A HIGH Court judge has granted temporary reprieve to 64 Venezuelans held during a raid at a St James bar early last month, by preventing their immediate deportation.
On Tuesday, Justice Ricky Rahim restrained National Security Minister Fitzgerald Hinds from enforcing the deportation orders for the 64, pending the determination of their judicial review claim, which he permitted them to file.
He also ordered the minister to issue orders of supervision for the 64.
The matter was also deemed fit for hearing during the court’s vacation period. Dates and times for the hearing will be set by the docketed judge, Justice Avason Quinlan-Williams.
The 64 were held on July 9 at the Apex Bar in St James during a police raid. In total, almost 200 were detained.
Since their detention, they have been kept at the immigration detention facility at the heliport in Chaguaramas. Between July 13 and 24, they were issued with deportation orders.
Newsday was told there were 136 Venezuelans at the heliport and just after 5 pm, 62 were released. Two of the 64 who filed the action had previously been released, a source said.
In his ruling, Rahim made it clear the deportation orders for each of the 64 remained valid unless set aside by the court or revoked by the minister.
In their application, attorneys for the 64 argued that as citizens of Venezuela, they were protected by the UN Refugee Agency (UNHCR) as asylum-seekers or refugees, and despite there being no law locally, TT had acceded to the 1951 Geneva Convention on the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees.
They challenged the failure of the minister to release them pending the determination of their applications to the UNHCR and their detention at the heliport.
The only limb of their argument on which they were successful was the unreasonableness of their period of detention.
Rahim said over three weeks had elapsed with no indication from Hinds on whether any efforts were being made to deport the 64.
“The court takes the point made by the respondent that it is usual in this jurisdiction for arrangements for deportation to take longer than one month, but is of the respectful view that that which is usual may not be that which is reasonable.
“The duty lies with the respondent to ensure that the period of detention for the purpose of deportation is limited to that which is reasonable.”
So, he added, “The court is therefore of the view that the applicants have demonstrated an arguable case with a realistic prospect of success that the period of detention has not been that which is reasonable for the purpose of detention and shall grant leave of this limb only.”
Although the judge noted there was no challenge to the lawfulness of their detention at the heliport before July 25 – when the minister officially designated it an immigration detention facility – they had complained on several occasions of the “deplorable conditions there.
“Quite alarmingly those conditions appear to include allegations of sexual abuse by those entrusted with the duty to protect the detainees.”
Rahim said while the minister was duty-bound to give preference to domestic law in the case where the domestic law does not conform to the treaty obligations of the nation, and a duty to give effect to government policy, he also had a duty to protect every deportee.
He said the unchallenged evidence, at this point, set out events which told of horrible sexual advances and in some cases abuse by members of the Coast Guard, by other guards and by other detainees.
“They tell a tale of depravity and mental anguish as a result.”
He also noted, “The conditions under which the applicants are detained include but are not limited to overflowing toilets, sleeping on the floor with smelly stagnant water, deprivation of food sent in by relatives, lack of female toiletries and the inability to care for children left with others.”
Of Hinds' duty, Rahim said, “His duty lies with obeying the law. He must of course be satisfied that the deportees would appear for their deportation.
“However, the duty of the office holder extends to protecting not only the vulnerable ones who are detained by the State for the purpose of deportation but every such deportee. In that regard a person who is so detained does not lose his human rights and treatment must be accorded to those detained in keeping with recognised principles of human rights.
“The evidence in this case, should it be true, demonstrates nothing short of inhumane treatment towards some members of the group and their circumstances of detention fall far short of what is to be expected to say the least.
“The damage likely to be suffered by these individuals may as a matter of common sense and logic be exacerbated the longer they are kept in custody under those circumstances awaiting deportation.”
Rahim also noted that not only was it likely to be harmful to the 64, but such actions “may reflect adversely on the reputation of the nation on the international front.
“The way we treat foreign nationals oftentimes reflects the way we view our own people. The respondent is duty-bound to secure the applicants while they are in the custody of the State.
“Anything less is unacceptable. If he cannot do so then he must consider their release pending deportation.”
He also said it was the minister’s duty to ensure deportation took place within a reasonable period or, if this is not done, consider supervision orders.
“In that regard, the longer it takes to deport, the stronger the case for the period being one that is not reasonable for the purpose of deportation.”
For this reason, he granted interim relief in ordering their release pending the determination of their challenge.
The 64 were represented by Elton Prescott, SC, Criston J Williams and Shivanand Mohan. The minister was represented by Gregory Delzin and Vanessa Gopaul.
The Apex arrests
The 64 were part of a larger group of almost 200 who were held on July 9 at the Apex Bar on the Western Main Road in St James during a joint police operation.
A handful were released on the basis that their detention at the heliport was unlawful, since, at the time, it had not yet been designated an immigration detention facility by the minister in accordance with the Immigration Act.
On July 25, after Quinlan-Williams ordered the release of six, the minister designated the heliport an immigration station.
Two days later, Justice Frank Seepersad declared that the detention of a member of the group until the minister’s designation was unlawful and ruled that the man, the man, Samih Tarek Soriti Benitez, will be entitled to compensation for his illegal detention.