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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV2009-03671

IN THE MATTER OF AN APPLICATION BY OLALEKAN SODIQ

FOR LEAVE TO APPLY FOR JUDICIAL REVIEW UNDER

PART 56.3 OF THE CIVIL PROCEEDINGS RULES, 1998

AND THE JUDICIAL REVIEW ACT, 2000

AND

IN THE MATTER OF THE IMMIGRATION

REGULATIONS CHAP: 18:01

BETWEEN

OLALEKAN SODIQ

Applicant

AND

THE MINISTER OF NATIONAL SECURITY

Intended Defendant

BEFORE THE HONOURABLE MADAM JUSTICE JONES

Appearances:

Mr. Ravi Heffers-Doon instructed by Mr. Kern Saney for the Claimant.

Mr. Duncan Neil Byam instructed by Ms. Grace Jankey for the Defendant.

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JUDGMENT

1. The Applicant, Olakekan Sodiq, a citizen of Nigeria, is a prohibited immigrant

who was served with a deportation order on the 15th

October 2008. He has since that date been

detained at the Maximum Security Prison in Arouca. By an application for judicial review made

on the 22nd

October 2009 he seeks a review of the decision of the Minister of National Security

(“the Minister”) to execute the deportation order while his application to have the said order

stayed or quashed on humanitarian or compassionate grounds is pending. On the application for

leave an order was obtained staying the execution of the deportation order pending the

determination of this action.

2. The Applicant contends that to pursue the execution of the deportation order

while his application to the Minister is pending is contrary to the rules of natural justice; an

unreasonable, irregular and improper exercise of the discretion and/or power vested in the

Minister; and amounts to a deprivation of his legitimate expectation that the order would not be

executed before the Minister considers and decides the application.

3. The facts are not in dispute. The Applicant entered Trinidad illegally in October

2004. On the 27th

May 2008 he married, Deann Stephen, a national of Trinidad and Tobago. On

the 16th

June 2008 he attended the Immigration Office with the intention of regularizing his

status in the country. Thereafter several orders of supervision were made against him during

which time he was given the opportunity to purchase a ticket to return to Nigeria. He was unable

to do so and on the 15th

October 2008 a special inquiry was conducted.

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4. At the Special Inquiry he was represented by an Attorney at Law. The hearing

took the form of questions being posed by the Special Inquiry Officer and answers given by the

Applicant to those questions. By this means the Applicant disclosed the facts surrounding his

arrival into the jurisdiction and that he was married to a citizen who supported him financially.

At the close of the inquiry he was asked whether he wished to say anything. His response was:

“I am very sorry, my wife is sick, I did overstay, because of my wife if you can pity me I would

be grateful.” At that stage the Special Inquiry Officer found him to be a prohibited immigrant

and ordered his deportation. He was then served with a deportation order.

5. On the same day he appealed the decision to issue the deportation order by filling

out the prescribed form in this regard. By letter dated the 23rd

October 2008 from his Attorney

the Minister was provided with grounds of appeal and an affidavit by the Applicant’s wife in

support. The grounds of appeal included the fact of his marriage, alleged that his wife had been

pregnant twice since the marriage and had suffered miscarriages because of the stress imposed

by the conduct of a certain Immigration Officer. By the grounds of appeal the Minister was

requested to exercise his discretion and either (a) order that the Applicant be placed on an order

of supervision, be allowed to apply for permanent residence and remain in the country with his

wife or (b) that he be issued with a re-entry visa and be allowed to travel out of the country

voluntarily, re-enter and make his application for permanent residence on the basis that his wife

is a citizen of Trinidad and Tobago.

6. By her affidavit the Applicant’s wife sought to confirm the evidence given by the

Applicant at the hearing; advised that she and her husband had attended the Immigration Office

in June 2008 for the purpose of obtaining a re-entry visa so that his position could be regularized;

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vouched to the fact that the Applicant had no criminal record and that he was who he said he was

and related what had transpired with respect to the Applicant since their attendance at the

Immigration Office in June 2008. At the conclusion of the affidavit she states that she loves her

husband and requests that the Minister exercise his discretion to allow the Applicant to stay in

the country. The letter exhibiting the grounds of appeal, the grounds of appeal and the affidavit

in support are collectively referred to as “the 2008 documents”.

7. By a letter dated the 6th

March 2009 from another Attorney acting on the

Applicant’s behalf the Minister was asked to exercise his discretion under the Immigration Act

Chap.18:01 (“the Act”) to either issue an order of supervision with conditions and release the

Applicant on a bond or allow him to leave the country voluntarily and be allowed to re-enter

legally to apply for his residency. There was no reply to this or the reminder letter sent to the

Minister on the 27th

May 2009.

8. By a notice dated the 25th

June 2009 the Applicant’s appeal was dismissed by the

Minister. The notice, in the form prescribed by the Act, states in part:

“Whereas, I, the duly appointed Minister have considered the proceedings of

the Inquiry, the evidence and testimony presented therein, together with all

material and representation submitted to me.

Whereas I have examined all the circumstances of this Appeal:

Now therefore, I do dismiss the appeal.”

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9. On the 28th

September 2009 the Applicant was advised by an officer from the

Immigration Department that the deportation order was due to be executed on him within the

next two weeks and that he would be sent back to Nigeria.

10. By letter dated the 5th

October 2009 an application was made by the Applicant to

the Minister for him to exercise his powers under regulation 28 of the Immigration Regulations

(“the Regulations”) and quash or stay the execution of the deportation order issued on the 15th

October 2008. The application was made on the basis of the existence of compassionate or

humanitarian considerations. In addition to the facts revealed at the Special Inquiry the letter

stated that:

(i) in June 2008 the Applicant had attended the immigration department to inform

the authorities of his presence in Trinidad and to regularize his status;

(ii) he was placed on several orders of supervision and given the opportunity to

purchase a ticket for return to Nigeria; but he was unable to afford the ticket;

(iii) he and his wife run a thriving craft store in Tobago which caters to mainly

tourists;

(iv) since his detention in August 2008 the business has suffered considerably as his

wife is unable to manage it on her own;

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(v) his wife has become depressed and despondent and has suffered a miscarriage as

a result of the stress surrounding his detention and deportation;

(vi) his wife has no ties to her family and he is her closest friend and family member;

(vii) his wife has three children who do not live with her. Two of the children have a

close relationship with the Applicant and according to the Applicant’s wife is like

a father to them.

11. The following day under the cover of a letter from his Attorneys an affidavit from

the Applicant’s wife substantiating the facts contained in the letter of the 5th

October and making

a personal appeal in this regard was sent to the Minister. The letter of the 5th

October 2009 and

the affidavit of the 6th

October 2009 are together referred to as “the 2009 documents”. There has

been no response by the Minister. Thereafter on the 14th

day after the advice to the Applicant that

the order would be executed on him the Applicant sought the aid of the Court. No evidence was

given by the Minister in these proceedings. Evidence was however given on the Minister’s

behalf by the Manager of Legal Services in the Ministry of National Security (“the Manager”).

According to the evidence of the Manager she was responsible for perusing the minutes of the

Special Inquiry and the grounds of appeal from decisions to deport prohibited immigrants and

advising the Minister on the appeals.

12. She says that in late October early November 2008 she received the Applicant’s

file containing among other things:

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(i) The minutes of the special inquiry;

(ii) The deportation order;

(iii) The Claimant’s notice of appeal against the deportation order;

(iv) A letter from the Claimant’s attorney at law dated the 23rd

October 2008;

(v) An affidavit of the Applicant’s wife together with exhibits; and

(vi) A letter written by the Applicant.

These documents were exhibited to the affidavit.

13. The letter and affidavit referred to at (iv) and (v) are in fact the 2008 documents.

With respect to the letter written by the Applicant, the letter is a one page handwritten document

which is undated and incomplete. In that document the Applicant details the circumstances of

his entry into Trinidad and Tobago, his meeting and subsequently marriage to his wife and

begins to relate what occurred at the Special Inquiry. According to the Manager in June 2009

she sent the file along with her advice to the Minister. The advice referred to was neither

exhibited nor its contents revealed in the affidavit.

14. The evidence adduced on behalf of the Minister does not deny that the Applicant

was informed of the intention to execute the deportation order at the expiration of two weeks

from the 28th

September 2009. From this it is to be presumed that a decision was taken to

execute the deportation order. It is clear from the evidence that the 2009 documents were never

placed before the Minister. What were placed before the Minister were the evidence taken at the

special inquiry, the documents in relation to the appeal, the 2008 documents and the Manager’s

advice on the appeal.

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The issues for my determination

15. The short point in this case is whether, given the provisions of regulation 28 of the

Regulations and on the particular facts, the Minister was required to specifically consider the

2009 documents.

16. The Applicant contends that he is entitled to be heard on his application to the

Minister’s discretion contained in regulation 28 as presented in the 2009 documents. In this

regard the Applicant relies on that part of regulation 28 which provides for the Minister to stay or

quash a deportation order ‘on the basis of the existence of compassionate or humanitarian

considerations that in his opinion warrant the granting of special relief’. The Applicant submits

that this regulation entitles him to be heard on whether such considerations exist.

17. On behalf of the Minister it is submitted that regulation 28 does not require that a

special application be made to the Minister for the exercise of his discretion. It is contended that

the absence in the legislation of a specific procedure for approaching the Minister in this regard

suggests that what the regulation contemplates is that the Minister consider the facts revealed on

the appeal to determine whether sufficient circumstances are raised to warrant the granting of

special relief;

18. In any event, it is submitted, all, save one, of the relevant facts were already

before the Minister by way of the 2008 documents. With respect to the new fact, that he and his

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wife runs a business together, this is in direct conflict with the evidence given by the Applicant at

the inquiry and as a result not only does it affect the Applicant’s credibility but it is not open to

the Applicant at this stage to challenge the facts upon which the deportation order was based.

Although not specifically stated the conclusion to be drawn from the Minister’s submissions is

that in the circumstances it can be presumed that by directing the execution of the deportation

order the Minister has done all that he was required to do under the regulation and that in doing

so has determined that no sufficient compassionate or humanitarian considerations exist to

warrant the granting of special relief.

19. The real questions for my determination are:

(i) is the Minister required to consider an application made by a prohibited

immigrant after the dismissal of his appeal for the exercise of the discretion given

the Minister under regulation 28;

(ii) if so, is the prohibited immigrant entitled to raise facts other than those raised at

the special inquiry in support of that application and

(iii) in the particular circumstances of this case where facts additional to those

revealed in the inquiry have already been placed before the Minister can it be said

that the failure of the Minister to consider the 2009 documents is contrary to

natural justice?

20. Before dealing with the questions to be answered it may be appropriate here to

deal with a position contained in the second submission of the Minister. This position must be

considered in the light of the powers of this court on an application for judicial review. Because

judicial review is concerned with the decision making process and not the decision, it would

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seem to me that the fact that in his 2009 version of the facts the Applicant contradicts a statement

made by him earlier is not a matter for me. How the Minister deals with the facts presented to

him is for the Minister’s account alone. My concern is to ensure the integrity of the process. In

other words if the process requires that the Applicant’s appeal to the discretion of the Minister be

considered by the Minister then I must be satisfied that the Minister has done what the process

requires, that is, consider the facts placed before him.

21. It is not disputed that at the end of the day it is the opinion of the Minister on the

facts placed before him that is relevant. The Minister and the Minister alone can determine

whether in his opinion there exists compassionate or humanitarian considerations that in his view

warrant special relief. In this regard therefore it is not for me to determine whether these

considerations exist or whether, if they exist, they are sufficient to trigger the granting of special

relief by the Minister. I am only required to determine whether the Applicant has had the

opportunity to place facts which in his opinion are relevant to the exercise of the Minister’s

discretion before the Minister. The purpose of judicial review is not to take away the powers and

discretions properly vested in authorities by law and to substitute the court as the decision

making body but rather to ensure that the authority uses its powers in an appropriate manner:

Chief Constable v Evans [1982] 1 WLR 1155.

22. In any event, with respect to the second submission, it is not factually correct to

say that all the facts sought to be placed before the Minister by the October 2009 application

were already before the Minister. A comparison of the facts revealed in the 2008 documents and

the 2009 documents reveal that the facts referred to at sub-paragraphs (iii), (iv),(vi) and (vii) of

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paragraph 10 above were not disclosed in the 2008 documents. Further while some reference

was made to the miscarriages of the Applicant’s wife nothing was said in the 2008 documents

about her being depressed as a result of the detention.

Is the Minister required to consider an application made by a prohibited immigrant for

the exercise of his discretion pursuant to regulation 28? And if so is the prohibited

immigrant entitled to raise facts other than those raised by him at the special Inquiry?

The scheme contemplated by the Act

23. The Act contemplates the holding of a special inquiry by an Immigration Officer

designated a Special Inquiry Officer. The manner in which the hearing is to be conducted is

provided for by sections 24 and 25 of the Act. At the hearing the Special Inquiry Officer may

(i) admit into or allow the person the subject of the inquiry to remain in Trinidad and Tobago:

section 25(2); (ii) if the person admits the factual allegations and is willing to leave Trinidad

voluntarily and at no expense to the Government and the Special Inquiry Officer is satisfied that

the case is genuine , issue the prescribed form for his voluntary departure: section 24(5) or (iii)

make an order for deportation . Indeed the Act provides that upon making an adverse decision

the Special Inquiry Officer is mandated to make a deportation order: section 25(4).

24. By the Act the person the subject of the deportation order (“the prohibited

immigrant”) has 24 hours to serve a notice of appeal in the prescribed form: section 27(1).

While the prescribed form makes no provision for supplying grounds of appeal it does allow the

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prohibited immigrant to indicate whether he or she wishes to make representations in the matter.

The Act provides that a deportation order be executed as soon as practicable however an appeal

under the Act operates as a stay of the deportation order.

25. All appeals from deportation orders are to be reviewed and decided upon by the

Minister whose decision, save with respect to persons claiming to be citizens or residents, “shall

be final and conclusive and shall not be questioned in any Court”: section 27(3). The powers of

the Minister on appeal are described in section 27(4) of the Act. By section 27(4) the Minister

may-

“(a) consider all matters pertaining to a case under appeal;

(b) allow or dismiss any appeal; or

(c) quash a decision of a Special Inquiry Officer that has the effect of bringing a person

into a prohibited class and substitute the opinion of the Minister for such a

decision.”

26. Regulations 25 to 31 deal with the procedure to be followed on special inquiries and

appeals. On receipt of the written Notice of Appeal the prohibited immigrant shall be detained

or, in accordance with section 17 of the Act, may at his request and upon providing the necessary

security be issued with an order of supervision by the Chief Immigration Officer and released

from detention pending the hearing of his appeal: regulation 26 (3).

27. By regulation 26(3) the Special Inquiry Officer shall place before the Minister a

statement of the grounds upon which he has found the appellant ineligible to enter or remain in

Trinidad and Tobago and the Minister shall render his decision accordingly.

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28. Regulation 28 states:

“(1) Where the Minister dismisses an appeal against a deportation order

pursuant to any provision of the Act, he shall direct the order be executed

as soon as practicable, except that-

(a) in the case of a person who has lost the status of a resident

before the making of the deportation order, having regard to all the

circumstances of the case; or

(b) in the case of any other person who not resident at the time of the

making of the order of deportation, having regard to-

(i) the existence of reasonable grounds for believing that if the

order is carried out the person concerned will be punished for

activities of a political character or will suffer unusual hardship;

or

(ii) the existence of compassionate or humanitarian considerations that

in the opinion of the Minister warrant the granting of special relief,

the Minister may direct the execution of the deportation order be stayed, or

may quash the order and direct the entry of the person against whom the order

was made.”

29. Regulations 30 and 31 specifically deal with the notice and hearing of the appeal.

In particular regulation 30(5)(a) provides that on appeal to the Minister and within seven days

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of the service of the notice of appeal the appellant may submit written representations to the

Minister. Further by regulation 30(5)(b) the Minister may require that any representations made

be verified by affidavit. By regulation 31 if an appeal is dismissed the appellant shall remain in

or surrender into the custody of the immigration office who shall take steps for his removal or for

such temporary or conditional residence as may be permitted under the Act.

30. Insofar as regulation 28 is concerned it identifies three situations which may

result in the deportation order being quashed or its execution stayed. The first is the case of a

person who has lost the status of resident, in such a case the Minister is to have regard to all the

circumstances of the case in order to arrive at a decision. The second and third situations arise

where the prohibited immigrant was not a resident at the time of the making of the order. Here

the existence of either (a) reasonable grounds for believing that should the execution of the order

be carried out the prohibited immigrant would suffer either punishment for activities of a

political character or unusual hardship; or (b) compassionate or humanitarian considerations

which in the Minister’s opinion warrant the granting of special relief, trigger the exercise of the

Minister’s discretion.

31. It cannot be seriously argued, and indeed it has not been argued in this case, that

given regulation 28 a prohibited immigrant is not entitled to place before the Minister facts or

circumstances which mitigate the effect of the adverse finding by the Special Inquiry Officer.

Since by regulation 28 such considerations are relevant to the Minister’s decision to execute the

deportation order, fairness requires that prior to making the decision to execute the deportation

order the prohibited immigrant be given the opportunity to place such facts before the Minister

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and the Minister consider such facts. This it seems to me, is in accordance with natural justice

and the right to be heard.

32. The question that arises is whether the prohibited immigrant is entitled to make a

specific application in this regard or whether the discretion only arises if on the facts placed

before the Minister by way of the appeal he is of the opinion that such circumstances arise? In

considering this question it must be born in mind that the regulation contemplates three

completely different situations. In particular with respect to a person who has lost the status of a

resident the Minister is to have regard to all the circumstances of the case.

33. From an examination of the Act and the regulations it is clear that neither the Act

nor the regulations prescribe a specific application aimed at triggering the exercise of the

Minister’s discretion in this regard. There is no statutory provision nor is there any prescribed

form for either the method of application to the Minister or for conveying the Minister’s decision

in this regard.

34. That said, neither the Act nor the regulations specifically prevent such an

application. If, for example, regulation 28 stated that, in considering the appeal the Minister

may, if he determines that these particular considerations exist, direct that the execution of the

deportation order be stayed or quashed, or words to that effect then it would be clear that the

legislation not only did not contemplate a specific application in this regard but did not

contemplate the presentation of facts additional to those raised at the hearing of the Special

Inquiry or on appeal.

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35. The use of the words ‘where the Minister dismisses an appeal’ suggests that the

considerations referred to in the regulation are only relevant after the appeal is dismissed. It is at

that point in time that the Minister is to direct his mind to these particular considerations. In

other words the matters set out in regulation 28 are factors relevant to the effect of the

deportation order and are relevant after the dismissal of the appeal and before the execution of

the deportation order. It would seem to me that the procedure established by the legislation

suggests two different types of appeals or petitions to the Minister, one by way of notice of

appeal with respect to the adverse decision given by the Special Inquiry Officer, appeal in the

strict legal sense, and the other with respect to those considerations set out in regulation 28. With

regard to the appeal in the strict legal sense the regulations 25, 26 and 30 specify the procedure

to be followed on such appeal. Section 27 and regulation 26 (5) specify the powers of the

Minister on the hearing of the appeal.

36. It would seem to me that by regulation 28 the Minister has a duty in every case

before the execution of a deportation order to consider whether any of the three circumstances as

identified in the regulation exists. In this regard therefore while it may not be necessary for a

specific application to be made under regulation 28 what is of concern is the manner by which

the facts relevant to such a consideration come before the Minister.

37. With respect to the facts to be placed before the Minister on appeal, save where

written representations are made to the Minister pursuant regulation 30, all facts are collected by

the Special Inquiry Officer. At the Special Inquiry however the officer conducting the inquiry is

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only mandated to determine whether the person the subject of the inquiry is a prohibited

immigrant under the Act. The credibility or trustworthiness of the evidence apart, the only

discretion open to that officer at the hearing is under section 24(5). This discretion arises only

where there is an admission of the factual allegations by the prohibited immigrant. Other than

that upon giving an adverse decision the special inquiry officer is mandated by the Act to make

an order for deportation. At the stage of the Special Inquiry therefore regulation 28

considerations are irrelevant. Of relevance at this stage are facts which go to determine whether

or not the person is a prohibited immigrant.

38. It must be noted that the procedure established under the legislation for the

conduct of the hearings do not require the Special Inquiry Officer to advise the person the subject

of the inquiry of the relevance of any of the circumstances identified by regulation 28 . Neither

was this done in this particular case. In this particular case, however, it is to be noted that at the

end of the question and answer session the Special Inquiry Officer invited the Applicant to

volunteer information. In my opinion, in the absence of anything inviting the presentation of

facts relevant to regulation 28, whether by way of the legislation or indication from the Special

Inquiry Officer, this cannot be taken to represent an opportunity given to a prohibited immigrant

to present facts relevant to regulation 28. This is in my view so even in circumstances of the

immigrant being represented by an Attorney. It would seem to me that in the absence of any

reference to any of the regulation 28 considerations what the Applicant was invited to raise at the

Special Inquiry were any facts relevant to the issue at hand, namely the question of whether the

Applicant was a prohibited immigrant under the Act.

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39. It may very well be that in the scheme envisaged by the legislation the

opportunity given to the prohibited immigrant by regulation 30 to make written representations

includes the opportunity to make representations with respect to the regulation 28 considerations.

This to my mind would make sense. If this were the case then the Minister when considering the

merits of the appeal would have before him facts and representations relevant to both the merits

of the appeal as well as in mitigation of the effect of the deportation order. Unfortunately this is

not what the Regulations say. Given the wording of the regulation 30 it is clear that the written

representations referred to are with respect to the appeal and its disposal. In my opinion this

conclusion is confirmed by the prescribed forms: forms 9A and 32 neither of which make any

reference to regulation 28 or the considerations contained therein.

40. In any event in accordance with the scheme established by the legislation at this

stage the powers of the Minister are to allow the appeal; dismiss the appeal or “quash the

decision of the Special Inquiry Officer that has the effect of bringing a person into a prohibited

class and substitute the opinion of the Minister for such decision: section 27(4). It would seem

therefore that representations as to the considerations contemplated by regulation 28 are not by

the legislation made relevant to the appeal.

41. In the absence of any indication that upon the consideration of the appeal the

Minister will take regulation 28 into consideration it would seem to me that a prohibited

immigrant has not properly been given the opportunity of presenting facts relevant to regulation

28. It would seem to me therefore that fairness requires that a prohibited immigrant be given the

opportunity to put before the Minister and the Minister consider facts relevant to the exercise of

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the Minister’s discretion under regulation 28.(1). In my opinion the Regulations as presently

drafted do not provide for any facts, other than those raised at the inquiry or by way of written

representations on the appeal, to be adduced. Since regulation 28 considerations are irrelevant to

the issues to be determined at the Special Inquiry or on appeal in my opinion no opportunity has

been given the prohibited immigrant to have facts relevant to the Minister’s consideration placed

before him.

42. In my view therefore a prohibited immigrant is entitled to place facts before the

Minister relevant to the exercise of his discretion under regulation 28 at any time before the

execution of a deportation order. Further these facts are not limited to the facts placed before the

Minister on appeal either by way of the minutes of the special inquiry or written representations

on the appeal. While the Act does not require a special application in this regard common sense

dictates that there must be some vehicle for presenting these facts where not revealed on appeal.

It would seem to me therefore that where additional facts are placed before the Minister by way

of an application made prior to the execution of the deportation order the Minister is required to

consider such application.

Has the Applicant, in these particular circumstances, already exercised this right?

43. On behalf of the Minister it is submitted that the Applicant has already placed

before the Minister facts relevant to the exercise of the Minister’s discretion. In other words it is

submitted that the Applicant cannot now seek to have two bites of the cherry.

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44. It is not in dispute that there were adduced in the 2008 documents some of the

facts sought to be placed before the Minister in the 2009 application. Neither is it in dispute that

2008 documents were in the file sent to the Minister. This, however, is not a situation where the

Minister, either by way of evidence before this Court or reply to the letters written by the

Applicant’s Attorneys, stated that he has considered the facts placed before him by the Applicant

and is of the opinion that no sufficient compassionate or humanitarian considerations exist.

45. Nor is it a case that as a result of the advice given the Minister an assumption can

be made that the Minister in considering the facts placed before him by way of appeal is of the

opinion that no such grounds exist. Here the Minister has not condescended to indicate what

facts were taken into consideration by him in dismissing the appeal or determining that the

deportation order be executed. Nor has the advice been presented. Nor indeed has he indicated

his position on the facts now presented. Given the wording of regulation 28 one would have

thought that, even at this late stage, a response in this regard by the Minister would have been

forthcoming. There is no doubt that such a response would have disposed of this application.

46. All that we have is the disposal of appeal form signed by the Minister which

states that he has considered all the material and representation submitted to him and dismissed

the appeal. With respect to this issue it must be borne in mind that, the evidence taken on the

inquiry apart, the facts which were placed before the Minister were in respect to an appeal, by

way of a document described as grounds of appeal. The ground of appeal sought two forms of

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relief: the issue of an order of supervision and that the Applicant be allowed to leave the country

voluntarily. The additional facts adduced were in support of the relief sought.

47. With respect to the order of supervision while section 17 of the Act provides that

a person taken into custody or detained may be granted conditional release or an order of

supervision in the prescribed form, both the prescribed form and regulation 26 provide for such

order be made pending the hearing of the prohibited immigrant’s appeal. With respect to the

second relief sought in my opinion such an order could only have been made if there was some

evidence that the Applicant admitted the facts and was willing to leave voluntarily at no expense

to the Government, in accordance with section 24(5) of the Act. There was no such evidence

either by way of the minutes of the special inquiry or in the written representations made on the

appeal.

48. In any event the powers of the Minister pursuant to an appeal are by section 27 of

the Act limited to allowing or dismissing the appeal or quashing the decision of the Special

Inquiry Officer that has the effect of bringing a person into a prohibited class and substituting the

opinion of the Minister for such decision. By the written representations made on the appeal

therefore the Minister was in fact being asked on appeal to do what he had no power to do.

49. In my view therefore there was clearly no merit in the appeal. It is reasonable to

assume that the advice tendered by the Manager was to that effect. The Minister therefore would

have been justified in his decision to dismiss the appeal outright without recourse to the facts

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presented in support. It would seem to me that in the circumstances of the facts being presented

in support of relief which was clearly not available on appeal and which the Minister had no

power to give and which in themselves were irrelevant to the appeal there can be no presumption

that the Minister took these additional facts as presented into consideration. In my view this is

so even in the light of the contents of the prescribed form signed by the Minister. It seems to me

that the duty of candour placed on the Minister in this regard require nothing less than a full

frontal response to the issue. In any event as we have seen the 2009 documents sought to place

before the Minister additional facts relevant to the exercise of his discretion.

50. In these circumstances I am of the opinion that there is no evidence before me that

the Minister considered the facts additional to those revealed by the minutes of the Special

Inquiry raised by the Applicant in the 2008 documents. It is not in dispute that there was no

consideration of the 2009 documents.

51. In all the circumstances of the case therefore I am of the opinion that the

Applicant is entitled to have the Minister consider his petition to the Minister’s discretion under

regulation 28 as made by his letter of the 5th

October 2009 and the affidavit of his wife of the 6th

October 2009 and that the failure of the Minister to do so amounts to a breach of the principles of

natural justice. In my view the decision to proceed to execute the deportation order without

considering the facts contained in the letter and affidavit in support sent to the Minister amounts

to an improper exercise of the discretion vested in the Minister by regulation 28 of the

Immigration Regulations. The Applicant is therefore entitled to declarations in this regard and

an order quashing the decision to execute the deportation order without a consideration of the

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facts contained in the Applicant’s letter of the 5th

of October 2009 and the affidavit of Deann

Stephen dated the 6th

October 2009.

Dated this 26th

, day of April 2010.

…………………………….

Judith Jones

Judge