June 23, 2021

The Editor Speaks: Immigration are a law unto themselves

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The Immigration Department are very lucky they won their case of not being forced to provide an Internal Review to a private company for a) the reasons for the fine they imposed on the company and b) the written reasons for a decision which the company alleged had adversely affected their interests in regard to that fine.

The Immigration Department ignored all the Acting Commissioner’s (Jan Liebaers) requests for information and at the last moment informed him they would not be appearing at the Informal Hearing.

Liebaers in his Decision 57 said, “I did not receive that communication until several deadlines for submissions and reply submissions had already passed, and ICO staff had repeatedly attempted to communicate with the IM about the issue. The Department’s approach runs afoul of the basic principles of the FOI Law which is based on the premise that all records – except for limited exclusions identified in section 3, to which the FOI Law does not apply – are to be disclosed unless exempted. The FOI Law requires that a public authority which withholds any record from disclosure must provide legal reasons.”

He further said, “I wish to make it clear to … public authorities which may be called upon to argue an exemption under the FOI Law in the future, that arguments should be supported by cogent and clear evidence, and should be systematically and logically laid out. The burden of proof rests on the public authority to demonstrate how and why any exemption applies, and it is not up to the Information Commissioner to build the case for the public authority. Given the clear violation of these statutory obligations and procedural steps, which were communicated to the Department, it is hard to imagine how any public authority can defend its position to withhold a requested record for well over a year, in the end simply to refuse giving reasons for doing so, which is what the Department’s refusal to provide a submission amounts to.

“This course of action is particularly regretful since the Department has in the past responded to more FOI requests than any other public authority, and its staff should therefore be well aware of the routine requirements of the FOI Law and the ICO. It seems implausible that the lack of communication and cooperation in the present hearing can be attributed to a want of understanding about what is required. Nor can I find a reason why the unrelenting efforts of several ICO staff members who tried to inform the Department of its duties were ignored. Under these circumstances, the Department’s refusal to provide reasons for withholding the ruling/advice can only be described as wilful, egregious and unlawful.

“Even a casual reader of the news will realize that immigration resources are currently under severe strain, as several urgent matters demand the attention of a finite number of departmental staff, for instance the ongoing backlog in permanent residence applications and the peak in work permits being processed. While I sympathize with this predicament, such pressures do not in any way absolve the Department – one of the largest departments in the Cayman Islands Government – from meeting its legal obligations in all other statutory areas, including responding to FOI requests and cooperating with the ICO in the course of appeals and hearings.

“Despite the broad investigatory powers granted to the Information Commissioner by section 45(1), which include “requiring the production of evidence and compelling witnesses to testify”, I do not believe it would be correct for me to try and compel the Department to justify the withholding of the requested record, since it refused to defend its own position voluntarily, even after repeated reminders.

“In my mind the Department’s refusal to provide reasons for withholding the requested record demonstrates a blatant lack of respect for the laws of the Cayman Islands, the FOI Law and the ICO.

“There is no excuse for it, and I feel that I would be justified on that basis alone, to order the record disclosed.”

However, Liebaers, did not let his personal feelings cloud his judgement and ruled, “The public interest in disclosure does not outweigh the public interest in maintaining the exemption, and the record may remain withheld.”

The behaviour of the Immigration Department is inexcusable and now the Premier has taken over this department I hope he looks into this and makes representations to the Deputy Governor to make sure this NEVER happens again.

I hope the new Ombudsman is taking careful note of it.

Immigration are NOT a law unto themselves. We pay their salaries! They demand we obey their laws and prosecute us immediately we don’t. It works BOTH ways.

See iNews Cayman story published today “Acting Cayman Islands Information Commissioner releases Hearing Decision involving Department of Immigration.”

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