Derek Achong

Se­nior Re­porter

derek.achong@guardian.co.tt

An ap­peal over whether a Unit­ed Na­tions con­ven­tion which ad­vis­es against de­port­ing asy­lum seek­ers and refugees is ap­plic­a­ble in T&T, has been with­drawn.

Guardian Me­dia un­der­stands that late last month, Ap­pel­late Judge Mark Mo­hammed grant­ed leave to with­draw the ap­peal to lawyers rep­re­sent­ing a Venezue­lan refugee, who sought to re­ly on the Unit­ed Na­tions’ 1951 Con­ven­tion Re­lat­ing to the Sta­tus of Refugees in a law­suit to stop his de­por­ta­tion last year.

In the ap­peal, the man was claim­ing that High Court Judge Frank Seep­er­sad was wrong to dis­miss his law­suit against Na­tion­al Se­cu­ri­ty Min­is­ter Fitzger­ald Hinds and the Of­fice of the At­tor­ney Gen­er­al on Ju­ly 4 last year.

The pre­ma­ture out­come of the ap­peal means that Jus­tice Seep­er­sad’s rul­ing on the ap­plic­a­bil­i­ty of the con­ven­tion will re­main the set­tled law un­less the le­gal is­sue is con­sid­ered by the Ap­peal Court in an­oth­er case.

It will af­fect nu­mer­ous im­mi­gra­tion cas­es cur­rent­ly be­fore the court, as be­fore the rul­ing the con­ven­tion was fre­quent­ly cit­ed by at­tor­neys seek­ing to chal­lenge their clients’ pro­posed de­por­ta­tions.

Ac­cord­ing to the ev­i­dence in the case, in April 2022, the man was grant­ed refugee sta­tus by the Unit­ed Na­tions High Com­mis­sion­er for Refugees (UN­HCR). Sev­er­al months lat­er, he was ar­rest­ed while trav­el­ling in a taxi in Fyz­abad and charged with en­ter­ing the coun­try il­le­gal­ly.

The 33-year-old fa­ther of four plead­ed guilty to the of­fence and was fined $2,000. He was then placed on an or­der of su­per­vi­sion by the di­vi­sion af­ter pro­vid­ing a $2,100 bond. In March last year, the di­vi­sion de­tained him and is­sued him with a de­por­ta­tion or­der.

In the law­suit, he claimed his pro­posed de­por­ta­tion was il­le­gal based on this coun­try’s in­ter­na­tion­al oblig­a­tions to refugees. His lawyers point­ed to the con­ven­tion, which this coun­try signed on to in No­vem­ber 2000 and which ad­vo­cates against re­turn­ing refugees to a coun­try where they would prob­a­bly face per­se­cu­tion (non-re­foule­ment).

The man, who ad­mit­ted he is ul­ti­mate­ly seek­ing to be re­set­tled in Spain or Cana­da, is al­so claim­ing his le­git­i­mate ex­pec­ta­tion as a reg­is­tered asy­lum seek­er with the UN­HCR was frus­trat­ed.

The man was ini­tial­ly seek­ing an in­junc­tion bar­ring his de­por­ta­tion pend­ing the de­ter­mi­na­tion of his law­suit. How­ev­er, the in­junc­tion ap­pli­ca­tion was not con­sid­ered by Jus­tice Seep­er­sad, as the di­vi­sion agreed to grant him con­di­tion­al re­lease on a su­per­vi­sion or­der.

In its re­sponse to the ap­pli­ca­tion, the di­vi­sion de­nied any wrong­do­ing. It claimed that it was fol­low­ing stan­dard op­er­at­ing pro­ce­dures de­vel­oped by the Min­istry of Na­tion­al Se­cu­ri­ty in 2017, pend­ing the pas­sage of leg­is­la­tion to in­cor­po­rate the pro­vi­sions of the UN Con­ven­tion and the en­act­ment of the Na­tion­al Draft Pol­i­cy to Ad­dress Refugees and Asy­lum Mat­ters in T&T of 2014.

In his judg­ment, Jus­tice Seep­er­sad not­ed that the con­ven­tion could not ap­ply as its terms were not in­cor­po­rat­ed in­to lo­cal im­mi­gra­tion laws.

“In­ter­na­tion­al treaty oblig­a­tions can­not al­ter do­mes­tic law in this Re­pub­lic and there is a need for do­mes­tic in­cor­po­ra­tion of treaty oblig­a­tions,” Jus­tice Seep­er­sad said.

“There are oblig­a­tions with­in the 1951 Refugee Con­ven­tion which are in­con­sis­tent with the pro­vi­sions of the Im­mi­gra­tion Act and as a sov­er­eign de­mo­c­ra­t­ic State, the Par­lia­ment of T&T has the sole and ab­solute right to make laws for the good gov­er­nance of this twin-is­land na­tion,” he added.

He not­ed that the court could not usurp the Gov­ern­ment’s au­thor­i­ty to for­mu­late its macro-eco­nom­ic and so­cio-pol­i­cy po­si­tions, as he point­ed out that 2014 pol­i­cy did not sug­gest that T&T un­equiv­o­cal­ly agreed to ac­cept refugees and asy­lum seek­ers.

“As a con­se­quence, no le­git­i­mate ex­pec­ta­tion could have arisen from the 2014 doc­u­ment,” he said.

The man was rep­re­sent­ed by John Heath, SC, Shali­ni Sankar and An­nesia Gun­ness. The di­vi­sion’s le­gal team in­clud­ed Sasha Sukhram, Jayan­ti Teeluck­d­har­ry and Vin­cent Jar­dine.