Re Application of Desmond Emanuel Alphonso

• Jurisdiction: British Virgin Islands
• Judge: HARIPRASHAD-CHARLES J
• Judgment Date: 08 February 2011
• Court: High Court (British Virgin Islands)
• Date: 08 February 2011
• Docket Number: Claim No. BVIHCV2010/0105

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE (CIVIL)

Claim No. BVIHCV2010/0105

Between:

In the Matter of Section 40 of the Immigration and Passport Ordinance, Cap. 130 of the Revised Edition 1991 of the Laws of the Virgin Islands

and

In the Matter of Statutory Instrument No. 10 Of 2010 Deportation Order dated 26 ^th day of March, 2010

and

In the Matter of Article 18 of the Constitution of the Virgin Islands, Order 2007

and

In the Matter of an Application by Desmond Emanuel Alphonso for redress pursuant to article 31 of the said Constitution, for the likely Contravention of article 16(9) thereof, in relation to him

Applicant

and

The Attorney General of the Virgin Islands

Respondent

Appearances:

Mr. Stephen Daniels of V.E. Malone & Co. for the Applicant

Ms. Karen Reid, Senior Crown Counsel, Attorney General's Chambers for the Respondent

Immigration — Deportation — Alien convicted of offence punishable with imprisonment for three months or more — Governor issued deportation order — Alien appealed the deportation order — Order made in due form as exercise of executive power of State — Alien filed Origination Motion in High Court challenging that Governor should not hear the appeal — Appeal stayed pending hearing of these proceedings — Whether alien has a right at law to be given reasons for the making of the expulsion order — exercise of executive powers of State — Right to deport or expel alien from State at pleasure — Immigration and Passport Act, cap. 130, sections 40 (1) and 40(3) referred.

Alien's constitutional rights — Fundamental rights — Article 16(9) of Constitution — Right to fair hearing in determining ‘civil rights and obligations’— Non-applicability of article 16(9) to deportation order proceedings — Freedom of movement — Article 18 of Constitution—Principles of natural justice — Whether Governor would be impartial on hearing appeal — audi alteram partem and nemo judex in causa sua rules inapplicable.

The applicant, a Guyanese national, is a well-known businessman in this Territory. He entered the Territory on 10 January 1971 when he was 14 months old. He alleged that he has never returned to Guyana. On 17 July 2008, he pleaded guilty to the offence of Assisting Offenders and was sentenced to 4 years imprisonment. Upon completion of his sentence, the applicant was served with a deportation order issued by His Excellency, the Governor in accordance with section 40(1)(b) of the Immigration and Passport Act, Cap. 130 (‘the Act’).

On 1 April 2010, in accordance with section 40(3) of the Act, the applicant appealed to the Governor against the deportation order. Prior to the hearing of the appeal, the applicant filed this present Originating Motion challenging the constitutionality of the appeal procedure. His main contention is that the hearing of the appeal by the Governor violates his right under article 16(9) of the Virgin Islands Constitution Order, 2007 (‘the Constitution’) to have a hearing before an independent and impartial tribunal established by law. He alleged that the Governor will not be independent or impartial since he is the same person issuing the deportation order and for this reason, there will be the appearance of bias.

The applicant seeks a Declaration that section 40 (3) of the Act is inconsistent with article 16(9) of the Constitution, as guaranteed by article 18 thereof, and is therefore unconstitutional, null and void. He also seeks a Declaration that the laws governing his deportation from the Territory should be done pursuant and consistent with section 40(1) of the Act and article 18 of the Constitution.

During the pendency of this action, the hearing of the appeal before the Governor has been stayed. Also, during this time, a new Governor has been appointed to the Territory.

HELD:

• 1. The applicant cannot challenge the validity of the deportation order on the day of the hearing of the action without giving the other party adequate notice. To do so is contrary to the principles of pleadings: Cedric Liburd v Eugene Hamilton and the Attorney General of St. Christopher & Nevis, Claim No. SKBHCV2010/0020 [unreported]; London Passenger Transport Board v Moscrop [1942] AC 332 and Waghorn v George Wimpey [1970] 1 All ER 474.

• 2. Parliament has expressly empowered the Governor to make deportation orders as he thinks fit. Nowhere in the Act is there any provision to indicate that it was ever intended that an alien should be heard or have the right to make representation before the making of the deportation order or that the Governor should give reasons for his decision: see R v Leman Street Police Station Inspector, and Secretary of State for Home Affairs, ex p. Venicoff [1920] 3 K.B. 72; Rolf Brandt v A.G. of Guyana et al (1971) 17 W.I.R. 448, England and Another v Attorney-General of St. Lucia (1989) 35 W.I.R. 171 and Reg. v Brixton Prison (Governor) ex p. Soblen [1963] 2 Q.B. 243. Be that as it may, the reasons for the applicant's deportation are intrinsic in the deportation order and they are known to him namely that: (i) he is an alien; (ii) he has been convicted of an offence punishable with imprisonment for three months or more and (iii) he is a prospective candidate for deportation.

• 3. Article 16(9) of the Constitution is only engaged in respect of a dispute or contestation about civil rights and obligations. Deportation of aliens does not concern the determination of civil rights or obligations. Therefore, article 16(9) is not applicable to deportation orders: Maaouia v France (Application no. 39652/98 delivered on 5 October 2000.

• 4. A State has the exclusive right of determining the entry, residence and expulsion of aliens within its domain though it recognized that an alien has limited rights in accordance with article 18 of the Constitution.

• 5. Parliament has conferred upon the Governor, as the representative of the British monarch, the powers to exclude undesirable aliens who have criminal convictions from this Territory for the public good. The extent to which an alien is afforded any remedy with respect of the exercise of this power, is limited strictly to what Parliament has decided should be allowed: Rolf Brandt v A. G. of Guyana et al (1971) 17 W.I. R. 448 at page 462.

• 6. The right which an alien has is the right of appeal to the Governor. This right is a creature of statute. The law is that where a statute creates a right and a corresponding remedy, the person seeking to enforce that right can only seek to do so by the remedy provided: Barraclough v Brown (1897) A.C. 615 at page 619 and Pasmore v Oswaldtwistle UDC (1898) AC 387.

• 7. Article 18 of the Constitution means exactly what is says: that an alien has the right to have his deportation order reviewed by a competent authority prescribed by law. That competent authority is no other than the Governor himself. Parliament has conferred such power on him and the Court cannot intervene in the affairs of Parliament.

• 8. The principles of natural justice are inapplicable to these present proceedings. In any event, the applicant has not adduced any cogent evidence to demonstrate that the Governor will be biased when he comes to consider this case. Furthermore, the Governor who issued the deportation order has retired and the Territory has a new Governor.

• 9. The fact that the legislature permits one body to perform both investigative and adjudicatory functions, that in itself, is not sufficient to find that the body is itself biased or that a conflation of powers infringes upon constitutional rights. In any event, disqualification must be founded upon some act of the body going beyond the performance of the duties imposed upon it by the enactment under which proceedings are conducted. In order to disqualify the body, in this case, the Governor, from hearing the appeal, some act going beyond his statutory duties must be found. No such allegations were made in this case.

• 10. There is no cogent evidence to support any finding of bias on the part of the Governor. The court ought not to lightly hold that high office holders, in this case, the representative of Her Majesty, the Queen and the de facto head of state of this Territory, who take oaths to discharge their functions faithfully, are guilty of bias or improper motives especially where they act in good faith in pursuance of the powers accorded to them by law: Hamilton Properties Limited v Minister of the Environment and anor (CA 264 of 1994)—Supreme Court of Bermuda.

• 11. In cases of deportation, a dilemma may occur between the interests of national security on the one hand and the rights of the individual on the other. The balance between the two is not for the court but for the Governor. He is the person entrusted by Parliament with the task of determining the appeal of a deportation order. This is not a matter for the court.

Introduction

HARIPRASHAD-CHARLES J

1 On 10 January 1971, Desmond Alphonso arrived in the British Virgin Islands. 1 At the time, he was a toddler, only 14 months old. He grew up in this Territory. He attended school here and in 1989, he graduated from the BVI High School (now the Elmore Stoutt High School). On 30 March 1984, he was granted a Certificate of Residency. He alleged that he has never been back to Guyana, the country of his birth.

2 Mr. Alphonso is a prominent businessman in the Territory. He owns substantial properties here. On 17 July 2008, he pleaded guilty to the offence of Assisting Offenders. A high court judge sentenced him to 4 years imprisonment. Upon completion of his sentence, Mr. Alphonso was served with a deportation order dated 26 March 2010 (‘the deportation order’) issued by His Excellency, the Governor (‘the Governor’), in accordance with section 40(1)(b) of the Immigration and Passport Act. (‘the Act’) 2

3 On 1 April 2010, Mr. Alphonso lodged an appeal against the...