R v The Chief Immigration Officer ex parte Roger Burnett

• Jurisdiction: British Virgin Islands
• Judge: Georges, J.
• Judgment Date: 18 May 1994
• Neutral Citation: VG 1994 HC 3
• Docket Number: No. 238 of 1993
• Court: High Court (British Virgin Islands)
• Date: 18 May 1994

High Court

Georges, J.

No. 238 of 1993

R

and

The Chief Immigration Officer Ex Parte Roger Burnett

Appearances:

Mr. Kenneth A. H. Foster for applicant

Mr. Francis H. V. Belle, Senior Crown counsel for respondent.

Judicial review - Denial of entry — The applicant had obtained a High Court order granting him visiting rights of access to the children of his former marriage — Deputy Governor of the British Virgin Island gave the applicant permission to allow his wife to accompany him on these visits — Permission to land was refused by the Chief Immigration Officer — Section 23(1) Immigration and Passport Ordinance Cap. 130 — The power or discretion to grant leave to enter the territory vests in the immigration officer and not in the Minister — Applicant has no right of appeal against the order denying him permission to land — The applicant has recourse to the supervisory powers of the Court acting in its inherent jurisdiction by way of judicial review to look into the manner of the exercise of the discretion — Failure to state reasons for a decision in such circumstances might give rise to an inference that the decision had been taken otherwise than in good faith or arbitrarily — No legitimate expectation arose in these circumstances — The discretion vested in the immigration officer is not absolute and unfettered.

Georges, J.

1 On Monday the 6 ^th day of December, 1993, the applicant, Roger Burnett an Englishman and a British subject, arrived at Fort Burt Anchorage in Tortola on his boat “Born Free of Higham” with his wife Denise nee Peters and their daughters Tania and Trina aged 15 months and 4 months respectively. Accompanying them was his wife's daughter Trudy aged 8 who had been living with the couple and their children on the boat.

2 The ostensible purpose of the applicant's visit to the British Virgin Islands as stated by him at paragraph 5 of his affidavit sworn on the 9 ^th December, 1993 was to visit his three children aged 9, 7 and 5 by a former marriage and who live with their mother at Hodge's Creek.

3 Permission to land was refused by the Chief Immigration Officer who at paragraph 3 of her affidavit sworn on the 14 ^th January, 1994 deponed that:

4 “In so advising the applicant, I was following the instructions of the Minister of Immigration and Chief Minister communicated to me by a memorandum dated 6 ^th December, 1993 signed by the Permanent Secretary in the Chief Minister's Officer, Mrs. Lorna Smith and which stated inter alia:–

“On the instructions of the Chief Minister, the Minister of Immigration, I am hereby directing that neither Mr. Roger Burnett nor his wife be allowed to enter the territory under any circumstances until further notice.”

5 A copy of the memorandum which was exhibited to the deponent's affidavit concluded thus:

“It is my understanding that they may have in fact already done so, albeit illegally, in which case, I am requesting that your surveillance officer(s) be dispatched to find Mr. Burnett and insure (sic) that he leaves the territory immediately.

Lorna Smith

Permanent Secretary”

6 On the following day, viz 7 ^th December, 1993 the Chief Immigration Officer received yet another memorandum from and signed by the said Permanent Secretary stating:

“Roger Burnett

Further to my memo of yesterday regarding the above captioned, I am aware that Executive Council met today and firmly endorsed this decision. Mr. Burnett as you indicated is still in the territory although he is not on his boat, he must therefore be dispatched immediately in view of Executive Council's unanimous decision. I would be grateful if you would take this matter in hand without delay.

Lorna Smith

Permanent Secretary”

7 It would appear from paragraph 5 of the Chief Immigration Officer's affidavit (which was referred to earlier), that the applicant and his family had been granted restricted admission to the Territory by her on 7 ^th December, 1993 pursuant to section 20(2)(b) of the Immigration and Passport Ordinance (Cap 130) (hereinafter referred to as “the Act”). The said paragraph 5 of the Chief Immigration Officer's affidavit reads in part that:

“At about 9 p.m on 6th December, 1993 the applicant Roger Burnett telephoned me and stated that his wife needed medical attention and had made an appointment with a doctor for 7:30 a.m on 7 ^th December 1993. He had also mentioned that he needed supplies. I therefore granted the applicant permission to remain in the Territory to meet the medical appointment and to obtain supplies on condition that they should leave the Territory no later than 9 a.m on 7 ^th December, 1993.”

8 On 10 ^th December, 1993 the applicant applied for and was granted leave pursuant to Order 44, rule 1 of the Rules of the Supreme Court (RSC) to apply for an order of certiorari to bring up into the High Court and to quash the decision of the Chief Immigration Officer of 6 ^th December, 1993 refusing his family and himself permission to land and remain in the Territory.

9 The gravamen of the applicant's complaint as set out in his affidavit dated 9 ^th December, 1993 is that on or about the 10 ^th October, 1991 he had obtained a High Court order in the Territory granting him visiting rights of access to the children of his former marriage and that on the 10 ^th November, 1993 he had been advised by facsimile letter from the Deputy Governor of the British Virgin Islands stating that the Acting Chief Immigration Officer, Mr. Dennis Jennings was aware of his planned visit and of the Minister for Immigration's position that his wife, Mrs. Denise Peters Burnett, would be allowed to enter tyhe Territory when accompanying him on his visits.

10 Refusal of permission by the Chief Immigration Officer for the applicant and his family to enter the Territory on 6 ^th December, 1993 was therefore in the circumstances arbitrary, inherently cruel and unjust and rendered the High Court order and the Deputy Governor's letter nugatory, the applicant averred; alleging further that no reasons had been given by the Chief Immigration Officer for the prohibition.

11 The grounds upon which the applicant seeks relief of the court are as follows:

1

That the Chief Immigration misconceived her powers (under the Ordinance) by her failure to give the applicants proper time to enter the Territory as visitors (more particularly as the applicant Roger Burnett had expressed his desire to see his children Floyd, Angela and Karl pursuant to a High Court Order dated 10th October 1941). The High Court prevails, there being no Deportation Order by the Governor. 2. That in any event, the applicants were granted leave to enter the Territory by the Deputy Governor as per letter to the applicants dated 10th November 1993. 3. The Chief Immigration Officer gave no reasons for her actions and neither did she deem the applicants to be prohibited immigrants - per sec. 23 (of the Act). 4. The applicant (an Englishman and British Subject) and his family are not undesirables or convicted persons.

RESPONDENT'S AFFIDAVIT

12 At paragraph 2 of her affidavit, filed on the 17 ^th January 1994, the Chief Immigration Officer stated that:

“As Chief Immigration Officer of the Territory I am the general management of the responsible for Immigration Department and I am bound to carry out the policy of and instructions of the minister responsible for Immigration, the Honourable Chief Minister, given in accordance with the Immigration and Passport Act Cap 130 of the Laws of the Virgin Islands Revised Edition 1991.”

13 And at paragraph 3 she declared (as stated earlier) that when she refused the applicant permission to enter the Territory she was following the instructions of the Minister as communicated to her by a memorandum dated 6 ^th December, 1993 signed by his Permanent Secretary.

14 At paragraphs 4 and 5 of the said affidavit the Chief Immigration Officer related the circumstances under which she had accorded the applicant and his family restricted entry into the Territory on the 7 ^th December adding that when she had conveyed to him the decision that he would not be permitted to land in the Territory on 6 ^th December 1993 she was acting pursuant to section 23(1)(n) of the Act.

15 Section 23(1)(n) of the Act states that

“Subject to the other provisions of this Ordinance, an immigration officer may grant leave to any person to land and remain in the Territory for such period as he may determine in accordance with subsection (2), upon being satisfied that that person is not a person whose presence in the Territory would in the opinion of the Chief Immigration Officer and on the direction of the minister be undesirable and not conducive to the public good.”

16 Paragraphs 6, 7 and 8 of the Chief Immigration Office's affidavit read as follows:–

• “6. To the best of my knowledge information and belief there is no law which entitled the applicant to be given permission to land to see his children as outlined in the first ground of his application herein neither did the applicant give this reason for wanting to land at the time he sought permission from me to enter the Territory.

• 7. To the best of my knowledge information and belief the Chief Immigration Officer has the power to prohibit any person from entering the Territory pursuant to Sections 20, 23 and 24 of the Immigration and Passport Act and to the best of my knowledge information and belief no such power is vested in the Deputy Governor.

• 8. To the best of my knowledge information and belief there is no legal requirement that I should give reasons for an order refusing permission to enter the Territory but only that I should communicate such a decision to deny entry to the person involved if I had cause to deny him entry, under the Immigration and Passport Act Cap. 130.”

17 At paragraph 9, the deponent denies that the order prohibiting entry to the applicant was arbitrary or without merit or...