THE STATE scored a major victory on Tuesday as it wrestles with “an avalanche” of Venezuelans entering the country illegally, as a High Court judge has thrown out an application to stop the deportation of an 11 year-old girl.
The girl was part of a group of 26 who returned illegally on November 24, two days after they were escorted out of Trinidad and Tobago’s waters by the Coast Guard.
In a written decision, Justice Frank Seepersad refused the application of the girl’s mother, whom he chided for her “brazen and bold disregard" for TT's immigration laws.
Saying the mother’s application was void of evidence that she or her daughter were facing persecution in Venezuela, or that others like them had benefited from a policy for refugees and asylum-seekers, Seepersad said, “The evidence, at this stage, suggests to the court that the decision to come to this republic was driven primarily by self-centred socio-economic considerations.”
“There are many citizens in this republic faced with difficult economic circumstances and they too may wish to go to another country where economic prospects are brighter, but they cannot and should not be entitled to be refugees or asylum seeking status under the 1951 Convention (on the Status of Refugees),” the judge said.
Seepersad’s denial of the emergency application is the first of several filed by attorneys for the group. At least two other judges, who also heard applications on behalf of at least nine children have granted emergency orders to stop any attempt to deport them.
The judge said it was clear government departed from the draft policy on asylum-seekers and refugees adopted by Cabinet in 2014 because of the pandemic, in order to protect citizens.
“Policy decisions rest with the executive and difficult decisions have to be made and policy effected to navigate the country through the pandemic and, at the same time, constitutional compliance and parliamentary oversight cannot be dismissed or disregarded,” he said.
He added that illegal entry during a pandemic exposes citizens to risk.
“The issues raised in this matter involve significant emotion but the court cannot genuflect to emotion,” he said. He said the mother’s “undisputed evidence” was that she arranged for her child to enter TT illegally “subjecting her child to the terrors of the sea and the flagrant flouting of local laws.”
Seepersad asked for the mother’s affidavit to be sent to the Police Commissioner and the Director of Public Prosecutions for action, since it was possible she had committed criminal offences.
The State did not escape the judge’s criticism, as he said decisive leadership was needed and comprehensive migrant laws prioritised.
“The court also notes that it is the obligation of the government to secure the borders and this obligation has evidently not been discharged with either alacrity or success,” he said, adding, “In equal measure a herculean and co-ordinated effort to protect the borders must be engaged.”
Seepersad also slammed the decision by the authorities to “escort” the child and the others back to Venezuelan waters in a pirogue, saying it was “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,” he said. He said even where entry is unlawful, immigration laws should protect the rights of children, who cannot be detained like adults.
Earlier at the hearing, Senior Counsel Fyard Hosein, who represents the State in a number of matters involving the 26 Venezuelans – 16 children and ten adults – urged the judge not to prevent the State from issuing a deportation order for the 11-year-old or sanction the behaviour of illegal immigrants who have defied TT’s laws.
Hosein said, “One bad apple…one ball of snow can cause an avalanche, and an avalanche is taking place right now. “
The child’s mother lives in TT and has UNHCR asylum-seeker status, but does not have a ministerial permit under government’s amnesty programme.
The child, he said, "was not brought her by parents or (government) registrants. It is not that this government is heartless. We accommodated 20,000. Yet in defiance of that they have engaged in this action. You do not want to open the floodgates. It might sound harsh,” he said.
Hosein said he has advised the Government that this applicant, and others like her, had no right to claim asylum or refugee status in TT as economic migrants.
“You can’t have a flagpole and mount a case on it in violation of laws of a country,” he said. “I am asking this court to put its foot down. You are not being unkind or harsh you are applying the law in an environment in which it has to be applied.
"What we will not do is bend the law to invent a principle to protect someone.”
Attorney Gerald Ramdeen, who represents the child and the other 25 Venezuelans, said every civilised democracy treated the rights of the child with paramount importance as he asked the court not to judge the mother for allowing her daughter to enter TT unaccompanied.
He said there was nothing to show that the State had disengaged itself from a 1952 UN convention on refugees or the policy to treat with them, adding that statements the Prime Minister made at a UN general assembly on the three-tier process in keeping with the convention gave them the legitimate expectation that it would be followed and their asylum-seeker applications will be processed by the UNHCR’s implementing partner in TT, the Living Water Community.
The child’s application is one of several currently engaging the attention of various judges.
At the end of the hearing, as attorneys were discussing some of the permissions given to the mother – to take her daughter personal supplies, clothing, food and snacks or go into quarantine with her – Hosein disclosed that one of the Venezuelans at the heliport quarantine facility was covid19-positive.
It is not certain if the covid19 case is one of the 26 who recently returned to Trinidad. The status of the other Venezuelans at the facility is also unclear.