Sparman v Greaves et Al
| Jurisdiction | Barbados |
| Judge | Kentish, J. |
| Judgment Date | 15 October 2004 |
| Neutral Citation | BB 2004 HC 21 |
| Docket Number | 529 of 2003 |
| Court | High Court (Barbados) |
| Date | 15 October 2004 |
High Court
Kentish, J.
529 of 2003
Mr. Louis Tull, Q.C. in association with Mr. Alair Shepherd Q.C. Mr. Adrian King and Miss Michelle Russell for the applicant.
Mr. Hal Gollop in association with Mr. Steve Gollop, Dr. Lenda Blackman and Miss Maya Daniel for the first and second respondents.
Judicial review - Applicant refused licence to practice as cardiologist — Natural justice — Breach of principles — Right to appeal — Jurisdiction of Court — Section 23 Immigration Act — Whether the Plaintiffs can rely on the provisions of section 23 to oust the jurisdiction of the court — Court has the power to review administrative decisions made by inferior courts, tribunals and other bodies in the performance of public acts and duties — Decision of Chief Immigration Officer declared null and void.
The applicant Alfred Sparman is a medical doctor by profession. By birth he is a citizen of Guyana. By registration he became a citizen of the United States of America in 1986.
The first respondent Gilbert Greaves (“the Chief Immigration Officer”) is the Chief Immigration Officer of Barbados.
The second respondent is the Attorney General (“the Attorney General”) of Barbados and also Minister of Home Affairs and is being sued as the representative of the Crown in the Right of its government of Barbados. The Background
The facts which are not in dispute are contained in the affidavit of the applicant filed on 21 March 2003 in support of his application for judicial review (“the application”) also filed on 21 March 2003 and in the affidavit of the Chief Immigration Officer filed on 13 May 2003 in opposition to the application.
By a letter dated 27 September 2000 to the Immigration Department, the applicant stated that he was a returning Caricom National with a licence to practice cardiology in Barbados. He requested a work permit so that he could serve a community that deserves his expertise.
The applicant also submitted to the Immigration Department a form, under the Immigration (Amendment) Act 1996-9 entitled “Registration of Employment of Caricom Skilled Nationals”. The form, subscribed and sworn to by the applicant on 29 September 2000, disclosed information about the applicant including his name, date and place of birth; his permanent local residential address at 6C Faraway Court, Durants, Christ Church Barbados; his passport number with date and place of issue; the names of his Costa Rican wife and four dependent children; his occupation of cardiologist, his qualifications and experience.
By letter dated 5 February 2001 the Chief Immigration Officer granted the applicant permission to reside and work in Barbados retroactive from 19 January 2001. Thereafter the applicant has operated and operates a medical practice in Barbados employing a Barbadian staff of six persons.
On 11 July 2002 two officers from the Immigration Department visited the applicant at his home and handed him a letter dated 11 July 2002 from the Chief Immigration Officer which read as follows:
“IMMIGRATION AND PASSPORT DEPARTMENT
“Careenage House” The Wharf, Bridgetown
Barbados
Tel: PABX (246) 426-1011 Fax No: (246) 426-0819
No. 212/67/97T.16 2002-07-11
Dr. Alfred Sparman
6C Fairway Court
Durants,
Christ Church.
Dear Sir,
I am directed to inform you that the status of Caricom Skilled National granted to you on 2001-01-19 is revoked herewith.
Consequently you are required to cease employment in Barbados immediately. You will be allowed to remain in the island for a period of two (2) weeks ending 2002-07-25 in order to wind up your affairs.
Yours faithfully,
G. Greaves
Chief Immigration Officer
c.c. Chairman, Barbados Medical Council
G.G:elo
The applicant promptly sought legal advice. On the following day his then attorney-at-law Mr. Ralph Thorne wrote to the Minister of Home Affairs appealing the decision of the Chief Immigration Officer on many grounds including the grounds that: the decision is in breach of the principles of natural justice; the decision creates hardship on the applicant, his immediate family and his Barbadian staff of six persons.
In response, the Minister of Home Affairs by letter dated 19 July 2002 informed Mr. Thorne that his client had a right of appeal to Immigration Appeal Committee (“the Committee”)
Acting on this information, the applicant, through Mr. Thorne by letter dated 23 July 2002 submitted an appeal against the decision of the Chief Immigration Officer to the Committee.
On 10 September 2002, the Committee considered the appeal of the applicant. At the hearing of the appeal the applicant was represented by counsel Mr. Ralph Thorne.
The Committee denied the appeal. It held that the Minister's decision to revoke the permission given to the applicant to reside and work in Barbados was justified.
Nonetheless, the Committee felt “that there were still certain mitigating factors surrounding the particular case” and proposed “to submit the matter to the Minister of Home Affairs … for her determination as to whether the applicant may benefit from the exercise of any discretion.”
On 18 October 2002, a copy of the written decision of the Committee was delivered to Mr. Tull Q.C., one of the attorneys-at-law representing the applicant at the hearing.
There the matter rested until the applicant filed this application for judicial review, on 21 March 2003 challenging the decision of the Chief Immigration Officer to revoke the permission granted to him.
The issues for determination by the Court are:
- Whether the decision of the Chief Immigration Officer to revoke the permission granted to the applicant to reside and work in Barbados is subject to review by the Court; 2. Whether the decision of the Chief Immigration Officer to revoke the said permission is null and void; and 3. Whether the Committee had power to hear the appeal of the applicant against the decision of the Chief Immigration Officer.
At the commencement of the hearing counsel for the respondents, Mr. Hal Gollop, submitted in limine that the Court has no jurisdiction to hear the application.
The Court then heard argument from counsel for the respondents and counsel for the applicant on the issue of jurisdiction. The Court accepted the submission of counsel for the applicants that it was premature to determine the application on the narrow basis of jurisdiction without hearing the application. Accordingly, a decision on this issue was reserved to be given with the decision on the application.
The primary submission of Mr. Gollop is that s.23 of the Immigration Act Cap 190 (“the Act”) ousts the jurisdiction of the Court. In so far as relevant s.23 provides:
- (1) No Court has jurisdiction to review, quash, reverse, restrain or otherwise interfere with any proceeding, decision or order of the Minister or an immigration officer had, made or given under the authority of this Act relating to (a) the refusal of permission to any person to enter Barbados or the removal of that person from Barbados; or (b) the detention or deportation of any person upon any ground whatsoever unless that person is a citizen or a permanent resident (2) A citizen or permanent resident may appeal to the High Court and thence to the Court of Appeal against any proceeding, decision or order mentioned in subsection (1) (3) Appeals under subsection (2) shall be brought by way of originating summons. (4) Where an appeal is made under subsection (2) the Court may order the detention or admission to bail of the appellant pending the determination of the appeal.
The section, argued Mr. Gallop, renders non justiciable any proceeding decision or order of an immigration officer had made or given under the authority of the Act unless that person is a citizen or a permanent resident.
It is common ground that the applicant is neither a citizen nor a permanent resident. This requirement under s. 23 was not satisfied by the applicant.
Mr. Gollop further pointed to the second requirement under s.23 that relief is by way of appeal only, against any proceeding, decision or order of an immigration officer, and that any such appeal must be brought by way of originating summons.
This requirement was also not satisfied by the applicant, argued Mr. Gollop, since the applicant filed an application for judicial review rather than an appeal against the decision of the Chief Immigration Officer. Thus Mr. Gollop's submission is that the applicant does not fall within the provisions of s.23 and the ouster clause is effective to deny the applicant the relief sought by way of judicial review.
The crux of Mr. Gollop's submission is that s.23 clearly expresses the intention of Parliament that a decision of the Chief Immigration Officer is not subject to review by the Court save by way of appeal by a citizen or a permanent resident.
Where it is clear, he submitted, that Parliament intended an ouster clause to have sanctity, then the clause does have sanctity in the absence of a breach and is not subject to review by the Court.
In support of his submission Mr. Gollop relied on the case of Pihak Bekuasa Negeri Sabah v. Sugumar Balakrishnan [2003] 1 L.R.C. 561 a decision of the Federal Court of Malaysia.
In that case the Federal Court of Malaysia had to consider whether the combined effect of ss.59 and 59A of the Immigration Act, 1959/63 (“the Malaysian Immigration Act”) precluded the Court from exercising its powers of judicial review in respect of any act or decision of the State Authority under the Act. s.59 states that no person and no member of a class of persons shall be given an opportunity of being heard before the Minister or the Director General makes any order against him in respect of any matter under the Act. The...
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