By NICO SCAVELLA
Tribune Staff Reporter
CANADIAN Bruno Rufa and his partner Sandra Georgiou have taken legal action against the government for its refusal to grant their multiple applications for Home Owner’s Resident Cards because they did not submit a utility bills with their applications.
Court documents obtained by The Tribune show how both individuals are taking the government to court over its “irrational” refusal to consider, determine and/or grant the applications they made in August and October of 2017, and then again in May of this year.
Mr Rufa and Ms Georgiou contend that there were “no grounds whatsoever” that would have allowed the Director of Immigration to “make the provision of a utility bill a prerequisite” to their HORC applications being considered and granted.
Conversely, the pair contend that there was no basis for the director to have refused to accept their applications and to accede to them, as they both satisfy each and all of the four conditions in section 11 of the International Persons Landholding Act (IPLA).
However, Mr Rufa specifically contends that the history of the Department of Immigration’s (DOI) treatment of both himself and Ms Georgiou suggests that the decisions not to grant their applications were motivated by “the same animosity and/or prejudice” that has motivated their mistreatment at the hands of the DOI to date.
He and Ms Georgiou further charge that the respondents, which also include the Prime Minister, Minister, Board and Director of Immigration, have used and “continue to use” their “vulnerable immigration status as persons not of Bahamian origin” to intimidate them “in pursuit of an improper purpose”, which has caused them damage, harm and/or stress and inconvenience.
As such, both Mr Rufa and Ms Georgiou are seeking damages for misfeasance in public office by the director of immigration for him “acting maliciously” in failing/refusing to determine or accede to the HORC applications. They are also seeking damages for misfeasance in public office by the Prime Minister, the Minister and Board of Immigration.
Both are also seeking damages for breach of their Constitutional rights under Article 26(2) to protection from discrimination on the grounds of place of origin, as well as damages for breach of their constitutional rights under Article 17(1) to protection from degrading treatment or punishment.
They are also seeking declarations that the Director and/or Board of Immigration acted in breach of their statutory duties and/or in breach of “natural justice”, and also acted in “bad faith” in failing or refusing to consider, determine and/or grant the HORC applications.
Consequently, they are also seeking orders of mandamus compelling the director of immigration to issue both of them HORC’s, or alternatively, an order of mandamus compelling the director to properly exercise his discretion under section 11 of the IPLA to consider whether to issue them with HORC’s.
They are both also seeking orders of certiorari quashing each of the DOI’s decisions.
Mr Rufa and Ms Georgiou further seek an interim injunction pending the determination of the substantive action, restraining the Prime Minister, Minister, Board, or Director of Immigration, either directly or through their agents, appointees or employees, from deporting, expelling, escorting, seeing out, or causing either of them to be removed from the Bahamas.
They are also seeking an order for discovery by these government officials and/or entities of the “entire file” that the DOI holds on Mr Rufa.
According to the court documents, this action by Mr Rufa is the latest in his long-running dispute with the DOI which has seen, amongst other things, his illegal detention without cause; him repeatedly being subjected to unnecessary document checks at home without notice by uniformed officers in full view of neighbours; putting him on a “stop list” without cause and/or telling him that he was on such a list without cause; and him being deemed to be “undesirable” without cause.
According to Mr Rufa’s affidavit in support of the substantive motion, by letter to Assistant Director of Immigration Hubert Ferguson dated August 25, 2017, Mr Rufa applied, on both his and Ms Georgiou’s behalf, for HORC’s via their legal representatives Callenders & Co.
The applications were made pursuant to section 11 of the IPLA, and enclosed were two application forms completed on both his and Ms Georgiou’s behalf; two passport-sized photos of them both; copies of their passports; original police certificates and health certificates; a copy of a certain conveyance concerning them both, which was issued by the Investments Board pursuant to the IPLA; and a cheque for $200 to cover the processing fee for them both.
According to Mr Rufa’s affidavit, those documents “correspond exactly” with the list of documents that ought to accompany a HORC application as set out on the DOI’s website and on Form IIA of the Immigration (General Amendment) Regulations, 2011.
On August 28, 2017, Orquia Sweeting, of Callenders & Co. went to the DOI to follow up on Mr Rufa’s and Ms Georgiou’s HORC applications. However, their applications were returned to her along with a list that referred to a utility bill.
Ms Sweeting was told that the HORC applications were incomplete because there were no utility bills included with the applications.
By way of letter dated August 29, 2017 and submitted to the DOI on August 30, Callenders & Co. again wrote to Mr Ferguson noting that it had been provided with the list in question.
In that letter, Callenders & Co. noted that such a requirement is not supported in law and that the HORC applications had been completed and submitted in accordance with the same.
After a bit of back and forth between their attorneys and immigration officials, the position adopted by the DOI remained the same straight up to August 31, when Allan Smith, an immigration officer, informed Callenders & Co. that “…the applications will not be process (sic) without first submitting a current utility bill for the individuals”.
By way of letter to the minister of immigration dated October 5, 2017, Callenders & Co. referred to the fact that the August 2017 HORC applications had been returned and reiterated that utility bills are not required by law, and that in any event, Mr Rufa lives in a condo and does not get a bill from any utility company.
Callenders & Co. then resubmitted Mr Rufa’s and Mr Georgiou’s HORC applications along with that letter and asked the minister to have them reconsidered in accordance with law.
On October 17 of that year, Mr Rufa’s attorneys wrote the minister of immigration again in an effort to follow up on the status of the October 5 HORC applications. They again wrote the minister on the same issue on November 1, and then again on April 6 of this year.
In that letter, Mr Rufa’s attorneys mentioned the DOI’s refusal in August the year prior, to accept his and Ms Georgiou’s applications on the basis of the requirement of a utility bill, and that they are entitled to have their applications considered according to law and in a reasonable time.
Mr Rufa’s attorneys indicated in that letter that should the DOI not respond to his and Ms Georgiou’s HORC applications by April 13, they would be commending a judicial review of its decisions.
On April 6, Mr Rufa said he was informed by Pearline Ingraham of Callenders & Co. that she had attended the DOI to inquire about the status of his and Ms Georgiou’s October 2017 applications. However, Ms Ingraham said a DOI officer told her that as far as the DOI was concerned, there was no application in progress for himself or Ms Georgiou, and that they do not log in any application until all documents they are requesting is submitted.
On May 25, Mr Rufa’s attorneys again submitted HORC applications on behalf of himself and Ms Georgiou. As they did before, they gathered the requisite documents and fees and submitted them for processing.
In his affidavit, Mr Rufa said that was a “last-ditch effort” to avoid having to bring yet another judicial review in order to obtain their HORC’s.
On May 25, Mr Rufa said Raoul Richardson, from Callenders & Co., attended the DOI and submitted the new HORC applications by hand to Immigration Officer Rolle in the enrollment department.
However, Mr Rufa said Officer Rolle reviewed the applications, and said while his application had all the supporting documentation to be processed, Ms Georgiou’s application needed to be accompanied by a utility bill.
Officer Rolle, upon calling Ms Sweeting to discuss the application, explained that Mr Rufa’s application could be processed as a new application and that the documents required were submitted, but because Ms Georgiou’s application was a renewal due to her being in the system as having an expired HORC, her application for renewal required a utility bill.
Ms Sweeting was then told that although Mr Rufa’s application was in order, the DOI could not accept it because the payment for both his and Ms Georgiou’s applications (in the total sum of $200) was in the form of a single cheque. Ms Sweeting was thus advised to re-submit Mr Rufa’s application with the $100 application fee and separately re-submit Ms Georgiou’s application with her fee and the utility bill.
Both applications were subsequently returned to Mr Richardson.
On May 30, Mr Rufa said Ms Ingraham called Officer Rolle for details on the application. Ms Ingraham asked the officers why the DOI required documents in support of Ms Georgiou’s application that were not required for his application, when the applications concerned the same property.
Officer Rolle said she would confirm the position with her supervisor, Officer Gibson, and return a call.
However, after not hearing back from Officer Rolle, Ms Ingraham then visited the DOI around 1pm that same day and spoke to Officer Gibson herself.
Officer Gibson indicated at the time that he needed to review the file before he could confirm why the applications were being dealt with differently. The officer said more documents are usually required for new applications, thus he did not understand why Mr Rufa’s application would require fewer documents.
Ultimately, Officer Gibson said he would check the file and call Ms Ingraham back.
Around 3pm on the same day, Officer Gibson called Ms Ingraham and said he spoke with the assistant director of immigration on the issue, and confirmed that Mr Rufa did require a utility bill for his HORC application.
Officer Gibson also said that the assistant director wanted him to let Callenders & Co. know that the DOI were not in possession of any application from Mr Rufa nor Ms Georgiou, notwithstanding the October 5, 2017 HORC applications that were never returned.
“The fact that a powerful state agency like the DOI could be convicted to persecute us, publicly embarrass us, detain and place us in fear for our safety, when we are completely innocent of any wrongdoing, is absolutely terrifying,” Mr Rufa said in his affidavit. “We are peaceful, law-abiding individuals who live quiet lives; we had no previous experience with abuse of power by law enforcement and the ordeal has been deeply unsettling and is a constant source of anxiety.
“We would have expected the authorities to be a source of relief and protection from our tormenters, not further persecution. We were left feeling helpless and hopeless, without anyone to turn to in the face of the organized discrimination”.