High Court: Army must hand over 2 Venezuelans to Immigration

A High Court judge has ordered the release of two Venezuelans from the custody of the Chief of Defence Staff (CDS) to that of the Chief Immigration Officer.

The order comes after attorneys for the two, who are detained at the heliport in Chaguaramas, filed a writ of habeas corpus seeking their release after they were held at a bar in St James on July 9.

In their lawsuit, the two challenged the authority of the Defence Force to detain them.

At a hearing late Thursday, Justice Jacqueline Wilson made the order while declining to rule on the issue of the legality of the two’s detention by the CDS, also adding that the length of their detention would justify their release.

Commenting on the court’s decision, attorney Darrell Allahar said he would assume the two would be removed from the heliport.

“While the judge found it was not necessary to rule whether the military can detain civilians, I am of the view they cannot in peacetime as we are not under martial law or a state of emergency.”

Immigration sources said the two could be placed on conditional release until they can purchase their tickets for their deportation to Venezuela. However, since the State has already indicated it was in a position to deport the larger group as early as Thursday, it is expected these two will also join the others as their deportation orders still stand.

Newsday was told the repatriation exercise was expected to take place on July 15, however, it did not take place as planned.

In the writ, attorneys for the two called on the CDS, Air Vice Marshall Darryl Daniel, to justify their continued detention at the heliport, a facility controlled by the Defence Force, which was established as an immigration station by the National Security Minister on July 26.

The two are also represented by attorneys Aaron Mahabir, Kadeem Williams, Matthew Allahar, Danyal Mohammed and Mathias Sylvester.

The heliport was previously used as a designated covid19 quarantine centre to detain illegal migrants during the pandemic but ceased to be when the pandemic ended. The continued detention of illegal migrants there was challenged and deemed unlawful by two High Court judges prompting the minister to exercise his powers under the Immigration Act to designate the heliport as an immigration station.

On Wednesday, the writ was granted and at a hearing, Wilson considered the two applications.

In their application, attorneys for the two say they were issued deportation orders on July 14 and 21, but are yet to be sent back to Venezuela.

The two were among a larger group of almost 200 who were held at the Apex Bar. So far, at least 80 of them have challenged their detention. Six were ordered released by Justice Avason Quinlan-Williams while the same was ordered for 64 of them on Tuesday by Justice Ricky Rahim. Of the 64, only 30 were released on orders of supervision before the State filed an urgent appeal seeking to stay Rahim’s orders to facilitate the repatriation of the others who were not immediately released when the judge made the order.

In the latest legal challenge, attorneys for Rodriguez and Zalaba say access to the heliport was restricted by the Coast Guard who stand guard at the gates and control the movement of anyone in and out of the facility.

They also feed the detainees and maintain order at the facility. The application said immigration officers have never been stationed at the heliport and only visit to interview detainees or to move them to another place.

The lawsuit contends that the two are actually in the custody of the CDS even if it is on behalf of the Chief Immigration Officer.

However, the lawsuit maintains that under the Defence Act, the Defence Force members have no power to detain or hold as prisoners any civilians during peacetime, particularly the Coast Guard who have no power to detain any civilian on land.

“The applicant is not a person subject to military law.”

The lawsuit said while the Immigration Act gave immigration officers the powers of arrest and detention, they can only in cases of emergency employ others to temporarily assist them for 48 hours unless approved by the minister.

The act also gives police the power to detain illegal migrants pending deportation. “Immigration officers have no ability in law to delegate their powers of detention to any other person.

“In the circumstances, the respondent has absolutely no power whether by himself, by his officers or by other members of the TTDF to hold the applicant in custody at the heliport it being a facility under the control of the TTDF.

“Furthermore, the respondent has no power to hold the applicant in custody at the heliport as an agent of and/or assisting any immigration officer or officers since immigration officers cannot delegate their power of detention to any person.”

The lawsuit said the fact that the heliport was designated an immigration station neither gave the CDS the power to detain Rodriguez and Zalaba nor gave immigration officers the ability to delegate their functions.

The application said a pre-action letter was sent to the CDS on August 4, but there has been no response.

It maintained that there was no lawful ground for the two’s continued detention and the CDS had to justify it.

“The applicant has never been told and does not know when he shall be expected to be deported to Venezuela and has been in the custody of the respondent for approximately 32 days.

“The applicant continues to endure deplorable living conditions at the heliport and is disturbed and distressed.”

The lawsuit said the two were willing to be put on orders of supervision and comply with any condition pending their deportation if released from the heliport.

On Tuesday, when he ordered the condition release of the 64 Venezuelans, Justice Rahim commented on the evidence presented by the detainees regarding the conditions at the facility.

“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.”