Re Elder et Al
| Jurisdiction | Bahamas |
| Judge | Georges, C.J. |
| Judgment Date | 24 July 1985 |
| Court | Supreme Court (Bahamas) |
| Docket Number | Common Law Side No. 307 of 1985 |
| Date | 24 July 1985 |
Supreme Court
Georges, C.J.
Common Law Side No. 307 of 1985
Mr. Michael R. Scott for the applicants.
Mrs. Anita Allen for the respondents.
Natural Justice - Audi alteram partem rule — Whether principles of natural justice apply to decisions by an immigration officer as to whether permission should be granted to a person to land and remain in the Bahamas for such period as the Immigration officer may decide — Immigration Act, 1967, s. 19(1)(a) (1) — Alien presenting himself for admission to an immigration officer has legitimate expectation of a hearing.
The first applicant, Thomas William Elder (the applicant) was born in Selkirk, Scotland in 1922. He is an engineer by profession. He is married to the second applicant, Joan Eileen elder (the wife), and they have five children, among them the third applicant, Thane Richard Elder (the son).
Some time in the 1950's Mr. Elder purchased 2.1 acres of land in Grand Bahama. In March 1965 he came as a visitor to The Bahamas and eventually opted to stay. Between 1966 and 1970 he held various jobs in Marsh Harbour, Abaco -- assisting in the erection of a steel building, working with the Marsh Harbour Power and Light Company Ltd. and as a refrigerator repairman. For each of these he obtained the necessary work permit issued by the Department of Immigration.
In 1970 he purchased the issued shares of the New Plymouth Trading Company which held a Sanction under section 20 of the Out Island Electricity Act for the exclusive supply of electrical energy for lighting and power within the settlement of New Plymouths Green Turtle Cay. At the same time he acquired, in the name of a company formed for that purpose, fuel tanks, a docking facility, a barge and related heavy equipment for the distribution of diesel and other fuel to residents of Green Turtle Cay. The applicant, in his affidavit states that while he held the Sanction he gradually extended the supply of electricity to the whole of the Cay.
On acquiring the Sanction he obtained a work permit and this permit was renewed annually until 1984. Since 1975 the wife has resided with the applicant on Green Turtle Cay under the authority of an annual residency permit. The son also resided on Green Turtle Cay under authority of an annual residency permit. In September 1982 the applicant applied for a work permit to enable the son to be employed by the New Plymouth Company. A -letter dated 16 September, 1984, some two years later, acknowledged the application and approved the issue of a work permit to the son until 12 September, 1984.
On 5 July, 1984 the Sanction expired and was not renewed by the Government. The applicant states that he has, since that date, been actively involved in negotiations with the Bahamas Electricity Corporation for the sale of the plant owned by his company. He states that the negotiations are still awaiting completion but Mr. Walkine, the Permanent Secretary in the Ministry of National Security, asserts that they have been concluded and are merely awaiting execution of requisite documents.
It is the applicant's contention that he has been a useful member of the Green Turtle Cay community providing mechanical repair and related skills to residents and for two years operating a garbage-collection service at the request of the Commissioner. Annexed to his affidavit is a letter from the Commissioner, Mr. John Stuart, stating that the New Plymouth Company had been of service to the community, that there had been complaints now and then but that most of them had been petty and personal. A Mr. Lowe had also written in 1980 strongly recommending the renewal of the applicant's permit. He noted that while the applicant's personality “may not be all that could be desired, he does given (sic) us what is one of the most efficient electricity supply that can be found anywhere in the Bahamas.”
Applications for the renewal of work permits for the applicant and the son for the year 1985 were refused. Their status then became that of visitors. On 29 January, 1985 he went to the Immigration Department and sought extensions of existing visitor's permits. These were refused. On the same day he submitted applications for permanent residence on behalf of himself, the wife, and the son. He had in 1971 submitted an application for Bahamian status and had apparently applied for citizenship when that status had been abolished.
On 29 January, 1985, after the refusal of the extensions the applicant retained a firm of attorneys. In his letter the attorney pointed out that Mr. Elder had been here since 1965, that he had two Bahamian children and five Bahamian grandchildren, that he was in the process of selling his company's plant and equipment to the Bahamas Electricity Corporation arid that he held substantial assets otherwise. He asked for an extension of 6 months to enable the just and orderly winding up of the applicant's companies and to enable him to pursue his application for permanent residence. The Director of Immigration replied by letter dated 8 February, 1985 refusing the extension requested and informing the applicant and the son that they would require “a special permit to facilitate their entry into the Bahamas on future visits”. Attorneys for the applicant replied on 11 February, 1985 pointing out that the applicant and his son had been placed on the “Restricted List”. They stated that this classification was reserved for individuals who were undesirable for reasons more often than not relating to a criminal record. Since the applicant and his son had lived here for 20 years their characters were well known and natural justice required that they should be given an opportunity to put their case and meet any charges that may exist against them. They asked that the decision refusing leave should be reconsidered. By letter dated 20th February, 1985 the Director of Immigration a informed the Attorneys that their request for reconsideration had been considered and had not been approved.
In due course the applicant, his wife and son sought leave to file an originating notice of motion claiming:–
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(1) An order of Mandamus directed to the minister of National Security directing him to consider the several applications pending by them for certificates of permanent residence or for registration as citizens of the Bahamas; (2) An order of Certiorari to quash the decision of 8 February, 1985 requiring that the applicant and his son obtain a special permit in respect of visits to the Bahamas: (3) An order of Certiorari quashing the decisions refusing the applicant and his son permission to remain here for six months within which to wind up their affairs.
The grounds for the application briefly reviewed the facts set out above and alleged that the decisions were contrary to natural justice and that the decision to require the applicant and his son to have a special permit to land in The Bahamas was “wrong in law in that the Director had no power to require the applicants to obtain a special permit for leave to land in the Bahamas”. At the hearing, the application for an order of Mandamus was not pursued and the applications for orders of certiorari alone remain for consideration.
Mr. H. C. Walkine, now Permanent Secretary in the Ministry of National Security but up to October 1984 Permanent Secretary in the Ministry of Works & Utilities, filed an affidavit on behalf of the Minister. He noted that on 5 July, 1979 the applicant had been convicted of employing a person who was not in possession of a valid permit permitting him to engage in gainful occupation, an offence contrary to section 26 of the Immigration Act 1967 as amended. He stated that throughout the period 1981 - 1984 he had received numerous complaints in his capacity as Permanent Secretary, Ministry of Works from consumers on Green Turtle Cay concerning:–
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(a) the erratic supply of electricity and the deliberate disconnection and interruption of the supply of electricity without notice or warning by the applicant; (b) the unco-operative and high handed attitude of the applicant towards consumers; (c) the overcharging by the applicant for the supply of electricity; and (d) the increase of tariffs without the approval of the Minister responsible.
He stated that the applicant had continued charging unapproved rates despite several letters from him as Permanent Secretary requiring that the unapproved tariffs should be discontinued. In his view, the frequent interruptions of electricity supply and the applicant's unreasonableness had led to the cancellation of many bookings at local hotels, reflecting poorly on The Bahamas as a tourist destination. Mr. Walkine stated that these complaints had been brought to the applicant's attention but he persisted in his actions. The affidavit referred to a specific incident on 24 June, 1981 when the applicant had shut down his facility for over five hours leaving the island without electricity or water supply. Mr. Walkine annexed a story appearing in a local daily as evidence of the disruption caused thereby.
On July 30, 1984 the applicant was advised that he would be granted no further work permits and that he should wind up his affairs in The Bahamas. Nonetheless work permits were in fact granted thereafter, the last expiring on 5 July, 1984, because the government had been unable to make alternative arrangements for the continued supply of electricity to the residents of the Cay.
Mr. Walkine stated that the Sanction had been terminated by notice given on 22 November, 1983. That together with the statement of Government's intentions in July 1980 should have been ample notice that the applicant should have been winding up his affairs. He stated that the applications from the applicant's attorney were considered. Because the Board (meaning the Immigration Board) ...
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