IN THE COURT OF APPEAL
TURKS & CAICOS ISLANDS
CIVIL APPLICATION NO. CL/AP-24/05 and 25/05
(Formerly Supreme Court Action No. CL — 55/05 AND CL — 56/05)
IN THE MATTER OF M. PAUL KEEBLE, ATTORNEY AT LAW
AND IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW OF CERTAIN DECISIONS OF THE IMMIGRATION BOARD AND OF THE MINISTER FOR IMMIGRATION
AND IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW OF A DECISION OF THE GOVERNOR OR EXECUTIVE COUNCIL REFUSING THE APPLICANT’S APPLICATION FOR A PERMANENT RESIDENCY CERTIFICATE
AND IN THE MATTER OF THE CONSTITUTION OF THE TURKS AND CAICOS ISLANDS AND IN PARTICULAR SECTIONS 67, 72(8) AND 81 THEREOF.
BETWEEN:
THE QUEEN
- v -
AND
1. THE IMMIGRATION BOARD OF THE TURKS AND CAICOS ISLANDS
2. THE MINISTER FOR IMMIGRATION
RESPONDENTS
AND
1. THE GOVERNOR OF THE TURKS AND CAICOS ISLANDS
2. THE EXECUTIVE COUNCIL OF THE TURKS AND CAICOS ISLANDS
RESPONDENTS
EX PARTE
M. PAUL KEEBLE
APPLICANT
BEFORE:
The Rt. Hon. Edward Zacca - President
The Hon. Elliott Mottley - Justice of Appeal
The Hon. Richard Ground — Justice of Appeal
Date of Hearing: 13th February 2006
Date of Judgment: 16th February 2006
Mr. Michael Ashe QC for the appellant; and
The Attorney General & Mr. Patrick Patterson for the respondent.
JUDGEMENT
INTRODUCTION
1. This application comes before us on the Applicant's renewed application to this Court, pursuant to Rule 22(3) of the Court of Appeal Rules, for leave to apply for judicial review under Order 53, r. 3 of the Civil Rules 2000, such leave having been refused by the learned Chief Justice on 23rd November 2005. Although such an application is ex parte, in this case it was made on notice to the respondents. As this is not an appeal from the decision of the Chief Justice, we are not concerned with his reasons for refusing leave, and have not addressed them in this judgment.
2. There are two distinct applications before the Court, each originally dated 29th August 2005.
(i) CL/AP-24/05 (previously CL - 55/05)
That in CL/AP-24/05 concerns four separate decisions relating to the Applicant's work permit, being:
(i) A decision of the Immigration Board of 22nd March 2004 denying the Applicant's application for a work permit as a self-employed attorney:
(ii) A decision of the Minister of Immigration (‘the Minister’) of 13th April 2004, on appeal from (i) under s. 32 of the Immigration Ordinance (‘the Ordinance'), refusing the Applicant's appeal;
(iii) A further decision of the Immigration Board of 22nd June 2005 denying the Applicant's application for a work permit as a self-employed attorney; and
(iv) A decision of the Minister of 8th August 2005, on appeal from (iii) under s. 32 of the Ordinance, refusing the Applicant's appeal.
(ii) CL/AP-25/05 (previously CL - 56/05)
The application in CL/AP-25/05 concerns a decision of the Governor (there being an argument whether it was properly taken in Council or not) of the 24th August 2005 refusing to grant the Applicant a Permanent Residence Certificate (‘a PRC') with the right to work.
3. Insofar as the applications in CL/AP-25/05 concern decisions taken in 2004 they are plainly out of time, and in respect of them the application for leave therefore necessarily includes an application for an extension of time.
4. Although the grounds on which relief is sought are expressed in various ways it is enough for this judgment to summarise them as being that the respondents:
(a) acted in breach of natural justice by not giving the Applicant an opportunity to be heard, and not giving reasons for their decisions;
(b) took into account improper considerations, including bias and personal animosity to the Applicant;
(c) failed to take into account proper considerations, including the Applicant’s personal history as a litigation lawyer who had worked and resided in the Islands for twelve and a half years;
(d) acted with ‘Wednesbury’ unreasonableness.
THE FACTS
5. In his affidavit in support the Applicant sets out his personal background and circumstances. He is a lawyer, specializing in litigation, who first came to the Turks & Caicos in April 1993 as an employed lawyer with a local law firm where, he says, he established a successful litigation practice. In October 1996 he left that firm to establish his own practice, and this precipitated a falling out with its principal. He then had some difficulties obtaining a work permit as a sole practitioner, but was eventually able to set up in practice in January 1997, and has since, he says, enjoyed considerable success. He received annual renewals of his work permit until 2004, when he was informed that his renewal application had been refused. He says that he was very concerned as to the reason for the refusal, and he deposes that he then approached a client, whom he believed to be well connected with the political party in power, who offered to make enquiries on his behalf.
6. The Applicant deposes that this intermediary initially reported back that the problem was that both the Minister of Immigration and a senior immigration official were biased against him because of things that he had done against them in the course of his practice as a. lawyer. The intermediary at first said that this problem could be resolved, but later he told the Applicant that his application was also being blocked by certain lawyers who had grudges against him, and that those lawyers had made substantial financial contributions to the party in power in order, inter alia, to ensure that his work permit was denied. In order to remove this hindrance he was told that he would have to make a matching contribution, to enable the objectors to be repaid, and he was led to believe that, until that was done, his application would not succeed. As a result, the Applicant says that from March 2004 until the time of his applications for Judicial Review in August 2005, he paid between $300,000 to $400,000 to the party in power via the intermediary. In support of all of this he points to various circumstantial details, such as letters, meetings and telephone calls. All of this is denied by the Lawyers and Government Ministers said to be involved, and they have filed affidavits to that effect. On the other hand the intermediary has, perhaps unsurprisingly, not filed any evidence.
7. On the state of the evidence as it stands, we can come to no conclusion either way in respect of the allegations made against others by the Applicant, nor would it be a proper exercise to attempt to do so on an application for leave. If the evidence filed by the respondents is true, then the Applicant has been duped by the intermediary, and is the victim of a fraud. But again we accept that we cannot come to that conclusion at this initial stage. On the other hand, to the extent that the Applicant makes admissions about his own conduct, intentions and beliefs, we consider that we can properly take any such admissions at face value for the purpose of considering his application for leave.
8. We consider that one aspect of the factual background is important, and needs considering in more detail. It concerns an earlier application for leave, which was filed but not proceeded with at the time of the initial refusal of the annual renewal of his work permit. It came about in this way. At the meeting of the Immigration Board held on 22nd March 2004 the Applicant’s work permit was refused. He says that he learned of this informally on 31st March 2004 (although he says that he did not receive the written notification until a year later), and it is common ground that no reasons were ever given. He therefore appealed to the Minister on 1st April 2004. That appeal was refused, again without reasons, by letter of 13th April 2004, which the Applicant says he did not receive until 12th May 2004. At that point, on 13th May 2004, he filed an application for leave to apply for judicial review, based upon the failure to give reasons or to afford him an opportunity to be heard, and upon the alleged unreasonableness of the refusal in the light of his personal circumstances. However, he did not proceed with that application. The reason that he gives for this is because he had come to believe that his approach to the decision makers via the intermediary was bearing fruit, and in particular by letter from the Minister of 13th May 2004 he received an extension of his right to work until 15th July 2004, and then, by letter from the Minister of 11th August, the Board was directed to grant a further extension until 23rd April 2005. He also deposes that the intermediary told him that, in return for that further extension and for the grant of a PRC before its expiry, a payment of $100,000 was required. He therefore paid the money, and did not serve or move his application for judicial review.
9. Over the following months the Applicant deposes that he continued to make payments to the intermediary, believing that they were going to the governing party to ensure the grant of a PRC. This continued until a chance meeting with the deputy Chief Minister in April 2005 alerted him to the fact that his application was not going forward. Ln the meantime he was also approaching the expiry of his work permit extension, and so was forced to apply for a renewal, which he did on 26th May 2005. That was refused on 22nd June. He then appealed to the Minister, but that was refused in early August 2005. His PRC application was then refused on 24th August 2005. He then issued his application for leave to apply for judicial review on 29th August 2005.
10. As we noted above, at this stage it is impossible, and would be wholly inappropriate to attempt to resolve the evidential conflicts, or come to a concluded view of the facts. What one is left with, however, is the Applicant’s own admission that he knowingly paid substantial sums of money to an intermediary with the intention that it be used to affect the outcome of his various applications. Mr. Ashe argues that that should be seen in the context that, rightly or not, he believed that his applications were being improperly obstructed by his enemies, and that the payment of these sums was the only way of removing that improper obstruction. He invites us to appreciate the desperation of the Applicant’s position, having invested many years of his professional career in this country, and having no prospects elsewhere. He argues that in those circumstances the Applicant should be regarded as acting under duress.
CONCLUSIONS
11. The question on this renewed leave application comes down to whether the Applicant’s admitted conduct is such that, when seen in the most favourable light which can be shed on it by the circumstances for which he contends, it should debar him at the outset from seeking relief.
12. In favour of granting leave is the fact that his original complaints about the process, and in particular about the failure to give reasons or to afford him a meaningful chance to be heard, remain and may have substance. They formed the basis for his abandoned leave application. Had it not been for his subsequent conduct, we would have thought it appropriate to grant leave so that those points could be fully considered. The same would apply to his allegation that the decision makers were biased and took into account improper considerations.
13. The problem is that, when he came to learn about the allegations concerning the improper influence attributed to his enemies, instead of adding that into his existing application, the Applicant chose to take another route, which involved an attempt to manipulate the system in a way which was plainly improper. Whether or not what he did could or should be stigmatized as the attempted payment of a substantial bribe, it is plain that he was willing to pay substantial sums of cash money to achieve an outcome favourable to himself. Having done that and failed, it seems to us that he cannot now come back and invoke the aid of the courts to achieve the same end.
14. It is not easy, and indeed may not be possible, to bring this case within the established or recognised categories of abuse of process. For instance, the Attorney General argues that it is brought for an ulterior or collateral purpose, but we do not think that that can be maintained. The purpose of the process the Applicant wishes to invoke is to set aside the adverse decisions and obtain a reconsideration according to law (with, he no doubt hopes, an ultimately favourable outcome). In that respect, there is no ulterior or collateral purpose, his purpose being that contemplated by the law itself.
15. But the categories of abuse of process are not closed:
“My Lords, this is a case about abuse of the process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right thinking people. The circumstances in which abuse of process can arise are very varied; those which give rise to the instant appeal must surely be unique. It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power.” Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 536, per Lord Diplock.
16. We find those words peculiarly apt to this case. It does not fall within the literal application of the procedural rules for the grant or refusal of leave as set out in the note at 53/14/55 of the Supreme Court Practice (1999 ed.), but to allow the Applicant to proceed in the light of his admitted conduct would manifestly bring the administration of justice into disrepute. We conclude, therefore, that the Applicant’s attempt now to invoke the jurisdiction of the court, having eschewed it when it suited him to do so, is an abuse of process, and on that basis we refuse leave to apply for judicial review.
Dated this 16th day of February 2006
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Edward Zacca P
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Elliott Mottley JA
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Richard Ground J A
