Immigration Appeals Tribunal To Be Created
Today [July 25] in the House of Assembly, National Security Minister Wayne Perinchief spoke on the Bermuda Immigration and Protection Amendment Act 2011, which will create an Immigration Appeals Tribunal.
The Minister said the Bill “creates an independent and impartial Immigration Appeals Tribunal, separate from the Executive to determine and hear all appeals against decisions of the Minister currently available to applicants by virtue of the principal Act.”
The Chairman and Deputy Chairman will be lawyers of at least five years standing, and the other members of the Tribunal will form a total pool of 12 members available to hear appeals as required. The members of the Tribunal will be appointed by the Minister after consultation with the Premier.
Minister Perinchief’s full statement is below:
Mr. Speaker, the Bill before this Honourable House is the Bermuda Immigration and Protection Amendment Act 2011. Mr. Speaker, this Bill is more than mere housekeeping. This Bill, Mr. Speaker, strengthens our democracy and further enhances Bermuda as a jurisdiction founded on the rule of law.
Mr. Speaker, the phrase “good governance” is now on the lips of every Honourable Member opposite. Mr. Speaker, members of the public might be forgiven for thinking that the requirement for “good governance” arose in 1998. Like you, Mr. Speaker, I know that “good governance” is not new and the requirement for it is as ancient as rulers and councils.
Mr. Speaker, the Bill before this Honourable House puts right a wrong for which no blame need be cast. With perhaps good intentions the principal Act created a regime that permitted appeals from decisions of the Minister responsible for immigration to the Cabinet.
At first blush Mr. Speaker, it might be said that this appellate mechanism, to the appointed Cabinet of the land would provide a check on the power exercised by a Minister. In some cases, Mr. Speaker, I am certain that the Cabinet Appeals Committee did just that.
However, Mr. Speaker even the best intentions can yield unsatisfactory consequences. In this case, the consequences have been a system that needs to be changed to be strengthened. The responsibility of Governments is to address change, promote sound processes and at every turn inspire confidence in its processes and procedures.
Mr. Speaker, by way of background, Honourable Members should be aware that the Supreme Court of Bermuda, in considering the findings of the Cabinet Appeals Committee, has observed that the appeal of a Minister’s decision to a panel of his peers simply cannot be in keeping with an important Constitutional maxim, independence and impartiality.
Mr. Speaker, in one case in particular, the learned judge in the Supreme Court observed: ” ….where a right of appeal is conferred by Parliament, it should be a right of appeal to a tribunal which complies with section 6(8) of the Constitution and is independent of the Executive. Obviously, the Cabinet Appeal tribunal does not comply. ”
Mr. Speaker, with this clear pronouncement on the law the Government considered it important to act. Calling for good governance in the abstract is one thing, actually implementing it is quite another.
Mr. Speaker, the Bill before this Honourable House creates an independent and impartial Immigration Appeals Tribunal, separate from the Executive to determine and hear all appeals against decisions of the Minister currently available to applicants by virtue of the principal Act.
Mr. Speaker, Honourable Members are invited to take note that the realignment of ministerial responsibilities that took place on 5th November 2010 makes my colleague who sits in “Another Place”, the Minister of Economy, Trade and Industry, responsible for functions related to work permits, whilst the Minister of National Security remains responsible for applications for Bermudian status and related applications for permanent residency.
Mr. Speaker, immigration laws the world over are complex. To ensure that this Tribunal has the benefit of considered legal opinions and an overlay of legal efficacy in its proceedings, it is proposed that both the Chairman and Deputy Chairman be barristers and attorneys-at-law of at least five (5) years standing. The other members of the Tribunal will form a total pool of 12 members available to hear appeals as required.
Mr. Speaker, the members of the Tribunal will be appointed by the Minister after consultation with the Premier. At the risk of robbing Honourable Members opposite of their headlines, this mode of appointment exists in several other areas with statutory bodies and as has been demonstrated regularly, Boards appointed in this manner do not fail to exercise the independence demanded of them by the statute which governs their respective mandates.
Mr. Speaker, this Bill also confronts the old adage that in Bermuda, one had no interest unless there was a conflict. The Bill mandates the disclosure of any conflict of interest and disqualifies any member in this position from participating in the matter under consideration.
Mr. Speaker, the Bill bequeaths to the Appeal Tribunal the powers of a court of summary jurisdiction which demonstrates the seriousness and depth to which it is expected its functions will be executed. Additionally, Mr. Speaker, there is set out in the Bill a right of further appeal of the Tribunal’s decision to the Supreme Court.
Mr. Speaker, permit me to observe in the course of this the general debate on the Bill, that this legislation is a natural progression fulfilling this Government’s undertaking in the Speech From the Throne of 2010. Mr. Speaker, Honourable Members will recall that we undertook to conduct a wholesale overhaul of this country’s immigration laws.
We need to bring certainty, simplicity and user-friendliness to these laws which affect our people in their everyday lives, in the conduct of their businesses and count for much in the attractiveness of Bermuda as a jurisdiction in which to do business.
Mr. Speaker, this Bill is an important step in the modernization of our immigration regime. The creation of this Immigration Appeal Tribunal is best practice, constitutionally sound and will inspire confidence in the impartiality of processes key to the perception of Bermuda’s reputation as a jurisdiction of first choice.
Mr. Speaker, I am pleased to commend the Bill to the House for debate. Thank you, Mr. Speaker.
Great Job Mr. Perinchief! A needed board for transparency and fairness.
“Mr. Speaker, the members of the Tribunal will be appointed by the Minister after consultation with the Premier.”
So much for independence and impartiality.