Austine Ugonna Okeke v The Chief Immigration Officer

JurisdictionTrinidad & Tobago
JudgeMr. Justice R. Rahim
Judgment Date01 May 2020
Neutral CitationTT 2020 HC 125
CourtHigh Court (Trinidad and Tobago)
Docket NumberCV2019-01098
Date01 May 2020

IN THE HIGH COURT OF JUSTICE

Before

the Honourable Mr. Justice R. Rahim

CV2019-01098

Between
Austine Ugonna Okeke
Claimant
and
The Chief Immigration Officer
First Defendant
Attorney General of Trinidad and Tobago
Second Defendant
Appearances:

Claimant: Mr. N. Ramnanan instructed by Mr. R. Pandohee

Defendants: Ms. T. Gibbons-Glenn instructed by Ms. S. Dass

1

By Re Re-Amended Fixed Date Claim filed on November 27, 2019, the claimant brought proceedings under section 14 of the Constitution of the Republic of Trinidad and Tobago (“the Constitution”) seeking declaratory relief for alleged infringements under section 4 (a), 4 (g), 5 (2) (c) (ii) and 5 (2) (h) of the Constitution.

2

The claimant is a Nigerian citizen who entered Trinidad and Tobago legally on October 1, 2014 and was granted permission upon entry to remain until October 9, 2014. It is the case of the claimant that the servants and/or agents of the first defendant lacked reasonable and probable cause for arresting and detaining him. The claimant is also challenging the legality of the decision to seize his passport. The court makes no distinction between the defendants for the purpose of convenience in the writing of this judgment.

3

The claimant was subsequently placed on repeated orders of supervision pending a Special Inquiry. This Special Inquiry would inevitably be impacted by the fact that the claimant has an application before the UNHCR as an asylum seeker in Trinidad and Tobago. As such, the claimant is seeking an order to quash the decision of the Chief Immigration Officer (“CIO”) to hold a Special Inquiry.

4

As a consequence, the claimant, seeks:

  • i. A declaration that the claimant is a national of the Federal Republic of Nigeria and a registered Asylum Seeker with the United Nations High Commissioner for Refugees in Trinidad and Tobago;

  • ii. A declaration that the seizure and impounding of the claimant's Nigerian passport No. A05611036 by the Defendant its servants and/or agents amounted to an abuse of powers, was illegal and contravened his rights guaranteed under the Constitution namely:

    • a. The right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law as guaranteed by section 4(a) of the Constitution;

    • b. The right not to be deprived of such procedural provisions as are necessary for the purpose of giving effect and protection of these rights and freedoms as guaranteed under section 5(2)(h) of the Constitution;

  • iii. A declaration that by reason of the defendant, its servants and/or agents acts and omissions as set out in the accompanying affidavit of the claimant and who being a registered Asylum Seeker with the United Nations High Commissioner for Refugees in Trinidad and Tobago, the claimant has been denied of his right to freedom of movement as enshrined by section 4(g) of the Constitution.

  • iv. A declaration that the actions of the defendants their servants and/or agents in arresting and detaining the claimant on or about January 17, 2018 and continuing to January 23, 2018 without informing him of his right to legal representation and advice contravened his fundamental rights to legal representation and advice embodied in section 5(2) (c) (ii) of the Constitution.

  • v. A declaration that the detention of the claimant from January 17, 2018 and continuing to January 23, 2018 was in contravention of his right to liberty and the right not to be deprived thereof except by due process of law under the provisions of section 4 and 5 (2) (h) of the Constitution.

  • vi. An order quashing the decision of the Chief Immigration Officer to initiate and prosecute the claimant by way of Special Inquiry under section 22 of the Immigration Act, Chap. 18:01.

  • vii. An order for monetary compensation in favour of the claimant for the contravention of his fundamental rights aforesaid.

5

The defendants contend that the seizure of the claimant's passport was to complete their investigations and its continued detention is to avoid the claimant from escaping the consequences of the laws of Trinidad and Tobago (“the jurisdiction”).

6

The defendants also argue that the claimant has failed to seek alternative remedies in private law as the instant proceedings are primarily focused on the seizure of the claimant's passport and as such, is an abuse of process.

ISSUES FOR DETERMINATION
7

The issues for determination are as follows:

  • i. Whether the failure of the claimant to seek alternative remedies in private law amounts to an abuse of the court's process.

  • ii. If not, whether the detention and arrest of the claimant was constitutionally unlawful, and an abuse of power.

  • iii. Whether the claimant's passport was seized and detained without due process of law under section 4(a) of the Constitution.

  • iv. Whether there were breaches of the claimant's constitutional rights enshrined under section, 4 (g) of the Constitution.

  • v. Whether there was a breach of section 5(2)(h) of the Constitution and the effect thereof on the order for the Special Inquiry.

THE EVIDENCE
The case for the claimant
Affidavit of Austine Ugonna Okeke filed March, 18, 2018
8

While in the jurisdiction, he met and married Susan Oliver on October 22, 2014 at the office of Pundit Karran Nanco. However, the claimant indicated that during the marriage, he was subjected to physical and verbal abuse by his wife and despite counselling from his local church, the marriage broke down. The claimant filed a petition for divorce, which is currently pending before the Family Court.

9

On January 17, 2018 the claimant was arrested by police officers at his home at Dow Village, Southern Main Road California and on the following day, he was handed over to the Immigration Detention Centre, San Fernando and his Nigerian passport was seized. According to the claimant, he was informed by Immigration officials at the time that the passport was seized for the purpose of investigation but he was not told of the nature of the investigation.

10

According to the claimant, two Immigration Officers, one of African and one of East Indian descent, interviewed him and he informed them that he wanted to speak with an Attorney. However, the officers verbally insulted him and told him that illegal immigrants do not have rights. Thereafter, the claimant was placed in a filthy, overcrowded cell with other detainees, after which he was subsequently moved to the San Fernando Police Station.

11

The claimant was detained by the first defendant until January 23, 2018. His release bond was paid by one Pastor David Ali and he was placed on an Order of Supervision until the hearing of a Special Inquiry.

12

The claimant deposed a historical narrative regarding the inhumane treatment, persecution and hardships he experienced in Nigeria because he is a Christian. He is fearful for his life and was certain that his return to Nigeria will result in his death.

13

He applied to the United Nations High Commission for Refugees (“UNHCR”) to be registered as an Asylum seeker. On September 25, 2018, he was issued a UNHCR card and his status was changed to an asylum seeker. The UNHCR card expired on September 25, 2019 however as at the date of writing the court is unaware as to whether his application has been determined.

14

On January 11, 2019, the claimant's Attorney wrote a letter to the first defendant seeking disclosure of all documents relating to the Special Inquiry. His Attorney also wrote a second letter on January 25, 2019 seeking the reasons for the seizure of the claimant's passport, pursuant to section 16 of the Judicial Review Act, Chap. 7:08. 1

15

On January 28, 2019, the claimant's Attorney wrote the first defendant requesting that the claimant's passport be returned to him for the purpose of renewal. According to the claimant, the renewal process required that he first travel to Jamaica and then re-enter the jurisdiction to continue his UNHCR application and as well as attend his divorce proceedings.

16

The defendant responded by letter on February 5, 2019 stating it was the policy of the first defendant to retain the claimant's passport in order to determine his legal status.

17

That Special Inquiry has been suspended pending the outcome of the claimant's asylum application to the UNHCR.

The case for the defence
Affidavit of Hemwatee Samaroo filed April 30, 2018
18

Samaroo has been an Immigration Officer for approximately eleven years. At that material time she was an Immigration Officer II attached to the Enforcement Unit in South Trinidad.

19

On January 18, 2020, Samaroo was given a directive, along with other Immigration Officers, to visit the Couva Police Station. Upon arrival, they seized the claimant's passport and took the claimant into their custody. The police officers also informed the Immigration Officers that they were on patrol in the Couva area and detained the claimant. No charges were laid against the claimant.

20

At the Enforcement Unit, a passenger report was generated which verified the claimant's arrival date and the length of time he was permitted to remain in the jurisdiction, the purpose of entry being vacation. His entry certificate set out clearly that he was not permitted to work during that time.

21

Samaroo interviewed the claimant. The claimant indicated that he was married to a Trinidad national by the name of Susan Oliver but could not produce a marriage certificate and was unable to give the wife's contact information or other basic information.

22

According to Samaroo, the claimant admitted that he overstayed his time in the jurisdiction and did not attempt to regularize his status. He also informed her that he was employed as a security officer and earned $180.00 per day, but provided no documents to confirm same.

23

The claimant then signed the information sheet and a Notice of Reasons...

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