Yonggao Pan v Minister of National Security (Trinidad and Tobago)

Section 16 of the Judicial Review Act does not itself create a statutory right or mandatory duty to provide reasons. It reinforces a pre-existing common-law or other right and supplies a summary mechanism for obtaining reasons after the leave requirements for judicial review are met.

Failure to provide reasons may itself be the sole substantive ground of review, but the applicant must show an arguable duty to give reasons, failure to do so, and sufficient standing. The adequacy of reasons is context-sensitive. For an administrative deportation order, statutory grounds involving binary facts known to the affected person may require little elaboration. A linked prior decision may supply context for a less obvious ground. Further reasons for exercising a residual discretion are unnecessary absent compelling circumstances.

The appellant, a Chinese national who had lived and worked in Trinidad and Tobago since 2006, was refused permanent residence after being charged with fraud. The Minister then made a deportation order relying on statutory immigration grounds, including imprisonment, overstaying and breach of entry conditions.

The appellant requested reasons under section 16 of the Judicial Review Act and sought leave to apply for judicial review. Lambert Peterson J dismissed the application on 5 February 2021. The Court of Appeal dismissed the appeal on 14 May 2021, holding that section 16 created no freestanding right to judicial review and that the reasons were adequate. The central issues before the Board were the construction of section 16 and the adequacy of the reasons given.

Appeal dismissed. The Board agreed with the result reached below, although it rejected part of the Court of Appeal’s reasoning.

1. Construction of section 16. Section 16(1) gives an adversely affected person a mechanism to request reasons. It does not itself create a statutory right to reasons or impose a general mandatory duty on the decision-maker. Section 16(2) sets the time limit for making the request. Under section 16(3), leave under sections 5 and 6 is a precondition to an ancillary order compelling reasons. The provision therefore does not create a freestanding judicial review claim for breach of section 16 itself.
2. Nature of the judicial review ground. The Board did not accept that an applicant must identify a substantive ground independent of the failure to provide reasons. Failure to provide reasons may fall within section 5(3)(c) or (d), or may itself be the only substantive ground. The applicant must nevertheless establish an arguable case that reasons should have been provided but were not, together with the applicable standing or public-interest requirements. Leave is not automatic.
3. Duty and adequacy of reasons. There is no universal duty to give reasons, but procedural fairness may require them in particular circumstances, especially where they are needed to make an effective judicial review challenge. The Board referred to R v Secretary of State for the Home Department, Ex p Doody [1994] 1 AC 531, 564F, and North Range Shipping Ltd v Seatrans Shipping Corpn [2002] EWCA Civ 405, [2002] 1 WLR 2397, para 15. Reasons, including reasons given voluntarily, must be assessed contextually. The standards applicable to trial judgments do not transfer directly to administrative decisions: Hunter v Transport Accident Commission [2005] VSCA 1.
4. Application to the deportation order. The order’s reliance on section 9(4)(c) and (f) identified straightforward factual grounds, namely imprisonment and remaining after expiry of the relevant certificate. Those facts were within the appellant’s knowledge, and either ground was sufficient. Although section 9(4)(k) was less self-evident, the appellant knew of the linked refusal of permanent residence and, by the time of the leave hearing, the reasons for that refusal. The basis of the alleged breach of his prior conditions was therefore sufficiently clear. Although the Minister retained a discretion to deport, further reasons for exercising that discretion were not required in the absence of compelling circumstances.

The deportation order provided intelligible and sufficient reasons to enable a judicial review challenge. There was no arguable ground, so leave was properly refused.

• Privy Council: dismissed the appeal and upheld the refusal of leave to apply for judicial review.
• Court of Appeal of the Republic of Trinidad and Tobago: by judgment dated 14 May 2021, dismissed the appeal. It held that section 16 created no freestanding right to judicial review and agreed that the deportation order gave adequate reasons.
• High Court: Lambert Peterson J dismissed the application by order dated 5 February 2021, holding that the deportation order contained concise and adequate reasons and disclosed no arguable ground for judicial review.