republic of trinidad and tobago in the high court of...

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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV2020-01118

IN THE MATTER OF AN APPLICATION OF JOSE ROYXANDER ARMAS

MACHADO FOR THE ISSUE OF A WRIT OF HABEAS CORPUS AD

SUBJICIENDUM AGAINST THE CHIEF IMMIGRATION OFFICER

BETWEEN

JOSE ROYXANDER ARMAS MACHADO

Applicant

AND

THE CHIEF IMMIGRATION OFFICER

First Respondent

THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO

Second Respondent

Before the Honourable Mr. Justice Robin N. Mohammed

Date of Delivery: Monday 11 May 2020

Appearances:

Mr. Criston J. Williams instructed by Mr. Jerome Riley for the Applicant

Mr. Duncan Byam and Ms. Karlene Seenath instructed by Ms. Sangeeta Latchan for the

Respondents

DECISION ON THE APPLICANT’S APPLICATION FOR WRIT OF HABEAS

CORPUS AD SUBJICIENDUM FILED ON 21 APRIL 2020

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I. Introduction

[1] On 21 April 2020, the Applicant applied to the Court for the issue of a Writ of Habeas

Corpus ad Subjiciendum (hereinafter “the Writ of Habeas Corpus”) challenging his

detention and continued detention at the Immigration Detention Centre from 3 January

2020 to the date of filing of the Writ of Habeas Corpus. The Applicant has alleged that

his detention, including his continued detention, in all the circumstances, is unlawful.

II. Background

[2] On 16 December 2018, the Applicant was arrested during a police raid in the vicinity

of St. Joseph, Maracas. The Applicant was subsequently transported to the Tunapuna

Police Station where he was charged with the offences of possession of a firearm and

ammunition pursuant to section 6(1) of the Firearms Act, Chap 16:01 and possession

of marijuana pursuant to section 5(1)(a) of the Dangerous Drugs Act, Chap 11:25.

[3] The Applicant appeared before the presiding Magistrate at the Tunapuna Magistrates’

Court on 20 December 2018 where the charges against him were read out to which he

pleaded not guilty. The Applicant was granted bail with a cash alternative in the sum

of $15,000.00. However, he was not able to immediately access his bail. As a result,

the Applicant was remanded into custody at the Maximum Security Prison, Arouca. He

was detained at the prison for approximately 1 year.

[4] In December 2019, one of the Applicant’s friends was able to pay the bail on his behalf.

However, on 3 January 2020, the Applicant was transferred to the Immigration

Detention Centre where he continues to be detained.

[5] On 21 April 2020, the Applicant applied for a Writ of Habeas Corpus so as to secure

his release from the Immigration Detention Centre. The Application was supported by

the affidavit in the name of Mr. Jerome Riley, the Applicant’s instructing attorney-at-

law. Mr. Riley deposed that it was impractical for the Applicant to depose to the

affidavit because the Applicant is detained at the Immigration Detention Centre and is

not allowed to sign documents unless permission is granted from the Immigration

Division, Enforcement Unit. He further deposed that he could not engage a

Commissioner of Affidavit to visit the Immigration Detention Centre to have the

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Applicant’s affidavit sworn because of the current “stay-at-home” Regulations issued

in light of the coronavirus pandemic.

[6] On 23 April 2020, the First Respondent filed an affidavit in the name of Anderson

Jerome, Immigration Officer III, in opposition to the Application.

[7] Both parties filed submissions on the 24 April 2020 as well as the Court heard oral

submissions by both Counsel on 24 April 2020.

III. Application

[8] The grounds of the Application are as follows:

a) The detention and continuing detention of the Applicant by the Chief

Immigration Officer, her servants and/or agents amounts to indefinite detention

and is unlawful, arbitrary and unreasonable in the circumstances.

b) The detention and continuing detention of the Applicant by the Chief

Immigration Officer, her servants and/or agents is in breach of his constitutional

rights under section 4 of the Constitution. In particular, section 4(a) which

provides for the right to life, liberty and the security of the person and the right

not to be deprived thereof except by due process of law; section 4(b) the right

to equality before the law and the protection of the law; section 4(c) the right to

equality of treatment from any public authority namely the Chief Immigration

Officer, her servants and/or agents in the exercise of any functions; and section

5(2)(c)(iii) which entails the right to be brought promptly before an appropriate

judicial authority.

c) The Applicant was not served with any rejection order pursuant to section 21

and section 22 of the Immigration Act, Chap 18:01 nor has he been served

with a Form 26 Order to show Cause and Notice of Hearing in Deportation

Proceedings under section 18 of the Immigration Act and Regulation 25(8)

of the Immigration Regulations.

d) The Applicant cannot rely on section 8(1) and section 13(3) of the

Immigration Act as being persons aggrieved by the decision of a Special

Inquiry Officer as the Chief Immigration Officer failed to comply with section

13(2) of the Immigration Act.

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e) The continued detention of the Applicant can only be adopted should it be

determined that he has become a member of the prohibited class pursuant to

section 8(1) of the Immigration Act.

f) The Applicant was granted bail in relation to the criminal charges of possession

of a firearm and ammunition pursuant to section 6(1) of the Firearms Act and

possession of marijuana pursuant to section 5(1)(a) of the Dangerous Drugs

Act. In December 2019, the Applicant was able to access his bail in the amount

prescribed. However, the Applicant continues to be detained at the Immigration

Detention Centre for the period 3 January 2020 to present (date of filing of Writ

of Habeas Corpus on 21 April 2020).

g) The Applicant has been and continued to be detained at the Immigration

Detention Centre for a period of 109 days (as at 21 April 2020).

h) The Applicant was not served with an Order of Deportation Proceedings in

accordance with section 28 of the Immigration Act.

i) The Applicant is at present in the custody of the Immigration Division and is

being detained at the Immigration Detention Centre for an inordinate and

unreasonable length of time.

j) Despite several attempts by the Applicant, no reasonable and/or plausible

explanation has been given for the Applicant’s prolonged detention.

k) The Applicant remains in the custody of the Immigration Division without due

process and/or illegally and/or unlawfully.

IV. Affidavit in support

[9] Mr. Riley, on behalf of the Applicant, deposed that the Applicant is a citizen of the

Bolivarian Republic of Venezuela. The Applicant illegally entered the country in

October 2018 via a port of entry in Cedros with the intention of becoming a refugee. In

the said October 2018, the Applicant registered with the Living Waters Community,

the Implementing Partner of the United Nations High Commissioner for Refugees

(UNHCR) in Trinidad and Tobago. The Applicant was subsequently issued a UNHCR

card on 30 October 2018 which expired on 30 October 2019.

[10] On 16 December 2018, the Applicant was arrested during a police raid in the vicinity

of St. Joseph, Maracas. The Applicant was transported to the Tunapuna Police Station

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where he was detained for a period of 4 days. The Applicant was subsequently charged

with possession of a firearm and ammunition pursuant to section 6(1) of the Firearms

Act and possession of marijuana pursuant to section 5(1)(a) of the Dangerous Drugs

Act.

[11] The Applicant appeared before the presiding Magistrate at the Tunapuna Magistrates’

Court on 20 December 2018 where the charges were laid out against him. At the

hearing, the Applicant was granted bail with a cash alternative in the sum of

$15,000.00 The Applicant was not able to immediately access his bail and as a result,

he was remanded into custody at the Maximum Security Prison, Arouca. The

Applicant was detained at the Prison for approximately 1 year.

[12] In December 2019, one of the Applicant’s friends was able to pay the bail on his

behalf. The Applicant appeared at the Tunapuna Magistrates’ Court on 3 separate

occasions and a verdict has not been rendered in his matter.

[13] Mr. Riley deposed that on 3 January 2020, the Applicant was transferred to the

Immigration Detention Centre where he continues to be detained pending the

determination of his criminal charges. He further deposed that the Applicant entered

Trinidad to seek asylum because of the socio-political and economic crisis in

Venezuela.

[14] Mr. Riley deposed that on 16 April 2020, he contacted Mr. Deke Rohlehr, attorney-

at-law, who appeared at the trial for the Applicant in or around 12 March 2020. Mr

Riley was informed that the presiding Magistrate was scheduled to render the decision

on March 17 2020. However, pursuant to Gazette No. 30 of 2020 Practice Direction

COVID-19, all hearings were suspended during the period 16 March 2020 to 17

March 2020 (sic)1 save and except for all such matters as provided for in the said

Practice Direction. Mr. Riley further stated that on 6 April 2020, Chief Justice Ivor

Archie, pursuant to Gazette No 51 of 2020 Practice Direction COVID-19 extended

1 Incorrectly cited. Practice Directions on COVID-19 Emergency Directions published in the Trinidad and

Tobago Gazette, Vol 59, No 30 dated 16 March 2020 Bold Number 387. Furthermore, this Practice Direction

was superseded by Practice Directions on COVID-19 Emergency Directions published in the Trinidad and

Tobago Gazette, Vol 59, No 31 dated 17 March 2020 Bold No 388. Nevertheless, the period was from 16 March

2020 to 17 April 2020 and not 16 March 2020 to 17 March 2020.

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the period of suspension of all Court hearings for the period 16 April 2020 to 30 April

20202.

[15] Consequently, the Applicant has not attended the Tunapuna Magistrates’ Court since

the date of his trial. According to Mr. Riley, he has made several attempts to ascertain

the Applicant’s adjourned Court date via telephone calls to the Assistant Registrar of

the Tunapuna Magistrates’ Court but it was to no avail.

[16] Mr. Riley stated that he received instructions from the Applicant to issue a Pre-Action

Protocol letter to the Chief Immigration Officer detailing the unlawfulness of his

detention and to request that he be placed on an Order of Supervision pursuant to

section 17 of the Immigration Act. However, the Pre-Action Protocol letter has been

ignored and/or unanswered and the Chief Immigration Officer has failed to make a

decision on the requests contained therein.

[17] Mr. Riley deposed that as a consequence of the Applicant’s continued detention at the

Immigration Centre, the Applicant was unable to complete his final appointment with

the Living Waters Community to be recognised as an asylum-seeker/refugee.

V. Affidavit in response

[18] In opposition, Mr. Jerome deposed that the Applicant first came to the attention of

officers in the Immigration Division on 27 May 2018 when he was arrested by officers

of the Trinidad and Tobago Police Service for entering the country illegally. On 28

May 2018, the Applicant was handed over in the custody of the Immigration Division

where he was interviewed and admitted to have entered the country illegally on 12

May 2018. The Applicant was charged for that offence and on 29 May 2018, he

pleaded guilty and was fined.

2 Incorrectly cited. Practice Directions on COVID-19 Emergency Directions published in Trinidad and

Tobago Gazette, Vol 59, No 46 dated 6 April 2020 Bold No 484. This Practice Direction superseded the Practice

Direction at footnote 1 above. Furthermore, the period in that Practice Direction is 16 March to 30 April 2020.

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[19] The Immigration Division requested a report on the Applicant from Interpol which it

received on 4 July 2018. The report stated that the Applicant had been convicted in

Venezuela of the offence of violence and resistance to authority on 20 March 2010.

[20] A Special Inquiry was held with respect to the Applicant on 28 August 2018, at the

end of which, a deportation order was issued. The Applicant was deported to

Venezuela on 26 September 2018. According to Mr. Jerome, the said deportation

order remains in effect and valid to date as provided for by section 29(2) of the

Immigration Act. [It is to be noted that the facts recited from paragraphs 18 to 20

herein were not disclosed by the Applicant in the affidavit filed on his behalf by

attorney-at-law Jerome Riley, nor have they been refuted].

[21] Mr. Jerome further deposed that the Applicant next came to the attention of the

Immigration Division on 17 December 2018 when an Officer of the Trinidad and

Tobago Police Service reported to the Officers of the Immigration Division that the

Applicant had been arrested at Acono Road, Maracas. The Applicant had been found

with firearms, ammunition and marijuana. The Applicant was subsequently charged

for the aforementioned offences.

[22] The Applicant was detained in prison while those charges were pending before the

Magistrate until 3 January 2020. On said date, the Applicant was turned over to the

Immigration Division and detained under the deportation order pending deportation.

According to Mr. Jerome, at that time, the trial was still ongoing before the Magistrate.

[23] Mr. Jerome deposed that the Applicant did not have a passport. Therefore, the

Immigration Division was required to obtain a travel document with the assistance of

the Venezuelan Embassy, to facilitate the Applicant being repatriated to Venezuela.

The Immigration Division obtained a boat ticket and a travel document for the

Applicant to return to Venezuela on the Angel de Orinoco which was scheduled for

departure on 27 February 2020. However, on 26 February 2020, the agents for the

vessel informed the Immigration Division that the sailing for 27 February 2020 was

cancelled. The date of departure was subsequently rescheduled to 5 March 2020. The

Applicant was due to leave on this date. However, his next hearing date before the

Magistrate was on 9 March 2020.

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[24] According to the information possessed by the Immigration Division, the Applicant’s

trial was likely to be concluded and the Magistrate would give a verdict on 9 March

2020. Accordingly, the Chief Immigration Officer instructed that the Applicant’s

departure date on 5 March 2020 should be rescheduled to allow the Applicant’s matter

before the Magistrates’ Court to be concluded. The Chief Immigration Officer gave

further instructions that if the matter was not concluded and the hearing was

adjourned, the Applicant should be deported as soon as possible thereafter.

[25] On 9 March 2020, the Applicant’s matter was again adjourned. An officer of the

Immigration Division then rescheduled his sailing and arrangements were being made

for the Applicant to depart on the Angel de Orinoco on 19 March 2020. However, on

16 March 2020, when the Immigration Division sought to obtain a new travel

document for the Applicant, the officials of the Venezuela Embassy informed the

Immigration Division that the Bolivarian Republic of Venezuela had closed their

borders. As such, the Applicant could not depart on his schedule sailing for 19 March

2020.

[26] Nevertheless, Mr. Jerome deposed that the Immigration Division shall seek to deport

him as soon as the borders are reopened. Mr. Jerome stated that the Applicant is

presently being held pending deportation irrespective of the outcome of the

Applicant’s matter at the Magistrates’ Court as the Immigration Division does not

intend to wait. Nonetheless, there is a delay in effecting his deportation because the

borders of both Trinidad and Tobago and Venezuela are closed as part of each

country’s efforts to deal with the effects of the coronavirus pandemic.

VI. Issues

[27] The sole issue which falls for determination in this Application before the Court is:

Whether, in all the circumstances, the Applicant’s detention, including his

continued detention, is unlawful.

[28] In determining this sole issue, the following sub-issues/factors arise for consideration:

1. What is the effect of the deportation order made on 28 August 2018?

2. Does the Applicant’s potential refugee status negate the effect of the

deportation order made on 28 August 2018?

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3. Can the Applicant be deported while criminal proceedings are pending in the

Magistrates’ Court?

4. Is the continued detention of the Applicant at the IDC unreasonable, arbitrary

and unlawful?

5. Is the appropriate remedy available to the Applicant in these circumstances a

Writ of Habeas Corpus or Judicial Review?

VII. Law and Analysis

Immigration Law in relation to immigrants and deportation

[29] At this point, I find it necessary to highlight the relevant sections of the Immigration

Act, Chap 18:01 for the purposes of this decision as they relate to entry, detention

and deportation. Section 8 (1) (a) – (q) of the Immigration Act sets out the several

classes of person who are prohibited from entering Trinidad and Tobago. Two of those

prohibited classes relevant to this decision are: (i) persons who have been convicted

of or admit having committed any crime, which if committed in Trinidad and Tobago

would be punishable with imprisonment for one or more years [section 8(1)(d)]; and

(ii) persons who cannot or do not fulfil or comply with any of the conditions or

requirements of this Act or the Regulations or any orders lawfully made or given under

this Act or the Regulations [section 8(1)(p)].

[30] Section 10(1) of the Immigration Act makes provision for the Minister to issue a

permit for a person to enter and remain in Trinidad and Tobago. The permit shall be

expressed to be in force for a specified period not exceeding 12 months. During the

time that the permit is in force such permit stays the execution of any deportation order

that may have been made against the person concerned [section 10(2)]. The Minister

may extend, vary or cancel a permit in writing at any time [section 10(5)].

[31] Part II of the Immigration Act concerns administration by immigration officers.

Section 13 of the Immigration Act specifies that immigration officers in charge of a

port of entry are Special Inquiry Officers who have the authority to inquire into and

determine whether any person shall be admitted into Trinidad and Tobago or allowed

to remain in Trinidad and Tobago or shall be deported. Both sections 14 and 15 of

the Immigration Act confer, on the Minister, Chief Immigration Officer and Special

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Inquiry Officers, the authority to detain. Section 14 provides the mechanism to do so

with a warrant and section 15 without a warrant or direction. Nonetheless, whether

the power that is being exercised is under section 14 or 15, importantly, the purpose

of exercising the power to detain is to hold an inquiry or for deportation [Emphasis

mine]. An inquiry is the commencement of deportation proceedings and the relevant

process is set out in sections 21 to 27 of the Immigration Act and Regulation 25 of

the Immigration Regulations.

[32] Section 16 of the Immigration Act makes provision for detention of a person pending

inquiry, examination, appeal or a deportation or rejection order at an immigration

station or other place satisfactory to the Minister. Section 17 of the Immigration Act,

on the other hand, makes provision for conditional release or an order of supervision

for a person taken into custody or detained under such conditions, respecting the time

and place at which he will report for examination, inquiry, deportation or rejection on

payment of a security deposit or other conditions. Section 18 of the Immigration Act

provides for examination by an immigration officer of persons seeking admission or

entry into Trinidad and Tobago as to whether he is or is not admissible.

[33] Under section 21(1) of the Immigration Act, after examination of a person seeking

to enter into Trinidad and Tobago, where an immigration officer is of the opinion that

it would or may be contrary to a provision in the Act or the Regulations to grant

admission to such a person, he may either (i) make an order for the rejection of such

person; or (ii) cause such person to be detained pending the submission of a report to

a Special Inquiry.

[34] Section 22 of the Immigration Act makes provision for written reports on persons in

Trinidad and Tobago to be sent to the Minister and to the Chief Immigration Officer.

A written report is to be submitted to the Minister in respect of (a) any person, other

than a citizen of Trinidad and Tobago, who engages in, advocates or is a member of,

or associated with any organisation, group or body of any kind that engages in or

advocates subversion by force or other means of democratic Government, institutions

or processes; (b) any person, other than a citizen of Trinidad and Tobago, who, if in

Trinidad and Tobago has, by a Court of competent jurisdiction, been convicted of any

offence involving disaffection or disloyalty to the State; and (c) any person, other than

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a citizen of Trinidad and Tobago, who, if out of Trinidad and Tobago, engages in

espionage, sabotage or any activity detrimental to the security of Trinidad and Tobago.

[35] Another written report is to be submitted to the Chief Immigration Officer in respect

to (d) any person, other than a citizen of Trinidad and Tobago, who is convicted of an

offence for the violation of section 5 of the Dangerous Drugs Act; (e) any person who

being a resident is alleged to have lost that status by reason of section 7(2)(b) or (4);

(f) any person, who, being a permitted entrant, has been declared by the Minister to

have ceased to be such a permitted entrant under section 9(4); (g) any person other

than a citizen or resident of Trinidad and Tobago who has become a charge on public

funds; (h) any person, other than a citizen of Trinidad and Tobago, who counsels, aids,

or abets others to remain in the country illegally; and (i) any person other than a citizen

of Trinidad and Tobago who either before or after the commencement of this Act came

into Trinidad and Tobago at any place other than a port of entry or has eluded

examination or inquiry under this Act. The section, however, is silent on whether the

written report has to be sent to the Applicant.

[36] The Immigration Act contemplates the holding of a Special Inquiry by an

Immigration Officer who is designated a Special Inquiry Officer. The manner in which

the hearing is to be conducted is provided for by sections 24 and 25 of the

Immigration Act. At the hearing, the Special Inquiry Officer may (i) admit into or

allow the person the subject of the inquiry to remain in Trinidad and Tobago [section

25(2)]; (ii) if the person admits the factual allegations and is willing to leave Trinidad

and Tobago voluntarily and at no expense to the Government and the Special Inquiry

Officer is satisfied that the case is genuine, the Special Inquiry Officer may issue the

prescribed form for his voluntary departure [section 24(5)]; or (iii) make an order for

deportation. Section 25(4) of the Immigration Act provides that upon making an

adverse decision, the Special Inquiry Officer is mandated to make a deportation order.

ISSUE 1: What is the effect of the deportation order made on 28 August 2018?

[37] Section 29 of the Immigration Act makes provision for the execution of deportation.

According to section 29(1) of the Immigration Act, a deportation order must be

executed as soon as practicable. Section 29(2) of the Immigration Act provides for

the validity of a deportation order which reads as follows:

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“29(2) A deportation order does not become invalid on the ground of

any lapse of time between its making and execution, and remains valid

after execution unless cancelled by the Minister.”

[38] The Deportation Order was made against the Applicant under the Immigration Act,

Chapter 18:01 on the basis of evidence adduced at an inquiry held at the Immigration

Division. Based on the contents of the Deportation Order exhibited to Mr. Jerome’s

affidavit, the Special Inquiry Officer arrived at the decision that the Applicant may

not enter or remain in Trinidad and Tobago for the following reasons: (i) The

Applicant is not a citizen nor a resident of Trinidad and Tobago; (ii) The Applicant is

a native of the Bolivarian Republic of Venezuela; (iii) The Applicant is a citizen of

Bolivarian Republic of Venezuela; (iv) The Applicant is a person described in section

22(1)(i) of the Immigration Act3.

[39] The Deportation Order ordered the Applicant to be detained and to be deported to the

place from whence he came to Trinidad and Tobago, or to the country of which he is

a national or citizen, or to the country of his birth, or to such country as may be

approved by the Minister. The Deportation Order further ordered that the Applicant is

to remain out of Trinidad and Tobago while the Order is in force. The Deportation

Order also warned the Applicant that re-entry into Trinidad and Tobago without the

permission in writing of the Minister while this Order is in force constitutes an offence

under section 29(8) of the Immigration Act. The penalty under this section is a fine

of $1,500.00 and imprisonment for 6 months in addition to being again deported from

Trinidad and Tobago.

[40] The Applicant was served with the Deportation Order on 28 August 2018 at 1:16pm

as indorsed on the Deportation Order. On the Deportation Order, the Applicant gave

a form of undertaking not to return to Trinidad and Tobago and declared as follows:

“Whereas I have this day been served with a Deportation Order the

serving of which Order is hereby acknowledged by me; now I Royxander

3 Any person other than a citizen of Trinidad and Tobago who either before or after the commencement of this

Act came into Trinidad and Tobago at any place other than a port of entry or has eluded examination or inquiry

under this Act.

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Jose Armas Machado hereby undertake that I will not return to Trinidad

and Tobago unless I am specifically permitted in writing by the Minister

to return.”

[41] The Deportation Order made against the Applicant on 28 August 2018 complied with

section 28 of the Immigration Act and was served on the Applicant. There is no

evidence before the Court that the Applicant appealed this Order. In this case, the

Applicant was first deported to Venezuela on 26 September 2018, thus complying

with section 29(1) of the Immigration. Mr Jerome deposed that the said Deportation

Order remains in effect and valid to date pursuant to section 29(2) of the Immigration

Act. Mr Byam, in his filed written submissions and in his oral submissions, submitted

that the Deportation Order is still in effect pursuant to section 29(2) of the

Immigration Act and that the Applicant may be deported under the said Deportation

Order pursuant to section 29(6)(c) of the Immigration Act.

[42] The Court agrees with Mr. Byam on this submission. The relevant provisions in

section 29 of the Immigration Act are unambiguous. The Deportation Order of 28

August 2018 was not cancelled by the Minister, therefore, the Order remains valid and

in force. Accordingly, the Applicant, having re-entered Trinidad and Tobago has

contravened the Deportation Order of 28 August 2018 and may be deported under this

original order [section 29(6)(c)]. The evidence before the Court is that the

Immigration Division intends to have the Applicant deported again under the original

order of 28 August 2018 which the Court finds is lawful and permitted under section

29(6)(c). In that regard, the Chief Immigration Officer has the lawful authority to

detain the Applicant pursuant to the Deportation Order made on 28 August 2018 to

have him again deported.

ISSUE 2: Does the Applicant’s potential refugee status negate the effect of the

Deportation Order of 28 August 2018?

[43] Article 1 of the 1951 Convention Relating to the Status of Refugees (hereinafter

“the 1951 Convention”) prescribes the categories of person to whom the status of

refugee may be ascribed. Article 1A(2) defines “refugee” as “any person who, as a

result of events occurring before 1 January 1951 and owing to well-founded fear of

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being persecuted for reasons of race, religion, nationality, membership of a

particular social group or political opinion, is outside the country of his nationality

and is unable or, owing to such fear, is unwilling to avail himself of the protection

of that country; or who, not having a nationality and being outside the country of

his former habitual residence as a result of such events, is unable or, owing to such

fear, is unwilling to return to it.”

[44] Mr. Byam submitted that the Applicant has not given evidence nor has he stated that

he belongs to one of those classes of persons in Article 1A(2). As such, he cannot ask

the Court to infer from his evidence that he intends to apply for refugee status. Counsel

relied on the case of Buxton v Jayne4. It was submitted that the Applicant has said

that he came here because of the political and socio-economic situation in Venezuela;

this is not a claim to be a refugee. Furthermore, Article 33(2) of the 1951 Convention

provides that the benefits of Article 33(1) do not apply to refugees when there are

reasonable grounds for believing they may be a danger to the security of the country

in which they find themselves. Thus, it was respectfully suggested that the Applicant

is a danger to the security of this country.

[45] Mr. Byam further submitted that Article 2 of the 1951 Convention says that every

refugee has duties to the country in which he finds himself, which require in particular

that he conforms to its laws and regulations as well as the measures taken for the

maintenance of public order. However, the Applicant has not acted in accordance

with this prescription. Firstly, he entered the country illegally in breach of section

18(1) of the Immigration Act and so committed an offence under section 40(d) of

the Immigration Act. Secondly, he entered the country illegally a second time, when

the Deportation Order was in effect, committing an offence under section 40(d) again,

and also one under section 29(8) of the Immigration Act, entering the country when

a deportation order is still in effect.

[46] Mr. Williams, on the other hand, submitted that despite the clear and unambiguous

provisions of the National Policy to address Refugee and Asylum-Seekers in

Republic of Trinidad and Tobago 2014, the Applicant has been denied the benefit of

4 (1960) 1 WLR 783 at 793-794

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receiving a decision to have his refugee claim verified by the appropriate body in

keeping with the said policy. It was submitted that the actions of the Chief

Immigration Officer are ultra vires the United Nations High Commissioner for

Refugees “Guidelines on the Applicable Criteria and Standards relating to the

detention of Asylum Seekers and Alternatives to Detention” pursuant to its mandate

as contained in the Statute of the Office of the United Nations High Commissioner for

Refugees in conjunction with Article 35 of the 1951 Convention and Article II of

its 1967 Protocol.

[47] Any refugee5 or asylum-seeker6 who wishes to claim protection in Trinidad and

Tobago is bound by the Immigration Act and its regulations. However, there is no

provision in the Immigration Act to determine the treatment of persons who are

refugees or registered as asylum-seekers in Trinidad and Tobago. There is also an

absence of national legislation pertaining to the treatment of asylum-seekers and

refugees in Trinidad and Tobago.

[48] However, there is a National Policy to address Refugee and Asylum-Seekers in the

Republic of Trinidad and Tobago which was adopted by the Cabinet in June 2014.

The Policy provides for a phased approach to develop a national refugee status

determination mechanism and to govern the transition of responsibilities for refugee

status determination procedures from the United Nations High Commissioner for

Refugees7 (hereinafter “the UNHCR”) to the Government of Trinidad and Tobago.

This Policy includes interim standing operating procedures for the treatment of

refugees and referral to the Living Waters Community (hereinafter “the LWC”) or the

UNHCR.

[49] According to the 1951 Convention which was acceded to in Trinidad and Tobago on

November 2000, Article 31 of the 1951 Convention specifically provides for the non-

5A person who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality,

membership of a particular social group or political opinion, is outside the country of his nationality and is unable

or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a

nationality and being outside the country of his former habitual residence as a result of such events, is unable or,

owing to such fear, is unwilling to return to it. – Article 1(A)(2) of the 1951 Convention relating to the Status

of Refugees 6 A person who has fled his country of origin or habitual residence and would like to be granted refugee status, or

a person who has applied for protection as a refugee and is awaiting his determination status. 7 The UN Refugee Agency created in 1951 with a mandate to provide protection and to search for durable solutions

for refugee problems.

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penalisation of refugees (and asylum-seekers) having entered or stayed irregularly if

they present themselves without delay and show good cause for their illegal entry or

stay. It further provides that restrictions on movement shall not be applied to such

refugees (or asylum-seekers) other than those which are necessary and such

restrictions shall only be applied until their status is regularised or they gain admission

into another country.

[50] Furthermore, the principle of non-refoulement constitutes the cornerstone of

international refugee protection which is provided for in Article 33 of the 1951

Convention. This principle prohibits countries from expelling or returning a person,

in any manner, whatsoever, to a place where his life or liberty would be endangered

on account of his race, religion, nationality, membership of a particular social group

or political opinion. However, the protection against refoulement under Article 33(1)

of the 1951 Convention applies to any person who is a refugee under the terms of the

1951 Convention, that is, anyone who meets the requirements of the refugee

definition contained in Article 1A(2) of the 1951 Convention and does not come

within the scope of one of its exclusion provisions8. Asylum-seekers are protected

from forced return to their country of origin from the time they express a fear of return

until a final decision on refugee status is determined by UNHCR.

[51] According to the Advisory Opinion on the Extraterritorial Application of Non-

Refoulement Obligations under the 1951 Convention and its 1967 Protocol, the

UNHCR stated as follows:

“Given that a person is a refugee within the meaning of the 1951

Convention as soon as he or she fulfils the criteria contained in the refugee

definition, refugee status determination is declaratory in nature: a person

does not become a refugee because of recognition, but is recognized

because he or she is a refugee. It follows that the principle of non-

8 Exclusion from international refugee protection means denial of refugee status to persons who come within the

scope of Article 1A(2) of the 1951 Convention, but who are not eligible for protection under the Convention

because

- they are receiving protection or assistance from a UN agency other than UNHCR (first paragraph of Article 1D

of the 1951 Convention); or because

- they are not in need of international protection because they have been recognized by the authorities of another

country in which they have taken residence as having the rights and obligations attached to the possession of its

nationality (Article 1E of the 1951 Convention); or because

- they are deemed undeserving of international protection on the grounds that there are serious reasons for

considering that they have committed certain serious crimes or heinous acts (Article 1F of the 1951 Convention).

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refoulement applies not only to recognized refugees, but also to those who

have not had their status formally declared. The principle of non-

refoulement is of particular relevance to asylum-seekers. As such persons

may be refugees, it is an established principle of international refugee law

that they should not be returned or expelled pending a final determination

of their status.”

[52] LWC is the implementing partner of the UNHCR in Trinidad and Tobago. The

UNHCR works with LWC to ensure that asylum-seekers and refugees have a dignified

stay in Trinidad and Tobago. LWC undertakes the reception of asylum claims and

facilitates the registration of asylum-seekers with UNHCR. LWC also provides

assistance with local orientation and information regarding housing, health, education,

documentation, security and other social services to asylum-seekers and refugees.

[53] According to LWC in the Tenth Report of the Joint Select Committee on Human

Rights, Equality and Diversity on the Treatment of Detainees at the Immigration

Detention Centre9, asylum-seekers must first register with LWC prior to a Refugee

Status Determination Interview conducted by the UNHCR. The UNHCR makes the

final determination on refugee status and the information is shared with the

Immigration Detention Centre (hereinafter “the IDC”). Detainees who are not

deemed as refugees remain at the IDC and detainees who are deemed as refugees are

released from IDC.

[54] The UNHCR, Trinidad and Tobago, created a website10 for refugees and asylum-

seekers in Trinidad and Tobago providing information on applying for asylum and

rights and duties as a refugee or asylum-seeker. The following was obtained from

UNHCR’s website to enable the Court to understand the process leading to being

recognised as refugee.

[55] Following registration as an asylum-seeker, a refugee status determination procedure

will be conducted to determine who is a refugee. In the absence of national legislation,

9 The Joint Select Committee on Human Rights, Equality and Diversity was established under House of

Representatives Standing Order 106 and Senate Standing Order 96. 10 help.unhcr.org/trinidadandtobago

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UNHCR determines who is a refugee based on the refugee definition in the 1951

Convention and its own mandate.

i. If the asylum-seeker presents himself to LWC, he will be pre-registered. He will

be counselled on rights and obligations of asylum-seekers in Trinidad and

Tobago and he will be scheduled for a registration appointment at UNHCR’s

Registration Centre. He will receive an appointment slip and a UNHCR Refugee

Status Determination (RSD) Form that he will have to complete thoroughly

before his appointment with UNHCR.

ii. Upon registration, the asylum-seeker will be issued a UNHCR identification

document that confirms his status as an asylum-seeker. UNHCR’s identification

document is the official document confirming his status as an asylum-seeker in

Trinidad and Tobago. The document states that as long as his claim for refugee

status is in progress, he should be protected from forced return to his country of

origin.

iii. During the course of his asylum application, he may be called for an interview

at the Refugee Unit of the Immigration Division. He may be asked by an

Immigration Officer to pay a security bond if he interacts with an Immigration

Unit that is not the Refugee Unit. It is part of immigration procedure to ask

foreign nationals to pay a bond before being placed on an Order of Supervision,

if they are in breach of the Immigration Act.

iv. A second interview will be scheduled and conducted by UNHCR to gather the

facts of his claim for the refugee status determination procedure. He will receive

a telephone call or email from UNHCR indicating the date, venue and time of

his interview with UNHCR. During this interview, the UNHCR officer will ask

him questions about the information provided on his application and any

supporting documents he submitted prior to his interview, including information

on his identity, how he came to Trinidad and Tobago, the reasons he left his

country of origin or the country where he used to live, and the reasons why he

cannot return to that country.

v. Following his interview, UNHCR will determine if he is a refugee based on the

refugee definition in the 1951 Convention Relating to the Status of Refugees

and its own mandate. The decision may either grant him refugee status or reject

his asylum application.

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vi. Applicants who are recognized as refugees will be informed in writing and/or

via telephone of their rights as refugees and be provided with guidance

regarding any additional steps that must be taken with LWC and the

Immigration Division.

vii. Applicants whose claims are rejected will be informed through a notification

letter, including the reasons for the rejection. Persons who receive a first

instance denial have the right to appeal. An appeal application must be

submitted to UNHCR within the indicated time frame.

[56] From the affidavit evidence of Mr. Jerome Riley, the Applicant entered the country in

October 2018 illegally via a port of entry in Cedros with the intention of becoming a

refugee. In the said month of October 2018, the Applicant registered with LWC. The

Applicant was subsequently issued a UNHCR card on 30 October 2018 which expired

on 30 October 2019. It was further stated that the Applicant entered Trinidad and

Tobago to seek asylum because of the socio-political and economic crisis in

Venezuela. Mr. Riley deposed that due to the Applicant’s continued detention at the

IDC, the Applicant was unable to complete his final appointment with the LWC to be

recognized as an Asylum-Seeker/Refugee. Mr. Williams, in his speaking note,

submitted that the Applicant has been denied the benefit of receiving a decision to

have his refugee claim verified by the UNHCR.

[57] However, the Court wishes to highlight that the Applicant was detained by the Chief

Immigration Officer only from 3 January 2020 to present. At the expiration of his

UNHCR card on 30 October 2019, the Applicant was in lawful custody at the

Maximum Security Prison, Arouca, charged with criminal offences for which he was

granted bail but not able to access his bail. Accordingly, the Applicant’s failure to

complete his appointment with LWC to be recognised as an Asylum-Seeker/Refugee

lies with him and not the Chief Immigration Officer.

[58] Having regard to the process indicated above and the evidence put forward by the

Applicant, the Court is of the opinion that the Applicant has only pre-registered with

LWC. The Applicant has not given evidence on the following: (i) whether he was

scheduled for a registration appointment at the UNHCR’s Registration Centre; nor (ii)

whether he received an appointment slip and a UNHCR Refugee Status Determination

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Form to complete before his appointment; nor (iii) whether he was issued a UNHCR

identification document confirming his status as an asylum-seeker.

[59] The jurisdiction of determining whether an applicant is a refugee lies with the UNHCR

and not within this Court. Accordingly, the Court will not determine whether the

Applicant is a refugee for the purposes of the 1951 Convention. There is no evidence

adduced of any ongoing asylum claim made by the Applicant to the UNHCR.

Therefore, the Chief Immigration Officer is authorised to act in accordance with the

Immigration Act. In that regard, the Deportation Order made on 28 August 2018

cannot be said to have been negated by the Applicant’s alleged registration with the

UNHCR as it remains valid and in force.

ISSUE 3: Can the Applicant be deported while criminal proceedings in the Magistrates’

Court are pending?

[60] The Applicant was charged with possession of a firearm and ammunition pursuant to

section 6(1) of the Firearms Act, Chap 16:01 and possession of marijuana pursuant

to section 5(1)(a) of the Dangerous Drugs Act, Chap 11:25. The Magistrate is yet

to give a decision on the outcome of these two offences. It is the evidence of Mr.

Jerome that at present, the Applicant is being held pending deportation irrespective of

the outcome of the criminal charges against him as the Immigration Division does not

intend to wait for the outcome of the charges. This was confirmed by Mr. Byam in his

written and oral submissions.

[61] The Court is of the opinion that the case of Troy Thomas v The Chief Immigration

Officer11 is instructive in assisting the Court in determining this issue. In Troy

Thomas, the difficulty which the Chief Immigration Officer faced was that an illegal

immigrant was detained with an unexecuted deportation order and pending criminal

charges. However, instead of deporting the illegal immigrant, the Chief Immigration

Officer chose to wait on the advice of the DPP on the pending prosecution. Kokaram

J (as he then was) sought to set out, at paragraph 28 of his judgment, the principles to

guide the Chief Immigration Officer on the question of the detention of persons under

the Immigration Act awaiting deportation with pending criminal charges.

11 CV2019-00888

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[62] This Court agrees with Kokaram J, in particular paragraph 28(xvi) of his judgment,

where the learned Judge stated that the only statutory restrictions to pre-empt the

execution of a deportation are: (i) whether the person against whom the deportation

order is made is an inmate serving a term of imprisonment in which case the

deportation order is to be executed upon the determination of the sentence: [section

29(5) of the Immigration Act]; and (ii) where the deportation order is stayed pursuant

to Regulation 28 of the Immigration Regulations.

[63] Nonetheless, section 29(4) of the Immigration Act reads as follows:

“A person who has committed an offence against this Act or the

Regulations may, notwithstanding the fact that a deportation order has

been made against him, be prosecuted and required to undergo any

punishment that may be imposed upon him in respect of such offence

before he is deported.” [Emphasis added]

[64] Accordingly, the Chief Immigration Officer is given a discretionary power under

section 29(4) of the Immigration Act to allow a person, who has committed an

offence against the Immigration Act or Regulations, to be prosecuted and required to

undergo any punishment that may be imposed before he is deported. The offences

referred to in section 29(4) relate to offences under Part IV of the Immigration Act.

These offences are considered to be criminal offences for the purposes of the law.

[65] In this regard, the Court is of the opinion that the Chief Immigration Officer also has

a discretion to allow or disallow persons charged with other criminal offences to be

prosecuted and required to undergo any punishment that may be imposed before he is

deported.

[66] Mr. Williams has argued that if the Chief Immigration Officer is allowed to deport the

Applicant before the determination of his criminal proceedings, this will be akin to an

attack on the Constitution of Trinidad and Tobago. He submitted that the deportation

of the Applicant before the determination of his criminal matters would have the effect

of discontinuing such proceedings. This will amount to a usurpation of the function of

the Director of Public Prosecutions (DPP), who, by section 90(3)(c) of the

Constitution is the only person with the power to discontinue criminal proceedings

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before any Court in Trinidad and Tobago. It was further submitted that neither the

Chief Immigration Officer nor the Minister of National Security can abrogate the

powers of the DPP given to him under the Constitution. However, the Court finds this

submission to be misconceived and without merit having regard to the prevailing

circumstances and the proper construction of section 29(4).

[67] The Chief Immigration Officer is not overriding the DPP’s power to discontinue

proceedings against the Applicant. The Chief Immigration Officer is simply

exercising a discretion given to her by section 29(4) of the Immigration Act. The

use/meaning of the word “may” in the sub-section is unambiguous: it clearly vests in

the Chief Immigration Officer a discretion which she can exercise taking all of the

circumstances into account. The nature and gravity of the pending criminal offences,

no doubt, will have a lot to do with the exercise of the discretion. For example, a

different consideration might be given to her decision if the charges were for, say,

murder or rape or even wounding with intent to cause grievous bodily harm, all of

which may require a deeper sense of justice to be afforded to victims and their families

by allowing the alleged perpetrator to be prosecuted and sentenced if found guilty.

This is, as opposed to the offences with which the Applicant is now charged, where

technically the State is the victim.

[68] Mr Williams also submitted that the words “required to undergo any punishment that

may be imposed upon him in respect of such offence before he is deported” used in

section 29(4) of the Act, effectively remove the discretion from the Chief

Immigration Officer to deport the Applicant before the determination of his criminal

charges. This Court again disagrees with that submission on the basis that it is clear

from a literal construction of the sub-section that the alleged offender will only be

required to undergo any punishment if the Chief Immigration Officer exercises her

discretion to withhold execution of the deportation order to allow the prosecution of

the offence to take its course. It is therefore this Court’s view that the Chief

Immigration Officer has the discretionary power, by virtue of section 29(4) of the Act,

to deport the Applicant notwithstanding that his criminal matters have not yet been

determined.

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ISSUE 4: Is the continued detention of the Applicant at the I.D.C. unreasonable, arbitrary

and unlawful?

[69] Mr. Byam has submitted that the Applicant is now subjected to a deportation order

(made on 28 August 2018) and is being held pending deportation under section 15 of

the Immigration Act. Therefore, the Applicant’s detention is therefore prima facie

lawful. Mr. Byam further submitted that the principles which apply to illegal entrants

also apply to the Applicant. It was contended that the purpose of detention pending

deportation is not merely to prevent the Applicant absconding before he can be

deported but to ensure that the Immigration Act is not thwarted by having someone

who might be a danger to the population, and who should not be here in the first place,

being at large and doing harm. The Immigration Act, as far as this Court is concerned,

is part of the immune system of this country. At a time when this country and the

world at large are facing a pandemic, inflicted by the novel coronavirus now known

as Covid-19, strict adherence to the provisions and intention of the Act creates the

proverbial vaccine which inoculates the citizenry of this country from the fatal

consequences of the pandemic. Control, therefore, by the Immigration Department of

those who can enter and remain in this country, becomes extremely vital.

[70] Mr. Byam, however, admitted that it was not lawful to postpone the Applicant’s

deportation until after 5 March 2020, which amounted to holding him on a criminal

charge and not pending deportation. However, immediately after his case was

adjourned, the detention became lawful because steps were taken to deport him and

there was an intention to do so. Mr. Byam relied on the Hardial Singh principles

(dealt with later in paragraph 76 of this judgment) relating to detention. It was

submitted that the detention of the Applicant now is consistent with those principles

and cannot be said to have been for an unreasonable period. It also cannot be said that

it is not possible to deport him.

[71] In considering the Hardial Singh principles, Mr. Byam submitted that the Applicant

is being detained legally under section 15 of the Immigration Act pending

deportation. The time so far is not unreasonable and it is unlikely to become so. In this

case the government of Venezuela, like many other governments, has closed its

borders to control the pandemic of Covid-19. Counsel submitted that this is something

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outside the control of the Chief Immigration Officer. There is, however, no indication

that the closure of the borders will take up to a year, as suggested by the Applicant’s

attorneys. Nevertheless, the circumstances in this case are nearly unprecedented. It

was respectfully submitted that it cannot be said that it is unreasonable to wait for the

Venezuelan government to get the pandemic under control. Another factor relevant

to reasonableness, linked to the one above, is the likelihood that the Applicant might

cause harm if he is freed. This issue has arisen mostly in cases where Applicants have

committed crimes and the possibility they might re-offend naturally came up. Counsel

relied on the authority of R (A) v Secretary of State for the Home Department12.

[72] Mr. Williams relied on the legal principles that are applicable in circumstances of

detention pending deportation known as the Hardial Singh principles. Counsel

submitted that it cannot be said that any arrangements can be made at this time to

facilitate the deportation of the Applicant in light of the closure of the borders of

Trinidad and Tobago. It was further submitted that the Applicant is unlawfully

detained at the IDC as his prolonged detention has resulted in the deprivation of his

liberty, and there is at this time no power to deport. The purpose of the Applicant’s

detention must be to effect deportation which is unforeseeable given the recent closure

of borders as a result of the Covid-19 pandemic.

[73] It has been well-established that detention under the Immigration Act cannot be

indefinite. Such powers of detention are to be exercised strictly within its statutory

remit and for a reasonable period of time: Troy Thomas (supra). In the present case,

the power to detain is linked to the execution of the deportation order made on 28

August 2018. The Chief Immigration Officer is called upon to account for the lawful

use of power prescribed by the Immigration Act and specifically demonstrate that the

power to detain existed and that it was lawfully exercised for a detention which is for

a period reasonably necessary to effect the statutory purpose. The onus is on the

Defendants to demonstrate that the conditions that warrant the Applicant’s detention

did in fact exist as a “precedent fact” for the lawful exercise of the power to detain.

[74] As concluded in paragraph [42] above, the Deportation Order made on 28 August

2018 is still valid and remains in force; there is no evidence that the Order was

12 (2007) E.W.C.A. Civ 804 and 2007 A.C.D. 93

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cancelled by the Minister nor that the Order was stayed. Accordingly, the Chief

Immigration Officer has the lawful authority to detain the Applicant for the purpose

of deportation. There is no question that the Applicant can be arrested with or without

a warrant on the basis that a deportation order has been made against him: sections

14(1), 15 and 16 of the Immigration Act. In this case, an Order was made on 28

August 2018 and was in fact executed on 26 September 2018. The Applicant, having

been removed from Trinidad and Tobago on 26 September 2018, returned to the

country at some place other than a lawful port of entry and has eluded examination or

inquiry under the Immigration Act. The Applicant’s detention from 3 January 2020

was on the basis that he is in breach of the Deportation Order made on 28 August 2018

and he has contravened section 29(6) and section 29(8) of the Immigration Act.

[75] However, the statutory purpose of such a detention in this case is to effect deportation.

Section 16 of the Immigration Act clearly states that the power of detention is

“pending deportation”. Furthermore, section 29(10) of the Immigration Act gives

the Chief Immigration Officer the power to detain the Applicant in custody for such

period “as may be necessary for the purpose of making arrangements for his

removal”. Accordingly, the Chief Immigration Officer can only justify the

continuation of his detention for the statutory purpose of “making arrangements for

his removal” to execute the deportation order.

[76] The principle of an implied limitation to detain individuals for a reasonable period of

time to effect their deportation was settled in the seminal case of R v Governor of

Durham Prison, ex p. Hardial Singh13. Woolf J articulated the principles concerning

the implied limitation authorities to detain which are commonly known as the Hardial

Singh principles. Woolf J explained as follows:

“Although the power which is given to the Secretary of State in para 2 to

detain individuals is not subject to any express limitation of time, I am

quite satisfied that it is subject to limitations. First of all, it can only

authorise detention if the individual is being detained in one case pending

the making of a deportation order and, in the other case, pending his

removal. It cannot be used for any other purpose. Secondly, as the power

is given in order to enable the machinery of deportation to be carried out,

13 [1984] 1 WLR 704, at 706 C-F

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I regard the power of detention as being impliedly limited to a period

which is reasonably necessary for that purpose. The period which is

reasonable will depend upon the circumstances of the particular case.

What is more, if there is a situation where it is apparent to the Secretary

of State that he is not going to be able to operate the machinery provided

in the Act for removing persons who are intended to be deported within a

reasonable period, it seems to me that it would be wrong for the Secretary

of State to seek to exercise his power of detention.

In addition, I would regard it as implicit that the Secretary of State should

exercise all reasonable expedition to ensure that the steps are taken which

will be necessary to ensure the removal of the individual within a

reasonable time.”

[77] The Hardial Singh principles were approved by the Privy Council in Tan Te Lam

and Ors v Superintendent of Tai A. Chau Detention Centre14. The Privy Council

held:

“...where a statute had given the executive power to detain persons

pending their removal from the country it was to be implied, unless the

statute provided otherwise, that the power could only be exercised during

such period as was reasonably necessary to effect removal and that if it

became apparent that removal was not going to be possible within a

reasonable time, further detention was not authorized; that the questions

as to what constituted a reasonable period and whether there was

sufficient prospect of the persons being removed within it were matters for

the court to determine, with the burden being on the executive to prove on

the balance of probabilities the facts necessary to justify the conclusion

that the persons were being detained pending removal...”

[78] Lord Browne-Wilkinson in applying the Hardial Singh principles observed:

“Section 13D(1) confers a power to detain a Vietnamese migrant

"pending his removal from Hong Kong". Their Lordships have no doubt

that in conferring such a power to interfere with individual liberty, the

14 [1997] AC 97 at 111D-E

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legislature intended that such power could only be exercised reasonably

and that accordingly it was implicitly so limited. The principles

enunciated by Woolf J. in Hardial Singh case [1984] 1 W.L.R. 704 are

statements of the limitations on a statutory power of detention pending

removal… The courts should construe strictly any statutory provision

purporting to allow the deprivation of individual liberty by administrative

detention and should be slow to hold that statutory provisions authorize

administrative detention for unreasonable periods or in unreasonable

circumstances.”

[79] In R (I) v Secretary of State for the Home Department15 Lord Justice Dyson, as he

then was, said:

“It is not possible or desirable to produce an exhaustive list of all the

circumstances that are or may be relevant to the question of how long it

is reasonable for the Secretary of State to detain a person pending

deportation… But in my view they include at least: the length of the period

of detention; the nature of the obstacles which stand in the path of the

Secretary of State preventing a deportation; the diligence, speed and

effectiveness of the steps taken by the Secretary of State to surmount such

obstacles; the conditions in which the detained person is being kept; the

effect of detention on him and his family; the risk that if he is released

from detention he will abscond; and the danger that, if released, he will

commit criminal offences.”

[80] In R (A) v Secretary of State for the Home Department16 Lord Justice Toulson

stated:

“[45] ….where there is a risk of absconding and a refusal to accept

voluntary repatriation, those are bound to be very important factors and

likely often to be decisive factors, in determining the reasonableness of a

person's detention that deportation is the genuine purpose of the

15 [2002] EWCA 888 at [48] 16 [2007] EWCA Civ 804 at [45] to [46]

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detention. The risk of absconding is important because it threatens to

defeat the purpose for which the deportation order was made…

[46] A risk of offending if the person is not detained is an additional

relevant factor, the strength of which would depend on the magnitude of

the risk, by which I include both the likelihood of it occurring and

potential gravity of the consequences.”

[81] The question for determination, therefore, is whether the period for which the

Applicant has been detained is reasonably necessary for the purpose of his deportation.

The relevant period of detention to the date of the filing of the writ of habeas corpus

is 110 days (3 months and 19 days). The Court is of the opinion that this period for

detention is not unreasonable in the circumstances. At present, the Applicant’s

detention is serving its statutory purpose and it does not run a risk of unlawful

deprivation of liberty.

[82] Mr. Jerome deposed that the Applicant did not have a passport, therefore the

Immigration Division was required to obtain a travel document with the assistance of

the Venezuelan Embassy to facilitate the Applicant’s repatriation to Venezuela. The

Division obtained the travel document for the Applicant to return to Venezuela on the

Angel de Orinoco scheduled for departure on 27 February 2020. However, agents for

the vessel informed the Division that sailing for 27 February 2020 was cancelled. The

date of departure was subsequently rescheduled to 5 March 2020. However, the

Applicant’s next hearing date of his criminal charges before the Magistrate was 9

March 2020.

[83] According to information possessed by the Division, the Applicant’s trial was likely

to be concluded and the Magistrate would give a verdict. As a result, the Chief

Immigration instructed that the Applicant’s departure date on 5 March 2020 be

rescheduled to allow the Applicant’s matter before the Magistrates’ Court to be

concluded. As stated above, it is within the Chief Immigration Officer’s discretion to

allow a person scheduled to be deported to attend any pending local criminal

proceedings. Nevertheless, the Chief Immigration Officer instructed that if the matter

was not concluded and the hearing was adjourned, the Applicant ought to be deported

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as soon as possible. However, the Applicant’s matter on 9 March 2020 was once again

adjourned.

[84] An officer of the Immigration Division, thereafter, rescheduled the Applicant’s sailing

and arrangements were being made for the Applicant to depart on the Angel of

Orinoco on 19 March 2020. However, on 16 March 2020, when the Division sought

to obtain a new travel documents for the Applicant, officials of the Venezuelan

Embassy informed the Division that the Bolivarian Republic of Venezuela had closed

its borders. As a consequence, the Applicant was not able to depart on the scheduled

sailing for 19 March 2020. Nonetheless, the Division intends to deport the Applicant

as soon as the borders have re-opened.

[85] In applying the Hardial Singh principles, the Court has concluded the following: (i)

the Chief Immigration Officer does intend to deport the Applicant and has used her

power to detain him for that sole purpose; (ii) the Applicant, in the Court’s view, has

been detained for a period that is reasonable in the circumstances, having regard to the

pandemic caused as a result of Covid-19; (iii) the Chief Immigration Officer has acted

with reasonable diligence and expedition to effect removal of the Applicant before the

closure of Venezuela’s borders. The borders were closed on 16 March 2020. From

that date to the date of the filing of the writ of habeas corpus, only 37 days have

passed. I am of the view that this period of detention is not regarded as substantial or

unreasonable in the circumstances having regard to the delay being out of the control

of the Chief Immigration Officer.

[86] There has been no indication to the Court of the reopening of Venezuela’s borders nor

can the Court give a definite date for the reopening of Venezuela’s borders under the

existing circumstances of Covid-19. Accordingly, this does not necessarily mean that

the chance of removal within a reasonable period of time is not very likely. It cannot

be said that the Chief Immigration Officer is not able to effect the removal of the

Applicant within a reasonable time period due to Covid-19 and the closure of

Venezuela’s borders. It is not likely that the closure of the borders of the two countries

would continue indefinitely or for any great length of time. In fact, I take judicial

notice that many jurisdictions, including Trinidad and Tobago, are now seeking to re-

open the country for business, at least on a phased basis.

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[87] Another relevant factor to consider is the risk of the Applicant re-offending if he is

released from the IDC on an Order of Supervision. The Applicant has already been

convicted of the offences of violence and resistance to authority in Venezuela. He

entered the country illegally in breach of section 18(1) of the Immigration Act and

so committed an offence under section 40 (d) of the Immigration Act. The Applicant

pleaded guilty to this offence and was fined. The Applicant entered the country

illegally a second time, when the Deportation Order was in effect, committing an

offence under section 40(d) again, and also one under section 29(8) of the

Immigration Act. The Applicant has two pending criminal charges against him

(possession of firearm and ammunition and possession and marijuana). It is evident

that the record of the Applicant suggests that he possesses a propensity towards

disobedience to the laws of the State and Authority, whether here or in Venezuela.

Consequently, the risk of him absconding becomes very real when one considers that

he was able to breach the security of our borders on two separate occasions by entering

this country through illegal ports of entry.

[88] Accordingly, when all of the above factors are considered in the round, the Court is

of the view that the Applicant’s continued detention as at the date of the filing of the

Application for a Writ of habeas corpus is lawful and reasonable at this time. The

detention is for the purpose of effecting his removal from Trinidad and Tobago and it

has not remotely been for a period which could be said to be excessive or

disproportionate even though the Chief Immigration Officer is delayed in effecting

removal at this moment in time because of the existing circumstances faced by most,

if not all, countries of the world.

[89] Consequently, a writ of habeas corpus must fail as the Applicant’s detention and

continued detention is lawful in the circumstances.

ISSUE 5: Is the appropriate remedy available to the Applicant in these circumstances a

Writ of Habeas Corpus or Judicial Review?

[90] In R v Secretary of State for the Home Department, ex parte Cheblak17, Lord

Donaldson MR said as follows:

17 [1991] 1 WLR 890

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"A writ of habeas corpus will issue where someone is detained without

any authority or the purported authority is beyond the powers of the

person authorising the detention and so is unlawful. The remedy of

judicial review is available where the decision or action sought to be

impugned is within the powers of the person taking it but, due to

procedural error, a misappreciation of the law, a failure to take account

of relevant matters, a taking account of irrelevant matters or the

fundamental unreasonableness of the decision or action, it should never

have been taken. In such a case the decision or action is lawful, unless

and until it is set aside by a court of competent jurisdiction. In the case of

detention, if the warrant or underlying decision to deport, were set aside

but the detention continued, a writ of habeas corpus would issue."

[91] Ex parte Cheblak was a case where the Applicant was seeking to challenge a

deportation order. Lord Donaldson MR further stated:

“Since the foundation for an application for a writ of habeas corpus is the

fact that he is being detained otherwise than in legal custody, it is

necessary to inquire whether these conditions are met. If they are, there is

no room for the issue of a writ of habeas corpus. If they are not, it should

and would issue.”

[92] Ex parte Cheblak was followed in R v Secretary of the State for the Home

Department Ex parte Muboyayi18 where the Applicant unsuccessfully sought habeas

corpus to challenge the Secretary of State's decision not to permit him entry and not

to consider his application for asylum. Lord Donaldson MR said as follows:

“It is clear law, that where the power to detain is dependent upon the

existence of a particular state of affairs ("a precedent fact") and the

existence of that fact is challenged by or on behalf of the person detained,

a challenge to the detention may be mounted by means of an application

for a writ of habeas corpus. If authority is required for this proposition, it

18 [1992] Q.B. 244

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is to be found in the decision of the House of Lords in Reg. v. Secretary of

State for the Home Department, Ex parte Khawaja [1984] A.C. 74”

[93] In R. v Secretary of State for the Home Department Ex parte. Sheik19, Lord Justice

Schiemann considered the interrelation of judicial review and habeas corpus. He said:

“When a person is detained as a result of an administrative action he can

challenge the legality of that detention. It is for the detainer to produce

legal justification for the detention… As our law presently stands the

challenge to the legality of the detention can be made by way of judicial

review or by way of Habeas Corpus… Whatever procedure is employed,

the detainer has to show the legality of the detention… the principle

underlying Habeas Corpus is that each day's detention has to be justified

and if someone is wrongfully detained the fact that he does not challenge

the legality of his detention for 3 years does not prevent him from

challenging it thereafter, at any rate whilst he is still detained. The

principle underlying judicial review is that if someone wishes to challenge

the legality of an administrative action he must do so expeditiously; if he

does not, the court, although it can grant him extra time, can refuse him

relief simply because he failed to act expeditiously.”

[94] Mr. Byam submitted that a habeas corpus claim is inappropriate where a deportation

order has been made by the person authorised to do so in respect of someone against

whom it can be made (an illegal entrant) and it has been made for the purposes of the

Immigration Act. Accordingly, if the Applicant wishes to attack the underlying

decision for any reason including any putative right he has (under the Refugee

Convention and the government policy), he is supposed to apply for judicial review.

Counsel relied on the UK authorities of R v Secretary of State for the Home

Department, ex parte Cheblak and R v Secretary of State for the Home

Department, ex parte Muboyayi.

19 [2000] 12 WLUK 149

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[95] It was submitted that these UK decisions are applicable with even more force locally

because decisions to deport are prima facie not reviewable under section 30 of the

Immigration Act and it is an abuse of process to bring habeas corpus to try to get

around it. Therefore, the Applicant needs to seek leave to apply for judicial review

and make a case for the Court’s jurisdiction to judicially review the decision under the

Anisminic principles. Counsel referred the Court to Valerio and Santana v Chief

Immigration Officer20 and Anisminic v Foreign Compensation Commission21.

[96] Mr. Williams, on the other hand, submitted that the appropriate application to be made

before the Court is a writ of habeas corpus since the Application seeks to attack the

Chief Immigration Officer’s power to detain the Applicant and whether such power

to detain (which must be for the purpose to deport) has been exercised lawfully in

light of pending proceedings.

[97] The Applicant’s position is that there is no power to detain him in the way he has been

detained. However, it is apparent that there is lawful authority to detain the Applicant

under the Immigration Act. As stated above, there is an existing deportation order

made against the Applicant on 28 August 2018. There is no provision in the

Immigration Act stating that the Chief Immigration Officer has to re-initiate the

procedure for deportation against an Applicant who re-enters the country after

removal. There are, however, provisions that the deportation order remains valid after

execution unless cancelled by the Minister: section 29(2) and the Chief Immigration

Officer has a discretionary power to re-deport the Applicant under that original order:

section 29(6)(c).

[98] In that regard, in the present case, the Chief Immigration Officer’s power to detain

does depend upon a precedent fact, that is, there is an existing valid deportation order

made against the Applicant. The Applicant has not attacked the deportation order nor

has he questioned the validity of the deportation order. Consequently, an application

for the issue of a writ of habeas corpus ad subjiciendum must fail.

20 CV2017-01623 paragraphs 54-59 21 (1969) 2 AC 147

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[99] However, the Court wishes to highlight that on 24 April 2020, when the Court heard

further oral submissions, Counsel for the Applicant informed the Court that he was

not aware that there was an existing deportation order made on 28 August 2020 against

the Applicant. He indicated that the instructions which he received from the Applicant

were that deposed to in the affidavit of Mr. Jerome Riley. As such, the Court is of the

opinion that this amounts to material non-disclosure on the part of the Applicant to

both his attorney at law and the Court. The existing deportation order, the fact that the

Applicant was previously deported and that he had entered this country illegally a

second time were only revealed to the Court in the evidence of Mr. Anderson Jerome.

[100] Nevertheless, the Court has examined the grounds of the Application before the

Court in determining whether the Applicant’s detention and continued detention is

unlawful in the circumstances. In essence, the Applicant seeks to invoke the

jurisdiction of the Court upon the following grounds: (i) The failure of the Chief

Immigration Officer to serve the Applicant with a rejection order pursuant to sections

21 and 22 of the Immigration Act or a Form 26 Order to Show Cause and Notice

of Hearing in Deportation Proceedings under section 22 of the Immigration Act

and Regulation 25(8) of the Immigration Regulations; (ii) The failure of the Chief

Immigration Officer to comply with section 13(2) of the Immigration Act; (iii) The

failure of the Chief Immigration Officer in first determining that the Applicant has

become a member of the prohibited class pursuant to section 8(1)(d) of the

Immigration Act for his continued detention; and (iv) the failure of the Chief

Immigration Officer to serve the Applicant with an Order of Deportation Proceedings

in accordance with section 28 of the Immigration Act.

[101] It is clear from these grounds that the Applicant is seeking to review the acts of the

Chief Immigration Officer in performance of her duties, in that, she failed to comply

with the provisions of the Immigration Act. The Applicant is, in essence, alleging

that the Chief Immigration Officer is guilty of procedural impropriety. This is a

ground for judicial review. The purpose of judicial review is to ensure that the

authority uses its powers in an appropriate manner: Chief Constable v Evans22.

22 [1982] 1 WLR 1155

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[102] Consequently, though the Court has dismissed the writ of habeas corpus on the basis

that there is lawful authority to detain the Applicant and that his continued detention

is lawful in the circumstances, the appropriate process by which the Applicant should

have approached the Court is by an application for leave to apply for judicial review.

[103] However, as stated above in paragraph [96], there is an existing valid deportation

order against the Applicant under which the Chief Immigration Officer can have the

Applicant deported again from the country. There is no provision that the Chief

Immigration Officer must commence another special inquiry to determine whether

deportation is necessary. The Chief Immigration Officer has the discretionary power

to deport the Applicant under the original order: section 29(6)(c). Therefore, even if

the Applicant had approached the Court by way of leave for judicial review, it is

likely that his application would have failed as a result of the existing deportation

order made against the Applicant on 28 August 2018.

VII. Disposition

[104] Having analysed the full weight of the evidence in support of the Application for a

Writ of Habeas Corpus together with submissions and authorities advanced by

Counsel for the Applicant and the Respondents, there is no other conclusion for this

Court to draw but that the Application for the Writ must fail. Consequently, the Order

of the Court is as follows:

Order:

1. The Application for a Writ of Habeas Corpus ad Subjiciendum to be issued

against the Respondents filed on 21 April 2020 be and is hereby refused and

consequently dismissed.

2. There be no order as to costs.

3. Leave is granted to the Applicant to appeal this Order.

__________________

Robin N. Mohammed

Judge

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