Glen Fitzroy Alviarez Fuentes v Minister of National Security
| Jurisdiction | Trinidad & Tobago |
| Judge | Madame Justice Margaret Y Mohammed |
| Judgment Date | 07 April 2020 |
| Neutral Citation | TT 2020 HC 106 |
| Court | High Court (Trinidad and Tobago) |
| Docket Number | Claim No.: CV2019 – 00858 |
| Date | 07 April 2020 |
IN THE HIGH COURT OF JUSTICE
the Honourable Madame Justice Margaret Y Mohammed
Claim No.: CV2019 – 00858
In the Matter of a Claim by Glen Fitzroy Alviarez Fuentes and Maryuris Jose Avilez Barrios for Judicial Review Under Part 56 of the Civil Proceeding Rules (1998) (As Amended) and the Judicial Review Act, Chapter 7:08
and
In the Matter of a Failure by the Minister of National Security to Review his Decision on the Applications of Glen Fitzroy Alviarez Fuentes and Maryuris Jose Avilez Barrios to be Granted the Status of Resident of Trinidad and Tobago within a Reasonable Time
Mr. Devvon Williams instructed by Mr Aaron Seaton Attorneys-at-law for the Claimants.
Ms. Coreen Findley and Mr. Ryan Grant Attorney-at-law for the Defendant.
The Claimants are a married couple who are nationals of the Bolivarian Republic of Venezuela seeking residency in this country. In 2010, the First Claimant decided he wanted to invest, work and reside in this country and the Second Claimant agreed to seek residency with him. They applied to the Defendant asking him to grant them the status of resident pursuant to section 5(3) of the Immigration Act 1.
On 12 February 2015, they received a letter from the Permanent Secretary of the Ministry of National Security informing them that their application for permanent residency was unsuccessful. They filed an application for judicial review 2 (“the 2015 action”) challenging the decision of the Defendant. On the 13 June 2017 (“the 2017 Order”) they were successful in obtaining the following orders: (a) The Defendant's decision to refuse residency was unfair and made in breach of the principles of natural justice and procedural fairness; (b) The Defendant breached or omitted to perform his duty to make his decision to refuse residency within a reasonable time; (c) The Defendant's decision to refuse residency is irrational, unreasonable and/or an improper exercise of discretion and (d) The Defendant's decision to refuse residency is null void and of no effect.
The Court also granted the following orders:
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a. An Order of certiorari quashing the Defendant's decision to refuse residency.
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b. An order compelling the Defendant to reconsider his decision in light of the declarations made by the Honourable Court.
Due to the failure of the Defendant to comply with the 2017 Order, the Claimants filed the instant action on the 27 February 2019 seeking the following reliefs:
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(i) A declaration that the Defendant failed to perform his duty to make a decision on the Claimants' application to be granted the status of resident of Trinidad and Tobago within a reasonable time;
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(ii) A declaration that further documents required by the Defendant in letter dated 27 August 2018 constitute an unreasonable, irregular or improper exercise of discretion;
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(iii) An order of mandamus compelling the Defendant to within a reasonable time or in any event on or before the expiration of 30 days of the date of the Court's final order to review his decision on the applications of Glen Fitzroy Alviarez Fuentes and Maryuris Jose Avilez Barrios to be granted the status of resident of Trinidad and Tobago within a reasonable time in light of the 2017 Order;
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(iv) Compensatory damages for the Claimant's loss of employment opportunities, business losses and other loss;
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(v) Vindicatory damages for the Defendant's failure to make a decision within a reasonable time before and after being ordered to do so by the Honourable Court;
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(vi) Costs;
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(vii) Such further and other relief as may seem just and equitable.
The Claimants position was set out in the affidavit of the First Claimant filed on 27 February 2019 (“the First Claimant's Affidavit”), and an affidavit of Mr Aaron Seaton their attorney filed on 30 September 2019 (“the Seaton Affidavit”).
According to the evidence of the First Claimant, he was born on 27 September 1961 in Venezuela to a mother of Trinidad and Tobago nationality and a father of Venezuelan nationality. He lived in Trinidad and Tobago continuously from 1964 to 1969 as a child and during that time, he attended the San Fernando Boys Roman Catholic School. In 2010, he decided he wanted to invest, work and reside in this country and he had good connections to this country because his mother was a citizen. His wife, the Second Claimant agreed to seek residency with him.
In April 2010, he registered a company, Navieramar Trinidad Limited (“Navieramar”), in this jurisdiction, which was to be a shipping company to provide him with employment if he was legally permitted to work here.
By letter dated 11 October 2010, the Claimants applied to the Defendant for residency status pursuant to section 5(3) of the Immigration Act. By letter dated 6 December 2010, they were invited to a meeting at the Immigration Office in San Fernando, which took place on 19 July 2011. There were follow up meetings at the Immigration Office while they awaited the decision of the Defendant.
On 9 March 2011, they received a letter dated 12 February 2011 informing them that their application for permanent residency was unsuccessful. As the Claimants were not satisfied with the Defendant's decision, they challenged it in the 2015 action. They were successful and obtained the 2017 Order.
In the instant action, the Claimants contend that to date the Defendant has not complied with the 2017 Order and has not provided any good reason for failing to do so.
The Claimants also stated that their attorneys at law have communicated with the Attorneys at law for the Defendants by correspondence dated 12 September 2017, 10 January 2018 and 4 April 2018 in order to get the Defendant to comply with the 2017 Order in order to save costs. However, the Claimants Attorney at law only received a response from the Office of the Attorney General by letter dated 15 May 2018, which stated that it was in discussions with the Defendant on the best way to give effect to the 2017 Order.
By letter dated 24 August 2018, the Claimants were requested to visit the office of the Defendant in Port of Spain, which they complied with on 27 August 2018. At this time, they were given a list of documents (“the documents”), which the Defendant requested namely:
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a. Passport with Valid Landing Extension and a Photocopy.
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b. Valid Police Certificate of Character from Trinidad and Tobago.
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c. Certificate of Character from any country in which you may have resided for more than three (3) months after October 15, 2012.
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d. Financial Statements.
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e. Job letter showing monthly earnings. (If self-employed a statutory declaration indicating type of work and average monthly income.)
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f. A Statutory Declaration and supporting Documents detailing Investments made in Trinidad and Tobago.
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g. Tax Clearance Certificate.
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h. Living arrangements. (Recent rental receipt & Rental agreement or a statutory declaration stating your living arrangements, if it is rent free).
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i. If you own your own home a copy of your deed is required.
The nature of the documents which the Defendant requested from the Claimants caused them to form the opinion that the Defendant was restarting their application process, and not reconsidering the decision as was directed in the 2017 Order.
According to the Claimants, some of the documents which the Defendant requested after the 2017 Order demonstrated that the process he was engaging was unfair. The Claimants stated that the request by the Defendant for a job letter showing monthly earnings and a tax clearance certificate are unfair since the Defendant knows or ought to know that without residency, citizenship or a work permit a job letter showing monthly earnings and a tax clearance certificate are impossible to obtain.
The Claimants also stated that some of the documents requested by the Defendant were not germane to the latter's original reasons. The Claimants explained that by letter dated 3 June 2016, the Defendant's original reasons for refusing their application for permanent residence were:
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(a) The First Claimant ‘produced no evidence of his academic qualification’ and/or that the Claimants ‘do not have evidence of their academic qualifications.’
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(b) The Claimants ‘now have to rely on the benevolence of Inshan Mohammed to grant them rent free accommodation’ and the Claimants were ‘unable to provide for themselves.’
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(c) The First Claimant failed to present audited financial statements for Navieramar, despite being asked several times; and
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(d) Navieramar Trinidad Limited ‘is no longer in operation.’
According to the Claimants, with respect to academic qualifications, the Immigration Officer responsible for conducting their interviews and preparing a report indicated in his affidavit dated 30 June 2016 in the 2015 action that the First Claimant ‘said he did not have his academic certificates in Trinidad and I did not press it. Nothing turned on the fact that the first [applicant] was not able to provide his academic record or certificates.’ According to the evidence in the 2015 action, the academic qualifications never had a bearing on the residency process.
The Claimants stated in the 2015 action that they produced unchallenged evidence in the form of rent receipts and rental agreements attached to their affidavit to refute claims made by the Defendant with respect to their accommodation in the jurisdiction. Their living accommodations were verified by two affidavits of two separate immigration officers filed on 13 November 2016 in the 2015 action.
The Claimants indicated that they were never asked to produce the financial statements for Navieramar. However, Navieramar always kept financial statements prepared by chartered...
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