Council of AME Churches and Tweed v Minister of Home Affairs

• Jurisdiction: Bermuda
• Judgment Date: 05 June 2017
• Date: 05 June 2017
• Docket Number: Civil Jurisdiction 2017 No 14
• Court: Supreme Court (Bermuda)

[2017] Bda LR 66

In The Supreme Court of Bermuda

Civil Jurisdiction 2017 No 14

Between:

Council of AME Churches

Reverend Nicholas Genevieve-Tweed

Applicants

and

Minister of Home Affairs

Respondent

Mr D Duncan for the Applicants

Ms L Sadler-Best for the Respondent

The following cases were referred to in the judgment:

Griffiths and Griffiths v Minister of Home Affairs [2016] Bda LR 66

R v Monopolies and Mergers Commission, ex parte Argyll Group plc [1986] 2 All ER 257

Lloyd v McMahon [1987] UKHL 5

R (MP) v Secretary of State for Justice [2012] EWHC 214

Re Haynes [2008] Bda LR 75

Application for judicial review — Legality of refusal of work permit and advertising waiver — Function of Minister and Board of Immigration under the Act — Bias — Procedural impropriety — Right to be heard

JUDGMENT of Kawaley CJ

Introductory

1. The Applicants' Skeleton Argument colourfully framed the central issue in the present case as follows. Mr Duncan submitted:

“No modern administrative court would have let Henry II determine any rights of Thomas a Beckett after he asked who would rid him of that turbulent priest. So, too, should openly expressed bias, bias expressed even in the House of Assembly disqualify the Minister of Home Affairs … having anything to do with determining the rights of Rev Genevieve-Tweed …”

2. The full range of the issues raised by the present proceedings may best be viewed through the relief sought in the January 17, 2017 Notice of Application for Leave to Apply for Judicial Review, which prayed for the following substantive relief:

• i. An order of certiorari, quashing the decision refusing to allow the AME Church a work permit to employ the Rev Tweed.

• ii. An order of certiorari, quashing the direction that the Rev Tweed settle his affairs and leave Bermuda by 19 January 2017.

• iii. A declaration that Rev Tweed belongs to Bermuda within Chapter 1, Section 11 of the Bermuda Constitution.

• iv. A declaration that section 27A of the 1956 Act is inoperative to the extent that it imposes conditions upon Rev Tweed, as a husband, which are not imposed on his female counterparts is inconsistent with the Human Rights Act 1981 (“THE HRA”) and, accordingly, a declaration that Rev Tweed complies with S.27 of the 1956 Act [and] is entitled to remain in Bermuda.”

• v. An order of mandamus, that the Immigration Board consider de novo the AME Church's work permit application for the Rev Tweed.”

3. The two declarations sought were dealt with in the following way:

• (a) the application for a declaration that Rev Tweed belonged to Bermuda was not pursued;

• (b) at the end of the hearing a declaration (pursuant to sections 29 and 30B of the Human Rights Act 1981) was granted to the effect that section 27A of the Bermuda Immigration and Protection Act 1956 (“the Act”) is inoperative to the extent that it imposes conditions on Rev Tweed as a foreign male spouse of a Bermudian which are not imposed on foreign female spouse of a Bermudian under section 27. This point was conceded as the Respondent sensibly did not attempt to persuade the Court to depart from its decision to grant a substantially similar declaration in Griffiths and Griffiths v Minister of Home Affairs and OthersBDLR[2016] Bda LR 66, a decision which the Minister had not appealed.1

4. As it is not yet certain whether or not the 2^nd Applicant will demonstrate that he qualifies for spouse's employment rights under section 27 of the Act, and those rights are residential rights only in any event, it is still necessary to decide the other aspects of the present application. The central complaint is that the refusal of the work permit application and the subsequent request that the 2nd Applicant leave Bermuda were tainted by actual or apparent bias and/or procedural unfairness.

Umbrella legal principles

5. The purpose of judicial review proceedings is not for the Court to substitute its view on the merits of an administrative decision but to ensure that statutory powers are exercised in a legally valid manner in the interests of promoting good administration. In R v Monopolies and Mergers Commission, ex p Argyll Group PlcUNK[1986] 2 All ER 257 at 266, Sir John Donaldson MR in a frequently quoted judgment articulated the first of two umbrella principles which this Court must always keep in mind:

“We are sitting as a public law court concerned to review an administrative decision, albeit one which has to be reached by the application of judicial or quasi-judicial principles. We have to approach our duties with a proper awareness of the needs of public administration…

Good public administration requires a proper consideration of the legitimate interests of individual citizens, however rich and powerful they may be and whether they are natural or juridical persons. But in judging the relevance of an interest, however legitimate, regard has to be had to the purpose of the administrative process concerned….”

6. The second umbrella principle upon which the merits of the application turn are best reflected in a judicial statement upon which Mrs Sadler-Best for the Minister relied. Lord Bridge famously observed in Lloyd v McMahon[1987] UKHL 5 (at page 10); [1987] AC 625:

“My Lords, the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when anybody, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which itoperates. In particular, it is well-established that when a statute has conferred on anybody the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness.”

The statutory context

The Minister and the Board

7. Since the Minister and the Board of Immigration were both involved to some extent in the decision-making process, the starting point is to understand what their statutory functions are. The relevant provisions are the following:

• • Section 2(1): “‘Minister’ means the Minister responsible for immigration, or such other Minister to whom responsibilities under this Act have been assigned;”

• • Section 12: constitutes a Board of Immigration which is appointed by the Governor, who is required to appoint a Chairman and Deputy Chairman. The Minister can, in his/her discretion, preside over Board meetings;

• • Section 13: this section defines the functional relationship between the Minister and the Board:

  “Minister may consult with or delegate functions to Board of Immigration

  13. In the exercise of his powers and duties in relation to immigration affairs and related matters, the Minister may—

  • (a) consult with, or take the advice of, the Board from time to time as he shall think fit but notwithstanding that the Minister has consulted, or taken the advice of, the Board on any matter he may act in his discretion on such matter; and

  • (b) delegate to the Board such functions or class of functions within his responsibilities as he may by notice in the Gazette specify,

  and, in exercising any such functions delegated under paragraph (b) the Board shall act in accordance with any general or special directions issued by the Minister and shall for all purposes be deemed to be the Minister, but, notwithstanding the foregoing, the Minister shall remain responsible for the manner in which the Board exercises any such function.” [Emphasis added]

8. It appears that the Minister has not delegated any or any relevant powers to the Board under section 13(b) of the Act and that the involvement of the Board in relation to the present matter was advisory only under section 13(a).

Permission to work

9. Applications for permission to work are primarily governed by section 61 of the Act:

“Grant etc. of permission to engage in gainful occupation

61. (1) This section shall have effect in connection with the application of any person to the Minister for the grant to that person of any permission under section 60.

(1A) Any such application shall be made on behalf of the applicant by his prospective employer who shall be responsible for ensuring that the application is complete and accurate in accordance with Guidelines issued by the Minister for the purposes of this section.

(2) Any such application shall, if so required by the Minister, be made on the prescribed forms.

(3) Without prejudice to anything in section 33 (which section relates to various powers of the Minister with respect to safeguards regarding permission to land or remain or reside in Bermuda) the Minister shall have the like powers with respect to applicants for the grant of permission to engage in gainful occupation; and section 130 (which section relates to the manner of dealing with deposits of sums of money made with the Chief Immigration Officer) shall apply and have effect accordingly.

(4) The Minister, in considering any application for the grant, extension or variation of permission to engage in gainful occupation, shall, subject to any general directions which the Cabinet may from time to time give in respect of the consideration of such applications, take particularly into account—

• (a) the character of the applicant and, where relevant, of his or her spouse;

• (b) the existing and likely economic situation of Bermuda;

• (c) the availability of the services of persons already resident in Bermuda and local companies;

• (d) the desirability of giving preference to the spouses of persons possessing Bermudian status;

• (e) the protection of local interests; and

• (f) generally, the requirements of the community as a whole,

and...