IN THE HIGH COURT OF JUSTICE IN THE MATTER OF THE JUDICIAL REVIEW ACT CHAP 7:08 AND IN THE MATTER OF THE IMMIGRATION ACT CHAP 18:01 AND

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO Claim No. CV IN THE HIGH COURT OF JUSTICE IN THE MATTER OF THE JUDICIAL REVIEW ACT CHAP 7:08 AND IN THE MATTER OF THE IMMIGRATION ACT CHAP 18:01 AND IN THE MATTER OF THE DECISION OF THE CHIEF IMMIGRATION OFFICER TO REFUSE TO PLACE HAFIZ MOHAMMED ABDUL GHANI RASHID AND INAYAT FATIMA ON A FURTHER SUPERVISION ORDER PENDING THE APPOINTMENT OF A SPECIAL INQUIRY OFFICER BETWEEN HAFIZ MOHAMMED ABDUL GHANI RASHID INAYAT FATIMA AND THE CHIEF IMMIGRATION OFFICER THE MINISTER OF NATIONAL SECURITY First Claimant Second Claimant First Defendant Second Defendant Before the Honourable Mr. Justice V. Kokaram Date of Delivery: Thursday 30 th November 2017 Appearances: Mr. Jagdeo Singh, Mr. Criston J. Williams and Kiel Taklasingh instructed by Ms. Shirvani Ramkissoon for the Claimants Ms. Mary Davis instructed by Mr. Nairob Smart for the Defendants JUDGMENT Page 1 of 34

2 Introduction 1. The Claimants, Hafiz Mohammed Abdul Ghani Rashid and his wife, Inayat Fatima, are Indian citizens, living in this country for the past fifteen (15) years. The couple s immigrant status has not been finally settled by the Defendants. Over the years, several decisions were made by the Defendants which effectively permitted their continued stay in this country. This included granting missionary permits or landing certificates or in the case of the Minister of National Security, the Second Defendant ( the Minister ), rendering advice on how their stay here could be further extended under the Immigration Act Chap. 18:01. To date there are no deportation, rejection orders or deportation proceedings issued against the couple. In January 2017 their passports were seized by the First Defendant and on 21 st April 2017 an order of supervision was issued requiring them to attend Piarco International Airport to verify their departure presumably back to India. The couple has challenged these decisions in these judicial review proceedings. 2. Mr. Rashid is a religious scholar who has been described by the Caroni Jamaah ah as an asset to the Muslim Community. 1 The couple legally entered this country in 2002 for the purpose of Mr. Rashid teaching the Holy Qur an in several Masjids throughout the country. He was engaged in missionary work with the Anjuman Sunnat-ul-Jamaat Association (ASJA). The couple has maintained a residence at LP#236 Southern Main Road, Warrenville. Since residing in this country, out of their marriage they have had three sons, Rashad Abdul Rahman Mohammed, Omair Abdul Raheem Mohammed and Zubair Abdul Raoof Mohammed. Rashad is 12 years old, Omair is 9 years old and Zubair is now 7 years old and are all considered residents of Trinidad and Tobago The missionary permit under which Mr. Rashid has been rendering his teaching services eventually expired in The couple s application for residency was formally refused in December 2009 by the Minister, however, the Minister left it open to consider such an application favourably at a later date. Mr. Rashid thereafter continued to obtain exemptions from the Minister to work without a permit 3 from February 2010 to eventually February Thereafter, he applied for extensions for their landing certificate. In January 2017, when the 1 Exhibit H.R.13 in the affidavit of Hafiz Mohammed Abdul Ghani Rashid filed 11 th May Section 5 of the Immigration Act Chap 18:01. 3 Pursuant to Regulation 10(14) of the Immigration Regulations. Page 2 of 34

3 extension of their landing certificate expired, both of their passports were seized by the Defendants. Eventually, an order of supervision (with material alterations made to the statutory form) was made on 21 st April 2017 by the Chief Immigration Officer with instructions to the couple to report to the Piarco International Airport with return tickets to their country of residence and to verify departure. The couple s children are not the subject of the order and conceptually, such an order places the couple at risk of deportation leaving their three (3) minor sons in this country without any formal deportation proceedings being commenced. 4. In these judicial review proceedings, the couple has sought to quash this decision to issue this order of supervision and seize their passports on the grounds of illegality, irrationality and procedural impropriety. Fundamentally, the couple questions the method by which the First Defendant is seeking to effectively carry out a deportation without making any deportation order or conducting a Special Inquiry. There is no claim for constitutional relief but certainly any decision in relation to the couple which impacts upon the children of the family, who are residents, raises a concern of the manner in which such deportations should be executed. It effectively breaks up a family unit. Without any mechanisms to care for the children if the couple is to be legitimately deported, it prima facie violates the principle that administrative decisions are to be taken having regard to the best interest of the child. 5. In my view, on the evidence in this case, the First Defendant has used the procedural vehicle of the order of supervision for an illegal purpose. That is to effect a deportation without any formal order for deportation having been made or deportation proceedings commenced. The order of supervision is an aid to deportation proceedings, it has no life of its own. It is akin to the grant of bail to preserve the liberty of the subject pending proceedings after the subject was lawfully detained. There is no legitimacy to an order for supervision if there are not extant deportation proceedings. To do otherwise amounts by analogy to the grant of bail where there is no detention or charge. 6. The First Defendant has used the order of supervision as a vehicle of convenience to usher an immigrant who may no longer have standing under the Immigration Act to leave this country. However, the procedure prescribed in the Immigration Act does not provide for any such process whereby an immigrant can be coerced to leave without being the subject of a deportation or rejection order or Special Inquiry. Indeed any such attempts to so remove the Page 3 of 34

4 couple based on the issue of the supervision order under review in the absence of deportation proceedings deprives them of several enshrined review processes contemplated under the legislation. There simply is no lawful basis for the First Defendant to issue such an order and such a decision is irrational, illegal and procedurally improper. 7. If indeed the First Defendant intends to deport the couple, absent any deportation order issued by the Minister, then fundamental fairness requires that the Defendants comport with the requirements of the legislation and convene a Special Inquiry to determine properly the immigrant status of the couple. At the appropriate stage the Defendants will take into account, of course, all the circumstances of their residency in this country, their contributions and support from the community. 8. For the reasons set out in this judgment, the order of supervision would be quashed. However, insofar as any claim has been made against the Minister of National Security there is no evidence before the Court that any decision has been made by the Minister that the couple are not permitted entrants. Insofar as a claim has been made challenging such a purported decision, that claim against the Minister must therefore fail. The couple s passports are to be returned to them forthwith. Having obtained their substantial relief in these declarations and orders and having regard to the dearth of evidence on damages, it is not a fitting case to make an award of damages. The grounds for judicial review 9. In this claim, the Claimants seek several declaratory reliefs and orders in relation to the supervision orders made on 21 st April 2017 to have them permanently depart Trinidad and Tobago and the decision to seize their passports. They contend that the supervision order and the decision to request the Claimants to report to the Senior Immigration Officer at the Piarco International Airport on 30 th April 2017; to have them permanently depart Trinidad and Tobago; in the absence of a declaration by the Second Defendant that the Claimants have become members of the Prohibited Class of persons pursuant to Section 8(1) of the Immigration Act Chapter 18:01 and therefore ceased to be permitted entrants and in the absence of a deportation order, is illegal, irrational, and/or procedurally improper. 10. They contend that a Special Inquiry ought to have been convened and seek the following declarations: Page 4 of 34

5 (i) that the continuing failure and or refusal of the First Defendant to commence a Special Inquiry within a reasonable time is illegal, irrational, and/or procedurally improper; and/or (ii) that the continuing failure and/or refusal of the First Defendant to grant a further order of supervision in the prescribed form under such conditions, respecting the time and place at which the Claimants will report for examination, inquiry, deportation or rejection on the payment of a security deposit or other conditions in respect of the Claimants is irrational and/or illegal and/or in breach of the policy of the Immigration Act. (iii) that the failure of the First Defendant to appoint a Special Inquiry Officer to inquire into and determine whether the Claimants shall be allowed to remain in Trinidad and Tobago or shall be deported is irrational and/or illegal and/or in breach of the provisions of Section 13(2) of the Immigration Act Chap 18: In relation to their passports, they seek a declaration that the First Defendant requesting, taking and currently having in their possession the property of the Government of the Republic of India passports numbered N and H respectfully are illegal, irrational, and/or procedurally improper. 12. As against the Second Defendant, they seek a declaration that any decision made by the Second Defendant to declare that the Claimants have ceased to be permitted entrants has been obtained unfairly and in a procedurally improper manner. 13. They also seek orders of certiorari to remove into this Honourable Court and quash the decision of the Chief Immigration Officer. An order of mandamus directing the Chief Immigration Officer subject to Section 17(1) of the Immigration Act to place the Claimants on a further order of supervision and pay a reasonable security deposit directing the Chief Immigration Officer to return passports numbered N and H to the Claimants respectively. 14. As against both Defendants they seek the following relief: (a) A declaration that any legislative provision which is construed to permit the First Defendant or the Second Defendant or a Special Inquiry Officer to determine finally a matter of law and/or the interpretation of any statute without judicial Page 5 of 34

6 oversight will be contrary to the rule of law and/or the separation of powers implicit in the Constitution of Trinidad and Tobago and void. (b) This relief was effectively abandoned by the Claimants as no submissions on this was made to this Court. In any event the Court s disposition of this matter renders consideration of such a declaration moot. (c) Damages inclusive of aggravated and/or exemplary damages. 15. The grounds for the claim for judicial review are brief and can be set out in their entirety: a) The order of supervision dated 21 st April 2017 state that the purpose of the order is to verify departure. This position can only be adopted should it be determined the Claimants have become members of the Prohibited Class pursuant to Section 8(1) of the Immigration Act. It is therefore unclear what procedure the First Defendant intends to pursue. b) The Minister may at any time declare that such persons has ceased to be a permitted entrant and such person shall thereupon cease to be a permitted entrant. To date the Claimants are unaware whether the Minister has declared that the Claimants have ceased to be permitted entrants. However, if they have been so deemed, the decision is irrational and/or illegal and/or procedurally improper and/or obtained unfairly and in breach of the rules of natural justice. c) After the Minister has declared that such persons has ceased to be a permitted entrant the Minister may then make a deportation order. There is no evidence of a deportation order having been issued. d) Alternatively, if the First Defendant and/or his agents have failed to commence an inquiry in accordance with the provisions of Section 22 of the Immigration Act; the decision of the Second Defendant to have the Claimants report to the Senior Immigration officer on the 30 th April 2017 to verify departure is arbitrary and unjustifiable. e) The Claimants were never provided with a copy of any deportation order and are therefore unable to ascertain whether the order of supervision dated 21 st April 2017 was premised on a deportation order being made or them being given the option to Page 6 of 34

7 voluntarily depart the country having been determined as a member of the prohibited class. f) The Claimants have not been provided with an opportunity to resist their classification as a member of a prohibited class either under Section 8(1) of the Immigration Act. g) The Claimants cannot rely on Section 13(3) of Section 8 of the Immigration Act as being persons aggrieved by the decision of a Special Inquiry Officer as the First Defendant failed to comply with Section 13(2) of the Immigration Act. h) There is no basis upon which the Second Defendant can issue deportation orders against the Claimants and therefore the request to report to the Senior Immigration Officer at the Piarco International Airport to verify departure cannot be justified. i) The Second Defendant has failed to exercise its power to order a further order of supervision(s) pending the resolution of any inquiry into their status. The failure to exercise the power under Section 17 of the Immigration Act. j) The Court maintains a supervisory jurisdiction over the decisions and actions of the First Defendant and his delegates. Parliament cannot be presumed so to have enacted Section 30 of the Act so as to: authorise or effect the arbitrary detention, imprisonment or exile of any person or to 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. 16. The Defendants in their affidavits 4 assert the following: a) The Anjuman Sunnat-ul-Jamaat Association (ASJA) made an application for a missionary permit on behalf of Mr. Rashid. They could have made the application because a missionary permit may be made on behalf of a person by a religious organization based in Trinidad. b) Mr. Rashid was granted a missionary permit which was valid for two years from 26 th October 2004 to 25 th October Affidavits of Lydia Ram-Ramnanansingh, Affidavit of Jeewan Seewnath and Affidavit of Bickramsingh Baliramsingh filed on 4 th August Page 7 of 34

8 c) On 9 th October 2006, ASJA applied for an extension of the missionary permit and Mr. Rashid was granted an extension of one year from 26 th October 2006 to 25 th October This would have made it a total of three (3) years. d) Under a missionary permit, the work done by the recipient must be of a charitable nature. There is no dispute that Mr. Rashid was engaged legitimately in missionary work and complied with the missionary permit. e) By Cabinet Minute Number 2429 dated 15 th September 1994, the maximum period for a missionary permit is three (3) years. As such any further application for a missionary permit for a person who already held a permit for three years would not be considered within one year of completing the three year period. Therefore, the application made by ASJA to extend the permit from 26 th October 2007 to 25 th October 2008 was refused as it was made within one year of completing the three year period. It was not refused on any ground that Mr. Rashid was not deserving of the permit. f) The Claimants were granted vacation extensions pursuant to Section 9(1)(c) of the Immigration Act from June 2008 to November Mr. Rashid presented a two year work permit exemption dated 26 th February 2010 to 22 nd February His last work permit expired on 22 nd February g) They were granted landing certificate extensions up to 19 th January On 23 rd January 2017, the Claimants applied for a further extension but was refused. An Order of Supervision was then made instructing them to return to the Immigration Department. However, they did not return to the Immigration Department but instead travelled to Panama for a day from 26 th February 2017 to 27 th February They subsequently went to Grenada for a day. h) On 22 nd March 2017 they applied for an extension of time and was placed on another supervision order. A supervision order was also made on 21 st April Attorney for the Claimants in his submission made much about the Defendants lack of candour in responding the Claimants case. Indeed, the core issue in this case is to address the reasons why a supervision order was issued and why it was in itself being used as an instrument of deportation. Further, the proceedings raised the question as to the present immigrant status Page 8 of 34

9 of the couple. Are they the subject of a deportation order? Has the Minister ordered their departure? Was there extant or intended that a Special Inquiry be convened? There has been silence on these matters by the Defendants. 18. There are on the face of the supervision order under question several alterations and additions such as the hand written note verifying departure. The Defendants have to date not sought to offer any explanation as to what these forms in their altered form were purported to convey or to mean or who altered them. Their response is almost a hands-off approach as to the altered forms that were issued. One could assume therefore that the last supervision order issued was simply to require the couple to report to the airport with return tickets. But this begs the question for what purpose or and then what?. More importantly, it raises the question on what authority is the couple being told to purchase tickets to return to India, presumably, leaving their children behind. 19. I agree with the Claimants that this lack of candour is a breach of the Defendants duty to this Court. In R v Lancashire County Council ex p Huddleston [1986] 2 ALL ER 941, Lord Donaldson MR noted that the Court expects that public authorities ought not to be partisan in their own defence. What is discreditable is a reluctance to explain fully what has occurred and why. These judicial review applications are really for us to investigate the relationship of individuals and public bodies with all the cards faced upwards on the table and the vast majority of the cards will start in the authority's hands. 20. In Judicial Remedies in Public Law, 5 th Edition, by Clive Lewis, it is observed at 9-907: The Courts generally recognize that there is an obligation on a public authority to make candid disclosure to the Court of its decision making process, laying before it the relevant facts and the reasoning for the decision challenged. Sir John Donaldson M.R. expressed the view that the Defendant was under a duty to make full and fair disclosure once permission was granted. Purchas LJ expressed his view more circumspectly stating that the defendant...should set out fully what they did and why so far as is necessary fully and fairly to meet the challenge made by the Claimant. 21. Equally, the Defendants have criticized the couple for not making full disclosure that they had departed to Panama and Grenada in breach of the supervision order. This only begs the question what was the effect of the supervision order, was it a lawful order and why was it issued? Page 9 of 34

10 Furthermore, a careful examination of the conditions in the supervision order demonstrate that it prohibited the couple from travelling out of the jurisdiction for more than 48 hours. These trips to Grenada and Panama were day trips and were less than 48 hours. It may have been an attempt to re-enter Trinidad to obtain further extensions of their stay in Trinidad. However, there is no evidence of the couple engaging in an act of deception. Their non-disclosure in my view is not material. The issues 22. At the core of this claim is the status of the First Defendant s supervision order. I therefore propose to deal with the following issues: a) The Order of Supervision: (i) Whether the First Defendant had the jurisdiction or power to issue an order of supervision directed to the couple in the manner prescribed by him; (ii) If he did, whether it was a rational or lawful exercise of such power or; (iii) Whether it was fairly exercised in all the circumstances. b) The Passports (i) Whether the Defendants were lawfully entitled or empowered to seize the couple s passports. c) Damages (i) If the decisions are to be quashed, whether the Claimants are entitled further to any award of damages. 23. From the evidence adduced by the parties, the facts of the couple s residency are largely not in dispute and I propose to briefly summarise them to provide the context in which these issues are to be analysed. The residency of the couple 24. The couple are citizens of India. They entered into the country legally on 29 th December 2002 for vacation purposes and were classified as visitors. The Anjuman Sunnat-ul-Jamaat Association (ASJA) applied for and obtained a missionary permit for the purpose of Mr. Rashid Page 10 of 34

11 conducting missionary work with masjids throughout Trinidad and Tobago. Their residency here was facilitated by several applications under the Immigration Act. 25. First, pursuant to section 9(1) (e) of the Immigration Act the immigration officer may allow a person to enter into Trinidad and Tobago under such condition for such period as may be fit: 9(1)(e) clergymen, priests or members of a religious order entering Trinidad and Tobago or who, having entered, are in Trinidad and Tobago in connection with the carrying out of their religious duties in accordance with regulations made in that behalf. 26. As a beneficiary of a missionary permit he lawfully conducted missionary work in this country. He received subsequent extensions of the missionary permit up to Importantly, by Cabinet Minute No persons were not eligible for missionary permits for more than three (3) years and an extension would not have been entertained in the last year of that term. His application for a further extension made in October 2007 therefore, was not entertained as it was submitted within the last year of the three (3) year term. There is no unequivocal statement from the Minister that a missionary permit would not be granted to Mr. Rashid for a further three (3) year period if such an application was properly made. 27. Second, he received multiple extensions from the immigration department to remain in this country until His final application for extension of landing certificate was for 1 st March 2016 to January Third, he applied for residency status in The application was eventually declined in 2009 with advice by the then Minister of National Security to consider applying for further missionary work permit. The Minister also advised that after a further period of residency he could be favourably considered for resident status at a later date. By letter dated 23 rd December 2009, the Minister of National Security informed him: However the applicant could warrant favourable consideration at a later date if he is granted Work Permits for five (5) years. The Anjuman Sunnat-Ul-Jammat Association Inc (ASJA) could consider applying for a work permit for Hafiz Rashid as a Private (Specialist) Teacher to train students in memorizing the Quran. Alternatively ASJA could apply for another missionary permit for the applicant. This however may not be considered for the grant of resident status. Page 11 of 34

12 29. There is no further correspondence from the Minister or decision made in relation to the couple. This last correspondence is far removed from any decision to deport the couple and indeed to the contrary reflected a facilitative approach of the Minister encouraging the couple s stay in this country through the missionary work of Mr. Rashid. 30. Fourth, he applied for several exemptions to work without a work permit which were successfully granted from 2010 to There were no further work permit exemptions after Quizzically, the Defendant admits that Mr. Rashid made an application in January 2016 for a work permit and it was not granted by the First Defendant but this remains subject to the comments of the Chief Immigration Officer. It creates the impression, as the Minister does in his letter in response to the application for residency, that some favourable consideration may yet be considered for the couple or Mr. Rashid. There is in other words no clear statement by the Defendants that the couple are persona non grata falling within a prohibited class and ought to be deported from this country. 31. From this background set out in the affidavit of the Claimants, it is not in contest that the couple have been contributing to the welfare of citizens in this country, are of good character, have not acted unlawfully or illegally, have not engaged in any criminal activity and have received favourable consideration for residency at a later date. 32. However, upon his extension of his landing certification expiring in January 2017, the couple s passports were seized and placed on orders of supervision. No reasons were provided for the seizure of the passports and no information has been provided to the couple regarding either their present immigrant status or whether deportation proceedings against them have in fact commenced. The orders of supervision 33. Supervision orders do not exist in isolation. They are not orders that exist in and of itself. They are orders made in furtherance of the exercise of the power of detention for the purpose of holding enquiries or examinations or deportations. It is an order made in aid of a deportation process. Where a person is subject to deportation proceedings rather than detaining the individual, the order of supervision is made to allow for the person s release on conditions. It is akin to bail and therefore goes hand in hand with a power to detain. See paragraphs Page 12 of 34

13 and of Macdonald s Immigration Law and Practice 6 th Edition by Ian A Macdonald QC and Frances Webber. 34. The power to issue supervision orders is to be gleaned from a reading of both Sections 16 and Section 17 of the Immigration Act, Part II Administration which provides: 16. Any person in respect of whom an inquiry is to be held, or an examination under section 18 has been deferred under section 20, or a deportation or rejection order has been made may be detained pending inquiry, examination, appeal or deportation at an immigration station or other place satisfactory to the Minister. 17. (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. (2) Where a person fails to comply with any of the conditions under which he is released from custody or detention he may without warrant be retaken into custody forthwith and any security deposit made as a condition of his release shall be forfeited and shall form part of the general revenue. 35. These sections were recently treated judicially by Gobin J in Henry Obumneme Ekwedike and the Chief Immigration Officer and the Attorney General CV A supervision order can only be issued after a person is detained for the purpose of deportation proceedings. It is clear from Section 16 of the Immigration Act that a person can be detained pending examination, deportation, inquiry and appeal. Section 17 of the Immigration Act provides for the conditional release of that person pending the examination, deportation, inquiry or appeal. An examination of these different deportation processes underscores the fact that there is no evidence in these proceedings that the Defendants have engaged any such process. A brief examination of the process of examination, deportation and inquiry demonstrate that neither of these procedures were invoked in this case. 36. Firstly, examination of persons are referred to in Sections of the Immigration Act. These sections provides as follows: Page 13 of 34

14 18. (1) Every person seeking admission shall first appear before an immigration officer at a port of entry or at such other place as may be designated by an immigration officer in charge of the port of entry for examination as to whether he is or is not admissible. (2) Every person shall answer truthfully all questions put to him by an immigration officer at an examination and his failure to do so shall be forthwith reported by the immigration officer to a Special Inquiry Officer and shall be sufficient ground for deportation where so ordered by the Special Inquiry Officer. (3) Unless the examining immigration officer is of the opinion that it would or may be contrary to a provision of this Act or the Regulations to admit a person examined by him, he shall, after such examination, immediately grant admission to such person. 19. Where so required by the Regulations, a person seeking admission to Trinidad and Tobago or a person referred to in section 8 shall undergo a mental or physical examination or both by a medical officer. 20. (1) Where, in the opinion of the examining immigration officer, a person appearing before him for examination cannot be properly examined by reason of the effects of alcohol, drugs or illness, the immigration officer may cause an examination of such person to be deferred until such time as he may be properly examined or may make an order for his rejection. (2) A rejection order in the prescribed form or copy thereof shall be served upon the person against whom it is made and upon the owner or master of the vessel by which such person was brought to Trinidad and Tobago. (3) A rejection order shall cease to be in force or to have effect when the person against whom it was made again appears before an immigration officer and can, in the opinion of such officer, be properly examined by him. 37. See also Section 21 of the Immigration Act empowering the immigration officer to issue a rejection order after examination of a person seeking to enter into the country. 38. This power under Examination of Persons is not applicable in this case as examinations are only conducted by persons seeking admission on a port of entry. The couple were not at the Page 14 of 34

15 time these orders were issued or when their passports were seized seeking admission or entry into this country. Indeed they were resident here for fourteen (14) years. 39. Secondly, the supervision order can be issued pending a Special Inquiry. Special Inquiries are governed by Sections of the Immigration Act. As these Inquiries are a special feature of the immigration practice which enshrines due process in effecting a deportation the relevant sections are set out in full: 21. (1) Where an immigration officer, after examination of a person seeking to enter into Trinidad and Tobago, is of opinion that it would or may be contrary to a provision of this Act or the Regulations to grant admission to such person into Trinidad and Tobago, he may either (a) make an order for the rejection of such person; or (b) cause such person to be detained pending the submission of a report to a Special Inquiry Officer. (2) A person in respect of whom an order for rejection has been made under subsection (1)(a) who is aggrieved by the making of such order may forthwith give notice of appeal to the immigration officer. (3) Where a notice of appeal has been given under subsection (2), the immigration officer shall forthwith make arrangements for the appeal to be heard and determined by a Special Inquiry Officer. (4) Where a notice of appeal has been given under subsection (2), the immigration officer may either (a) cause such person to be detained pending the hearing and the determination of such appeal; or (b) release such person on such terms and conditions as he thinks fit having regard to all the circumstances of the case. (5) The provisions of section 20(2) and (3) shall apply for the purposes of an order for rejection made against a person under subsection (1)(a). Page 15 of 34

16 22. (1) Where he has knowledge thereof, any public officer shall send a written report to the Minister in respect of paragraphs (a) to (c) and to the Chief Immigration Officer in respect of paragraphs (d) to (i), with full particulars concerning (a) any person, other than a citizen of Trinidad and Tobago, who engages in, advocates or is a member of, or associated with any organisation, group or body of any kind that engages in or advocates subversion by force or other means of democratic Government, institutions or processes; (b) any person, other than a citizen of Trinidad and Tobago, who, if in Trinidad and Tobago has, by a Court of competent jurisdiction, been convicted of any offence involving disaffection or disloyalty to the State; (c) any person, other than a citizen of Trinidad and Tobago, who, if out of Trinidad and Tobago, engages in espionage, sabotage or any activity detrimental to the security of Trinidad and Tobago; (d) any person, other than a citizen of Trinidad and Tobago, who is convicted of an offence for the violation of section 5 of the Dangerous Drugs Act; (e) any person who being a resident is alleged to have lost that status by reason of section 7(2)(b) or (4); (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); (g) any person other than a citizen or resident of Trinidad and Tobago who has become a charge on public funds; (h) any person, other than a citizen of Trinidad and Tobago, who counsels, aids, or abets others to remain in the country illegally; (i) any person other than a citizen of Trinidad and Tobago who either before or after the commencement of this Act came into Trinidad and Tobago at any place other than a port of entry or has eluded examination or inquiry under this Act. (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. Page 16 of 34

17 23. (1) Where a Special Inquiry Officer receives a report under section 18 he may admit such person into Trinidad and Tobago or may cause such person to be detained for immediate inquiry under this Act. (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 concerning the person respecting whom the report was made. (3) Where a Special Inquiry Officer receives a report under section 21 with respect to a person seeking admission into Trinidad and Tobago who has been detained he shall hold an inquiry concerning such person. 24. (1) An inquiry by a Special Inquiry Officer shall be separate and apart from the public and in the presence of the person concerned wherever practicable, but the person concerned shall, on request, be entitled to a public hearing. (2) The person concerned shall be entitled to conduct his case in person or by an Attorneyat-law, or may be assisted in conducting his case at the hearing by any other person with leave of the Special Inquiry Officer (which leave shall not be unreasonably withheld). (3) The Special Inquiry Officer may, at the hearing, receive and base his decision upon evidence considered credible or trustworthy by him in the circumstances of each case. (4) Where an inquiry relates to a person seeking admission to Trinidad and Tobago, the burden of proving that he is not prohibited from admission to Trinidad and Tobago rests upon him. (5) If the respondent in a deportation matter admits the factual allegations in the order to show cause and notice of hearing and is willing to leave Trinidad and Tobago voluntarily and at no expense to the Government of Trinidad and Tobago, he may make verbal application for voluntary departure before the Special Inquiry Officer and if the Special Inquiry Officer is satisfied that the case is genuine he may, instead of making a deportation order against such person issue the prescribed form for his voluntary departure. Page 17 of 34

18 25. (1) At the conclusion of the hearing of an inquiry, the Special Inquiry Officer shall give his decision in writing as soon as possible and shall give it in the presence of the person concerned wherever practicable. (2) Where the Special Inquiry Officer decides that the person concerned is a person to whom section 4 relates, he shall, upon giving his decision, admit or let such person come into Trinidad and Tobago or remain therein, as the case may be. (3) Where the Special Inquiry Officer decides that the person concerned is a person who (a) in the case of a permitted entrant, is not a member of a prohibited class; (b) in the case of a person other than a citizen of Trinidad and Tobago, or a resident who is in Trinidad and Tobago, is not proven to be a person described in section 8(1)(d), (e), (f), (j), (k), (l), (m) or (o); or (c) in the case of a resident who is in Trinidad and Tobago is not proven to have lost that status by reason of section 7(1), he shall, upon giving his decision, subject, in the case of the admission of a person mentioned in paragraph (a), to the provisions of this Act and any directions to the contrary given him by the Minister, admit or let such person come into Trinidad and Tobago or remain therein, as the case may be. (4) In the case of a person other than a person referred to in subsection (2), the Special Inquiry Officer shall, upon giving an adverse decision make an order for the deportation of such person. 26. An inquiry may be re-opened for the hearing and receiving of additional evidence or testimony by Order of the Minister or at the instance of the Special Inquiry Officer who presided at such inquiry, or by any other Special Inquiry Officer acting upon the directive of the Chief Immigration Officer; and the Special Inquiry Officer concerned may confirm, amend or reverse the decision previously given. 27. (1) No appeal may be taken from a deportation order in respect of any person who is ordered deported as a member of a prohibited class described in section 8(1)(a), (b) or (c) where the decision is based upon a certificate of the examining medical officer, or as a person described in section 8(1)(j) and (k). Page 18 of 34

19 (2) Except in the case of a deportation order against persons referred to in section 50(5), an appeal may be taken by the person concerned from a deportation order if the appellant within twenty-four hours serves a notice of appeal in the prescribed form upon an immigration officer or upon the person who served the deportation order. (3) All appeals from deportation orders may be reviewed and decided upon by the Minister, and subject to sections 30 and 31, the decision of the Minister shall be final and conclusive and shall not be questioned in any Court of law. (4) The Minister may a. consider all matters pertaining to a case under appeal; b. allow or dismiss any appeal; or c. quash a decision of a Special Inquiry Officer that has the effect of bringing a person into a prohibited class and substitute the opinion of the Minister for such decision. (5) The Minister may in any case where he thinks fit appoint an Advisory Committee consisting of such persons as he considers fit for the purpose of advising him as to the performance of his functions and the exercise of his powers under this section. (6) The Minister may in any case where he considers it fit to do so, cancel any deportation order whether made by him or not. 40. These Inquiries are a specific process to enquire into the issue of whether a person is to be deported or granted admission. Importantly, the Special Inquiry procedure allows for a process under Section 24(5) of the Immigration Act of a voluntary departure by the person subject to proceedings as set out above. Inquiries can be re-opened for additional evidence under Section 26 of the Immigration Act as set out above. There can also be an appeal of a deportation order in limited circumstances as provided for under Section 27 of the Immigration Act. Furthermore, regulation 28(1)(b)(ii) provides: 28. (1) Where the Minister dismisses an appeal against a deportation order pursuant to any provision of the Act, he shall direct that the order be executed as soon as practicable, except that (b) in the case of any other person who was not a resident at the time of the making of the order of deportation, having regard to Page 19 of 34

20 (ii) the existence of compassionate or humanitarian considerations that in the opinion of the Minister warrant the granting of special relief, the Minister may direct that the execution of the deportation order be stayed, or may quash the order and direct the entry of the person against whom the order was made. 41. These are all safeguards which balances the liberty of the subject and the right of the State to asset its sovereignty. See Jones J (as she then was) in Olalekan Sodiq V The Minister Of National Security CV Deportation orders can be made after an inquiry. The rules to effect a deportation are set out in Part III of the Immigration Act under the heading Deportation and Transportation. If a deportation order is made, Sections 28 and Section 29 of the Immigration Act provide that: 28. A deportation order or copy thereof shall be served upon the person against whom it is made and upon such other persons, and in such manner as may be prescribed. 29. (1) Unless otherwise provided in this Act, a deportation order shall be executed as soon as practicable 43. Deportation orders can also be made by the Minister under Section 9(5) of the Immigration Act and under Section 7 where someone has lost residency status. 44. There is no evidence in this case that deportation orders have been issued to the couple. 45. Turning to the Immigration Regulations, Regulations further sets out the procedure to be followed upon inquiries by Special Inquiry Officers and appeals to the Minister under the Immigration Act, the duties and obligations of the immigration officers and the methods and procedure for carrying out such duties and obligations. Specifically, Regulation 26(3) and Regulation 29(2)(c) addresses the issue of appeals from a Special Inquiry. Form 20 is the Notice of Deportation Form. Form 19B is the Deportation Order. Form 25 is the Order of Detention made by the Minister/Chief Immigration Officer/Special Inquiry Officer under section 14(2) of the Act and Form 29 is the Rejection Order. 46. Importantly, the form of supervision order set out in the Immigration Regulations on its face indicates that it is made further to detention in deportation proceedings and not otherwise. Indeed the order states on its face that such person shall be placed under supervision and Page 20 of 34

21 permitted to remain at large upon the following terms. Section 17 is clear that the supervision order only applied to persons taken into custody or detained. The couple was never taken into custody by the Defendants. 47. In this case, where no deportation order was served and no rejection order was made, both of which Mr. Rashid would have had a right to appeal; and no notice of Special Inquiry to be convened, then on what basis could the couple be served a supervision order? The answer to what deportation process the supervision order is in aid of lies quizzically on the form used by the Defendants. The First Defendant has deleted the words deportation and inserted the words supervision. The order is, in fact, it seems under the hand of the Defendants and therefore is an order for supervision of someone not under deportation but under supervision! This is certainly if not an anomaly, an unknown entity in immigration law and an impermissible variation of the legal structure within which deportations are to be effected. 48. Turning specifically to the several supervision orders themselves, one can see on its face the evidence of their patent illegality. Four (4) orders of supervision were made in The first on 23 rd January 2017 he was ordered to report on 6 th February 2017 to the Senior Immigration Officer at Port of Spain. The second order of supervision was 23 rd January 2017 where he was asked to report to the Senior Immigration Officer on 20 th February The third order of supervision was on 22 nd March 2017 where he was asked to report to the Senior Immigration Officer 21 st April 2017 and the fourth order of supervision was on the 22 nd March 2017 where he was asked to report to the Senior Immigration Officer on 30 th April 2017 at the Piarco International Airport. The difference with the last order of supervision was that (a) it ordered the couple to report to the airport (b) there was a notation on the form which said verify departure in contrast to the others order which said to produce tickets for departure. 49. Interestingly, these orders were used to achieve apparently different purposes. In the first two orders of supervision the word deportation was deleted and the word supervision was substituted. From the deleted portions of the form it appears clearly, that the couple was not subject to any deportation order but under an order of supervision to report for an unknown purpose at a specific place and time. It is clear that they were not under any orders of deportation nor were they subject to examination or inquiry. Page 21 of 34

22 50. The last two orders were not that clear. First, although having been described as an order in reference to the couple s supervision and not deportation, the orders make it clear that their supervision was subject to them producing themselves at a time and place for deportation. In the last order it is stated: In the case of Hafiz Mohammed Abdul Ghani Rashid whose deportation supervision in accordance with the said Immigration Act was ordered on 22/3/ It is clear that the order is not in furtherance of any enquiry or examination or deportation. Indeed it is not made clear that any such order was made. Curiously, especially in the circumstances of the couple s residency set out above, it would be difficult to assert if any such decision was made and certainly no attempt by the Defendants have been made to say that any such decision has been made. Illegality 52. The Defendants in its affidavits have deposed that the couple s failure to report to the airport means that they have breached their order of supervision and therefore have now ceased to be permitted entrants. This, however, begs the question of the legal status of the supervision order. The Defendants have sought in their written submissions to rely on the sections 9(1) (e), 9(2), 9(4)(k), 17(1), 17(2), 21(1) and 21(2) of the Immigration Act and Form 28 of the Immigration Regulations to justify their actions. I deal with these sections in turn below to demonstrate that none of them provide a statutory basis to provide legitimacy to the Defendants actions. 9. (1) An immigration officer may allow to enter Trinidad and Tobago on such conditions and for such periods as may be fit and proper in any particular case, the following persons or classes of persons, as the case may be: (e) clergymen, priests or members of a religious order entering Trinidad and Tobago or who, having entered, are in Trinidad and Tobago in connection with the carrying out of their religious duties in accordance with regulations made in that behalf. 53. It is clear that under this section the Claimants were lawful entrants. 54. Section 9(2) of the Immigration Act provides: (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 Page 22 of 34

23 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. 55. The Immigration Officers have continued to issue such certifications however, the conditions have since lapsed. The question that arises is what is the permitted step under the Immigration Act to provide for the deportations of such a person upon the expiration of those conditions? 56. Section 9(4)(k) of the Immigration Act provides: 9(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 (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. 57. There is no evidence that the Minister has declared that the couple have ceased to be a permitted entrant. 58. Section 17(1) and (2) of the Immigration Act states: 17. (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. (2) Where a person fails to comply with any of the conditions under which he is released from custody or detention he may without warrant be retaken into custody forthwith and any security deposit made as a condition of his release shall be forfeited and shall form part of the general revenue. 59. This is the governing provision for supervision orders. However, such orders are to be issued if one is taken into custody or detained and moreover it refers to the condition setting out the time and place the person will report for examination, inquiry, deportation or rejection. Of course, one would report for deportation if they are subject to a deportation order. Page 23 of 34