Court Rules On Minister’s Refusal In PRC Case

February 14, 2018

Following legal action filed by Arne Schwarz over the Minister’s refusal to grant him a Permanent Resident’s Certificate [PRC], the Supreme Court has declined his application to direct that the Minister grant him a PRC, however has quashed the decision of the Minister and remitted the matter to him for reconsideration.

The Court’s ruling said that Mr Schwarz was seeking a judicial review of the refusal by the Minister of Home Affairs to allow his application for a PRC [2008], the refusal of the Cabinet to allow his appeal [2009], and the Minister’s subsequent refusal to reconsider his decision [2015 & 2016].

“The Plaintiff further submits that the appeal process was unconstitutional. He seeks orders quashing these various decisions; a declaration that the appeal process was void; and an order mandating the Minister to grant him a PRC,” the ruling said.

Moved To Bermuda From Austria In 1987 | Traveled Back & Forth

In providing background, the court’s ruling states Mr Schwarz is a citizen of Austria who moved to Bermuda in 1987 and was employed as a waiter.

He went back to Austria in 1989, returned to Bermuda in March 1993, and in 1997 he became a father, and the child had Bermudian status as the child’s mother was Bermudian.

In February 2003, Mr Schwarz returned to Austria because his father was gravely ill, and he returned to Bermuda in March 2003.

“It is not clear for how long,” the Court ruling states. “There was no work permit in force between February 2003 and March 2004. ”

“From March 2004 through to 2008 inclusive the Plaintiff spent 9 months of the year in Austria and three months – from March to June – in Bermuda, working at Coral Beach as Chef de Rang and running the International Players’ Lounge at the annual XL Tennis Championship.”

Applies For PRC In 2008

In 2008, Mr Schwarz applied to the Minister for a PRC pursuant to section 31B of the Bermuda Immigration and Protection Act 1956

That section of the Act states the person is at least 18, makes application before 1 August 2010, and “has been ordinarily resident in Bermuda for a period of ten years immediately preceding the application.”

“The Plaintiff was a person referred to in subsection [2] as he was the natural parent of a person who possessed Bermudian status,” the court ruling notes.

Immigration Decline Application In 2008

In a letter dated 12th December 2008, the Department of Immigration informed Mr Schwarz that his application for a PRC had been rejected, as the Minister was not satisfied that he fulfilled the “requirements of section 31B of the 1956 Act, namely have been ordinarily resident in Bermuda for a period of ten years immediately preceding.”

Cabinet Dismiss Appeal in 2009

Mr Schwarz appealed to the Cabinet in December 2008, and in April 2009, the Assistant Cabinet Secretary notified Mr Schwarz that the Cabinet had met the previous day and had “after careful consideration” dismissed his appeal.

From 2009 through 2013 inclusive, Mr Schwarz visited Bermuda once a year to see his son, who also visited him in Austria for two months every summer. In 2014, he returned to live and work in Bermuda.

Lawyers Ask Minister To Reconsider in 2015 & 2016

In January 2015, Mr Schwarz’s attorneys wrote to the Immigration Department requesting the Minister reconsider his decision, and lawyers acting on his behalf wrote again in January 2016.

Files Motion In 2017

“On 28th August 2017 the Plaintiff filed a Notice of Motion seeking an order for relief on the basis set out in his leave application, as summarised at the start of this judgment,” the ruling said.

Decline To Direct Minister To Grant PRC, But Remit To Minister For Reconsideration

The ruling states, “For the avoidance of doubt, section 19(3)(b) of the 1956 Act does not mean that as matter of law a period of absence from Bermuda for purposes other than education cannot count as a period of ordinary residence in Bermuda.

“The DOI mistakenly believed that the Plaintiff was absent from Bermuda for a period of more than 12 months from February 2003 to March 2004.”

“The decisions of the Minister and the Cabinet on the question of ordinary residence were based on incorrect facts and were not based on the correct legal principles.

“I therefore quash the decision of the Minister and remit the matter to him for reconsideration. But I decline the Plaintiff’s application to direct that the Minister grant him a PRC.”

‘Award Of Damages Is Not Appropriate’

As far as damages, the ruling said, “The Plaintiff claims damages for breach of his constitutional rights, but in my judgment an award of damages is not appropriate.”

The ruling said the “alleged damage upon which he relies is the time taken up by the unconstitutional Cabinet appeals process,” which he calculates as about eight months.

“I am not persuaded that this amounts to damage, particularly as the Plaintiff and his legal representatives were responsible for a much longer delay of more than eight years between the dismissal of his appeal and his application for constitutional relief. There was no evidence before me that he has sustained any other damage.”

The full judgement follows below [PDF here]:

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