The Chief Immigration Officer v Burnett

• Jurisdiction: British Virgin Islands
• Court: Court of Appeal (British Virgin Islands)
• Judge: Floissac C.J.,Liverpool, J.A.,Satrohan Singh, J.A.
• Judgment Date: 08 May 1995
• Neutral Citation: VG 1995 CA 3
• Docket Number: Civil Appeal No. 7 of 1994
• Date: 08 May 1995

Court of Appeal

Floissac, C.J., Liverpool, J.A., Singh, J.A.

Civil Appeal No. 7 of 1994

The Chief Immigration Officer

and

Burnett

Mr. F.H.V. Belle (Senior Crown Counsel) for the appellant

Mr. K.A.H. Foster Q.C. and Mrs P. Findlay for the respondent

Judicial Review - Ultra vires — Audi alteram partem rule — Right to be heard — The Chief Immigration Officer refused to grant permission to the respondent to enter and remain in the territory — Immigration and Passport Ordinance (Cap. 180) of the Law of the Virgin Islands, Revised Edition (1991) s. 23 — Respondent was a British subject and his children of his former marriage lived in Tortola — The high court gave him judicial access to his children — The Deputy Governor of the territory gave him permission to include his wife when visiting — Respondent legitimately expected the privelege or courtesy of permission to enter and remain in the territory — The Minister of Immigration and the Chief Immigration Officer failed to give the respondent an opportunity to be heard — Breach of the “audi-alteram partem” rule of natural justice — Procedural irregularity — Refusal nullified — Appeal dismissed.

Floissac C.J.

1 The respondent is an Englishman and a British Subject. He was formerly married to but is now divorced from Rose Ermin Burnett (born Penn) who belongs to and resides in the island of Tortola in the British Dependent Territory of the Virgin Islands (the Territory). The respondent's access to the three minor children of that marriage is regulated by an Order of the High Court of the Territory. The Order (which is dated 10 ^th October 1991 and was entered on 25 ^th November 1991) is in the following terms:–

“IT IS HEREBY ORDERED) that the Order made on July 26 1990 by the Honourable Miss Justice Sylvia Bertrand with respect to the defendant/applicant's access to the said children be and is varied as follows:

• 1. That the defendant/applicant be allowed access to the said children twice per week Such meetings to take place at the home of the children's mother at a time agreed between the parties in the presence only of the plaintiff's/respondent's mother Una Penn and should not exceed one hour.

• 2. That on one Saturday per month the said children be permitted to visit their father on his boat from 12:30 noon to 6:00 p.m. of the said day.

• 3. Under no circumstances is the father to take or attempt to take the children outside of the jurisdiction without the authority of the court.

• 4. No order as to costs.”

2 The respondent is now married to Denise Peters. There are two minor children of that marriage. The respondent, his wife, their two children and the wife's minor daughter all reside on the respondent's boat called “Born Free of Higham” which piles between the islands of Grenada and Bermuda.

3 On 10 ^th November 1993, the Deputy Governor of the Territory dispatched a letter by facsimile to the respondent through the British High Commissioner in St. Georges, Grenada. The letter reads:

“With reference to our recent telephone conversation I confirm that the Acting Chief Immigration Officer, Mr. Dennis Jennings, is aware of your planned visit and of the Minister of Immigration's position that your wife, Mrs Denise Peters Burnett, should be allowed to enter the Territory when accompanying you on your visits.”

4 On 6 ^th the December 1993 and evidently on the faith of the Deputy Governor's letter, the respondent and his wife and children visited the island of Tortola. There, the Chief Immigration Officer (Marion Romney) refused to grant permission to the respondent and his family to remain in the island except for the limited purposes of allowing the respondent's wife to visit her doctor and of allowing the respondent to purchase victuals and medical supplies for his boat.

5 In paragraph 6 of an Affidavit sworn on 9 ^th December 1993, the respondent stated:

“That on the 6 ^th day of December 1993, I arrived on my boat with my wife Denise and our said children, viz — Tania, Trina, and Trudy, at Fort Burt Anchorage for the purpose of visiting my children Floyd, Angela and Karl; and that upon attempting to land, I was told by the Chief Immigration Officer, Marion Romney that despite a letter from the Deputy Governor, Mr. Elton Georges, granting me permission to land, I would be prohibited from landing unless restricted to see a doctor, buy victuals for the boat, and that I, would have to leave the Territory forthwith.”

6 The Chief Immigration Officer's refusal to grant permission to the respondent and his family to remain on the island of Tortola is explained in the following relevant paragraphs of an Affidavit which she swore on 14 ^th January 1994:

• “2. As Chief Immigration Officer of the Territory I am responsible for the general management of the 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.

• 3. On the 6 ^th day of December 1993 the applicant arrived in Tortola on his boat with members of his family. On arrival he sought permission from me to enter the territory upon which I informed him that I would not be giving him permission to enter as requested. 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 Chief Minister's Office, 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’.”

7 I herewith attach a copy of the said memorandum hereto as Exhibit MR1.

I also state that I was acting in accordance with Section 20(2) of the Immigration and Passport Act, Cap 130 of the Laws of the Virgin Islands when I laid down conditions under which the applicants Roger Burnett and Denise Peters-Burnett would be permitted to land and that I was acting pursuant to section 23(1)(n) of the Immigration and Passport Act when I conveyed to the applicant Roger Burnett the decision that he would not be permitted to land in the Territory. 10. I further state that on the 7th December, 1993 I received a second memorandum from the Permanent Secretary, Chief Minister's Office, which advised that the Executive Council of the Territory had met and ratified the decision of the Minister directing that neither Mr. Roger Burnett nor his wife be allowed to enter the territory and which stated inter alia:

4 ‘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 the Executive Council's unanimous decision…'

And a copy of the said memorandum is attached hereto and exhibited as Exhibit MR2.

11

At all material times I acted in accordance with the instructions of the Minister of Immigration in this matter, which instructions were given in accordance with the Act and I never made any order arbitrarily or for improper reasons.”

8 On 18 ^th December 1993, the respondents (acting with the leave of the High Court of the Territory) filed a Notice of Motion for an order of certiorari quashing the Chief Immigration Officer's decision refusing to grant permission to the respondents to enter and remain in the Territory. The Motion was heard by Georges, J. By judgment delivered on 18 ^th May 1994, the learned judge declared that the Chief Immigration Officer's decision was “ultra vires, null and void and of no effect” and granted an order of certiorari quashing the decision.

9 The arguments advanced in this appeal against the learned judge's judgment revolved around the provisions of the Immigration and Passport Ordinance (Cap 130 of the Laws of the Virgin Islands, Revised Edition 1991). The central provision was section 23(1)(n) which is in these terms:

“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 –

• (n) 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;”

10 This court heard various submissions as to the respective functions, powers and authority of the Executive Council, the Chief Minister, the Minister of Immigration, the Deputy Governor and the Chief Immigration Officer in relation to Immigration and as to the disabilities of visitors and immigrants to the Territory. Having regard to the grounds on which the respondent impugns the refusal of permission for him to enter and remain in the Territory, it is not necessary for the purposes of this appeal to adjudicate on any of these submissions. The grounds do not relate to the existence of the executive powers but to the manner of their exercise. The grounds involve principles of natural justice and other principles which transcend the questions of executive power and nationality.

11 There is no doubt that the High Court has an inherent jurisdiction (either by way of judicial review or otherwise) to supervise and judicially control certain decisions and actions of public authorities constituted by law to make those decisions or to take those actions. Subject to the formalities prescribed by Rules of Court, the jurisdiction is exercisable whenever a public authority (purporting to exercise a constitutional, statutory or prerogative power) has made or taken or intends to make or take a justiciable judicial, quasi-judicial or administrative decision or action...