IN THE SUPREME COURT Action No. CL 80/21
TURKS AND CAICOS ISLANDS
THE QUEEN ON APPLICATION OF
(1) KAJEEPAN PAINTAMILKAVALAN
(2) RASARATNAM VARATHARAJ
(3) SIVAPALAN JESEEPAN SWAPALAN
(1) HIS EXCELLENCY THE GOVERNOR OF THE TURKS AND CAICOS ISLANDS
(2) THE ATTORNEY GENERAL OF THE TURKS AND CAICOS ISLANDS
Before: The Hon. Mr. Justice B. St. Michael Hylton QC (Ag)
Appearances: Mr Tim Prudhoe for the Applicants
Ms Clemar Hippolyte of the Attorney General’s Chambers for the Respondents
Hearing Date: 26 July 2022
Venue: Court No. 5, Graceway Plaza, Providenciales
Date Delivered: 29 July 2022
- The Applicants are Sri Lankan nationals who arrived in the Turks and Caicos Islands in 2019. They applied to the Minister of Immigration for asylum, but the Minister denied their application. The Applicants then appealed to the 1st Respondent (His Excellency, the Governor) on 8 January 2021, but the 1st Respondent has not handed down a decision on the appeals.
- The Applicants therefore sought leave to apply for judicial review of the 1st Respondent’s refusal to consider and render decisions on their appeals, and on 12 October 2021, this court granted leave. The Applicants duly filed a motion for judicial review, seeking among other things, an order of mandamus to compel the 1st Respondent to consider and render decisions in respect of their appeals and/or to provide reasons for the delays in doing so.
The Respondents’ written submissions
- There followed a number of orders including unless orders, with which the Respondents have failed to comply. Most relevant for present purposes, on 25 May 2022 the court confirmed that as a result of their failure to comply with two previous unless orders, the Respondents were now “debarred from serving and filing…responses”. A preliminary issue arises as to whether “responses” is limited to affidavit evidence or whether it includes written submissions.
- The Respondents have filed written submissions. In order to avoid unnecessary delay, counsel for the Applicants made the sensible suggestion that I hear the summons that is before the court today permitting counsel for the Respondents to refer to their written submissions, and then make a ruling on this preliminary issue when I rule on the summons.
- It is not clear from the order whether by using the word “responses” the court intended to bar the Respondents from filing written submissions. In those circumstances, I hold that the Respondents are not so barred. It would be a very strong thing to prevent a party from filing written submissions (when the other side is allowed to do so), and an order which is intended to have that effect should say so in unambiguous language.
The Applicants’ summons
- The Applicants have filed a summons seeking leave to cross examine the 1st Respondent. This application came about in the following way. On 22 February 2022 the court ordered the 1st Respondent to explain on affidavit, the reasons for the delay. Pursuant to that order, an affidavit by the 1st Respondent was filed and served on 8 March 2022. In that affidavit the 1st Respondent indicated that he was still considering the appeals and invited the Applicants to supply any further information for his consideration.
- However, the Applicants point out that on 7 February 2022, their counsel received a letter from the Minister and an email from the 1st Respondent. Both communications suggested that the 1st Respondent had remitted the matter to the Minister who was reconsidering his decision.
- The Applicants submit that these positions contradict, and that they should be permitted to cross examine the 1st Respondent to resolve the contradictions. On the other hand, counsel for the Respondents indicated that if the court gives him leave, the 1st Respondent can file a further affidavit explaining the apparent discrepancy. However, he cannot do so without leave, given the prior unless orders.
The applicable law
- There was no disagreement between the parties as to the applicable law. In fact, both parties cited some of the same authorities. In summary, the position is that the court can permit cross examination of witnesses in judicial review proceedings, but it will only do so in exceptional cases.
- The Applicants’ written skeleton submissions quote the following passage from Roskill LJ’s judgment in George v Secretary of State for the Environment (CA) (1979) 77 L.G.R. 689:
“I think it would be most undesirable save in the most exceptional case that this type of cross-examination should be allowed, for it would encourage applicants against whom a ministerial decision has been given to seek to re-open on a statutory appeal (which is a supervisory or controlling jurisdiction of the High Court) matters of fact which are not within the province of the High Court in such 8 proceedings. Nevertheless, there is a limited residual jurisdiction in the exceptional cases to order cross examination.”
- The question is whether the instant matter is one of those “most exceptional cases”, in which cross examination would be justified. In most cases where the court permits cross examination of persons who have given evidence on affidavit, it does so in order to resolve disputes of fact between the parties. An unusual aspect of this case is that the Applicants are not relying on any factual dispute between their evidence and the evidence on behalf of the Respondents. They are relying on discrepancies between the evidence in the 1st Respondent’s affidavit on the one hand, and statements in his email and the Minister’s letter on the other.
- Counsel for the Applicants submitted that the court needs to resolve this dispute in order to determine whether the appeals are still extant. However, the Applicants’ case (as per the motion for judicial review) is based on the premise that the appeals are still extant, and the 1st Respondent’s affidavit confirms that they are.
- The 1st Respondent is bound by the position taken in his affidavit, and the Applicants need not fear that at the trial he may take a different position. In my view, there is no need to resolve this “dispute” by cross examining the 1st Respondent. It certainly is not an exceptional case that would justify such an order.
- In the circumstances, I dismiss the Applicants’ summons. I also give the 1st Respondent leave to file a further affidavit to explain the positions taken in his email and the letter from the Minister.
- I will hear the parties on costs.
The Hon. Mr. Justice B. St. Michael Hylton QC
Acting Judge of the Supreme Court
29 July 2022