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Unlawful Order Led To ‘Bahamian Nightmare’

Bruno Rufa (right) and his lawyer, Fred Smith QC, at an earlier hearing. Photo: Denise Maycock/Tribune Staff

Bruno Rufa (right) and his lawyer, Fred Smith QC, at an earlier hearing. Photo: Denise Maycock/Tribune Staff

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

CANADIAN Bruno Rufa has endured a “Bahamian nightmare” since being subjected to an unlawful deportation order, the Court of Appeal ruled yesterday.

In 2015, Mr Rufa was given just seven days to wrap up his affairs in Grand Bahama and leave the country – despite having earlier being given a 150-day visa to stay in the country.

The seven–day order came at the end of a long-running dispute with the Immigration Department which had seen protracted court appearances over a number of years.

Former Appellate President Dame Anita Allen, along with appellate Justices Stella Crane-Scott and Roy Jones, in a written ruling released yesterday, said the director of immigration’s actions on December 23, 2015, against Mr Rufa were beyond his powers under the Immigration Act and thus not supported by law.

And as there was no evidence the director of immigration acted on the directions of the Immigration Board in revoking Mr Rufa’s permission to land and remain in the Bahamas, the appellate judges found that a Supreme Court judge’s order for the matter to be reconsidered by the Immigration Board was “erroneous” and thus worthy to be quashed.

The appellate judges declared that the word “vary” in subsection 22(3) of the Immigration Act is to be given its “natural and ordinary meaning” which, based on the context, is that the director of immigration only has the power to “change” or “modify” by “increasing” for good cause, and up to a total maximum period of eight months, any lesser period of leave which may have been granted under Section 22(1) of the law by an immigration officer upon a person’s arrival in the Bahamas.

The appellate judges also ordered that the costs of the appeal be awarded to Mr Rufa, to be taxed if not agreed.

However, the outstanding issues, such as whether Mr Rufa has successfully pleaded and proved the alleged breaches of Article 20(2) of the Constitution via the whole ordeal, and if so, whether he is entitled to constitutional redress, including an award of vindicatory damages, are remitted to the Supreme Court for “full consideration and determination.”

According to the ruling, the judges’ orders mark the end of the “latest saga” in Mr Rufa’s “ongoing Bahamian nightmare” concerning issues he has endured with immigration officials dating back to 2015.

In January 2015, the Canadian was arrested by immigration officers and charged for allegedly working in the Bahamas without a work permit. Mr Rufa owns a unit at Coral Beach Condominiums and has resided in the Bahamas for about 20 years.

The present appeal arose out of judicial review proceedings in which Mr Rufa challenged the lawfulness of a decision by the director of immigration on December 23, 2015 to cancel the five-month entry stamp that had been placed in his passport by an immigration officer upon his arrival in the Bahamas on November 23, 2015, and to give him seven days to “wrap up his affairs and leave.”

Even moreso, the appellate judges said Mr Rufa’s appeal raised an issue of “general public importance” concerning the correct, legal interpretation to be given to the word “vary” as it appears in Section 22(3) of the Immigration Act, Chapter 191.

According to the ruling, upon arrival in the Bahamas on November 23, 2015, Mr Rufa filled out a landing card and requested a stay of 143 days or until mid-April the following year, which was in line with the period he had traditionally requested for his annual winter visits.

The immigration officer then processed Mr Rufa’s landing card. His passport was subsequently stamped by the immigration officer to indicate that he was given leave to land and remain in the Bahamas for a period of five months, that is, until April 20, 2016.

His passport was returned to him, after which Mr Rufa left the airport and went home.

Some three weeks later on December 21, a number of immigration officers visited Mr Rufa at his home and asked to inspect his passport. After inspecting the entry stamp the officers went away. Two days later, he was visited by three immigration officials who invited him to meet with the assistant director of immigration, Hubert Ferguson.

Mr Rufa and his attorney subsequently went to the Immigration Department, and while there, he was told that the director of immigration had cancelled his stay and given him one week to “wrap up his affairs and leave.” The entry stamp that was placed in his passport previously was consequently marked “cancelled” and he was verbally given seven days to leave the country.

On December 29, 2015, Mr Rufa sought leave to commence judicial review proceedings to challenge the lawfulness of the cancellation of his permission to land and remain that he was previously granted on November 23, 2015.

Those proceedings took place before Justice Petra Hanna-Weeks over a five-day period during December 2015 and in January and February of 2016.

The judge ultimately found that the word “vary” in Section 22(3) of the Immigration Act should be given its plain, ordinary meaning, that would permit the director of immigration to increase, decrease, reduce, revoke, cancel, modify and alter a period of stay previously granted at a port of entry.

The judge also found that Mr Rufa had a legitimate expectation to remain in the Bahamas for the 150-day period granted to him on arrival, and that his legitimate expectation and the “rules of natural justice” had been breached. However, the judge found he had no entitlement to remain in the Bahamas for the 150-day period.

The judge subsequently ruled that the decision to allow the appellant seven days to wind-up his affairs and leave the Bahamas was set aside and must be reconsidered by the Immigration Board.

Mr Rufa subsequently appealed that decision, essentially arguing via his attorney Fred Smith, QC, that the judge’s decision was “wrong and contrary to the legislative scheme and objectives of the Act construed as a whole.”

Mr Smith further contended that the literal meaning of the word “vary”, which counsel for the Crown had advanced and which the judge adopted, would effectively allow the director of immigration to by-pass the due process procedures that Parliament had set out in Section 40 of the law to govern the deportation and removal of persons who had lawfully entered the Bahamas.

Mr Smith also held that, given the legislative scheme of the Immigration Act, the literal meaning of the word “vary” would confer greater power on the director than the Legislature itself had intended to confer.

Conversely, attorney Loren Klein representing the director of immigration and the Queen, the respondents in the matter, submitted that Parliament’s will as reflected in the clear words of Subsection 22(3) was to give the immigration director a wide discretion, for good cause, to “vary” the original period of leave granted to a person to enter and remain in the Bahamas subject to only two conditions: that the variation of the period of stay must be for “good cause;” and the director could not extend the period for more than eight months from the day of landing.

Mr Klein contended there was nothing in the statutory context to construe the word “vary” as meaning anything but its “plain, common-sense, dictionary meaning” which, as the judge found, was wide enough to permit the “increase, decrease reduction, revocation or cancellation” of a period of stay granted to a person or visitor at a port of entry.

The Court of Appeal ultimately ruled Mr Rufa’s appeal “must be allowed as the learned judge failed to demonstrate that she conducted a fully informed review of the Immigration Act.”

“It is clear to us that she failed to examine the context of the word ‘vary’ as it appears within the Subsection 22(3) and specifically failed to demonstrate that she had properly analysed the scope or extent of the variation power in the light of the objects of the act and the Parliamentary intention manifest in the act read as a whole”.

The appellate judges also said Justice Hanna-Weekes’ further finding that the director of immigration is not obliged to give reasons for the Immigration Board’s decisions is also quashed.

The judges also noted that questions still remain on whether an award of vindicatory damages ought to be made for any “unjustified interference” with Mr Rufa’s constitutional rights, which a court may yet find him to have suffered at the hands of the director of immigration, or whether a “suitable declaration is all that may suffice to vindicate any breach.”

However, the appellate judges said the “appropriate course” to be taken is for Mr Rufa’s claim for constitutional relief to be remitted to the Supreme Court for review.

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