Yonggao Pan v Minister of National Security

The principal question raised by this appeal is a short question of statutory interpretation of section 16 of the Judicial Review Act, Chapter 7:08, (“the Act”) which entitles a person adversely affected by a decision to which the Act applies to request a statement of reasons from the decision-maker for the impugned decision.

The appellant, Mr Yonggao Pan, requested a statement of reasons from the respondent Minister of National Security (“the Minister”) for the Minister's decision to deport him in the circumstances described below. The Minister did not accede to his request. The appellant sought judicial review, contending that the Minister is under both the statutory duty in section 16(1) of the Act and a common law duty to provide reasons but had failed to do so (or to the extent reasons could be said to have been provided, they were so limited as to amount to no reasons at all). He submitted that he is entitled to enforce his right to reasons by judicial review.

The application was dismissed by Lambert Peterson J by an order dated 5 February 2021. She held that the Minister had provided concise reasons for his decision on the face of the deportation order and there was, accordingly, no arguable ground for judicial review.

On the appellant's appeal to the Court of Appeal, the Minister raised a new argument. He contended that a failure to comply with a request for a statement of reasons pursuant to section 16(1) of the Act does not give rise to a freestanding ground for judicial review. Rather, the failure is capable of redress at the leave stage of a judicial review challenge on other substantive grounds to a decision affecting the rights of the aggrieved person. By a judgment dated 14 May 2021, the Court of Appeal (Dean-Armorer and Boodoosingh JJA) agreed, dismissing the appeal, and holding that there is no freestanding right to commence judicial review proceedings under section 16 of the Act, and, separately, agreeing with the judge about the adequacy of the reasons provided.

The appellant now appeals to the Board with leave granted by the Court of Appeal. There are two grounds of appeal. The first challenges the Court of Appeal's approach to section 16 of the Act. The second challenges the conclusion that the deportation order itself set out adequate reasons for its issue.

For the reasons set out below, although the Board does not agree with all of the Court of Appeal's reasoning, it nevertheless agrees that section 16(3) does not confer a right to bring judicial review proceedings for breach of section 16 itself. Section 16 does not create a statutory right to reasons. Its purpose is to reinforce a pre-existing right to reasons (subject to the timetable set out in subsection (2)) by creating a summary mechanism for obtaining reasons in a case to which the Act applies, in other words, where there is an arguable existing common law (or other) right to be provided with them. As section 16(3) makes clear, the grant of leave to apply for judicial review is a precondition for the grant of an ancillary order for the provision of reasons pursuant to that subsection. The person seeking reasons must make an application for leave to commence judicial review proceedings and must demonstrate an arguable ground for judicial review and sufficient standing before reasons pursuant to section 16(3) can be considered. Subject to satisfying those preconditions, it is nonetheless open to an aggrieved person to bring an application based on failure to provide reasons as forming an inherent part of one of the substantive judicial review grounds identified in the Act and/or to rely on the asserted failure to provide reasons itself as the only substantive ground for judicial review.

Further, the Board is also satisfied that the appellant was provided with adequate reasons in this case and, accordingly, that the application for leave to file judicial review proceedings against the Minister was properly refused.

The appellant is a citizen of the People's Republic of China. He has lived in the Republic of Trinidad and Tobago since 2006, when he arrived on a permit that entitled him to take up employment as a civil engineer with a company operating there.

The appellant's entitlement to enter Trinidad and Tobago and thereafter to remain was governed by section 9 of the Immigration Act, Chapter 18:01, (“the Immigration Act”) which provides as follows:

• “9(1) An immigration officer may allow to enter Trinidad and Tobago on such conditions and for such periods as may be fit and proper in any particular case, the following persons or classes of persons, as the case may be: …

  • (i) persons entering Trinidad and Tobago for the purposes of engaging in a legitimate profession, trade or occupation.

• (2) Subject to this Act, an immigration officer shall issue to a person who has been allowed to enter Trinidad and Tobago under subsection (1) …, a certificate which shall be expressed to be in force for a specified period and subject to such terms and conditions as may be mentioned therein.

• (3) Every person who has a certificate under subsection (2) to enter Trinidad and Tobago and who wishes to remain for a longer period than that previously granted or to have the conditions attaching to his entry varied, shall, notwithstanding that he is already in Trinidad and Tobago, submit to an examination under the provisions of this Act, and the immigration officer may extend or limit the period of his stay, vary the conditions attaching to his entry, or otherwise deal with him as if he were a person seeking entry into Trinidad and Tobago for the first time.

• (4) Where a permitted entrant is in the opinion of the Minister a person described in section 8 (1)(k), (l), (m) or (n), or a person who … (f) was admitted or deemed to have been admitted to Trinidad and Tobago under sub-section (1) and remains therein after the expiration of the certificate issued to him under subsection (2) … the Minister may at any time declare that such person has ceased to be a permitted entrant and such person shall thereupon cease to be a permitted entrant.

• (5) The Minister may make a deportation order against any person referred to in subsection (4) …, and such person shall have no right of appeal and shall be deported as soon as possible.”

“The Minister” is defined by the Immigration Act as the minister responsible for immigration, namely the Minister of National Security.

On 6 September 2019 the appellant became eligible and applied for permanent residence pursuant to section 6(1)(a) of the Immigration Act. He was interviewed and was anticipating approval of his application, but his circumstances changed materially in December 2019 when he was arrested and charged with fraud.

The appellant was remanded in custody and remained in custody until early June 2020 when he was released on bail.

By a decision dated 18 February 2020, the appellant's application for permanent resident status was refused by the Minister. Although the appellant complained that he did not understand the reason for that refusal, his position as an alleged defendant remanded in custody facing charges of fraud was obviously highly relevant. In any event, following a request for reasons for that decision, by letter dated 21 October 2020, the Minister provided reasons for this refusal. The Minister relied on the fact that the appellant fell within section 8(1)(h) and (p) of the Immigration Act. The effect of reliance on these subsections was an assertion that he did not comply with the requirements of the Immigration Regulations (regulation 10 in particular) when he worked in Trinidad without requisite work permits ((p)); and that he was a charge on public funds and was likely to continue to be a charge on public funds because at the material time he was an inmate at the Maximum Security Prison ((h)) and had no permit to work.

The Board notes that criminal proceedings have not yet been determined and the appellant maintains his innocence in relation to these charges.

Meanwhile, on 6 March 2020, the Minister signed a deportation order in respect of the appellant. The Board notes that the concept of deportation in Trinidad and Tobago does not carry with it (as it often does elsewhere) the implication that the deportee has committed a crime. Deportation can be effected for reasons that would in the United Kingdom be addressed by way of administrative removal. The deportation order was served on the appellant on 8 June 2020.

The deportation order is on a standard form prescribed by the Immigration Act, referred to as Form 19B. It states, in material part, as follows:

“I have reached the decision that you may not enter or remain in Trinidad and Tobago for the reason that –

• (i) You are neither a citizen nor a resident of Trinidad and Tobago

• (ii) You are a person described in Section 8(1)(p) and (q) as well as Section 9(4)(c), (f) and (k) of the Immigration Act, Chapter 18:01 of the Laws of the Republic of Trinidad and Tobago which state:

  Section 8(1)– Except as provided in subsection (2) entry into Trinidad and Tobago of the persons described in this subsection, other than citizens and, subject to section 7(2) residents, is prohibited, namely –

  Paragraph (p) – persons who do not or cannot fulfil or comply with any of the conditions...