Braynan v Minister of Foreign Affairs and Attorney General

• Jurisdiction: Bahamas
• Judge: Turner, J
• Judgment Date: 07 March 2011
• Court: Supreme Court (Bahamas)
• Docket Number: BVB/jrv/ 36 of 2010
• Date: 07 March 2011

Supreme Court

Turner, J.

BVB/jrv/ 36 of 2010

Braynan

and

Minister of Foreign Affairs and Attorney General

APPEARANCES:

Mr. Wayne Munroe for applicant

Mr. Loren Klein and Ms Viana Gardiner for respondents

Judicial Review - Decision refusing the extension of the applicant's posting to the Miami Consulate — Whether the decision was amenable to judicial review — Legitimate expectation — Duty to give reasons — Irrationality.

Turner, J

1 By Summons filed on 16 November 2010 the applicant herein applied ex parte for leave to commence judicial review proceedings and for an order that the decision of the Minister of Foreign Affairs the subject of the application be stayed pending the hearing and determination of the action. The summons was supported by the required affidavit (of the applicant) and statement, per Order 53 Rule 3(2) (a). This statement listed, under the rubric Judgment, Order, Decision or other Proceedings in respect of which relief sought:

“The decision in respect of which relief is sought is that made by the Minister of Foreign Affairs which is outlined in a letter dated the 10th September 2010 signed by Jameen McCartney on behalf of the Permanent Secretary refusing to approve an extension of the applicant's posting to the Miami Consulate.”

The Relief Sought was indicated as:

• “1. Judicial Review in the form of an Order of Certiorari quashing the said decision of the Minister

• 2. Judicial Review in the form of Mandamus compelling the Minister to notify the applicant of the reasons for his decision not to grant the extension

• 3. A declaration that the decision made by the Minister is unreasonable and irrational in the circumstance

• 4. Consequential Relief

• 5. Exemplary and Aggravated damages

• 6. Damages

• 7. Costs

2 The background to this application, as contained in the affidavit of the applicant is as follows:

3 The applicant is a Senior Assistant Secretary in the Ministry of Foreign Affairs and posted as Consul in The Bahamas Consulate General, Miami, Florida, since 30 November 2009. According to the applicant, this posting came about in the following manner:

4 In June of 2009, she took her (three year old) son to see a specialist physician in Miami, upon referral by a physician in The Bahamas. Upon his examination in Miami, her son was diagnosed with Cerebral Palsy Spastic Diplegia. Her affidavit continues (the full names of the children are redacted):

• “7. Upon this diagnosis and as a result of the consultations with both doctors, it became blatantly clear that treating this disease required that I remain in Miami. I immediately contacted Ms. Patricia Rodgers, Permanent Secretary in the Ministry of Foreign Affairs, advising her of J's condition and requested an immediate posting to the Consulate in Miami. While in Miami I always kept in constant communication with the Permanent Secretary via emails, fax and telephone keeping her abreast of the many tests, treatment and procedures being conducted. I had also advised her that due to the ongoing situation, I was now considering taking a leave of absence, given that I had utilized all of my compassionate days and vacation leave. She replied by email on 15th September 2009 that the Ministry would try to post me for three years with all of the allowances which she described as being the norm…”

5 The email of the Permanent Secretary, attached as an exhibit to the applicant's affidavit reads as follows:

“Thanks for the detailed response. We are requesting that consideration be given to a posting for three (3) years, which is the norm. I cannot begin to imagine what you and your son are going through.”

6 The affidavit continues, describing the denial of leave of absence and the approval of leave on half pay and unpaid leave for various periods. It continues:

8

“However, I was granted a one year contract commencing 30th November 2009 to the Consulate in Miami as Consul with responsibility for Trade & Investments and Culture and given housing allowance only. Despite being given a one year posting, I remained hopeful that the possibility of receiving a three year posting was warranted due to the circumstances surrounding my son's condition. 9. My two daughters namely T… and T…B who were ages ten and one years, respectively then traveled to Miami to be with me and J. 10. All of my children were enrolled in private schools… 11. During the course of the year J has received intensive and extensive care and has shown remarkable progress…. 12. J currently attends the University of Miami Hospital, Jackson Memorial Hospital, Joe DiMaggio Children's Hospital Early Intervention & Developmental Program and Joe DiMaggio Children's Rehabilitation Centre for various types of treatment and examination. 13. By letter dated the 9th September 2010 to the Permanent Secretary of the Ministry of Foreign Affairs, I advised her that J is under extensive and intensive care by a team of doctors and that he is undergoing serial casting on both legs and the future plans for surgery and requested an extension to my posting…. 14. By letter dated 10th September 2010 from Mrs. Janeen McCartney on behalf of the Permanent Secretary, I was advised that approval was not given for an extension and that my apartment lease will be terminated…”

7 That letter reads:

“Dear Mrs. Braynen,

Re: Posting to Miami Consulate

I am directed to refer to your appointment to the Miami Consulate which commenced November 30th 2009, for a one (1) year period.

I am to inform you that approval was not given for an extension. In that regard, your apartment lease will have to be terminated on November 30th 2010. We, under separate cover, instructed the Consul General to advise the landlord accordingly.

Kindly make arrangements to return to headquarters. If we can be of any assistance please do not hesitate to contact us.

Janeen McCartney (Mrs.)

(for) Permanent Secretary”

8 The affidavit continues:

15

By letter dated the 29th September 2010, Ms. Patricia Rodgers advised me inter alia that my posting as Consul in The Bahamas Consulate, Miami will come to an end effective 29th November 2010 and that I am to return to headquarters to my substantive post as Senior Assistant Secretary. This letter was also received on October 2010…

9 That letter reads:

“Dear Mrs. Braynen,

I wish to advise that your posting as Consul in The Bahamas Consulate, Miami, will come to an end effective 29th November 2010. At this time, you will be expected to return to headquarters to your substantive public post as Senior Assistant Secretary.

In this regard the Consulate has been instructed to give the required sixty (60) days notice to your Landlord, advising that the lease will not be renewed.

I join the Honourable Minister and the staff of this Ministry in extending appreciation to you for your service rendered on behalf of the Government and people of the Commonwealth of The Bahamas.

We look forward to welcoming you back at Headquarters.

(signed by Permanent Secretary)”

10 The affidavit continues by detailing efforts to inform the Prime Minister, by letter dated 17th September 2010, of the child's medical condition and

“appealing for his assistance in granting an extension to my posting so that J's care and treatment would not be interrupted.”

11 By letter dated 5th October 2010 a response was received from the Prime Minister's Office indicating that the Prime Minister was unable to intervene in the matter,

“which must be determined by the Ministry of Foreign Affairs, taking into account the needs of its various offices.

Further, as you are aware, the Ministry sought to accommodate your request as best it could in agreeing to the one year posting. It is hoped that your son will be able to continue receiving attention at Bahamian based facilities upon your return to Nassau.”

12 The affidavit continues:

• “18. None of the above letters provided reasons why I was being denied an extension.

• 19. As a last resort, I again appealed by writing a detailed letter dated the 25th October 2010 to the Permanent Secretary of the Ministry of Foreign Affairs and carbon copied Hon. Brent Symonette (Minister of Foreign Affairs and at the material time Acting Prime Minister)… I outlined J's medical condition, the current specialized treatment he is receiving and the fact that there is no available comprehensive and extensive therapies/facilities, inter alia in The Bahamas and how returning home to Nassau would retard his progress. I also advised that I am able to find alternative accommodations if the government is unable to provided me with housing allowance. Further, my eldest daughter, T will have to be removed from school and would lose the entire semester. This would especially be detrimental for her as she is in seventh grade and it would be very difficult to enroll her in school in Nassau for January…

• 20. I have yet to receive a response to this letter.”

13 The affidavit continues with a detailed recital of the treatment the child is presently receiving, inclusive of speech, physical and occupational therapy and concludes:

• “24. That if my request for an extension is not granted this would cause me and my family much distress and anxiety as J will not be able to receive similar treatment in The Bahamas which means I will have to travel at my expense back and forth to Miami no less than four times per week. Further, my eldest daughter will lose an entire semester. All of the treatment invested in J would be lost.”

14 On 22 November 2010 I granted leave to apply for judicial review and stayed the decision of the Minister of Foreign Affairs for seven (7) days, to an inter partes hearing on the continuation of same set for 29 November 2010.

15 The following day, 23 November 2010, the Notice of Originating Motion was filed, pursuant to the leave granted. This Notice replicated the relief sought as contained in the statement...