2771235
Justice Frank Seepersad

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.