Leighton Griffiths v Minister of Home Affairs

• Jurisdiction: Bermuda
• Judgment Date: 07 June 2016
• Neutral Citation: [2016] SC Bda 62 Civ
• Date: 07 June 2016
• Docket Number: CIVIL JURISDICTION 2016: No. 14
• Court: Supreme Court (Bermuda)

[2016] SC (Bda) 62 Civ

In The Supreme Court of Bermuda

CIVIL JURISDICTION 2016: No. 14

(1) Leighton Griffiths

(2) Rodericka Griffiths

Applicants

and

(1) Minister of Home Affairs

(2) The Acting Governor of Bermuda

(3) The Commissioner of Prisons

Respondents

Mr Eugene Johnston, J2 Chambers, for the Applicants

Ms. Shakira Dill-Francois, Deputy Solicitor-General, for the Respondents

Judicial review-provisions of the Bermuda Immigration and Protection Act 1956 permitting the deportation of foreign male spouses- discrimination on the grounds of sex- whether provisions of Immigration law are inoperative for contravening the Human Rights Act 1981

(without a final hearing)

Introduction

1 The 1 ^st Applicant is a Jamaican national married to the Bermudian 2 ^nd Applicant. He was (when the present proceedings were commenced) completing service of a sentence of imprisonment for a serious drug-related offence and is the subject of a Deportation Order dated January 11, 2016. He was given an opportunity to make representations as to why he should not be deported in September 2015.

2 On January 12, 2016, the Applicants applied for leave to seek judicial review to challenge the legality of the Deportation Order, which is based on the premise that the 1 ^st Respondent has lawfully revoked the 1 ^st Applicant's special husband's rights under section 27 of the Bermuda Immigration and Protection Act 1956 (‘the 1956 Act’). The Applicants wished to argue that the provisions of section 27A of the 1956 Act purportedly authorising the deportation of special status husbands are inoperative (by virtue of the supremacy provisions in section 30B of the Human Rights Act 1981(‘the HRA’)) because they discriminate on gender grounds against male foreign spouses of Bermudians. A logical extension of this complaint was that the relevant provisions discriminated against the 2 ^nd Applicant as a Bermudian woman married to a foreign husband as well.

3 Foreign wives of Bermudians are not subject to the loss of their right to reside in Bermuda on comparable terms under section 27 of the 1956 Act. Most notably, wives do not loss their right to reside with their Bermudian husbands if they are convicted of a ‘ relevant offence’. Nor is their entitlement to do so conditional upon them being persons of ‘ good character’.

4 On January 13, 2016 I granted leave to seek judicial review without a hearing as on the face of the application the main grounds appeared to be strongly arguable. The application for leave was supported by a short skeleton argument and a bundle of authorities. The main case relied upon was my own decision in Bermuda Bred Company-v-Minister of Home Affairs [2015] SC (Bda) 82 Civ (27 November 2015); [2015] Bda LR 106. In that case I held that these same provisions of the 1956 Act engaged by the present application (a) afforded different immigration treatment to foreign heterosexual spouses of Bermudians and foreign same sex partners of Bermudians, and that (b) this differential treatment constituted discrimination in the provision of goods and services contrary to section 5 of the HRA.

5 I further held, following the landmark judgment of Hellman J in Re A & B-v-Director of Child and Family Services [2015] SC (Bda) 11 Civ (3 February 2015); [2015] Bda LR which decided for the first time that adoption services fell within the ambit of section 5 of the HRA, that, to the extent of the inconsistency, the relevant provisions of the 1956 Act were inoperative. Prior to the arguments advanced by counsel for the applicants in Re A & B in early 2015, this Court had never before been invited to exercise its jurisdiction under section 29 of the HRA (enacted in 1981) to declare statutory provisions which were inconsistent with the HRA to be inoperative by virtue of the primacy of the HRA under section 30B (enacted in 1992).

6 At the directions hearing in Chambers on January 15, 2016 (the ‘Directions Order’), I indicated my strong provisional view that the application was likely to be granted unless I could be persuaded to depart from the approach I adopted in the Bermuda Bred Company case. The provisions held to be inoperative for inconsistency with the HRA in that case were, broadly speaking, the same 1956 Act provisions which are under attack here. There the grounds of discrimination were primarily sexual orientation and secondarily marital status. The same Minister in Bermuda Bred Company had elected not to appeal my decision in that case. The present application appeared at first blush to be, to the colloquial term, a ‘slam-dunk’ one for the Applicants subject, of course, to any higher level appellate review. Because of the findings I reach on the main challenge to the deportation order, I see no need to consider the subsidiary complaint that the process leading to the Deportation Order being made was flawed. This complaint in any event lacked any obvious merit.

7 Accordingly, I gave directions for the filing of evidence and written submissions with liberty to apply for an oral hearing. The Respondents filed their evidence in answer on January 29, 2016 in compliance with the Directions Order. The Applicants filed neither evidence in reply nor a skeleton in accordance with the directed timetable or at all. On February 26, 2016, the Respondents filed their skeleton argument in accordance with the directions order. Neither party, however, requested the Court to proceed to deliver judgment and the file fell dormant. These filings did not come to my attention until on or about May 4, 2016 when I directed (of the Court's own motion) that the Applicants should have a further 14 days to file any written submissions. I also requested the parties to indicate whether they wished an oral hearing. The Respondents indicated they would reserve their position on an oral hearing until they had seen the Applicants' submissions.

8 The Applicants did not respond until May 26, 2016 when they indicated they proposed to file a fresh application which they wished to consolidate with the judicial review proceedings and would file those proceedings ‘ before end of day tomorrow’. They proposed that the issue of an oral hearing could be canvassed at the directions hearing of their new application which it was promised would be filed on May 27, 2016. No such application was filed. On May 27, 2016 the Respondents requested the Court to proceed without an oral hearing based on the material now before the Court in light of the Applicants' default. The Applicants have neither filed the threatened new proceedings nor responded to the Respondents' May 27, 2016 letter.

9 On June 1, 2016, I advised the parties that I intended to proceed to deliver judgment without an oral hearing. The short point is whether or not the statutory provisions upon which the deportation order are based are inoperative because they discriminate against the 1 ^st Applicant on the grounds of his sex contrary to the Human Rights Act 1981.

Primacy of 1956 Act

11. Section 8 of the 1956 Act provides as follows:

‘ Conflict with other laws

8. (1)Except as otherwise expressly provided, wherever the provisions of this Act or of any statutory instrument in force thereunder are in conflict with any provision of any other Act or statutory instrument, the provisions of this Act or, as the case may be, of such statutory instrument in force thereunder, shall prevail.

(2)Subject to subsection (1) nothing in this Act shall absolve any person from any liability that he may incur by virtue of any other Act or at common law.’

The relevant provisions of the 1956 Act

Primacy of 1956 Act

Husbands of Bermudian wives

10 Section 27A (‘ Special provisions relating to landing etc. of husbands of Bermudians’) of the 1956 Act provides as follows:

‘(1) Notwithstanding anything in section 25 1 and without prejudice to anything in section 60 2, but subject to subsection (4), the husband of a wife who possesses Bermudian status (a ‘special status husband’) shall be allowed to land and to remain or reside in Bermuda as if he were deemed to possess Bermudian status, if the conditions specified in subsection (2) are fulfilled in relation to him.

(2)The conditions to be fulfilled in relation to a special status husband are as follows—

• (a) his wife must be ordinarily resident, or be domiciled, in Bermuda;

• (b) he must not contravene any provision of Part V;

• (c) he must not have a relevant conviction recorded against him;

• (d) the Minister must be satisfied that the special status husband is a person of good character and previous good conduct;

• (e) the Minister must be satisfied that the special status husband and his wife are not estranged.

(3) In relation to a special status husband ‘relevant conviction’ in subsection (2) (c) means a conviction, whether in Bermuda or elsewhere, of an offence which, in the Minister's opinion, shows moral turpitude on the special status husband's part.

(4) If a condition specified in subsection (2) is not fulfilled in relation to a special status husband, his landing or remaining or residing in Bermuda shall be deemed to be, or, as the case may require, to become, unlawful except with the specific permission of the Minister.’

11 Controversial conditions for the enjoyment of ‘special status husband’ rights include the following:

• (1) (primarily) the requirement not to have a ‘ relevant conviction recorded against him’ ( section 27A (2)(c)); and

• (2) the requirement to be a ‘ person of good character and previous good conduct’ ( section 27A (2)(d)).

Wives of Bermudian husbands

12 Section 27 (‘ Special provisions relating to landing, etc., of alien wives, etc., of persons who possess Bermudian status’) provides as follows:

‘ 27. Notwithstanding anything in section 25, and without prejudice to anything in section 60 (which section imposes restrictions on the engagement of such...