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Govt Wins Appeal Over Challenge On Documents For Immigration

By AVA TURNQUEST

Tribune Chief Reporter

aturnquest@tribunemedia.net

THE government has won its appeal of a Supreme Court judge's ruling that called for its disclosure of all relevant documents relating to its immigration policy.

Justice Rhonda Bain ordered the discovery while presiding over an ongoing judicial review action brought by an alleged victim of the government's immigration reform policy that was implemented on November 1, 2014.

The judicial review concerns Widlyne Melidor, 21, who alleged that she was repeatedly denied access to a local clinic and that her son was not allowed to attend school in The Bahamas because to the new immigration policy.

Fred Smith, QC, Dawson Malone and Martin Lundy II represent Ms Melidor and her son in the judicial review.

The respondents in this legal action - former Minister of Immigration Fred Mitchell, former Minister of Education Jerome Fitzgerald, the Columbus Primary School Board, former Minister of Health Dr Perry Gomez and the administrator of the Fleming Street Community Clinic - were given until December 2, 2015, to comply with the court's order for disclosure of the documents.

In her judgment handed down on August 14, Court of Appeal President Dame Anita Allen set aside the judge's orders of discovery made on November 11, 2015, and said the costs of the appeal shall be the appellants to be taxed, if not agreed.

She ruled that the judge hearing the case did not critically examine the request to determine specifically what documents were included in the category; whether they existed or had been in the possession custody or power of the appellant; whether they were relevant and, whether they were necessary to assist the court in fairly disposing of the issues in the proceedings.

Dame Anita forecast that a rehearing of the discovery application will result in the "filing of more paper, the waste of judicial time, further delay and more expense," but noted that remittal of the matter was unavoidable.

"Clearly," the judgment read, "the learned judge simply adopted the respondent's submission, and decided the issue on the basis that they had applied for discovery of particular documents. She did not critically examine the request to determine specifically what documents were included in the category; whether they existed; whether they were, or had been in the possession custody or power of the appellant; whether they were relevant; and, as provided by rule 13(1), whether they were necessary to assist the court in fairly disposing of the issues in the proceedings."

It continued: "It is incumbent on a judge hearing such an application, to consider all the relevant facts and circumstances. Regrettably, the judge simply regurgitated the evidence, the submissions, and the authorities, but did no analysis of the particular circumstances of the case before determining that the requested documents were necessary to assist in fairly disposing of the issues.

"Inexorably, none of the procedural missteps alluded to above were identified in the notice of appeal, or challenged by counsel for the appellants in this court, however, that does not prevent this court from taking such matters into account when disposing of an appeal."

Ms Melidor seeks judicial review of the Immigration Department's policy requirement for persons born in the Bahamas to carry identity papers proving their right to reside in the country; and the decision to refuse consideration of her citizenship application until she is able to produce a Haitian passport, special residency or Belonger's permit.

She is seeking relief in the form of a declaration that the decisions were ultra vires, or without legal authority; a declaration that the minister of immigration is in breach of his duty to determine her citizenship in a timely manner; and orders of certiorari to quash each of the decisions.

She has also requested orders of mandamus: to require the minister of immigration to consider her citizenship application according to law and within a reasonable time; to require the minister of education and the Columbus Primary School Board to register her son, Petroun; and to require the minister of health and the administrator of the Fleming Street Community Clinic to provide access to medical care for herself and her dependents.

At the time of the application, Ms Melidor was 39 weeks pregnant with her fourth child. She has since given birth.

Dame Anita's judgment continued: "In as much as the learned judge failed to take into account the circumstances of the case in determining the necessity of the requested documents to the fair disposition of the matter, remittal of this matter is unavoidable.

"In the premises, I would allow the appeal and remit the matter to the Supreme Court for the application to be properly considered, and disposed of, and I would further order the costs of this appeal and in the Court below to be the appellants to be taxed if not agreed."

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