Court name
Supreme Court of Turks and Caicos Islands
Case number
CL 91 of 2020
CL 127 of 2020

Kajeepan, Paintamilkavan and others v. Honourable Vaden Delroy Williams, Minister of Border Control and Labour (CL 91 of 2020, CL 127 of 2020) [2021] TCASC 11 (14 May 2021);

Law report citations
Media neutral citation
[2021] TCASC 11
Case summary:

These were consolidated actions, but by agreement between counsel, judgment relating only to CL-127/2020. The Plaintiffs, Tamil speaking Sri Lankans, were part of a human cargo of 154 persons intercepted by Immigration authorities whilst in the process of being trafficked into the Islands from Haiti in October 2019 (para 5).
The Plaintiffs applied for asylum and the Respondents requested the United Nations High Commission for Refugees (UNHCR) to produce advisory opinions in relation to each Plaintiff to assist the Respondents in better understanding UNHCR’s determination of recognition of refugee status under the 1951 UN Convention Relating to the Status of Refugees (the Convention) (para. 7).
The Plaintiffs requested disclosure of the advisory opinions so obtained by the Respondents to assist with the preparation of their asylum applications and when the Respondents refused, they sought mandamus to compel such disclosure (para 2).

Headnote and holding:

Writ of mandamus refused. 

Given the way they came into existence and the purpose for which they were produced, the advisory opinions were confidential. Furthermore, having sight of the advisory opinions were not necessary for the preparation of the asylum applications (para.18). 

In ordering the disclosure of confidential information the Court would be guided by the principles enounced in Alfred Crompton Amusement Machines v. Customs and Excise Commissioners (No. 2) [1974] AC 405 and Durham County Council v. Dunn [2012] EWCA Civ. 1654 (para. 19). 

Based on these principles, the public interest in protecting the confidentiality of the advisory opinions outweighed the interests of the Applicants/Plaintiffs in their disclosure. Mandamus was therefore refused, as was the consequential relief sought for payment of the translation costs of the advisory opinions (para. 20). 

Coram
Simons QC, J

 

 

 

 

IN THE SUPREME COURT

 

TURKS AND CAICOS ISLANDS

 

ACTION NO. CL- 91/2020

IN THE MATTER OF THE TURKS AND CAICOS ISLANDS CONSTITUTION ORDER 2011 (“THE CONSTITUTION”) AND

IN THE MATTER OF THE IMMIGRATION ORDINANCE (“THE ORDINANCE”)

BETWEEN:                                     

(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/APPLICANTS

AND

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

2. DEREK BEEN, DIRECTOR OF IMMIGRATION

3. THE ATTORNEY GENERAL OF THE TURKS AND CAICOS ISLANDS

DEFENDANTS/RESPONDENTS

AND:    

                                                                                                           

ACTION NO. CL - 127/2020

BETWEEN:                                          

THE QUEEN (ON THE APPLICATION OF (1) ARIYAPUTHIRAN RAVVIKUMAR, (2) THAMBYRASA SRIKANTH, (3) VINOJAN THIVENDRAM, (4) KUGAGNANAMNESARUPAN, (5) PASKARAN VITHURSAN, (6) KENGATHARAN KOKULAN, (7) PREMATHASAN PRASATH, (8) VARATHARAJAH SENKEERAN, (9) SIVALOGANATHAN GOUTHAMAN, (10) MAHENDIRAN KARUNAKARAN, (11) SUREJAN NATHUSAN, (12) KARUNKARAN LOGITHAN, (13) KUGENTHIRANRUPILAN))

PLAINTIFFS/APPLICANTS

AND

1.HONOURABLE VADEN DELROY WILLIAMS, MINISTER OF BORDER CONTROLAND LABOUR (HER MAJESTY’S GOVERNMENT OF THE TURKS AND CAICOSISLANDS)

2.DEREK BEEN, DIRECTOR OF IMMIGRATION DEFENDANTS/RESPONDENTS

3. THE ATTORNEY GENERAL OF THE TURKS AND CAICOS ISLANDS

DEFENDANTS/RESPONDENTS

_____________________

JUDGMENT

_____________________

Before:                                                 Hon. Mr. Justice Carlos W. Simons, QC

 

Appearances:                                    Mr. Tim Prudhoe with Mr. Yuri Saunders, Prudhoe Caribbean, Attorneys for the Plaintiffs/Applicants

                                                                Ms. Clemar B. Hippolyte, Principal Crown Counsel, Attorney General’s Chambers for the Defendants/Respondents

 

Hearing Dates:                                  Friday, 16 and Friday, 23 April 2021

Venue:                                                 Court No. 5, Graceway Plaza, Providenciales

Date Delivered:                                Friday, 14 May 2021

 

The Actions

1. These two actions were consolidated by consent order dated 14 December, 2020. The order is referred to by Mr. Prudhoe in his skeleton argument as having been “sealed” on 15 December, 2020. In action CL-91/2020, by an amended originating summons the applicants seek payment by the Defendants of translation/interpretation costs relevant to their asylum applications and by a proposed re-amended originating summons, in respect of applicants 1-3, the relief sought is extended to encompass translations in respect of the first respondent’s (the Minister’s) refusal of their asylum applications.

 

2. Action CL-127/2020 is brought by notice of motion seeking to engage the coercive power of the Court via judicial review to compel disclosure by the Minister of advisory opinions prepared by the United Nations High Commission for Refugees (UNHCR). These advisory opinions are said to concern the issue of whether the applicants are refugees for the purposes of the 1951 UN Convention Relating to the Status of Refugees (the Convention).

 

3. If I issue mandamus to the Minister, the applicants ask that I also order that the fees for the advisory opinions to be translated into English be paid by the Respondents. They say that otherwise the writ will be futile because the applicants are Tamil speakers and have no English language skills at all and would be unable to make any use of them.

 

4. This judgment is in respect of action CL-127/2020 only, in which I heard argument over the two days mentioned above. It was agreed by counsel that action CL-91/2020 may be re-listed for hearing after this judgment is handed down.

The Background

5. The thirteen applicants in this action were among a party of twenty-eight Sri Lankans who were intercepted in the territorial waters of the TCI in October 2019. They were part of a human cargo of 154 persons being trafficked into the Islands on a Haitian sloop. They were detained by immigration officials and released in August 2020 following events that do not concern the issues to be decided here. There are 13 applicants in this action and not 16 (as in CL-91/2020) because applicants 1 to 3 in that action have already received the advisory opinions that the 13 applicants in this action now seek.

 

6. The translation costs that I am asked to order against the respondents will apply to all 16, as the three advisory opinions that have already been received are in English and have never been translated into the Tamil language.

 

7. As hinted at in paragraph 2 above, the dispute in the case arises because all 16 applicants have applied for asylum, and they speak no English, only the Tamil language. The advisory opinions the subject of these proceedings were specifically requested of UNHCR by the respondents to help them better understand UNHCR’s determination of whether a person should be recognized as a refugee under the Convention. The three applicants in CL-91/2020 who have already received the advisory opinions in relation to them were interviewed by agents of UNHCR in June and July of 2020 and those advisory opinions were disclosed to their counsel in English, in September 2020.

 

8. Notwithstanding that the remaining thirteen Sri Lankans were interviewed by UNHCR in September and October 2020, their advisory opinions have not been disclosed, and on the papers before me it is clear there is no intention on the part of the respondents to do so. At paragraphs 17, 18 and 19 of the second respondent’s affidavit filed on 20 November, 2020 in CL-91/2020 (paraphrasing) he asserts that the applicants are not entitled to see the advisory opinions and says that the respondents are not prepared to cover the costs of translation relative to the opinions.

 

9. He further says that the documents were “procured at the request of TCIG” and “created solely for the purposes of TCIG to obtain a clear understanding of the reasons for the recommendations.” In addition, he says that the sharing of the three advisory opinions in relation to Sri Lankans 1-3 in separate proceedings was inadvertent and that UNHCR has advised TCIG that it was in breach of data protection protocols by doing so. These remaining thirteen advisory opinions are the objects of the writ sought against the Minister in this action.

 

10. The second respondent also says at paragraph 23 of the same affidavit that “TCIG’s position remains that it is prepared to cover all reasonable and proportionate costs incurred in respect of translation/interpretation services necessary for the pending asylum applications.”

 

11. This takes away the first of the two issues identified by Mr. Prudhoe for the applicants, namely the claim for translation/interpretation costs in the making of the asylum applications, leaving only the disclosure of the advisory opinions in issue, and if I order disclosure, the costs of translation associated with those, and the previous three that have already been voluntarily disclosed.

The Issues in Play:

The Applicants’ Case

12. The applicants say that their right to a fair hearing is adversely impacted by the respondents’ withholding of the advisory opinions. Mr. Prudhoe for the applicants refers to, and relies on Attorney-General v. Whiteman (1990) 39 WIR 379, p. 402H to say that for rights to have meaning they must be capable of being exercised. Mr. Prudhoe submits at paragraph 31 of his skeleton that:

“For the Sri Lankans’ rights to be vindicated, the Advisory Opinions that the 1st Respondent has relied on/intends to rely on in making his decision must be disclosed to them and also in translated (Tamil) form. Without that the Sri Lankans would have no way of making representations in respect of them.”

 

13. At paragraph 32 of his skeleton Mr. Prudhoe further submits that the respondents’ failure to disclose the advisory opinions is unlawful because it is in breach of the principles of natural justice and/or procedural fairness. For that he relies on R. v Gaming Board for Great Britain, ex. p. Benaim and Khaida [1970] 2 Q.B. 417 where refusal was based on confidentiality reasons, but disclosure was not ordered because of gaming clubs’ connection generally with organized crime and the need to protect sources of information. At paragraph 40 he asserts that no such concerns arise in the instant case and this assertion is amplified at paragraph 43.

The Respondents’ Case

14. In reply to the applicants’ case, at paragraphs 5 to 9 of her skeleton, Ms. Hippolyte for the respondents points out that the TCI has a procedure established by the Immigration Ordinance for asylum applications and that under the Operational Guidance Manual of the Immigration Detention Center, interviews are mandated to assess the veracity of an individual’s claim to the grant of asylum. TCIG partnered with the UNHCR for their support and expertise in interviewing asylum applicants, as required by the Manual. UNHCR also has responsibility for the application of the 1951 Convention on the status of Refugees and the 1967 Protocol relating to the Status of Refugees. The agency also provides advice to governments on refugee status determination.

 

15. At paragraphs 18 to 21 of her skeleton Ms. Hippolyte explains exactly how the advisory opinions came into existence and I consider there is sufficient underlying evidence in the second respondent’s affidavit of 18 November, 2020 generally and particularly at paragraph 18 for her to properly make these submissions.

 

16. What it all amounts to is that TCIG requested the advisory opinions so as to better understand the refugee status determinations the UNHCR had arrived at, given that they had provided no reasons or supporting information. UNHCR acceded to the request under conditions of confidentiality that were accepted by TCIG in order to be given the advisory opinions. It is critical, she submits that TCIG is not obliged to grant refugee status to asylum seekers recognized by UNHCR, as the TCI Immigration Ordinance is the national law on the matter and provides its own process.

 

17. At paragraph 25 of her submissions Ms. Hippolyte submits that in making its decision on refugee status and asylum TCIG is obliged to disclose the facts and detail the reasons and standards on which the decision is based to enable an applicant to lodge an appeal in accordance with s. 86 of the Immigration Ordinance. Further at paragraph 28 she notes that an application for asylum does not depend upon UNHCR’s findings in a refugee status determination or an advisory opinion, and that an advisory opinion is not necessary for the preparation of an asylum application, as it remain the obligation of the applicant to bring himself within the qualifying provisions of the 1951 Convention.

Resolution

18. I accept that given the way they came into existence and the purpose for which they were produced, the advisory opinions are confidential, and I am not persuaded by Mr. Prudhoe’s case law discussion at paragraphs 29 to 38 of his skeleton argument to the effect that the applicants’ right to a fair hearing is adversely impacted by TCIG’s adherence to that confidentiality. Having sight of the advisory opinions is not necessary for the preparation of an asylum application, and while the contents might weigh with the 1st respondent in considering an application, there are other sources of information that he is obliged to take account of. Besides, an asylum applicant whose application is refused has a right of appeal as described at paragraph 25 of Ms. Hippolyte’s submissions.

 

19. This then brings us to the principles that are to guide the court’s approach to ordering the disclosure of confidential information. In this regard I am much inclined to the discussion of the matter undertaken by Ms. Hippolyte at paragraphs 29 to 38 of her submissions and the balancing exercise principles enounced in the case of Alfred Crompton Amusement Machines v Customs and Excise Commissioners (No. 2) [1974] AC 405 and followed and refined in Durham County Council v Dunn [2012] EWCA Civ 1654.

 

20. Based on these principles and on all the foregoing I am of the view that the public interest in protecting the confidentiality of the advisory opinions outweighs the interests of the applicants in disclosure. The writ of mandamus to the Minister is therefore refused. So necessarily is the prayer that the Respondents pay the interpretation/translation costs of the advisory opinions.  It has been confirmed by the respondents that the interpretation/translation services costs associated with the pending asylum applications will be for TCIG’s account, so I need say nothing more regarding that.

 

21. I believe Mr. Prudhoe continues to appear pro bono in these matters so it seems inappropriate to make any order for costs. If counsel for the respondents disagrees with that, I will receive her written submissions, copied to Mr. Prudhoe for response within three days of circulation of this draft Judgment. Otherwise, there will be no order as to costs.

 

22. Finally, I wish to thank counsel on both sides for their complete and well-organized material, for their cogently and elegantly argued submissions, and for their courtesies and patience.

 

14 May, 2021

 

 

Mr. Justice Carlos W. Simons, QC

Supreme Court Judge