IN THE HIGH COURT OF JUSTICE IN THE MATTER OF AN APPLICATION FOR A WRIT OF HABEAS CORPUS BETWEEN

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No.: CV IN THE MATTER OF AN APPLICATION FOR A WRIT OF HABEAS CORPUS BETWEEN YESHIVIA HAYON, TEHILA HAYON, YEHODIT NECHAMA SOLEIMANI, MIRIAM SOLEIMANI, SHIRA HAYON AND MOSHE YOCHANAN (ALL MINORS) ESTER HAYON AZAR HAYON AVROHOM DINKEL Claimants AND CHIEF IMMIGRATION OFFICER THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO Defendants Before the Honourable Mr. Justice Vasheist Kokaram Date of Delivery: 6 th March 2014 Appearances: Mr. Eduardo Martinez instructed by Mr. Farai Hove Masaisai for the Claimants Mr. Paul Isaac and Mr. Sanjeev Lalla for the Defendants Page 1 of 7

2 ORAL JUDGMENT 1. Before me is an ex-parte application to issue a writ of habeas corpus filed on the 5 th March The grounds of the application are stated as follows: That the Claimants; (comprising six minors and three adults) have not been charged with any criminal offence nor have they been convicted of any offences in any jurisdiction. The minor children aged between 9 and a half to 16 years have been detained in less than humane conditions without food. The minors ages and nationalities are as follows Yehodit Nechama Soleimani 16years, Miriam Soleimani 15 years who are American citizens, Yeshivia Hayon 15 years, Tehila Hayon 13 years, Shira Hayon 11 years, and Moshe Yochanan 9,1/2 years are Israeli nationals. The adults; Avrohom Dinkel is a Canadian citizen whereas Ester Hayon and Azar Hayon are Israeli nationals. The Claimants have been detained at the Piarco International Airport, Trinidad since 5:00a.m on Monday 3 rd March 2014 until 10:00p.m on Tuesday 4 th March 2014 without any food or drink. The Claimants were in transit to board a flight to Guatemala when they were unlawfully detained. No explanation has been given to the Claimants or their Attorneys-at-law with respect to the detention and after pleading with officials at the Piarco International Airport, the Claimants were sent to the Piarco International Hotel where they were provided with their first meal sometime around 10:00pm on Tuesday 4 th March The application is supported by an affidavit sworn by Mr. Masaisai and filed on 5 th March 2014 (the Masaisai affidavit) in which he deposes that he is the Attorney-at-Law representing the Claimants and he is duly authorized to make that affidavit on their behalf. Mr. Masaisai is also referred to as the advocate attorney on the filing forms and when the matter was called he announced his appearance as advocate for the Claimants. I pointed out to Mr. Masaisai a basic and elementary rule that he cannot appear as advocate and give evidence on a matter such as this. His evidence being material to the application and not merely dealing with formal matters it is a breach of the attorney s code of ethics for him to act as advocate in Page 2 of 7

3 these circumstances. I drew to his attention r35 part A of the Code of Ethics, Legal Profession Act 1 and stood the matter down for another attorney to present the application. 3. When the application came to my attention yesterday evening and upon perusal of the affidavit in support of this application I adopted the course available to me under CPR Rule 57.3 (1) (b) (i) (ii) which was to adjourn the application for hearing today and to give directions for notice to be given to the Defendants as well as the Senior Immigration Officer in charge at the Piarco International Airport. 4. I asked that the application be served on the Senior Immigration Officer of the Immigration Department at Piarco out of an abundance of caution to ensure that the Defendants had notice of this application and for them to be represented today to provide any clarification or any assistance that may be required on this application. But before getting to that point of asking the Defendants to respond in writing or otherwise substantially to the application for habeas corpus, I must be satisfied that there are proper grounds before me for making such an application to issue the writ. I had pointed out ad nauseam this morning a number of procedural defects which are fatal to the application before me and restricts me from making any further direction on this application or even for its management. Firstly, pursuant to CPR rule 57.2 (2) it is required that an application for the issue of a writ of habeas corpus ad subjiciendum must be supported by evidence, which must be given by the person, or persons in this case, restrained stating how they are restrained. Under CPR 57.2 (3) however, if the person restrained is not able to make the affidavit, it may be made by some person on his behalf and must state why the person restrained is not able to make the affidavit. While there is no prescription in that rule guiding the Court to determine what would satisfy the Court as to what proper evidence is to be accepted by a third party under CPR 57.2 (3), it must at a minimum demonstrate that there was some good reason why the Claimants themselves if restrained could not have made an affidavit. I say that because there is nothing in the affidavit before me which remotely suggests that at the time of filing the Claimants affidavits, their attorneys were being deprived of access to their clients nor that the fact of (1) An attorney-at-law should not appear as a witness for his own client except as to merely formal matters or where such appearance is essential to the ends of justice. (2) If an attorney-at-law is a necessary witness for his client with respect to matters other than such as are merely formal, he should entrust the conduct of the case to another attorney-at-law of his client s choice. Page 3 of 7

4 any alleged restraint has prevented them from making an affidavit. In fact, paragraph 11 of the Masaisai affidavit states that the Claimants were taken to the Piarco International Hotel and given their first meal at some time after 10:00p.m on Tuesday 4 th March 2014 where they are presently detained and watched by the first named Defendant his servants and/or agents. 5. There is nothing to suggest that the attorneys were being deprived of access to their clients to take their instructions or even to swear to affidavits. This is a very important matter because as I mentioned earlier the Claimants comprise two groups. First the minors some of whom on the face of it bear no relation to the adults. The second group are the adults, who though it is not expressly stated in the Masaisai affidavit it is suggested at the bar table that they are accompanying these children or minors. So I am left with only the reason proffered in paragraph 2 of the Masaisai affidavit where the attorney said that he is compelled to make this affidavit as the matter is very urgent and my clients are being detained in Piarco and my office is situated in Port-of-Spain and further time is indeed of the essence in the present situation. I take that to mean that as a matter of physical convenience the attorney who is located in Port-of-Spain thought it fit to file this affidavit on behalf of the Claimants. I do not believe that that qualifies as a reason why the Claimants are not able to make an affidavit. 6. That may be seen to be a mere procedural defect but it is substantial when one takes into account the fact that the majority of these Claimants are (6) minors and there is no next friend appointed nor even any formal application before this Court to appoint a next friend to represent these minors pursuant to CPR Part 23. Part 23 sets out the conditions under which minors who are defined as persons under eighteen years, are to be represented in court proceedings. CPR Rule 23.2(1) states in clear terms a minor must have a next friend to conduct proceedings on his behalf. There is a reason for this. We must ensure that minors are properly represented and aware of what is happening in Court. The Court must be satisfied that the minors interests are being protected, and in some cases the next friend can be appointed totally independent of the family arrangement where special counsel can be appointed as a next friend to ensure that proper instructions are taken and that the minors interests are protected. Taking the evidence on face value an observation can be made that the minor Hayons are related to the adult Hayons as they carry the same surname, but there is nothing on the affidavit to suggest any relationship between them and it will be dangerous Page 4 of 7

5 without more for me to assume such a relationship exists. In fact upon enquiry from advocate I learnt that none of the children speak English and only one from the entire group can speak English. As for the relationship between the minor Soleimani s and the adults, there is a bare hearsay handwritten document (bearing a letterhead) suggesting that they are in the Hayon s care and control. There is absolutely no link between the minor Yochanan and the adults. 7. In so far as the minors are concerned a next friend can be appointed with or without a court order. However fundamentally the next friend can only be appointed where he can fairly and competently conduct proceedings on behalf of the minor and has no interests adverse to that of the minor CPR 23.6(2) (a) (b). So the court must be satisfied even if it is tempted to appoint the Hayons or Mr. Dinkel as next friends of the children that they do not have any interest that is adverse to that of the minors and they can fairly and competently conduct proceedings on their behalf. However no intelligible application could have been made when none save for one can speak English to give the attorney proper instructions. The minors voice must always be heard and advocate attorney indicated to me that he has not spoken to the children. That is a grave concern which I have in this application. 8. What is distressing is that there is absolutely nothing in the affidavit which explains or gives any details as to this group; whether they are on tour, whether they are travelling together, whether there is some relationship between them and what was their purpose for leaving their first port in Canada on their way to Guatemala. There is no documentary evidence before me (which I am told is available to the attorneys) to demonstrate that they are legitimately on board a flight to Guatemala from Canada. 9. The third defect that I have observed in the proceedings is that the affidavit itself gives information without stating its source of information and belief. The attorney is giving evidence when it is quite clear that the evidence is from another source and there should be stated the sources of information and belief. There are several paragraphs some of which I have pointed out such as paragraphs 3, 4, 5, 6 of the Masaisai affidavit in which the sources of information have not been identified and even so it runs into the defect that the source of information may be those who do not speak English or of an adult purporting to represent the entire group including the minors whom do not have any next friend representing them or an independent voice to ensure that their interests are protected. Page 5 of 7

6 10. The other observation I make on the affidavit evidence before this Court is that for the most part it is vague and lacks particulars. I have since learnt that the reason why the affidavit lacks particulars and is vague is that the attorney did not have access to his clients. That is certainly not the evidence in the affidavit and was only stated at the bar table. That being said, this Court can only be moved and can only act upon the evidence before it and with this vague information and with bald statements without particulars it is difficult to see the grounds upon which the application is being made. For example, one ground is that the Claimants are being held in less than humane conditions but there is nothing in the Masaisai affidavit to expound on that or even give any details or particulars as to what less than humane conditions mean. A perfect example of the lack of particulars and lack of detail is in paragraph 7; I have witnessed the conditions under which the Claimants were kept and although pleading with Immigration Officers at the airport to provide a meal for the Claimants none was given until about 10:00p.m. on Tuesday the 4 th March Is the lack of humane conditions only restricted to that of not being provided a meal until Tuesday and now that they have been accommodated at a hotel are they being kept in less than humane conditions. Is there something more substantial which the Court should take judicial notice of? The lack of particulars is even more troubling as I said earlier, in that there is no detail as to the legitimacy of the travel from Canada to Guatemala by the Claimants; no nexus between the adult Claimants and the children, and even on the issue of the adults being detained, again that calls into the issue before asking why are they being detained, we must first cross the hurdle of why are they here in the first place and the lack of evidence to suggest that they are permitted entrants under section 9 of the Immigration Act Chap 18:01. Again I run into the difficulty with the lack of information of the legitimacy of their travel through Trinidad. 11. Finally the defects in this application were essentially admitted when counsel belatedly sought the indulgence of the Court to amend the application and to file supplemental evidence to clarify the parentage of the children. I think that was something that should have been a priority and done at the very beginning. The attorneys have initially confessed to me that they filed this application without the relevant information due to their alleged lack of access or lack of interpreters to verify the information obtained. I would like to sound a caution to the attorneys in this matter, especially in the case of minors, that one must pay Page 6 of 7

7 particular care to obtain proper instructions and to verify those instructions to ensure that all the interests of these clients are being properly represented. It may well be that separate representation may be needed for them and there may be more than one attorney needed to represent the interests of different members of this group. Further, having regard to some of the information which was revealed this morning by attorneys for the Defendants concerning the orders made by the Immigration Office, it may well be that there may be another avenue available to these Claimants to seek relief and not necessarily by habeas corpus. 12. For these reasons the application before me will be dismissed. I however urge that the relevant authorities do make available to the attorneys easy access to the Claimants. I take it from the evidence and the proceedings that that really is not an issue. If any relief is needed the attorneys can with haste take the relevant proper instructions during the course of the day and approach the Court with whatever application they deem necessary. 13. There will be no order as to costs. Vasheist Kokaram Judge Page 7 of 7