Derek Achong

The State has been giv­en the green light to de­port one Venezue­lan child who was among a group of 26 chil­dren and adults who re­turned to this coun­try af­ter be­ing repa­tri­at­ed two Sun­days ago.

De­liv­er­ing a 34-page writ­ten de­ci­sion af­ter hear­ing lengthy sub­mis­sions from the 11-year-old’s lawyers and those for the State yes­ter­day, High Court Judge Frank Seep­er­sad re­fused to grant an in­junc­tion bar­ring the State from de­port­ing the girl pend­ing the de­ter­mi­na­tion of a sub­stan­tive le­gal chal­lenge.  

Guardian Me­dia un­der­stands that lawyers rep­re­sent­ing the group had to file in­di­vid­ual law­suits for the 16 chil­dren and nine adults, who were still quar­an­tined at the Ch­aguara­mas He­li­port up to yes­ter­day.

While the first case, brought on be­half of a four-year-old boy, his sis­ter and their moth­er, was dealt with by Jus­tice Ava­son Quin­lan-Williams, who served as an emer­gency judge last week, the oth­ers filed over the week­end were ran­dom­ly as­signed to oth­er judges, in­clud­ing Seep­er­sad. 

In the first case, State at­tor­neys gave an un­der­tak­ing not to de­port the fam­i­ly. On Mon­day, Quin­lan-Williams grant­ed a sim­i­lar ap­pli­ca­tion for an in­junc­tion for a woman and her three chil­dren. High Court Judge Joan Charles al­so dealt with the cas­es of three mi­nors who ar­rived with the group with­out their par­ents and grant­ed sim­i­lar in­ter­im in­junc­tions.  

In his de­ci­sion, how­ev­er, Seep­er­sad said he did not be­lieve the mi­nor’s case had a re­al­is­tic prospect of suc­cess. 

“The Court, there­fore, holds the view that it would not be just or con­ve­nient to grant the in­junc­tive re­lief sought so as to re­strain the State from en­forc­ing what, on the face of it, ap­pears to be the ex­ist­ing do­mes­tic law and the Court is not sat­is­fied that hav­ing re­gard to all of the out­lined cir­cum­stances, that the re­liefs sought in the sub­stan­tive claim are so clothed with the like­li­hood of suc­cess that the court should adopt the ex­cep­tion­al course of re­strain­ing the State from en­forc­ing what ap­pears to be ap­plic­a­ble do­mes­tic law,” Seep­er­sad said. 

Seep­er­sad re­ject­ed pre­lim­i­nary sub­mis­sions from the child’s le­gal team over the ef­fect of the 2014 Draft Pol­i­cy on Refugees and Asy­lum Seek­ers, which was ap­proved by Cab­i­net but not Par­lia­ment. He said the Gov­ern­ment was free to change its pol­i­cy due to pre­vail­ing cir­cum­stances, in­clud­ing the COVID-19 pan­dem­ic. 

“Re­cent state­ments made by the Prime Min­is­ter and the Min­is­ter of Na­tion­al Se­cu­ri­ty clear­ly ar­tic­u­lat­ed that the Gov­ern­ment has de­part­ed from the draft pol­i­cy, in this pan­dem­ic cli­mate, in so far as it re­lates to the process to be ap­plied in re­la­tion to those who en­ter in­to the ju­ris­dic­tion il­le­gal­ly. This does not strike the Court at this stage as an ir­reg­u­lar or un­rea­son­able pol­i­cy shift,” Seep­er­sad said. 

He al­so ruled the child’s moth­er, who is in T&T il­le­gal­ly as well, was mo­ti­vat­ed by self-cen­tred, so­cio-eco­nom­ic con­sid­er­a­tions and did not prop­er­ly con­sid­er her child’s wel­fare, as re­quired in the same UN Con­ven­tion she is re­ly­ing on in the case when she arranged for her to en­ter this coun­try il­le­gal­ly with strangers. 

“On the facts be­fore this Court, the con­duct of the Claimant and the brazen and bold dis­re­gard for the im­mi­gra­tion laws of this Re­pub­lic may have a sig­nif­i­cant im­pact on the mat­ter in which the sub­stan­tive is­sues are re­solved,” he said. 

Seep­er­sad said he would have to con­sid­er the role of the Unit­ed Na­tions High Com­mis­sion­er for Refugees (UN­HCR) and the Liv­ing Wa­ters Com­mu­ni­ty in reg­is­ter­ing asy­lum seek­ers in the sub­stan­tive case. 

“There are many cit­i­zens in this Re­pub­lic who are faced with dif­fi­cult eco­nom­ic cir­cum­stances and they too may wish to go to an­oth­er coun­try where the eco­nom­ic prospects are brighter, but these cit­i­zens should not be en­ti­tled to be refugees or asy­lum seek­ers seek­ing sta­tus un­der the 1951 Con­ven­tion,” Seep­er­sad said. 

While Seep­er­sad es­sen­tial­ly hand­ed the State a le­gal vic­to­ry in its bid to strict­ly en­force the coun­try’s im­mi­gra­tion laws, he did crit­i­cise its of­fi­cials who moved to repa­tri­ate the group on the two pri­vate fish­ing ves­sels they ar­rived in. He de­scribed their ac­tions as dis­turb­ing, shock­ing and al­most bar­bar­ic. 

“The per­sons re­spon­si­ble for those arrange­ments should hang their heads in shame and more im­por­tant­ly, steps need to be im­ple­ment­ed to en­sure that a sim­i­lar sit­u­a­tion nev­er re­peats it­self,” Seep­er­sad said. 

In his judge­ment, Seep­er­sad made in­quiries to en­sure the child was be­ing prop­er­ly looked af­ter dur­ing the re­main­ing pe­ri­od of her quar­an­tine, which ends on De­cem­ber 8. 

Not­ing that COVID-19 reg­u­la­tions at the fa­cil­i­ty would pre­vent her moth­er from mak­ing pe­ri­od­ic vis­its, Seep­er­sad gave the woman the op­tion to en­ter quar­an­tine with her daugh­ter for the re­main­ing pe­ri­od. He al­so ruled that the child had to be kept in sim­i­lar con­di­tions as pro­vid­ed for ju­ve­nile of­fend­ers un­der the Chil­dren’s Act. 

Seep­er­sad was ini­tial­ly con­sid­er­ing grant­i­ng the child a cell­phone to com­mu­ni­cate with her moth­er but Se­nior Coun­sel Fyard Ho­sein, who led the State’s le­gal team, sug­gest­ed that such a move would be prob­lem­at­ic as she is be­ing held in a mil­i­tary fa­cil­i­ty. 

Pre­sent­ing sub­mis­sions be­fore Seep­er­sad, at­tor­ney Ger­ald Ramdeen sug­gest­ed that the court up­hold the draft pol­i­cy and cor­re­spond­ing UN Con­ven­tions. 

“Every civilised coun­try treats the wel­fare of the child as para­mount,” Ramdeen said.

Re­spond­ing to Ramdeen, Ho­sein not­ed that the rights of mi­grants, es­pe­cial­ly those who breached this coun­try’s laws, in­clud­ing the child, had to be bal­anced against the rights of cit­i­zens.

“These are eco­nom­ic mi­grants and are not en­ti­tled to the pro­tec­tion of the law,” Ho­sein said. 

He al­so re­peat­ed­ly de­nied that his client had mis­treat­ed the mi­grants.

“It is not that this Gov­ern­ment or any gov­ern­ment is heart­less. It is al­most 20,000 peo­ple that were ac­com­mo­dat­ed,” he said as he re­ferred to Gov­ern­ment’s mi­grant reg­is­tra­tion pro­gramme last year. 

Ho­sein al­so warned that the in­junc­tion could ex­ac­er­bate the cur­rent mi­grant cri­sis. 

“One bad ap­ple, one ball of snow can cause an avalanche and that avalanche is tak­ing place right now,” he said. 

About the Mi­grants Case 

The mi­grant group was de­tained short­ly af­ter ar­riv­ing in Chatam on No­vem­ber 17.

The mi­grants, the youngest of whom is four-months-old, were test­ed for COVID-19 and found to be neg­a­tive. They were then held in cus­tody at sev­er­al po­lice sta­tions un­til their de­por­ta­tion two Sun­days ago.

The mi­grants were placed on two civil­ian ves­sels and es­cort­ed out of T&T wa­ters by the Coast Guard.

Jus­tice Ava­son Quin­lan-Williams or­dered that the group be brought be­fore her dur­ing a hear­ing last Mon­day, as she was in­formed they were float­ing near the mar­itime bor­der. How­ev­er, she was forced to dis­miss the case af­ter the De­fence Force said they had al­ready ar­rived in Venezuela.

Last Tues­day, how­ev­er, the group re­turned and land­ed in Los Iros and was im­me­di­ate­ly de­tained by po­lice and tak­en for med­ical ex­am­i­na­tions. They were held at the Erin Po­lice Sta­tion be­fore be­ing placed in quar­an­tine at the Ch­aguara­mas He­li­port.

The group is al­so be­ing rep­re­sent­ed by Nafeesa Mo­hammed, Dayadai Har­ri­paul and Umesh Ma­haraj.