Derek Achong

Se­nior Re­porter

derek.achong@guardian.co.tt

Asy­lum seek­ers and refugees can be de­port­ed from this coun­try de­spite T&T be­ing a sig­na­to­ry to a Unit­ed Na­tions Con­ven­tion that ad­vis­es against such ac­tion.

High Court Judge Frank Seep­er­sad made the state­ment yes­ter­day as he dis­missed a hy­brid ju­di­cial re­view and con­sti­tu­tion­al mo­tion law­suit brought by a Venezue­lan refugee, who was or­dered to be de­port­ed by Na­tion­al Se­cu­ri­ty Min­is­ter Fitzger­ald Hinds in March. In his judg­ment, Jus­tice Seep­er­sad not­ed that the con­ven­tion could not ap­ply as its terms were not in­cor­po­rat­ed in­to lo­cal im­mi­gra­tion laws.

Ac­cord­ing to the ev­i­dence in the case, in April, last year, the man–whose iden­ti­ty was with­held over con­cerns that he may face reper­cus­sions if he is even­tu­al­ly de­port­ed–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, the di­vi­sion de­tained him and is­sued him with a de­por­ta­tion or­der.

In the law­suit, he is claim­ing that his pro­posed de­por­ta­tion is il­le­gal based on this coun­try’s in­ter­na­tion­al oblig­a­tions to refugees.

His lawyers point­ed to the Unit­ed Na­tions’ 1951 Con­ven­tion Re­lat­ing to the Sta­tus of Refugees, which this coun­try signed on to in No­vem­ber 2000 and ad­vo­cates against re­turn­ing refugees to a coun­try where they would prob­a­bly face per­se­cu­tion (non re­foule­ment).

The man, who ad­mit­ted that he is ul­ti­mate­ly seek­ing to be re­set­tled in Spain or Cana­da, is al­so claim­ing that 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.

Jus­tice Seep­er­sad, not­ing that the con­ven­tion could not ap­ply as its terms were not in­cor­po­rat­ed in­to T&T’s im­mi­gra­tion laws, said, “In­ter­na­tion­al treaty oblig­a­tions can­not al­ter do­mes­tic law in this Re­pub­lic and there is a need for do­mes­tic in­cor­po­ra­tion of treaty oblig­a­tions.

“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 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.

As part of his judg­ment, Jus­tice Seep­er­sad light­ly crit­i­cised the UN­HCR, which was an in­ter­est­ed par­ty in the case, and backed the refugee’s claim.

“At times, in­ter­na­tion­al or­gan­i­sa­tions em­bold­ened by un­lim­it­ed re­sources and the sup­port of de­vel­oped na­tions can lose sight of the pre­vail­ing eco­nom­ic, so­ci­etal, and in­fra­struc­tur­al lim­i­ta­tions un­der which small na­tions such as T&T op­er­ate,” he said.

“The Gov­ern­ment’s ar­tic­u­lat­ed ap­proach to mi­grants of­fend­ed nei­ther the Con­sti­tu­tion nor the rule of law but was a pro­por­tion­ate re­sponse based up­on its ra­tio­nal and rea­soned macro-eco­nom­ic and so­cio-po­lit­i­cal con­cerns which re­quired de­ci­sive re­spons­es as a glob­al pan­dem­ic was on­go­ing.”

Deal­ing specif­i­cal­ly with the refugee’s case, Jus­tice Seep­er­sad stat­ed that Hinds’ de­ci­sion to is­sue a de­por­ta­tion or­der was rea­son­able, ra­tio­nal, fair, and pro­por­tion­ate.

He al­so not­ed that the refugee ad­mit­ted that he vi­o­lat­ed sev­er­al im­mi­gra­tion laws when he en­tered the coun­try il­le­gal­ly.

“This type of dis­re­spect and dis­re­gard for the laws of T&T, the su­prema­cy of the Re­pub­li­can Con­sti­tu­tion, and the Sov­er­eign­ty of this State must be con­demned and can­not be con­doned,” he said.

As part of his de­ci­sion in the case, the refugee was or­dered to pay the le­gal costs in­curred by the State in de­fend­ing it.

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.