidavit, the Second Plaintiff asserted that in his request to the 2 Chief Immigration Officer that a re-sit be allowed, he had mentioned his 3 own economic hardships as an employer. He pointed out his lack of staff, 4 his contractual obligations and the extent to which he was relying on the 5 First Plaintiff. The Second Plaintiff also asserted that he was not in a 6 financial position to pay for a return ticket to the Philippines for the First Plaintiff. 9 It was submitted on behalf of both Plaintiffs that the forgoing assertions 10 constituted reasons which fell into the category "exceptional 11 circumstances" and justified the First Plaintiff being allowed to re-sit the 12 test and to decide otherwise was considered unreasonable. 13 14 The Second Plaintiff in his affidavit also asserted that he had been told by 15 a senior Immigration Officer that once the First Plaintiff left the Cayman 16 Islands; the Second Plaintiff having secured his passage, there would be 17 no point in the submission of an application for a new work permit for the 18 First Plaintiff because it would be denied based on the position taken by 19 the Portfolio on the matter. It was further allegedly stated that if the 20 Immigration Department had to undertake the departure of the First 21 Plaintiff, he would not be able to apply for another work permit in the 22 Cayman Islands without going through the Governor. It was submitted 23 that these statements were a demonstration and an expression of bias 24 against both Plaintiff's and in breach of natural justice. Val10 v The Attorney General / G467/2012 / NH / JYGM Page 21 1 2 Submissions were made on behalf of the Respondent with respect to this 3 allegation of bias and the remedy sought. I n any event however, it was 4 argued that proper procedure required that the public official be named 5 and full particulars given of the circumstances of the conduct of that 6 official. 7 8 The Endish Lanuuage Policv 9 10 The Respondent emphasized the obligation to consider the worker's . . ' 1.1 facility in the use of the English Language as required under Section . . 12 44(3)(e) of the said Law. The policy of requiring persons whose native 13 language is not English to take the English language test is seen as a part 1 . , _ . .. .- . . . . , ,14 of the duty of the Respondent to comply with this provision of the said 15 law. 17 Affidavit evidence was adduced stating that it had been necessary to 18 adopt this policy because of past incidences of some workers being unable 19 to function properly because of their poor grasp of the English language. 20 It was submitted that the test was meant to be an objective means of 21 assessment. 23 According to the policy, persons who failed the test would not be
permitted to take up their employment. It was submitted on behalf of the Vallo vThe Attorney General / G467/2012 / N H / JYGM Page 22 1 respondent that according to policy, the test takes approximately 20 2 minutes and is conducted in a quiet, comfortable, non-intimidating area 3 and further that the questions are short and simple. 4 5 It was submitted on behalf of the Respondent that no evidence had been adduced that the test had not been conducted under these conditions. It was additionally submitted that the evidence established that both Plaintiffs had been aware of this policy prior to the First Plaintiff travelling to the Cayman Islands. According to the policy, in assessing the results the presiding officer is required to take into account any factors which might have adversely affected the person's performance when taking the test. It was submitted that the policy was substantively followed because the Immigration Officer addressed the concern reflected in the policy by ascertaining beforehand whether the First Plaintiff was comfortable doing the test. It was also submitted that it was the evidence of the First Plaintiff that he indicated that he wished to take the test at that time because he knew that he could write and speak English and he didn't want to have to return to do the test. The evidence also established that the Immigration Officer had been prepared to allow the First Plaintiff to take the test on a 1 It was submitted that it was not improper for the Immigration Officer to 2 apply the policy in this way because the policy merely provided guidance 3 and was in no way binding. It was submitted that the Immigration 4 Officer's decision could not be regarded as irrational as it was a measure 5 taken to address the concerns in the policy. 6 7 8 Unreasonableness 9 Counsel for the Plaintiffs also referred to the English language testing 10 policy. 11 12 It was submitted that if "exceptional circumstances" had been made a 13 condition for retesting, then an insistence on immediate departure without 14 regard for the circumstances of the First Plaintiff's work history in the is Cayman Islands was a decision which fell squarely into the realm of 16 irrationality as defined in the case of Associated Provincial Picture 17 Houses Ltd. V Wednesdburv Corporation TI9487 K.B. 223 and was 1.8 unreasonable. 19 20 Citing the Internet Home Page of the Respondent which related to the 21 English Language testing policy, Counsel for the Plaintiffs commented on 22 the words "in assessing the results of the test the Senior Immigration 23 Officer will take into account any factors that might have adversely . . Vallo v The Attorney General / G467/2012 / NH / JYGM Page 24 affected the person's performance when taking the test. This might be where the person has arrived late at night or after a long journey". Counsel submitted that this applied to the First Plaintiff's peculiar circumstances upon arrival in the Cayman Islands. He argued that the long period of travel including detention in Bangkok while his documents were authenticated formed the core of the First Plaintiff's request for retesting. Counsel argued that the First Plaintiff's mental capacity was severely challenged at the time despite the fact that he had agreed to do the test immediately. It was submitted that the First Plaintiff's greatest desire was to be out of the airport and relocated to a calm place after enduring four days of travel and fatigue. Counsel submitted that the authorities required a court to investigate and determine if matters have been taken into account which ought not to 16 have been or conversely if there had been a refusal to take into account 17 or neglect to take into account matters which should have been. 18 19 Counsel argued that based on the facts which were known to the 20 Respondent about the First Plaintiff's circumstances, the decision not to 21 permit retesting was irrational. It was submitted that the English 22 language testing policy having been instituted to ensure that persons 23 could properly assimilate themselves into the community, perform work 24 duties effectively and administer themselves appropriately. It was argued Vallo v The Attorney General / G467/2012 / NH / JYGM Page 25 1 that during his previous employment in the Cayman Islands, the First 2 Plaintiff had satisfied all of these requirements. He had driven a truck on 3 the roads of the Cayman Islands and worked for two different employers. 4 5 Counsel submitted that the First Plaintiff's statement to the Immigration 6 Officer that he was comfortable to sit the test was of little consequence to 7 the request for a re-sit. 8 9 Counsel argued that the First Plaintiff's decision to sit the test 10 immediately; was motivated by his desire to get all formalities out of the 11 way because he needed to start working and repay the cost of his ticket 12 to the person who had loaned him the money to acquire it. It was argued 13 that the officials were advised that the First Plaintiff's ticket was one way 14 and that he did not have plans to return home prior to completion of his 15 work. It was submitted by Counsel that there was a humanitarian basis as .. , 1.6 well as implications of economic costs for the First Plaintiff, even if the I .. I ,, .- ' , f .I- 17, government of the Cayman Islands paid his return fare and that this 18 should have been a factor which influenced the Respondent's decision. It I . 19 was conceded that if the First Plaintiff failed upon retesting, he could have 20 no argument in relation to the requirement that he depart. It was Vallo v The Attorney General / G467/2012 / NH / JYGM Page 26 Counsel for the Plaintiffs argued that they both shared an economic interest in the modification of the decision which was made and both would benefit if the First Plaintiff was allowed to re-sit the test. Counsel for the Plaintiffs concluded on this point that the Court should issue an order reversing the decision of the Respondent and direct that the First Plaintiff be allowed to re-sit the English test since the decision made was Wednesbury unreasonable, disproportionate, irrational in all the circumstances and should be set aside. Conversely, it was submitted on behalf of the Respondent that the 12 decision not t o allow the First Plaintiff to re-sit the test was not 13 unreasonable as asserted by the Plaintiffs. 14 i s It was the Respondent's position that since the First Plaintiff had signed a declaration stating that he was prepared and comfortable to sit the test when he did and since the test had been administered fairly, there were no circumstances warranting allowing the First Plaintiff t o retake the test. It was conceded that the Immigration Officer may not have carried out the policy to the letter. However it was argued that the Immigration Officer had substantively followed the policy by addressing the concern reflected in the policy by ascertaining beforehand whether the First Plaintiff was comfortable doing the test. It was submitted that it was not Vallo v The Attorney General / G467/2012 / NH / JYGM Page 27 1 improper for the Immigration Officer to apply the test in this way because 2 the policy merely provided guidance and was not in any way binding. 3 4 It was submitted on behalf of the Respondent that pursuant to the principles stated in Wednesdbury, the decision sought to be challenged had to be so unreasonable that no reasonable authority could have come to it. Reference was made to the statement by Lord Greene M.R. at pages 233-234 of the case: "The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them." Vallo v The Attorney General / G467/2012 / NH / JYCM Page 28 It was submitted that the evidence established that the Respondent gave consideration to the grounds presented by the Second Plaintiff for giving the First Plaintiff a chance to take the test a second time. It was further submitted that the Respondent on the evidence, did not take any extraneous factor into consideration and further, it did not treat its discretion as being fettered by policy; in that it willingly gave individ consideration to the First Plaintiff's case. It was submitted that the fact that the First Plaintiff had travelled a lo distance in order to come to the Cayman Islands could not be seen as exceptional because many workers in the Cayman Islands arrive having travelled from very distant locations. It was argued that if this fact was treated as an exceptional circumstance in the First Plaintiff's case; it would warrant its extension to the case of all the workers who arrive from far off countries. It was also submitted that since all workers are notified beforehand that they can have only one opportunity to take the test, it is reasonable to expect that they would each give themselves the very best opportunity to pass the test including agreeing to rest before they take it. It was noted that the First Plaintiff was clearly quite confident that he could successfully take the test on the day that he arrived. Vallo vThe Attorney General / G467/2012 / N H / JYGM Page 29 1 It was submitted that the First Plaintiff having previously worked in the 2 Cayman Islands and having obtained a driver's license did not advance 3 this case. Further it was argued that traffic signs are fairly universal 4 throughout the world and not much language is required to understand 5 their meaning. 6 7 It was submitted that the fact that he failed the test after volunteering to do it on the date of his arrival was proof that his English-language skills were not up to par. The implementation of the policy of the English language test was meant to deal with the issue of persons being allowed to work in the Cayman Islands without the requisite level of skill in the English language. The First Plaintiff had not taken an English language test when he had previously come to work in Cayman Islands and it was submitted that he may very well have failed it. As such, his previous employment in the Cayman Islands could not be considered to be exceptional because his deficiency in the previous It was further submitted inability to pass the test demon practice of not administering a test. that to allow persons to retake the strated test me 20 on the basis of having travelled from far away or having previously 21 worked in the Cayman Islands would serve to undermine the purpose of 22 section 44 (3) (e) which is to ensure that only persons with a sufficient 23 grasp of the English language are allowed to work in the Cayman Islands. 24 It was further submitted that this would open the floodgates to persons Vallo v The Attorney General / G467/2012 / N H / JYGM Page 30 1 who fell into either group to claims that they should retake the test, 2 notwithstanding having signed the declaration. 4 It was also submitted that the business concerns of the Second Plaintiff 5 could not be regarded as an exceptional circumstance. That party's 6 business was not relevant to the worker's proficiency in the English 7 language. 8 9 It was submitted that following Wednesbury, it was not the task of the 10 courts to retry the original matter nor substitute its view for that of the 11 decision maker. The court could not act as an appellate authority and it 12 was submitted that it was inappropriate for the Plaintiffs to invite the 13 court to canvass the merits of the decision. The Respondent cited the 14 case of The Oueen on the Application of Assisted Reproduction and 15 Gvnaecolouv Centre, "H" v The Human Fertilisation and 16 Embrvolo~v Authoritv f20027 EWCA Civ 20. Mr. Justice Wall was 17 quoted as follows: 18 19 "Like any public authority, it is open to challenge by way of judicial 20 review, if it exceeds or abuses the powers and responsibilities given to it 21 by parliament; but where, as is manifest here from an examination of the 22 facts, it considers requests for advice carefully and thoroughly, and 23 produces opinions which are plainly rational, the court, in our judgment, 24 has no part to play in the debate, and certainly no power to intervene to Vallo v The Attorney General / G467/2012 / NH / JYGM Page 31 1 strike down any such decision. The fact that the appellants may disagree 2 with the Authority's advice is neither here nor there." 4 It was submitted that it was clear that the decision was taken after the 5 Plaintiff's request was carefully considered. It followed therefore it was 6 - submitted, that once the court was satisfied that careful consideration is 7 given, it would not be proper to intervene. . . 8 -. a ' g 10 Preiudicial and Biased Statement Counsel for the Plaintiffs referred to the assertion made by the Second Plaintiff that he had been told by an agent of the Respondent that whether the First Plaintiff left the jurisdiction voluntarily or was deported, there was no point in making a further application for a work permit for him because same would be denied. This was allegedly told to the Second Plaintiff when he offered to send the First Plaintiff to Jamaica rather than back to the Philippines while he submitted a new work permit application for him. Counsel submitted that the statement must be viewed as biased, prejudicial and against the rules of natural justice. He submitted that the statement which pointed to the pre-judging of any further work permit application submitted by the Second Plaintiff for the Vallo vThe Attorney General / G467/2012 / NH / JYGM Page 32 1 First Plaintiff was made in breach of the constitutional rights of both Plaintiffs. The First Plaintiff had committed no breach of any law either locally or internationally and he had no previous convictions. As such no basis existed to disqualify him from holding or being granted a work permit in the Cayman Islands. As a result of the foregoing both Plaintiffs invited the court to make a declaration that the assertion made to the Second Plaintiff by the Respondent was a demonstration and an ex~ression of bias, discrimination and prejudice against both Plaintiffs; as well as being in breach of natural justice. Counsel for the Respondent commented on the claim by the Plaintiffs that a biased, prejudicial and discriminatory statement was made to them contrary to section 16 (4) (d) of the Constitution. It was the Respondent's submission that these proceedings were not the proper forum within which to raise constitutional claims. It was submitted that Section 26 of the Constitution conferred the rights of individuals to apply to the Grand Court when they wanted their rights and freedoms under the Bill of Rights enforced. That section provides: "26 (1) Any person may apply to the Grand Court to claim that Government has breached or threatened his or her rights and Vallo v The Attorney General / G467/2012 / NH / JYGM Page 33 freedoms under the Bill of Rights and the Grand Court shall determine such an application fairly and within a reasonable time. (2) I f , in any proceedings in any court established in the Cayman Islands other than the Grand Court or the Court of Appeal, any issue arises as to the interpretation of the Bill of Rights, the court in which the question has arisen shall refer the question to the Grand Court if it is in its opinion necessary for the issue to be determined. (3) An appeal shall lie as of right to the Court of Appeal from any final determination of any issue by the Grand Court under the Bill of Rights, and an appeal shall lie as of right from the Court of appeal to Her Majesty in Council; but no appeal shall lie from a determination by the Grand Court under this section dismissing an application on the ground that it is frivolous or vexatious. (4) Proceedings under subsection (1) shall be commended within one year of the decision or act that is claimed to breach the Bill of Rights, or from the date on which such decision or act could reasonably have been known to the complainant; but the Grand Court shall extend time on application by the complainant where such an extension would in the opinion of the Court be in the interest of justice. Vallo v The Attorney General / G467/2012 / NH / JYCM Page 34 (5) Nothing in this section adversely affects the ability of courts to manage their own procedure to ensure that cases are dealt with justly, fairly and expeditiously, including their ability to dismiss applications that are vexatious or unreasonable. " Counsel for the Respondent thereafter referred to Order 5 (4)(A) of the Grand Court Rules which provides: "4A. ( I ) Proceedings under section 23 or 26(1) of The Cayman Islands Constitution Order 2009 shall be begun by petition or writ. (2) Such proceedings - (a) in which the sole or principal question at issue.is, or is likely to be, one of the construction of any Law or of any deed, will, contract or other document, or some other question of law; or (b) in which there is unlikely to be any substantial dispute of fact, are appropriate to be begun by petition unless the applicant for any reason considers it more appropriate to begin the proceedings by writ. " Respondent's Counsel then referred to the provisions of Order 77A of the Grand Court Rules, under which section the Plaintiffs sought relief. Vallo v The Attorney General / G467/2012 / NH / JYGM Page 35 2 3 Order 77A Rule 2 (1) & Rule (4) provide the following. 4 112 (1) Pursuant to Rule 4A of Order 5, proceedings under 5 section 23 or 26(1) of the Constitution shall be begun by petition or 6 writ. " 7 8 "4 (1) A petition, or a writ, or any pleading alleging that the 9 government has breached or threatened the applicant's rights and 10 freedoms under the Bill of Rights shall include full particulars of- (a) The circumstances in which the government's liability is alleged to have arisen, and the circumstances of the conduct of any public official or officials in respect of which the 15 applicant complains; 17 (b) the decision or decisions or the act or acts that is 18 or are alleged to breach the Bill of Rights, and the date or 19 dates of each such decision or act; (c) to the extent that any such decision or act as 22 referred to in rule 4(1)(b) of this Order is alleged to have 23 taken place more than one year prior to the issuing of the 24 writ, the presentation of the petition, or filing of the pleading, Vallo v The Attorney General / C467/2012 / NH / JYGM Page 36 1 the date or dates on which such decision or act was alleged to be known or alleged could reasonably have been known to the applicant. (2) The Respondent to such a petition, or the Respondent to such a writ, as the case may be, shall be the Attorney General and any relevant public official. (3) I f a claim is brought by way of counterclaim then the Respondent to such a counterclaim shall be the Attorney General and any relevant public official." As a result of the foregoing, it was submitted on behalf of the Respondent that the Plaintiffs had neither followed the proper procedure nor invoked Section 26 of the Constitution which was the only way that a breach of the Bill of Rights could be addressed. On this basis that it was argued, this claim should be dismissed. This point was conceded by Counsel for the Plaintiffs. However he argued that the aspects of the Plaintiffs' claim were closely interwoven and that it was important for the court to consider the substance of the claim rather than the form. He invited the court to exercise its inherent jurisdiction to amend the informality of the Pre on. . , Vallo vThe Attorney General / G467/2012 / NH / JYGM Page 37 Despite the submission concerning procedure, Counsel for the Respondent did proceed to comment on the merits of the claim. It was argued that the public official should be named and full particulars given of the circumstances of the conduct of that official. It was submitted that in any event, the evidence before the court did not support the claim of bias, prejudice or discrimination. It was argued on behalf of the Respondent; that under section 82 (e) of the Immigration Law (2011 Revision) the definition of a "prohibited immigrant" included that of a person not being a Caymanian or permanent resident who had been repatriated from the islands. It was submitted that the Plaintiffs having complained that neither could affoi-d the passage of the First Plaintiff back to the Philippines, it was likely that the Respondent would have to bear this expense. I f this occurred, the First Plaintiff would be considered a prohibited immigrant under the said law. It was submitted that it was reasonable to infer that if anything had been said in this regard, it would have been that if the Respondent had to bear such an expense, the First Plaintiff would be considered a prohibited immigrant. It was submitted that this was the most reasonable inference to be drawn from the evidence and that it would be unreasonable to draw Finally it was submitted on behalf of the Respondent, that if as alleged, a specific person had told the Plaintiffs that a new work permit would be denied even if the employer secured return passage for the First Plaintiff; a remedy could not be obtained. This was because no right was created under section 16(4)(d) of the Bill of Rights. Additionally it would be premature,to seek any relief because the evidence did not disclose that a decision had been made in respect of the alleged statement that would have created some right in relation to the Plaintiffs. It was argued that that right could only be created if the First Plaintiff had left the jurisdiction and a second application for a work permit had then been submitted. It was argued that the authorities established that judicial review is not desirable before a final decision is made. Criminal Charae The respondent raised the fact that since arrival, the First Plaintiff had been charged with a criminal offence. It was submitted that under the current Immigration Law, the Respondent was obligated to take into account the character of a worker when considering an application for a work permit. It was submitted that even if the court made a finding in favour of the Plaintiffs it would not be convenient to grant the remedies requested because the Respondent would be entitled to consider the Val10 vThe Attorney General / G46712012 / NH / JYGM Page 39 1 criminal charges even before the First Plaintiff was allowed to retake the 2 English language test. Conclusion 8 The evidence established that both Plaintiffs were aware, prior to the 9 arrival of the First Plaintiff, that his work permit had been granted subject 10 to the condition that he pass an English language test. 12 , ,It is not possible to make a determination on disputed facts contained in , - ...- . . + : . 1 3 competing affidavits. I refer here to the First Plaintiff's challenge to the . - i a 14 . assertion by Senior Immigration Officer Josefina McLean-Shaqaqi about is . . t h e procedure she followed in administering the test. Based on the 16 evidence from the First Plaintiff however I am satisfied that on arrival an 17 Immigration Officer told him that he had the option to do the test either 18 immediately or on another day. I am satisfied that he was aware that he 19 was not required to do the test immediately. I am also satisfied that he 20 made his own decision to do the test upon arrival both because he 21 believed that he would pass it; and also because he did not wish to have 22 to return to the airport in order to do it. Vallo vThe Attorney General / G467/2012 / NH / JYGM Page 40 1 Whilst I make no finding of fact on the matter, I do find it difficult to 2 accept the First Plaintiff's assertion that he merely signed the declaration 3 stating that he was comfortable to do the English language test because 4 he was given a form and told to sign it. 5 6 Based on the foregoing, I am satisfied that the administering of the 7 English language test was done fairly, substantively following policy. It is 8 noted however that there has been no challenge raised based on the 9 manner in which the test was administered. 11 The issue before the court has to do with the decision by the Respondent 12 to deny the request for the First Plaintiff to re-do the test. The policy of 13 the Respondent is to only allow a re-sit in exceptional circumstances. The 14 Respondent denied the request of the Plaintiff's because it was 15 determined that no exceptional circumstances arose. 16 17 On the issue of unreasonableness. - 19 There is no evidence before the court that in reaching its decision, the 20 Respondent took into account matters which should not have been 2 1 considered. There is also no evidence that the Respondent either refused 22 or neglected to take into account matters which should have been taken 23 into account. - - - -- -- -- - -- - Vallo vThe Attorney General / G467/2012 / NH / JYGM Page 41 There is no evidence that the request for retesting was met with a bare denial based on policy. The evidence established that the Respondent considered the application made by the Second Plaintiff. It also established that when the Second Plaintiff sought assistance from the Portfolio, the matters which had been raised by the Plaintiffs were reviewed. Despite this, the decision remained the same. Left for determination is whether the decision that the issues raised by the Plaintiffs did not constitute exceptional circumstances and as such there should be no retesting; is a conclusion that was so unreasonable that no reasonable authority could ever have come to it. I do not find that this is the case. The decision arrived at by the Respondent is one which was reasonable in all the circumstances. Based on Wednesbury, this court cannot act as an appellate authority. it The decision of the Respondent to refuse the request for retesting will not , .. 17 be'overturned on the basis that it was unreasonable. 19 With respect to the submission that a prejudicial, discriminatory and 20 biased statement had been made to the Second Plaintiff which constituted 21 a breach of natural justice and required a remedy. 22 I agreed with the submissions made on behalf of the Respondent that this 23 issue was not properly raised in this forum. 24 Vallo v The Attorney General / G467/2012 / NH / JYGM 1 I n any event, it is my view that a court cannot properly render a decision 2 based on the theoretical. I n the absence of the identification of the relevant agent of the Respondent, there is no opportunity to put before the court either agreement or denial of the assertion made. However, if it were to be accepted that such an assertion had been made, in the absence of the refusal by the Respondent to award a work permit to the First Plaintiff based on a new application, then no claim arises. As a result of the foregoing, the application by the Plaintiffs is denied. Costs are awarded to the Respondent. Nova Hall Acting Judge of the Grand Court lgth December 2014 Vallo v The Attorney General / G467/2012 / NH / JYGM Page 43