THE CHIEF IMMIGRATION OFFICER ATTORNEY...

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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CV2019-01098

Between

AUSTINE UGONNA OKEKE

Claimant

AND

THE CHIEF IMMIGRATION OFFICER

First Defendant

ATTORNEY GENERAL OF TRINIDAD AND TOBAGO

Second Defendant

Before the Honourable Mr. Justice R. Rahim

Date of Delivery: May 1, 2020.

Appearances:

Claimant: Mr. N. Ramnanan instructed by Mr. R. Pandohee

Defendants: Ms. T. Gibbons-Glenn instructed by Ms. S. Dass

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JUDGMENT

1. By Re Re-Amended Fixed Date Claim filed on November 27, 2019, the

claimant brought proceedings under section 14 of the Constitution of

the Republic of Trinidad and Tobago (“the Constitution”) seeking

declaratory relief for alleged infringements under section 4 (a), 4 (g), 5

(2) (c) (ii) and 5 (2) (h) of the Constitution.

2. The claimant is a Nigerian citizen who entered Trinidad and Tobago

legally on October 1, 2014 and was granted permission upon entry to

remain until October 9, 2014. It is the case of the claimant that the

servants and/or agents of the first defendant lacked reasonable and

probable cause for arresting and detaining him. The claimant is also

challenging the legality of the decision to seize his passport. The court

makes no distinction between the defendants for the purpose of

convenience in the writing of this judgment.

3. The claimant was subsequently placed on repeated orders of supervision

pending a Special Inquiry. This Special Inquiry would inevitably be

impacted by the fact that the claimant has an application before the

UNHCR as an asylum seeker in Trinidad and Tobago. As such, the

claimant is seeking an order to quash the decision of the Chief

Immigration Officer (“CIO”) to hold a Special Inquiry.

4. As a consequence, the claimant, seeks:

i. A declaration that the claimant is a national of the Federal

Republic of Nigeria and a registered Asylum Seeker with the

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United Nations High Commissioner for Refugees in Trinidad and

Tobago;

ii. A declaration that the seizure and impounding of the claimant’s

Nigerian passport No. A05611036 by the Defendant its servants

and/or agents amounted to an abuse of powers, was illegal and

contravened his rights guaranteed under the Constitution namely:

a. The right of the individual to life, liberty, security of the

person and enjoyment of property and the right not to be

deprived thereof except by due process of law as

guaranteed by section 4(a) of the Constitution;

b. The right not to be deprived of such procedural provisions as

are necessary for the purpose of giving effect and protection

of these rights and freedoms as guaranteed under section

5(2)(h) of the Constitution;

iii. A declaration that by reason of the defendant, its servants and/or

agents acts and omissions as set out in the accompanying affidavit

of the claimant and who being a registered Asylum Seeker with

the United Nations High Commissioner for Refugees in Trinidad

and Tobago, the claimant has been denied of his right to freedom

of movement as enshrined by section 4(g) of the Constitution.

iv. A declaration that the actions of the defendants their servants

and/or agents in arresting and detaining the claimant on or about

January 17, 2018 and continuing to January 23, 2018 without

informing him of his right to legal representation and advice

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contravened his fundamental rights to legal representation and

advice embodied in section 5(2) (c) (ii) of the Constitution.

v. A declaration that the detention of the claimant from January 17,

2018 and continuing to January 23, 2018 was in contravention of

his right to liberty and the right not to be deprived thereof except

by due process of law under the provisions of section 4 and 5 (2)

(h) of the Constitution.

vi. An order quashing the decision of the Chief Immigration Officer to

initiate and prosecute the claimant by way of Special Inquiry

under section 22 of the Immigration Act, Chap. 18:01.

vii. An order for monetary compensation in favour of the claimant for

the contravention of his fundamental rights aforesaid.

5. The defendants contend that the seizure of the claimant’s passport was

to complete their investigations and its continued detention is to avoid

the claimant from escaping the consequences of the laws of Trinidad

and Tobago (“the jurisdiction”).

6. The defendants also argue that the claimant has failed to seek

alternative remedies in private law as the instant proceedings are

primarily focused on the seizure of the claimant’s passport and as such,

is an abuse of process.

ISSUES FOR DETERMINATION

7. The issues for determination are as follows:

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i. Whether the failure of the claimant to seek alternative remedies

in private law amounts to an abuse of the court’s process.

ii. If not, whether the detention and arrest of the claimant was

constitutionally unlawful, and an abuse of power.

iii. Whether the claimant’s passport was seized and detained without

due process of law under section 4(a) of the Constitution.

iv. Whether there were breaches of the claimant’s constitutional

rights enshrined under section, 4 (g) of the Constitution.

v. Whether there was a breach of section 5(2)(h) of the Constitution

and the effect thereof on the order for the Special Inquiry.

THE EVIDENCE

The case for the claimant

Affidavit of Austine Ugonna Okeke filed March, 18, 2018

8. While in the jurisdiction, he met and married Susan Oliver on October

22, 2014 at the office of Pundit Karran Nanco. However, the claimant

indicated that during the marriage, he was subjected to physical and

verbal abuse by his wife and despite counselling from his local church,

the marriage broke down. The claimant filed a petition for divorce,

which is currently pending before the Family Court.

9. On January 17, 2018 the claimant was arrested by police officers at his

home at Dow Village, Southern Main Road California and on the

following day, he was handed over to the Immigration Detention Centre,

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San Fernando and his Nigerian passport was seized. According to the

claimant, he was informed by Immigration officials at the time that the

passport was seized for the purpose of investigation but he was not told

of the nature of the investigation.

10. According to the claimant, two Immigration Officers, one of African and

one of East Indian descent, interviewed him and he informed them that

he wanted to speak with an Attorney. However, the officers verbally

insulted him and told him that illegal immigrants do not have rights.

Thereafter, the claimant was placed in a filthy, overcrowded cell with

other detainees, after which he was subsequently moved to the San

Fernando Police Station.

11. The claimant was detained by the first defendant until January 23, 2018.

His release bond was paid by one Pastor David Ali and he was placed on

an Order of Supervision until the hearing of a Special Inquiry.

12. The claimant deposed a historical narrative regarding the inhumane

treatment, persecution and hardships he experienced in Nigeria because

he is a Christian. He is fearful for his life and was certain that his return

to Nigeria will result in his death.

13. He applied to the United Nations High Commission for Refugees

(“UNHCR”) to be registered as an Asylum seeker. On September 25,

2018, he was issued a UNHCR card and his status was changed to an

asylum seeker. The UNHCR card expired on September 25, 2019

however as at the date of writing the court is unaware as to whether his

application has been determined.

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14. On January 11, 2019, the claimant’s Attorney wrote a letter to the first

defendant seeking disclosure of all documents relating to the Special

Inquiry. His Attorney also wrote a second letter on January 25, 2019

seeking the reasons for the seizure of the claimant’s passport, pursuant

to section 16 of the Judicial Review Act, Chap. 7:08.1

15. On January 28, 2019, the claimant’s Attorney wrote the first defendant

requesting that the claimant’s passport be returned to him for the

purpose of renewal. According to the claimant, the renewal process

required that he first travel to Jamaica and then re-enter the jurisdiction

to continue his UNHCR application and as well as attend his divorce

proceedings.

16. The defendant responded by letter on February 5, 2019 stating it was

the policy of the first defendant to retain the claimant’s passport in

order to determine his legal status.

17. That Special Inquiry has been suspended pending the outcome of the

claimant’s asylum application to the UNHCR.

The case for the defence

Affidavit of Hemwatee Samaroo filed April 30, 2018

1 Section 16 of the Judicial Review Act provides, “16. (1) Where a person is adversely affected by a decision to which this Act applies, he may request from the decision-maker a statement of the reasons for the decision”.

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18. Samaroo has been an Immigration Officer for approximately eleven

years. At that material time she was an Immigration Officer II attached

to the Enforcement Unit in South Trinidad.

19. On January 18, 2020, Samaroo was given a directive, along with other

Immigration Officers, to visit the Couva Police Station. Upon arrival, they

seized the claimant’s passport and took the claimant into their custody.

The police officers also informed the Immigration Officers that they

were on patrol in the Couva area and detained the claimant. No charges

were laid against the claimant.

20. At the Enforcement Unit, a passenger report was generated which

verified the claimant’s arrival date and the length of time he was

permitted to remain in the jurisdiction, the purpose of entry being

vacation. His entry certificate set out clearly that he was not permitted

to work during that time.

21. Samaroo interviewed the claimant. The claimant indicated that he was

married to a Trinidad national by the name of Susan Oliver but could not

produce a marriage certificate and was unable to give the wife’s contact

information or other basic information.

22. According to Samaroo, the claimant admitted that he overstayed his

time in the jurisdiction and did not attempt to regularize his status. He

also informed her that he was employed as a security officer and earned

$180.00 per day, but provided no documents to confirm same.

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23. The claimant then signed the information sheet and a Notice of Reasons

for Arrest and Detention was served on him.2 Samaroo informed the

claimant of the reasons for his arrest and detention and explained same

pursuant to section 9(4) (f) and 9(4) (k) of the Immigration Act, Chap.

18:01 (“The Act”).

24. Samaroo deposed that she instructed her colleague to retain the

claimant’s passport for investigative purposes and the retention sheet

was given to the claimant.

25. As a result of the claimant’s breach, the claimant was further detained

pending a Special Inquiry. According to Samaroo, the records show the

claimant was detained at the Marabella Police Station and a security

deposit was paid on his behalf on January 22, 2018 whereupon he was

released and placed on an Order of Supervision.3

26. The Order of Supervision dated February 27, 2018 mandated that the

claimant return to the Enforcement Unit on March 27, 2018 with his

wife and a copy of his marriage certificate. The claimant returned on

March 16, 2018, and provided his marriage certificate.

27. The claimant was placed on subsequent Orders of Supervision pending

the Special Inquiry. The dates of the claimant’s Orders of Supervision

2 See the exhibit “H.S.2” namely the information sheet dated 18.01.2018 setting out the claimant’s name, date of birth, age, address, marital status, name of employer (Propound Protection) and his earnings.

3 The Order of Supervision, pending the Special Inquiry sets out the following terms; that he produce himself for deportation, is not to travel outside of Trinidad and Tobago in excess of 48 hours without notifying the CIO, is to inform the CIO of change of address or employment within 48 hours.

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were; January 23, 2018, February 27, 2018, March 27, 2018 and

November 13, 2018.

28. The immigration records show that on October 12, 2018, the CIO

declared that the claimant overstayed his permitted entry into the

jurisdiction and thus ceased to be a permitted entrant with effect from

October 10, 2014 for the purpose of section 9(4) the Act.

29. Samaroo was informed by one Immigration Officer, Patricia Knights, that

the claimant was served with an Order to Show Cause and a Notice of

Hearing in Deportation Proceedings and had to appear before a Special

Inquiry on January 17, 2019.

30. In response to the claimant’s affidavit, Samaroo deposed that she was

the only Immigration Officer that interviewed the claimant. At no point

in time during the interview, did the claimant request to speak with an

Attorney.

31. The conditions of the holding cells of the Enforcement Unit were also

denied. In response, Samaroo deposed that the cells are cleaned daily.

32. She also explained that the Enforcement Unit is not equipped to hold

detainees overnight, but as the Immigration Detention Centre (“IDC”)

was crowded, the claimant was taken to the Marabella Police Station.

33. As far as Samaroo knew, the first defendant was never made aware that

the claimant sought asylum status until his Attorney wrote the

defendant on January 25, 2019. This was new information to Samaroo,

who deposed that the claimant visited the Enforcement Unit from

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January 23, 2018 to January 17, 2019. After November 2018, she was no

longer in possession of the claimant’s immigration file.

Affidavit of Mr. Gewan Harricoo April 30, 2018

34. Harricoo has been an Immigration Officer for the past twenty years. At

the material time, he was an Immigration Officer IV and therefore has

custody and access to all the records of the claimant. He has perused the

claimant’s file and found the information therein to be true and correct.

35. Some of his evidence was the same as Samaroo’s and so that evidence

need not be repeated.

36. He deposed that the policy of the defendant is to retain the original

passport of any illegal resident, as the case of this the claimant, in order

for the defendant to conduct an investigation to determine the

claimant’s immigration status. The status of the claimant is determined

by the Minister of National Security and/or the CIO.

37. Harricoo explained that the investigation entailed:

i. A passenger report that detailed the lawful dates and flights of

entry in and out of the jurisdiction and his entry certificate. As

such, the passport would be examined to compare the

information on the passenger report.

ii. An interview conducted by an Immigration Officer II, taking basic

information on the detainee and verifying that the information

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given corresponds with the information on the bio-page of the

passport. If the information does not correspond a detailed search

is done on the defendant’s BMS database.

iii. The stamp on the passport is also checked to determine its

authenticity and whether there is an extension of stay on the

detainee’s entry certificate. If the information does not

correspond with the passenger report, a further investigation is

done by the document examination lab, which can take weeks or

sometimes months to complete.

iv. On completion of the interview, the Immigration Officer II would

determine if the detainee has breached any immigration laws and

if he has, he would be arrested and detained and served with a

Notice of Reason for same.

38. Within the immigration process, there is a chain of command by which

the original passport is eventually passed from junior Immigration

Officer to the Immigration Officer IV, the latter being Harricoo in this

case.

39. Thereafter, Harricoo would instruct the Immigration Officer II to prepare

a report to determine the status of the immigrant, as well as whether a

Special Inquiry hearing should be held. This report is then submitted to

the Chief Immigration Officer to make a decision. Throughout the entire

process, the original passport is required to verify the findings of the

junior Immigration Officer.

40. The Chief Immigration Officer ordered a Special Inquiry be held to

determine whether the claimant should be deported or whether he

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would voluntarily leave the jurisdiction. Notwithstanding that the

defendant completed its investigation, the claimant’s passport was

retained to prevent him from unlawfully leaving the jurisdiction and

being issued a new entry certificate if he were to return. Further, it

would prevent him from escaping the laws of Trinidad and Tobago.

41. On January 8, 2019 an Order to Show Cause and a Notice of Hearing in

Deportation Proceedings were served on the claimant who was carded

to appear before a Special Inquiry on January 17, 2019. Following a

written request for disclosure from the claimant, the defendant made

disclosure on January 17, 2019. As such, the hearing was rescheduled to

February 5, 2019 and the claimant was placed on a further Order of

Supervision.

42. Harricoo was aware of the claimant’s pre-action protocol letter to have

his passport returned to him. He deposed that the defendant could have

provided certified copies of the pages in the claimant’s passport and

also, there was the alternative option to renew his passport rather than

travel to Jamaica. The renewal process could be done through the

Nigerian Embassy in Trinidad who would forward the information to

Jamaica.

43. However, since the claimant applied for asylum status, that option was

not available to him as he is precluded from contacting his home

country. The claimant would have to await the decision of the UNHCR to

be resettled. Further, the Special Inquiry cannot be conducted, without

the pending of the UNHCR.

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The response of the claimant

Affidavit in response of to the affidavit of Samaroo

44. Prior to his interview with Samaroo, a male Immigration Officer who was

present at the time made him sign a blank document. This evidence was

not evidence given in reply to matters raised by the defence and ought

to have been provided by the claimant in his principal affidavit. The

evidence is therefore struck out and no weight is attached to it.

45. In that regard most of the matters set out in the affidavit in response of

the claimant is a repetition of matters set out in the principal affidavits

and to that extent those statements are also struck out.

46. He denied that he told Samaroo that he was employed as a security

officer.

47. In response to the first defendant’s reason for the seizure of his

passport, the claimant deposed that no information was disclosed to his

Attorney on the status of the investigation after such a lengthy period of

retention.

48. He explained that he did not inform the defendant of his UNHCR

application because he was fearful the defendant would seize his

UNHCR card.

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Affidavit in response of to the affidavit of Harricoo

49. The claimant clarified that he was not asking to return to his home

country to renew his passport. Further, his passport, which is not the

property of Trinidad and Tobago, is his only form of photo identification.

A photocopy of his document would not assist him in conducting

financial transactions. Similarly the other matters dealt with in the

affidavit were a repeat of the matters set out in the principal affidavit

and are therefore weightless.

FIRST ISSUE

Whether the failure of the claimant to seek alternative remedies in private law

amounts to an abuse of the court’s process

50. The defendants submitted that the claimant is not entitled to a

declaration and/or damages for any alleged violation of his

constitutional rights as the claim is an abuse of the court’s process. In so

submitting the defendant relied on the authority of O’Neil Williams v

Attorney General & The Chief Immigration Officer CV2019-03304.

There the claimant was a Jamaican national against whom a deportation

order had been made in November 2017. He was also a detainee at the

Immigration Detention Centre (IDC). He brought constitutional

proceedings (after a series of previous proceedings) to challenge the

deportation order on the basis that it breached his rights to protection

of the law and freedom of movement. Along with dismissing the

claimant’s request for an interim order, the court found that the motion

was an abuse of process since he had approached the court on three

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prior occasions prior for various reliefs but never challenged the validity

of his deportation order.4

Law and Analysis

51. In Jaroo v Attorney General of Trinidad and Tobago [2001] UKPC 5,

Lord Hope said at para. 29, “Nevertheless, it has been made clear more

than once by their Lordships' Board that the right to apply to the High

Court, which section 14 (1) of the Constitution provides should be

exercised only in exceptional circumstances where there is a parallel

remedy.”

52. In Siewchand Ramanoop v the Attorney General of Trinidad and

Tobago [2005] UKPC 15 Lord Nicholls stated at para 25 and 26:

[25] “In other words, where there is a parallel remedy constitutional

relief should not be sought unless the circumstances of which

complaint is made include some feature which makes it appropriate

to take that course. As a general rule there must be some feature

which, at least arguably, indicates that the means of legal redress

otherwise available would not be adequate. To seek constitutional

relief in the absence of such a feature would be a misuse, or abuse,

of the court's process. A typical, but by no means exclusive, example

of a special feature would be a case where there has been an

arbitrary use of State power.

[26] That said, their lordships hasten to add that the need for the

courts to be vigilant in preventing abuse of constitutional

4 See para 58 of the judgment.

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proceedings is not intended to deter citizens from seeking

constitutional redress where, acting in good faith, they believe the

circumstances of their case contain a feature which renders it

appropriate for them to seek such redress rather than rely simply on

alternative remedies available to them. Frivolous, vexatious or

contrived invocations of the facility of constitutional redress are to

be repelled. But 'bona fide resort to rights under the Constitution

ought not to be discouraged.”

53. This court finds that there were several alternative remedies available to

the claimant in this case and that the claimant ought to have had

recourse to those claims. Those included a claim for unlawful arrest and

detention in private law and false imprisonment.

54. Further, on the evidence before this court there are factual issues to be

decided surrounding the reason for detention, the power to detain and

the conditions of the cells at the Marabella Police Station. These are

matters that are hotly contested and are not appropriate for a hearing

of a constitutional claim.

55. There is, in the court’s view, no feature that arguably indicates that the

means of legal redress otherwise available would not be adequate. The

resort to the invocation of Constitutional rights to ventilate those claims

is a misuse of the court’s process.

56. However, in relation to the issue of the detention of the passport, the

court accepts the submissions of the claimant that this issue raised

definite issues of constitutional propriety for which there appears to be

no adequate alternative remedy available to the claimant.

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57. The court would dismiss the other aspects of the claim on the basis of

abuse of process but will treat with the constitutional claim in so far as it

relates to the seizure and detention of the passport. This encompasses

the breach of the right to enjoyment of property under section 4(a) of

the Constitution and breach of the right to freedom of movement under

section 4(g). Further, the right not to be deprived of such procedural

provisions as are necessary for the purpose of giving effect and

protection of these rights and freedoms as guaranteed under section

5(2)(h) shall also be treated with. Issue two above therefore does not

arise.

THIRD ISSUE

Whether the claimant’s passport was seized and detained without due process

of law, the section 4(a) right (property)

58. The claimant argues that the first defendant did not inform him about

the process prior to impounding his passport under the guiding

principles of natural justice and allow the claimant the opportunity to

renew his passport.

59. In addition, he further contends that there was no legitimate basis to

seize his passport. He relied on the authority of Justice Kokaram, as he

then was, in CV2017-01513 Hafeez Mohammed Abdul Ghani Rashid,

Inayat Fatima v The Chief Immigration Officer and the Minister of

National Security.5 In this case it was held that there was no

unequivocal statement from the immigration authorities as to whether

5 See para. 73 of the judgment where the Honourable Judge quoted the words of Blenman J in Clive Oliveira v The Attorney General, The Chief Immigration Officer Claim No. ANUHCV2008-0449

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the claimants were to be subject to deportation proceedings, thus, there

was no legitimate basis to hold or seize their passports.

60. The defendants however asserted there was a valid reason to seize the

passport, that being their investigations. They also argued that the

claimant had access to the judicial/court process. They relied on the

authority of Daniel v Attorney General of Trinidad and Tobago - (2016)

88 WIR 510 in which case their Lordships of the Court of Appeal

dismissed the appellant’s appeal in which he challenged the authorities’

delay in processing his appeal of sentence, but the Court of Appeal

agreed with the trial judge that the appellant in fact at all times had

access to the courts. He had successfully filed a habeas corpus

application to secure his release and had obtained damages in false

imprisonment. In fact, his further challenge on the same facts by way of

motion was viewed as an abuse of process.

61. Section 4 (a) of the Constitution guarantees every individual the

fundamental right to liberty and the right not to be deprived thereof

except by due process of law.6 The section provides:

“4. It is hereby recognised and declared that in Trinidad and Tobago

there have existed and shall continue to exist, without discrimination

by reason of race, origin, colour, religion or sex, the following

fundamental human rights and freedoms, namely-

6 See Lassalle v the Attorney General (1971) 18 WIR 379, Dilip Kowlessar v The Attorney General H.C.A. No. S-350 of 1997, Mark Jones v Noor Kenney Mohammed H.C.A No. 191 of 1998. Phillips JA in Lassalle supra at 391 defined due process of law as “the antithesis of arbitrary infringement of the individual's right to personal liberty...”

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(a) the right of the individual to life, liberty, security of the person

and enjoyment of property and the right not to be deprived

thereof except by due process of law.”

Findings

62. The right to the enjoyment of property is a fundamental right, but not

an absolute one.

63. The evidence of the Immigration Officers is that the investigative

process can be completed within some weeks or months, signaling that

there was no guarantee and therefore an expectation of timelines.

There is no requirement for the Immigration Officers to inform the

detainee of the exact or approximate time frame of an investigation as

much will depend on several matters including but not limited to access

to information of the relevant authorities in a timely manner. The failure

therefore to complete the process within a specific time frame in this

case appears to have been justified on the evidence and so does not

trample the right to property provisions of the constitution.

64. Harricoo sets out the investigative process and deposes that the original

passport is required at each stage. The court accepts this evidence as

being grounded in reasonableness having regard to the facts and

circumstances of the arrest and the answers provided by the claimant at

the time of interview.

65. It means that at the time of arrest and interview in January 2018, the

claimant had not yet applied for asylum and so would have been subject

to the usual process for investigation.

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66. The investigation appears however to have been determined prior to

the claimant’s application for asylum in September 2018. The result of

the investigation was that the claimant was found to be in the

jurisdiction illegally and would be subject to either deportation or

voluntary departure. For the purpose of making such a determination a

Special Inquiry was to be held. He was not charged with a criminal

offence for having stayed illegally.

67. Thereafter the claimant was placed on multiple Orders of Supervision

and his passport was detained. In that regard, the court notes that the

supervision orders impose a condition that the claimant is not to travel

outside Trinidad and Tobago. The issue therefore is whether that

continued detention of the passport infringed the claimant’s right to the

enjoyment of property without due process.

68. In the court’s view it did not and could not up to that point, as put quite

simply, the claimant had been found to have remained in the country

illegally in that he ceased to be a permitted entrant. This is the effect of

the order made on the 12th October 2018 by the CIO acting by way of

powers delegated by the Minister of National Security. The order was

made because of the breach of the claimant of sections 9(4)(f) and

9(4)(k) of the Immigration Act Chap18:01.

69. Sections 9 (2) and 9 (3) read as follows;

(2) Subject to this Act, an immigration officer shall issue to a person who

has been allowed to enter Trinidad and Tobago under subsection (1)

[other than a person mentioned in paragraph (a) or (b) thereof], a

certificate which shall be expressed to be in force for a specified period

and subject to such terms and conditions as may be mentioned therein.

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(3) Every person who has a certificate under subsection (2) to enter

Trinidad and Tobago and who wishes to remain for a longer period than

that previously granted or to have the conditions attaching to his entry

varied, shall, notwithstanding that he is already in Trinidad and Tobago,

submit to an examination under the limit the period of his stay, vary the

conditions attaching to his entry, or otherwise deal with him as if he were

a person seeking entry into Trinidad and Tobago for the first time.

9(4) reads iner alia

(4) Where a permitted entrant is in the opinion of the Minister a person

described in section 8(1)(k), (l), (m) or (n), or a person who

f. was admitted or deemed to have been admitted to Trinidad and

Tobago under subsection (1) and remains therein after the

expiration of the certificate issued to him under subsection 2…

k. has, since he came into Trinidad and Tobago broken any of the

terms and conditions of the certificate issued to him under

subsection (2), the Minister may at any time declare that such

person has ceased to be a permitted entrant and such person shall

thereupon cease to be a permitted entrant.

70. Additionally, at the time of the making of the above order, the CIO

would not have been aware of the application of the claimant to be

admitted on the basis of asylum status and therefore would have been

entitled to make the order consequent upon the determination of the

investigation. However, it is to be noted that a deportation order was

and has not yet been made against the claimant. That matter is still an

outstanding one to be determined at the Special Inquiry which has never

been held.

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71. However, the position changed substantively when the defendant was

informed that the claimant had registered as an asylum seeker. It

appears on the evidence that although the claimant had so applied since

September 2018, he failed to disclose the fact of his application to the

defendant until January 25, 2019, some four months thereafter. Be that

as it may, the imposition of the registration as an asylum seeker within

the ongoing process meant that there could be no deportation order

made pending the determination of the asylum application having

regard to established policy, obligations and practice of the defendant.

72. It is for this reason no doubt that the claimant was permitted release on

a supervision order as there is in law no power to detain the claimant

except for the purpose of deportation. The law in this regard is quite

clear.7

73. There being no lawful authority to continue to detain the claimant for a

period that allows reasonably for his deportation where a deportation

order is in fact made and no such deportation order having been made

in this case, what then could be the lawful justification for the continued

detention of the passport particularly where the Special Inquiry has

been put on hold pending the outcome of the asylum application.

74. The defence has argued that the supervision order contained a clear

condition upon release of the claimant, namely, that the claimant is not

to travel outside Trinidad and Tobago. This the defence says is the basis

for the detention of the passport. However, one only has to examine the

7 See the Privy Council decision of Tan Te Lam v Superintendent of Tai A Chau Deportation Centre [1997] A.C. 97, p. 111 per Lord Browne-Wilkinson and Troy Thomas v The Chief Immigration Officer, CV2019-00888 per Justice Kokaram, (as he then was) at para. 4, 5, 26.

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full terms of clause 3 of the supervision order to observe that the

argument is not a full one in light of the full conditions which the

defence has failed to set out.

75. The supervision order restricts travel outside of Trinidad and Tobago for

a period in excess of 48 hours without first having notified the CIO of the

dates and places of such proposed travel. It does not impose a condition

that the passport must be surrendered. This clause is of fundamental

importance as when its natural and ordinary meaning is applied it

becomes clear that the claimant is entitled to travel outside of Trinidad

and Tobago for less than 48 hours without notifying the CIO but if

however, he intends to do so for more than 48 hours then he must

notify the CIO of the dates and places of such travel.

76. Whether this was the intention of the drafter of the standard for

supervision order is unknown suffice it to say the natural and ordinary

meaning of the words are pellucid. Neither is it a reasonable argument

that the clause should be interpreted to mean that one could only leave

and return within 48 hours and that if one is so doing for the 48 hour

period one must first notify the CIO of dates and place of such travel.

Such an interpretation is an entirely strained one and leads to an absurd

outcome.

77. In either case or in any event, the supervision order demonstrates

clearly that travel outside of Trinidad and Tobago is not prohibited and

the detention of the passport is not a condition of release on the

supervision order.

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78. Therein lies the absence of due process in the detention of the passport

of this claimant at this stage. Due process requires that enacted laws do

not contain provisions that result in the unfair, arbitrary, or

unreasonable treatment of an individual. The effect and actions of the

detention of the passport in the circumstances has deprived the

claimant of a due process that permits him the enjoyment of property

namely the use of his passport in particular, possession of it for the

purpose of renewal.

79. Due process also requires that the claimant be notified that his passport

is being detained as a condition precedent to his release. In the result

the court finds that the claimant has proven the claim in so far as the

section 4(a) breach is concerned.

FOURTH ISSUE

Freedom of Movement, the section 4(g) right

80. In Ashton v Attorney General TT 2002 HC 120 the applicant was

remanded into custody upon the conclusion of his preliminary enquiry

which resulted in his incarceration for five weeks before his bail was

posted. It was held that there was no breach of the section 4(g) right as

the applicant was appropriately deprived of his liberty. At para. 96,

Justice Myers stated:

“While the framers of the Constitution thought it appropriate to

carve out a right to “freedom of movement” separate and apart

from the right to liberty and the right not to be deprived thereof

except by due process of law, I am hard pressed to see how, as a

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matter of principle, where a person has been deprived of his liberty,

that is has been sent to gaol, in a manner which does not offend

section 4(a), that this could offend section 4(g). I accept that there

may be cases where there might be a breach of the right to

freedom of movement, which did not necessarily involve a

deprivation of the right to liberty.”

81. The court accepts that the dicta set out above by Myers J represents the

law as it stands and it agrees that there may of course be cases where

the deprivation of the right to movement may be wholly exclusive to the

deprivation of the right to the enjoyment of property but this is not one

of those cases. It is in this sense that the court understands the dicta of

Justice of Appeal Kangaloo in the case of Ferguson and Galbaransingh v

the Attorney General of Trinidad and Tobago Civ. App 2010-185, when

he at paragraph 59 stated the following:

“The right to freedom of movement set out in section 4(g) of the

Constitution can be regarded as an essential component of the

wider concept of liberty of man. To my mind it clearly includes the

right to travel within, reside in and leave Trinidad and Tobago.”

82. In Attorney-General v Hosein (1986) 42 WIR 328 the Court of Appeal

affirmed the decision of the High Court that the respondent’s rights

under sections 4 (a), (b) and (g) had been infringed by the refusal of the

Immigration Officer to allow him to leave the jurisdiction because he

was not a holder of a tax exit certificate. The Immigration Officer did not

comply with the Exit Regulations. The objective of the Income Tax (Exit

Clearance) Regulations was to prevent persons owing income tax at the

time of their intended departure from departing Trinidad and Tobago.

The Court of Appeal held that the Board of Inland Revenue and the Chief

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Immigration Officer failed to read regulations 3 and 6 together and

wrongfully and without due process, deprived the respondent of his

right to freedom of movement.

83. In Bartik v Russia (App no 55565/00) [2006] ECHR 55565/00, (not

binding on this court but reflective of the essence of the right) the

European Court of Human Rights found a violation of Article 2 of

Protocol No. 4 on account of an unjustified restriction on the applicants’

right to leave Russia. At para. 36, the Court stated:

“The right of freedom of movement as guaranteed by paras 1 and 2

of art 2 of Protocol No 4 is intended to secure to any person a right

to liberty of movement within a territory and to leave that territory,

which implies a right to leave for such country of the person's

choice to which he may be admitted (see Napijalo v Croatia [2003]

ECHR 66485/01 at para 68, 13 November 2003, with further

references). It follows that liberty of movement prohibits any

measure liable to infringe that right or to restrict the exercise

thereof which does not satisfy the requirement of a measure which

can be considered as “necessary in a democratic society” in the

pursuit of the legitimate aims referred to in the third paragraph of

this article (ibid.). In particular, a measure by means of which an

individual is denied the use of an identity document which, had he

so wished, would have permitted him to leave the country,

amounts to an interference within the meaning of art 2 of Protocol

No 4.”

84. The effect of the detention of the passport is that the claimant could not

travel out of Trinidad, (which ironically is the objective of deportation

proceedings) for the purpose of renewal. Indeed that is his evidence.

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The evidence of the defence demonstrates however that there were

other methods of renewal available or other documents which could

have been issued to him for travel. The argument of the defendant in

that regard is somewhat self defeating. It is at the least axiomatic that

travel to Jamaica on a temporary document for the purpose of the

renewal of a passport would more likely than not be an exercise in

futility without possession of the passport that is the subject of renewal.

85. Further, the court accepts that it would not be in keeping with the

requirements of the application for asylum status for the claimant to

have contacted the embassy of the very country which he seeks to avoid

to ask that his nationality document be renewed when in fact he has

given reasons for his departure therefrom which on the face of it

justifies his application, namely the imminent threat to his life. It is to be

noted that this evidence is uncontradicted and perhaps quite reasonably

so as the CIO may not have access and would not reasonably be

expected to have access to such information coming out of Nigeria, but

be that as it may, such a move may likely result in an unintended

consequence of his application for asylum.

86. It is worth repeating that the supervision order restricts travel outside of

Trinidad and Tobago for a period in excess of 48 hours without first

having notified the CIO of the dates and places of such proposed travel.

It is not the case that the supervision order restricts travel out of the

country absolutely nor is it the case that a condition of the order is the

surrender of the passport. Clause 3 of the order is of fundamental

importance as when given its natural and ordinary meaning, it is clear

that the claimant is entitled to travel outside of Trinidad and Tobago for

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less than 48 hours and if however, he intends to do so for more than 48

hours then he must notify the CIO of the dates and places of such travel.

87. The defence placed heavy reliance on the dicta of the Honourable

Justice Dean Armorer in the case of Beverly Burrowes & Ors. v The

Attorney General & Chief Immigration Officer8.

88. Further, the defence submitted that the CIO does in fact have the power

to detain the passport pursuant to section 17 of the Act which provides:

“(1) Subject to any order or direction to the contrary by the

Minister, a person taken into custody or detained may be granted

conditional release or an order of supervision in the prescribed

form 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, as

may be satisfactory, to the Chief Immigration Officer.”

89. In that regard it must be noted firstly that the court accepts that such a

power is granted by section 17 supra. However, no such condition was

imposed by virtue of the order of supervision. It is a clear requirement of

the section that same should be included as a condition of release on

the prescribed form should that be the case.

90. Secondly, in Burrowes supra the Learned Judge also accepted that the

seizure of a passport is one of the conditions for release contemplated

at section 17 of the Act and went further to say;

“61. I agreed with learned Counsel for the Defendant that the

seizure of the passport fell within the conditions contemplated at

8 CV2016-01749

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section 17(1) of the Act. The conditions are imposed under the

authority of the CIO, and are protected by the ouster provision,

unless there is an allegation of bias, procedural unfairness or a

lack of jurisdiction. None of those grounds had been advanced in

relation to the passport.”

91. This court finds itself in full agreement with the dicta set out above at

paragraph 61 of Burrowes. This however does not assist the defence in

this case as the fulfillment of the requirements of the Act dictates that

not only should the power be exercised but it must be exercised in the

prescribed manner so as to be clothed with the protection afforded to

the CIO when using the power, and to be fair to the detainee. Put

another way, the exercise of the power must be specifically set out in

the order of supervision as a condition of release or else it simply is not a

condition. This is the protection afforded by the law. Were it otherwise,

it would mean that the CIO could impose almost any restriction without

setting same out on the order of supervision as a condition of release on

the assumption that that restriction is a corollary to a restriction set out

on the order of supervision when in fact it is not.

92. So to do would be to exercise the power in an arbitrary and unfair

manner. This is the crux of the right to protection of the law and it is

what has occurred here in that there is no condition imposed on the

order of supervision for the detention of the passport as a requirement

for release, but the CIO now says through Harricoo that the passport

was detained for the purpose of restricting travel outside of Trinidad.

Not only is the imposition of this unstated condition unfair in the

context of it being an after the fact purported exercise of the power, but

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it is also unfair in the context of the non absolute restriction against

travel set out in the order of supervision.

93. It is therefore clear that in the circumstances faced by the claimant, the

effect of the detention of the passport is that of deprivation of the

claimant’s right to freedom of movement in that he has been deprived

of the right to travel for the purpose of renewal of the passport by the

detention of his passport in circumstances where he is specifically

permitted to travel in keeping with the terms of the order of supervision

so long as the CIO is notified.

94. That being said, it is not lost on the court that the section 4(g) right is

similarly not an absolute one. The right to freedom of movement can of

course be curtailed in suitable circumstances in keeping with the

provisions set out in the law, specifically the Immigration Act. The court

therefore finds that the claimant’s fundamental right to freedom of

movement under section 4(g) was also breached.

95. Further, and for future guidance it is advisable that the CIO makes it

clear on the order of supervision that it is a condition of release that the

passport is to be surrendered and detained by the Immigration Division.

FIFTH ISSUE

Section 5(2)(h) of the Constitution and the effect on the order for the Special

Inquiry

96. Section 5 of the Constitution reads as follows:

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“5. (1) Except as is otherwise expressly provided in this Chapter and in

section 54, no law may abrogate, abridge or infringe or authorise the

abrogation, abridgment or infringement of any of the rights and

freedoms hereinbefore recognised and declared.

(2) Without prejudice to subsection (1), but subject to this Chapter and to

section 54, Parliament may not—

h) deprive a person of the right to such procedural provisions as

are necessary for the purpose of giving effect and protection to

the aforesaid rights and freedoms.”

97. In The Attorney General of Trinidad and Tobago v Oswald Alleyne and

ors C.A.CIV.52/2003 Bereaux JA, in delivering the judgment of the

Board, explained that the right encapsulated in section 5(2)(h) was an

expansion of the rights set out in section 4 of the Constitution. His

Lordship stated at paragraph 50:

“[50] Section 5(2)(h) does not stand on its own as an individual

fundamental right, it is directed at Parliament, which it prohibits

from depriving a person of such procedural provisions as necessary

to give effect and protection to their rights and freedoms under

section 4 of the Constitution. But it is also a further and better

particularization of the rights set out in section 4; in this case, the

due process provisions of section 4(a) and the right to the

protection of the law in section 4(b).”

And at paragraph 51 and 52:

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“[51] A failure by the Executive to provide procedural provisions will

thus amount to a breach of the due process provision and the right

to protection of the law. Attorney General of Trinidad and Tobago v

Whiteman [1991] 2 WLR 1200 at 1204 provides helpful guidance on

the interpretation of the provisions of section 5(2)(h). That was a

case in which the respondent, having been arrested, was not

informed of his right to communicate with a lawyer and the

question which arose was whether, in order to make that right

effective, there shall be provision for a procedure whereby he was

informed of his right to counsel. It was held that while section

5(2)(c)(ii) conferred on the person arrested the right to

communicate with a legal advisor, that right would be ineffective in

certain circumstances unless there was provision for a procedure by

which he was informed of it and section 5(2)(h) gave him the right

to a procedural provision such as that provided by paragraph 8(b) of

the Appendix B to the Judges Rules 1964 and the right to have that

procedure followed.

[52] The judgment of the Board was given by Lord Keith of Kinkel. At

page 1204 he said: “The language of a Constitution falls to be

construed, not in a narrow and legalistic way, but broadly and

purposively, so as to give effect to its spirit, and this is particularly

true of those provisions which are concerned with the protection of

human rights. In this case, the right conferred by section 5(2)(c)(ii)

upon a person who has been arrested and detained, namely the

right to communicate with a legal adviser, is capable in some

situations of being of little value if the person is not informed of the

right. Many persons might be quite ignorant that they had this

constitutional right or, if they did know, might in the circumstances

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of their arrest be too confused to bring it to mind. Section 5(2)(h) is

properly to be regarded as intended to deal with that kind of

situation as well as other kinds of situation where some different

constitutional rights might otherwise be at risk of not being given

effect and protection. There are no grounds for giving a restricted

meaning to the words “procedural provisions.” A procedure is a way

of going about things, and a provision is something which lays down

what that way is to be. Given that there are some situations where

the right to communicate with a legal adviser will not be effective if

no provision exists for some procedure to be followed with a view

to dealing with these situations, there is a clear necessity that such

provision should be made. So section 5(2)(h) gives a right to such

provision. Their Lordships further consider that, by necessary

implication, there is a right to have the procedure followed through.

A procedure which exists only on paper, and is not put into practice,

does not give practical protection.”

“Procedural provisions” therefore is to be construed broadly and

purposively so as to give effect to the spirit and intention of the

Constitution. Section 5(2)(h) gives a right to a procedure by which

effect is given to the individual’s rights and freedoms. The rights

and freedoms set out in sections 4 and 5 are also manifested in

statutes as rights and entitlements, as in this case.”

98. Special inquiries are governed by Sections 21-27 of the Act.

99. Section 22(1) provides;

22. (1) Where he has knowledge thereof, any public officer shall send a

written report …………to the Chief Immigration Officer in respect of

paragraphs d to i with full particulars concerning;

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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)(supra)

(2) Every person who is found upon an inquiry duly held by a

Special Inquiry Officer to be a person described in subsection (1) is

subject to deportation.

100. The defendant submitted essentially that the claimant was not required

to attend the Special Inquiry unless there was a report done and

submitted to the CIO and a section 9 (4) declaration was made.

Therefore he argues that there was no basis to hold a Special Inquiry and

a declaration should be made setting it aside. In passing the court must

comment that attendance at the Special Inquiry is different from the

issue of lawfulness so that the court understands the argument of the

claimant to be in relation to the latter and not the former.

101. The evidence of the defendant and a careful reading of the relevant

sections of the Act however put an end to this issue. As stated before,

the declaration made by the CIO on the 12th October 2018 is made by

virtue of the powers delegated to the CIO by the Minister. Further the

evidence of Harricoo is that after investigations, the Immigration Officer

IV directs the Immigration Officer II to prepare a report pursuant to

section 22(1) of the Act for submission to the CIO to make a

determination as to the status of the immigrant and whether a Special

Inquiry should be held.

102. In the present case, the declaration by the CIO was made under

delegated powers as if the Minister would have made it himself. This by

inference would have been after the report was submitted although a

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report is not attached to the evidence. In making the declaration the CIO

considered the report that was sent to her and a decision was made

whether to hold a Special Inquiry.

103. This process employed is not in the court’s view a derogation from the

provisions of section 22 of the Act as when considering whether to hold

a Special Inquiry the CIO is considering the report of the junior officer

and the declaration made by the Minister albeit signed by the CIO under

the delegated powers. The decision that is being made at that stage

under section 22 is simply whether having regard to the information

before the CIO, a Special Inquiry should be held to determine whether

the migrant should be deported. The precursor to that decision is to

decide the status of the migrant but this is only a delegated duty under

the Act.

104. That being said, there is no gainsaying that the use of the delegated

power may result in public misunderstanding of the roles and functions

of the Minister and the CIO in such circumstances as the CIO is required

to wear two hats when treating with the same detainee. But the

gravamen of the issue is whether the procedure contravenes section

5(2)(h) of the Constitution.

105. In the court’s view the provisions of section 22 do not contravene

section 5(2)(h) in that it does not abrogate, abridge or infringe any of the

enshrined rights set out at section 4 as the Act makes it clear that the

decision as to the status of the migrant is that of the Minister which is

certified by the declaration. This is a wholly separate function from that

of the CIO whose duty it is to consider the report and make an

altogether different determination than that of the Minister, namely to

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determine whether a Special Inquiry should be held to determine

whether the migrant should be deported. The two functions remain

separate and apart. In so doing the CIO is acting specifically under

section 23 of the Act which reads as follows;

(2) Subject to any Order or direction by the Minister, the Chief

Immigration Officer shall, upon receiving a written report under

section 22 and where he considers that an inquiry is warranted,

cause an inquiry to be held.

106. So that the provisions of the Act as it stands, in particular section 22 is

not a law that deprives an individual of the right to such procedural

provisions as are necessary for the purpose of giving effect and

protection to the rights and freedoms set out at section 4 of the

Constitution and the court so finds. It is therefore unnecessary for the

court to proceed any further in this regard.

DISPOSITION

107. The court makes the following order;

a. It is declared that the seizure and detention by the defendants their

servants and/or agents, of Federal Republic of Nigeria passport No.

A05611036, issued to the claimant, from January 25, 2019

contravened the rights of the claimant guaranteed by section 4(a) of

the Constitution namely the right of the individual to the enjoyment

of property and the right not to be deprived thereof except by due

process of law.

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b. It is declared that the seizure and detention by the defendants their

servants and/or agents, of Federal Republic of Nigeria passport No.

A05611036, issued to the claimant, from January 25, 2019

contravened the rights of the claimant guaranteed by section 4(g) of

the Constitution namely the right of the individual to freedom of

movement and the right not to be deprived thereof except by due

process of law.

c. Federal Republic of Nigeria passport No. A05611036, issued to the

claimant, shall be returned to the claimant who shall have same or a

renewed passport available for presentation to and inspection by the

first defendant, her servants and/or agents when called upon by

them so to do and shall surrender same to the first defendant, her

servants and/or agents in the event that an Order of Deportation is

made against the claimant upon conclusion of a Special Inquiry.

d. In all other respects the claim is dismissed.

e. Damages payable to the claimant for the breaches are to be assessed

by a Master on a date to be fixed by the Court Office.

f. The defendants shall pay to the claimant sixty per cent (60%) of the

costs of the claim to be assessed by a Registrar in default of

agreement on a date to be fixed by the Court Office.

Ricky Rahim

Judge

THE CHIEF IMMIGRATION OFFICER ATTORNEY...

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