Court name
Supreme Court of Turks and Caicos Islands
Case number
CL 8 of 2021
CL 41 of 2021
CL 49 of 2021
CL 43 of 2021

Kajeepan, Paintamilkavalan and Others v. Director of Immigration and Others (CL 8 of 2021, CL 41 of 2021, CL 49 of 2021, CL 43 of 2021) [2022] TCASC 2 (21 February 2022);

Media neutral citation
[2022] TCASC 2
Coram
Simons QC, J

ACTION NO. CL 8/21

 

IN THE SUPREME COURT

TURKS AND CAICOS ISLANDS

 

 

KAJEEPAN, PAINTAMILKAVALAN

RASARATNAM, VARATHARAJ

SIVALAPN, JESEEPAN SWAPALAN                                                                                                      PLAINTIFFS

AND

DIRECTOR OF IMMIGRATION, DEREK BEEN                                                                                      FIRST DEFENDANT

AND

MINISTER OF BORDER CONTROL, VADEN DELROY WILLIAMS                                                     SECOND DEFENDANT

AND

THE ATTORNEY GENERAL OF THE TURKS AND CAICOS ISLANDS                                              THIRD DEFENDANT

 

ACTION NO. CL 42/21

 

1. THAMBYRASA, SRIKANTH

2. VINOJAN, THEIVENDRAM

3. KUGAGNANAM, NESARUPAN

4. PASKARAN, VITHURSAN

5. KENKATHARAN, KOKULAN

6. VARATHARAJAH, SENKEERAN

7. SIVALOGANATHAN, GOUTHAMAN

8. KARUNKARAN, LOGITHAN

9. KUGENTHIRAN, RUPILAN                                                                                                                 PLAINTIFFS

  1.  

 

DIRECTOR OF IMMIGRATION, DEREK BEEN                                                                                    FIRST DEFENDANT

AND

 

MINISTER OF BORDER CONTROL, VADEN DELROY WILLIAMS                                                  SECOND DEFENDANT

  1.  

 

THE ATTORNEY GENERAL OF THE TURKS AND CAICOS ISLANDS                                           THIRD DEFENDANT

 

ACTION NO. CL 49/21

 

ARIAPUTHIRAN, RAVIKKUMAR                                                                                                        PLAINTIFF

AND

DIRECTOR OF IMMIGRATION, DEREK BEEN                                                                                 FIRST DEFENDANT

AND

MINISTER OF BORDER CONTROL, VADEN DELROY WILLIAMS                                                SECOND DEFENDANT

AND

THE ATTORNEY GENERAL OF THE TURKS AND CAICOS ISLANDS                                          THIRD DEFENDANT

 

ACTION NO. CL 43/21

THE QUEEN

 (ON THE APPLICATION OF)

  1. KAJEEPAN, PAINTAMILKAVALAN, (2) RASARATNAM, VARATHARAJ (3) SIVAPALAN, JESEEPAN SWAPALAN, (4) ARIYAPUTHIRAN RAVVIKUMAR (5) THAMBYRASA, SRIKANTH, (6) VINOJAN, THEIVENDRAM), (7) KUGAGNANAM, NESARUPAN (8) PASKARAN, VITHURSAN (9) KENGATHARAN, KOKULAN, (10) VARATHARAJAH, SENKEERAN (11) LOGITHAN, KARUNKARAN AND (12) MOIN ALHASHASH)
  2.  

 

AND

 

1. HONOURABLE ARLINGTON MUSGROVE, MINISTER OF IMMIGRATION AND BORDER SERVICES (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           

                                                        RESPONDENTS

 

 

 

___________________

WRITTEN RULING

___________________

 

 

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

 

Appearances:                                   

In Action No. CL 8/21

Mr. Yuri Saunders – Prudhoe Caribbean

Ms. Clemar Hippolyte for the Attorney General’s Chambers

 

In Action No. 43/21

Yuri Saunders  of Prudhoe Caribbean for the Plaintiff

Ms. Clemar Hippolyte of the Attorney General’s Chamber for the Defendants

 

In Action No. 42/21

Mr. Yuri Saunders – Prudhoe Caribbean

Ms. Clemar Hippolyte for the Attorney General’s Chambers

                                               

In Action No. 49/21 

Mr. Yuri Saunders – Prudhoe Caribbean                               

Ms. Clemar Hippolyte for the Attorney General’s Chambers

Hearing Date:                                    8th February 2022

 

Venue:                                                  Court No. 5, Graceway Plaza, Providenciales   

 

To be Handed Down:                      Via Email on Monday, 21st February 2022 at 4:30pm

 

The Principal Proceedings

1. The underlying proceedings in action CL-43/2021 is an application for judicial review of the Minister’s and/or the Director’s refusal either to permit the applicants to work pending determination of their applications for asylum/asylum appeals or to state expressly any applicable policy or policies regarding such matters, and for various orders of certiorari and mandamus regarding those decisions and declarations consequent upon findings in favor of the applicants. Leave to bring the proceedings was granted by order made on 17 May 2021.

 

2. Actions CL-8/2021, CL-42/2021 and CL-49/2021 have been consolidated and are referred to in the plaintiffs’/applicants’ skeleton argument as “the Assessment matter” to distinguish those actions from CL-43/2021 (described in paragraph 1 above) which is referred to as “the Judicial Review” in the plaintiffs’/applicants’ skeleton. For convenience, where distinguishment is necessary, I shall adopt these labels.

 

3. The underlying proceedings in the Assessment matter concern quantification of damages for false imprisonment arising from a judgment in the Court of Appeal in favor of a sub-set of the plaintiffs following judicial review proceedings in this Court.

 

The Interlocutory Summonses for Discovery

4. The matters before the Court on 8 February 2022 were two interlocutory summonses issued by the applicants/plaintiffs, one each filed in the Judicial Review and the Assessment matter. The summonses are for specific disclosure under Order 24, Rule 7, and Order 24 Rules 7 and 11 respectively. The summonses are supported by affidavits of Edward Claude sworn on 1 February and 2 February 2022 respectively.

 

5. In each case the grounds for relief are based on a reference in paragraph 83 of a witness statement tendered in the Assessment matter by the Director of Immigration and dated 19 January 2022. The reference is to a “draft policy” regarding the rights of asylum seekers to work in the TCI, in respect of which it is asserted that, given the reference: the draft policy exists and is within the respondents’ possession; that it is relevant and is not caught by any public interest immunity; and that it does not pertain to any national security or other sensitive interest of state. The court is therefore asked to exercise its discretion to order the specific disclosure of the draft policy.

 

The Procedural Rules and Statutory Provisions

6. Order 24, Rule 7 provides that the Court may order the disclosure of any document specified or described in an application by any party and Rule 11 provides for inspection.

 

7. The reference at the root of the dispute is, as indicated above, at paragraph 83 of the witness statement of the Director of Immigration dated 19 January 2022. It reads as follows: “In December 2021, the Cabinet considered a draft policy with respect to asylum and having particular focus on the right to work for Asylum Seekers. The paper was deferred as there were various issues identified which had to be reassessed in light of the local circumstances existing in the Turks and Caicos Islands, prior to the implementation of the proposed policy.

 

8. It seems clear from the Rules (including the relevant Notes) and the case law authorities to which I have been referred, that the Court’s discretion to grant or refuse the disclosure applied for involve consideration of the questions: does the document exist? is it relevant to issues in dispute in the action? and does the party against whom the disclosure is sought have the document?

 

Basis of the Respondents’ Resistance

9. In this case there is no question that the document exists and that the respondents have it in their possession – it is a draft policy in the form of a cabinet paper, and it is referred to in the affidavit of Althea Been, Permanent Secretary in the Ministry of Immigration sworn on 7 February 2022. This is in addition to the previously mentioned reference in the witness statement of the Director of Immigration. However, the respondents say that the draft policy is not relevant in either the Assessment matter or the Judicial Review and that the Court should therefor decline to order the disclosure.

 

10. The respondents also say that the document is confidential and therefore privileged. In this regard the Court’s attention was drawn to a manual entitled “Responsibilities and Procedures for Cabinet and Government Business” attached to the Permanent Secretary’s affidavit. Part 3 of this manual imposes confidentiality over cabinet discussions and cabinet papers and describes the extent of and rationale for such confidentiality. The Court accepts the discussion regarding confidentiality in this context as set out at paragraphs 8 to 14 of the Respondents’ Submissions.

 

11. In addition, the respondents rely on section 106 of the Evidence Ordinance (Cap. 2.06) that prohibits the production of any unpublished official records relating to state affairs except with the permission of the relevant head of department in his/her discretion. A cabinet paper is quintessentially such a record, and the respondents say that by merely referring to the draft policy in a witness statement or in an affidavit, and without seeking to rely on it in any way to buttress their position in the litigation, that does not amount to a waiver of privilege now asserted.

 

12. There is also section 24 (2) of the Crown Proceedings Ordinance (Cap.4.11) which preserves the Crown’s right not to disclose on the ground that to do so would be injurious to the public interest.

 

13. Finally, the respondents rely on Order 77, Rule 12 (2) the effect of which is again, to preserve public interest immunity where a Minister of the Crown is of the view that disclosure would be injurious to the public interest. The respondents say the affidavit of Althea Been and particularly paragraph 11 of that affidavit is just such a statement.

 

Resolution

14. The matter therefore turns in the first instance on relevance and confidentiality – public interest immunity/crown privilege. As to relevance, two points may be made. First, that it is a draft policy that has not been finalized and may therefore be quite different in its final form to what the current draft portends. And secondly the respondents have not sought to rely on the draft policy in resisting the grant of relief sought by the plaintiffs/applicants in the principal proceedings.

 

15. As Ms. Hippolyte says at paragraph 5 of her submissions and which the Court accepts, there is nothing in the statement of the Director that makes it necessary for the Court to consider the draft policy in adjudicating the Assessment matter. In addition, as an unsettled draft policy document that has not been finalized and remains subject to amendment, it cannot be applied to the plaintiffs/applicants, and they are therefore not prejudiced by its mere existence.

 

16. As to confidentiality, the respondents rely on section 106 of the Evidence Ordinance (Cap. 2.06), section 24 of the Crown Proceedings Ordinance (Cap. 4.11) and Order 77, rule 12 (2) for the submission that there is a general prohibition on disclosure of documents relating to state affairs and that a cabinet paper is one such document, once crown privilege is asserted on the ground of disclosure being inimical to the public interest.

 

17. Order 77 rule 12 (2) in fact refers to the public interest immunity claim being made by a “Minister of the Crown” and the plaintiffs/applicants have countered with this point at paragraph 20 of their skeleton argument. However, the Court notes that Althea Been avers at paragraph 1 of her affidavit that she is the Permanent Secretary in the Ministry of Immigration and that she is duly authorized by the Respondents (the Director, the Minister, and the Attorney General) to make the affidavit on their behalf. The Court therefore considers that public interest immunity is sufficiently asserted.

 

Waiver of Privilege

18. The question then arises as to whether public interest immunity privilege has been waived. The plaintiffs/applicants contend that it has been by the respondents’ reference to the draft policy in the Director’s witness statement in the Assessment matter. However, the case law references cited at paragraphs 24 and 25 of the plaintiffs’/applicants’ skeleton argument in support of the waiver argument are distinguishable on the basis that the statement made by the Director merely disclosed the existence of a draft policy document that had received consideration by cabinet, that was not being relied upon by the respondents and that is ipso facto subject further debate and alteration.

 

19. The Court therefore does not in the circumstances consider that public interest immunity privilege has been waived.

 

20. In the circumstances the interlocutory summonses of the plaintiffs/applicants for specific discovery of the draft policy document referred to by the Director in his witness statement are both dismissed.

 

21. Costs shall be in the cause.

 

22. The plaintiffs/applicants shall have and are hereby granted leave to appeal this interlocutory ruling.

21st February 2022

 

 

 

Hon. Justice Carlos W. Simons OBE QC

Judge