Court name
Supreme Court of Turks and Caicos Islands
Case number
CL 91 of 2021

The Queen (on Application of) Kajeepan, Paintamilkavalan and Ors v. Minister of Border Control and Labour and Ors (CL 91 of 2021) [2022] TCASC 26 (23 August 2022);

Media neutral citation
[2022] TCASC 26
Case summary:

The Plaintiffs are Sri Lankan nationals who arrived in the Turk and Caicos Islands in October, 2019. They have applied for asylum in the Turks and Caicos Islands, and have issued various proceedings, including judicial review proceedings in relation to the notices. The Plaintiffs speak the Tamil language and neither speak nor understand English.  For the purposes of their asylum application and the various proceedings, they therefore need the assistance of an interpreter. The issue in this case is who should pay the costs of those services. The Plaintiffs initiated these proceedings alleging an infringement of their Constitutional rights. At the start of the hearing the Defendants raised a preliminary issue. They submitted that the court should strike out the action pursuant to Order 18 rule 19 or the court’s inherent jurisdiction, on the ground that the Plaintiffs had adequate alternative means of redress and should not have resorted to a claim for constitutional relief.

Headnote and holding:

The Originating summons was struck out pursuant to both O 18 r 19 and the court’s inherent jurisdiction. The Court made no orders as to costs. Sections 21 (1) and (2) of the Constitution of the Turks and Caicos Islands provide that if any person alleges that their fundamental rights are being infringed, they may apply to the Supreme Court for redress, which shall have original jurisdiction to determine the application. However, section 21 (3) of the Constitution provides “the Supreme Court shall not exercise its powers under this subsection if it is satisfied that adequate means of redress are or have been available to the person concerned under any other law” (“the proviso”) [6]. The courts have held in numerous cases that it is an abuse of the court’s process to seek constitutional relief when there is an adequate, parallel remedy [7]. Harrikissoon v the Attorney General of Trinidad and Tobago [1980] AC 265, Jaroo v the Attorney General of Trinidad and Tobago [2002] 1 AC 271 and Attorney General of Trinidad and Tobago v Ramanoop [2006] 1 AC 328; Brandt v Commissioner of Police and others (Montserrat) [2021] UKPC 12, considered.

In this case, the Plaintiffs complained about an administrative decision by a public officer – the 2nd Defendant’s decision to refuse to fund the cost of interpretation services. The Plaintiffs could have sought to challenge that decision by way of judicial review proceedings. There was nothing to suggest that that alternative process would not have been adequate. The Court concluded that the proviso applied, there were or would have been available adequate means of redress in the form of judicial review.

IN THE SUPREME COURT

TURKS AND CAICOS ISLANDS

CL 91/20

 

IN THE MATTER OF THE TURKS AND CAICOS ISLANDS CONSTITUTION ORDER 2011

IN THE MATTER OF THE IMMIGRATION ORDINANCE

BETWEEN:

The Queen on Application of

  1. KAJEEPAN, PAINTAMILKAVALAN, (2) RASARATNAM, VARATHARAJ (3) SIVAPALAN, JESEEPAN SWAPALAN, (4) ARIYAPUTHIRAN, RAVIKKUMAR, (5) THAMBYRASA, SRIKANTH, (6) VINOJAN, THEIVENDRAM), (7) KUGAGNANAM, NESARUPAN (8) PASKARAN, VITHURSAN (9) KENGATHARAN, KOKULAN, (10) PREMATHASAN, PRASATH, (11) VARATHARAJAH, SENKEERAN, (12) GOUTHAMAN, SIVALOGANATHAN, (13) KARUNAKARAN, MAHENDIRAN, (14) NATHUSAN, SUREJAN, (15) LOGITHAN, KARUNKARAN AND (16) RUPILAN, KUGENTHIRSAN

Plaintiffs

-v-

  1. MINISTER OF BORDER CONTROL AND LABOUR (HER MAJESTY’S GOVERNMENT OF THE TURKS AND CAICOS ISLANDS), HONOURABLE ARLINGTON MUSGROVE

2.      DEREK BEEN, DIRECTOR OF IMMIGRATION

3. THE ATTORNEY GENERAL OF THE TURKS AND CAICOS ISLANDS

4. HIS EXCELLENCY, THE GOVERNOR OF THE TURKS AND CAICOS ISLANDS,

NIGEL DAKIN CMG

Defendants

 

__________________________________

JUDGMENT

__________________________________

 

Before:                                   The Hon. Mr. Justice B. St. Michael Hylton QC (Ag)

 

Appearances:                        Mr. Tim Prudhoe and Mr. Yuri Saunders for the Plaintiffs

Ms. Clemar Hippolyte for the Respondents

 

Hearing Dates:                      27 July 2022

Venue:                                    Court No. 5, Graceway Plaza, Providenciales

Date Delivered:                      23 August 2022

 

  1. On July 27, 2022 I gave an oral decision in which I struck out this action. I promised to provide written reasons, and I now do so.

 

  1. The Plaintiffs are Sri Lankan nationals who arrived in the Turk and Caicos Islands in October, 2019. They were detained on arrival, and in April 2020, the 2nd Defendant issued notices to the Plaintiffs, indicating his intention to make deportation orders in relation to them. They have applied for asylum in the Turks and Caicos Islands, and have issued various proceedings, including judicial review proceedings in relation to the notices.

 

  1. The Plaintiffs speak the Tamil language and neither speak nor understand English.  For the purposes of their asylum application and the various proceedings, they therefore need the assistance of an interpreter. The issue in this case is who should pay the costs of those services. In response to a request by the Plaintiffs’ attorneys, the 2nd Defendant wrote:

"The short answer is no. There is no obligation on the part of the Department of Immigration to cover costs incurred by detainees to facilitate the giving of instructions to their legal attorney or the consultation with their attorney(s) in the course of their appeal processes.”

 

  1. The Plaintiffs then initiated these proceedings by an originating summons, which was subsequently amended, in which they claim the following relief:

 

  1. A declaration that the First and/or Second Defendant's ongoing refusal on behalf of the Turks and Caicos Islands Government to provide or at least fund translation services (Tamil to English and vice versa) with respect to the making of representations by or on behalf of the Plaintiffs in relation to their respective asylum applications, or, to reimburse to the Plaintiffs' Attorney the reasonable costs thereof, is an unlawful infringement of their right to the protection of the law under the Constitution;
  2. A declaration that the First and/Second Defendants' ongoing refusal on behalf of the Turks and Caicos Islands Government to provide translation services in respect of the Plaintiffs instructions and their Attorneys' advice to them in relation to their respective asylum applications, or at least to reimburse to the Plaintiffs' Attorney the reasonable costs thereof is an unlawful infringement of their right to the protection of the law under the Constitution; and

c. That the First and/or Second Defendants do make/reimburse to the Plaintiffs the costs of translation as incurred in respect of "a" and "b" above.

 

  1. At the start of the hearing the Defendants raised a preliminary issue. They submitted that the court should strike out the action pursuant to Order 18 rule 19 or the court’s inherent jurisdiction, on the ground that the Plaintiffs had adequate alternative means of redress and should not have resorted to a claim for constitutional relief.

 

  1. Sections 21 (1) and (2) of the Constitution of the Turks and Caicos Islands provide that if any person alleges that their fundamental rights are being infringed, they may apply to the Supreme Court for redress, which shall have original jurisdiction to determine the application. However, section 21 (3) of the Constitution provides “the Supreme Court shall not exercise its powers under this subsection if it is satisfied that adequate means of redress are or have been available to the person concerned under any other law” (“the proviso”).

 

  1. The courts have held in numerous cases that it is an abuse of the court’s process to seek constitutional relief when there is an adequate, parallel remedy. The Privy Council’s decisions in Harrikissoon v the Attorney General of Trinidad and Tobago [1980] AC 265, Jaroo v the Attorney General of Trinidad and Tobago [2002] 1 AC 271 and Attorney General of Trinidad and Tobago v Ramanoop [2006] 1 AC 328 are often cited. 

 

  1. More recently in Brandt v Commissioner of Police and others (Montserrat) [2021] UKPC 12, Lord Stephens said:

 

“[35] First, to seek constitutional relief where there is a parallel legal remedy will be an abuse of the court's process in the absence of some feature 'which, at least arguably, indicates that the means of legal redress otherwise available would not be adequate'…

…This approach prevents unacceptable interruptions in the normal court process, avoids encouraging technical points which have the tendency to divert attention from the real or central issues, and prevents the waste and dissipation of public funds in the pursuit of issues which may well turn out to be of little or no practical relevance in a case when properly viewed at the end of the process.” 

 

  1. In this case, the Plaintiffs are complaining about an administrative decision by a public officer – the 2nd Defendant’s decision to refuse to fund the cost of interpretation services. The Plaintiffs could have sought to challenge that decision by way of judicial review proceedings. There is nothing to suggest that that alternative process would not have been adequate.

 

  1. Having considered the submissions and authorities and having looked at the material, I concluded that the proviso applies, that there are or have been available adequate means of redress in the form of judicial review and in the circumstances, I struck out the Originating summons both pursuant to O 18 r 19 and the court’s inherent jurisdiction.

 

  1. The Respondents indicated that they were not seeking costs.

 

Disposition:

 

  1. The Originating summons was struck out pursuant to both O 18 r 19 and the court’s inherent jurisdiction. I made no orders as to costs.

 

 

B. St. Michael Hylton QC

Acting Judge of the Supreme Court

23 August 2022