Derek Achong

Se­nior Re­porter

derek.achong@guardian.co.tt

The State is set to de­fend scores of com­pen­sa­tion claims from il­le­gal mi­grants who were un­law­ful­ly held at the Ch­aguara­mas He­li­port due to the de­lay by Na­tion­al Se­cu­ri­ty Min­is­ter Fitzger­ald Hinds in de­clar­ing the fa­cil­i­ty a de­ten­tion cen­tre af­ter the end of the COVID-19 pan­dem­ic.

De­liv­er­ing a de­ci­sion on Wednes­day morn­ing, High Court Judge Frank Seep­er­sad up­held a habeas cor­pus from a Venezue­lan na­tion­al Samih Tarek Sori­ti Ben­itez, who has been de­tained at the fa­cil­i­ty af­ter be­ing ar­rest­ed along­side al­most 200 fel­low na­tion­als at a night­club in St James on Ju­ly 8.

Pre­sent­ing sub­mis­sions dur­ing the hear­ing, the man’s lawyer Ger­ald Ramdeen not­ed that be­fore the Gov­ern­ment be­gan us­ing the fa­cil­i­ty, then na­tion­al se­cu­ri­ty min­is­ter, now cur­rent En­er­gy and En­er­gy In­dus­tries Min­is­ter Stu­art Young is­sued a de­c­la­ra­tion un­der the Im­mi­gra­tion Act for the fa­cil­i­ty to be used to quar­an­tine il­le­gal mi­grants that would nor­mal­ly be de­tained at the Im­mi­gra­tion De­ten­tion Cen­tre in Aripo.

Ramdeen point­ed out that af­ter the Min­istry of Health stopped manda­to­ry quar­an­ti­ning un­der the pan­dem­ic, Hinds should have is­sued an­oth­er or­der for the fa­cil­i­ty to be used strict­ly for de­ten­tion as with the cen­tre in Aripo.

He not­ed the or­der from Hinds to Chief of De­fence Staff Air Vice Mar­shall Dar­ryl Daniel on­ly came hours af­ter he suc­cess­ful­ly pur­sued a sep­a­rate but sim­i­lar case on be­half of six il­le­gal mi­grants who were ar­rest­ed along­side Ben­itez.

Ramdeen stat­ed that the out­come means oth­er de­tainees at the he­li­port could now make claims against the State over their de­ten­tion up to when the or­der was is­sued.

In the case with the oth­er six mi­grants, which was de­ter­mined by High Court Judge Ava­son Quin­lan-Williams on Mon­day, Ramdeen’s clients were re­leased as the or­der was not in place at that time.

While Jus­tice Seep­er­sad ruled that Ben­itez was en­ti­tled to com­pen­sa­tion for be­ing un­law­ful­ly de­tained at the lo­ca­tion af­ter his ar­rest like the six oth­ers, he did not or­der his re­lease based on the or­der.

The com­pen­sa­tion due to Ben­itez and the oth­ers will be cal­cu­lat­ed at a lat­er date.

Jus­tice Seep­er­sad said, “It is patent­ly ob­vi­ous that the or­der of then-min­is­ter of na­tion­al se­cu­ri­ty (Stu­art) Young to have the he­li­port de­clared as an im­mi­gra­tion de­ten­tion cen­tre was lim­it­ed to the du­ra­tion of this coun­try’s manda­to­ry quar­an­tine mea­sures in re­sponse to the Covid pan­dem­ic.”

Jus­tice Seep­er­sad not­ed that ear­li­er this month, he ruled that 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) could not ap­ply lo­cal­ly as its pro­vi­sions were not in­cor­po­rat­ed in­to lo­cal laws by Par­lia­ment.

He not­ed that it could not ap­ply de­spite mi­grants be­ing grant­ed refugee sta­tus by the Unit­ed Na­tions High Com­mis­sion­er for Refugees (UN­HCR).

“As a re­sult, mi­grants who have en­tered in­to the ju­ris­dic­tion il­le­gal­ly and who have not availed them­selves of the amnesty af­ford­ed via reg­is­tra­tion can be de­port­ed notwith­stand­ing their refugee sta­tus recog­ni­tion by the UN­HCR,” he said.

Ad­mit­ting that the le­gal po­si­tion may seem dis­heart­en­ing, Jus­tice Seep­er­sad said, “As a re­sult, mi­grants need to ap­pre­ci­ate their re­al­i­ty, take charge of their cir­cum­stances and ei­ther vol­un­tar­i­ly re­turn to their home­lands or run the risk of de­por­ta­tion.”

Jus­tice Seep­er­sad al­so ex­pressed hope that the le­gal po­si­tion on the con­ven­tion would be ur­gent­ly ad­dressed.

“The State must end its vac­il­la­tion and ei­ther en­force the ex­ist­ing or im­me­di­ate­ly for­mu­late a hu­man­i­tar­i­an pol­i­cy, ho­n­our the Con­ven­tion oblig­a­tions and en­act the req­ui­site en­abling leg­is­la­tion,” Jus­tice Seep­er­sad said.

“The fail­ure to take de­ci­sive ac­tion is long over­due and amounts to a dere­lic­tion of du­ty,” he said.

Ben­itez was al­so rep­re­sent­ed by Dayadai Har­ri­paul.