I.M.A. v The Chief Immigration Officer
| Jurisdiction | Trinidad & Tobago |
| Judge | Mr. Justice R. Rahim |
| Judgment Date | 16 September 2022 |
| Neutral Citation | TT 2022 HC 210 |
| Docket Number | Claim No. CV2022-03411 |
| Court | High Court (Trinidad and Tobago) |
| Year | 2022 |
IN THE MATTER OF THE JUDICIAL REVIEW ACT CHAP 7:08 AND IN THE MATTER OF THE IMMIGRATION ACT CHAP 18:01
AND
IN THE MATTER OF THE DECISION OF THE CHIEF IMMIGRATION OFFICER TO ISSUE A REJECTION ORDER
Before the Honourable Mr. Justice R. Rahim
Claim No. CV2022-03411
IN THE HIGH COURT OF JUSTICE
Applicant: Mr C. Williams instructed by Ms C. St Louis.
Respondent: Mr G. Delzin and Ms J. Chong Sing instructed by Ms D. Bernard.
This is a decision on an application for leave to file a Judicial Review Claim against the decision of the Respondent to issue the Applicant a Rejection Order and for an Interim Order that the Applicant (a child) be placed on a Supervision Order in the care of his stepfather.
The Applicant who is seventeen years of age (D.O.B. March 2, 2005 according to a United States of America Passport) is considered in law in this jurisdiction to be a child. He is an American citizen by birth, born of parents who were allegedly themselves (according to his application) originally Trinidadian citizens but migrated to the United States of America many years ago where they became naturalised citizens. In the year 2015, during the war in Syria, the Applicant was taken along with his siblings including an older brother by his father to Syria where his father joined ISIS, was trained in terrorism and waged war on the part of that group. Information has been placed before the court that shows that the Applicant may have also been trained and may have participated in similar activities as a child. That information is set out by a police officer attached to the Trinidad and Tobago Police Service Special Branch Terrorism Interdiction Unit. Eventually in 2019, the father of the Applicant E.A. was captured along with his brother J.A. and returned to the USA where they were convicted of terrorism related offences and remain incarcerated. The mother of the Applicant was deported to Trinidad and Tobago where she subsequently entered into a Muslim marriage with the next friend of the child. The child being a citizen of the United States by birth was placed into foster care and is in the custody and control of the Administration for Child Services (ACS), a New York City Government institution responsible for the safety and well-being of the children of New York City and their families amongst other matters.
By order of the High Court of Trinidad and Tobago of December 21, 2020, the father was designated a terrorist under the Anti-Terrorism Act passed in conformity with the international obligation imposed by the United Nations Security Council Resolution 1373. ISIS is listed as a known terrorist group pursuant to Section 22B (3) of the AntiTerrorism Act Chapter 12:07, 1 and is a sanctioned group in the Sanctions List of the United Nations Security Council. 2 The relevance of the foregoing information shall be dealt with later on in this decision.
On September 10, 2022, the Applicant arrived at Piarco International Airport on a flight from New York City, United States of America. He was interviewed by an officer of the Respondent; a decision was made that his entry was to be rejected and he was issued with a Rejection Notice and detained to be returned to the USA the next day. At the time the Applicant carried certain documents with him including a typewritten page without letterhead that set out his “Birth” mother's name Lazina Mohameed, two phone numbers and an address in Trinidad with a photograph of a lady attached, what appeared to be his medical history, inclusive of lab reports and his immunisation record. Although not stated in the application as originally made before this court, it appears that he was accompanied by an adult appointed as a caretaker by the ACS. This information was only revealed to the court at the first hearing.
Sometime around after 12:00 a.m. on the morning of Sunday September 11, 2022, this court issued an Interim Order prohibiting the return of the Applicant and set a hearing for that day at 2:00 p.m. At that hearing the Respondent asked for time to make enquiries and file affidavits. A deadline was set by the court for the Respondent so to do, namely, by 3:00 p.m. on Monday September 12, 2022. A deadline was set for affidavits in reply to be filed by the Applicant, namely, by 10:00 a.m. on Tuesday September 12, 2022. The record shows that the Respondent filed two affidavits in opposition at 3:06 and 3:07 p.m. on the 12 th and the Applicant filed two affidavits in reply, one of the next friend Abdul Mohameed at 11:55 a.m. on the 13 th and Blaine Sobrian at 12:00 p.m.
However, while the parties were engaged in submissions before this court on Tuesday September 13, 2022, the Applicant filed a supplemental affidavit of Blaine Sobrian without permission and proceeded to rely on its contents in his submission. Attorney for the Respondent was therefore put at a disadvantage in that he would not have had sight of the said supplemental affidavit and the opportunity to consider them prior to the hearing. In fact, the same applied to the court at the time. The practice of continuing to file affidavits out of time and more so while the parties are literally engaged in the hearing is one that is ordinarily to be deprecated as being not only unfair to the other side but also a flagrant abuse of the process of the court. In that regard Attorney for the Respondent has submitted that the supplemental affidavit ought not to stand in support of the case for the Applicant on the hearing.
In that regard this court is acutely aware that although its jurisdiction is not that of the Family or Children Court, the cardinal principle when treating with decisions that touch and concern minors, namely, that the welfare of the minor is of paramount consideration applies equally. In that context, the court is of the view that the supplemental affidavit provides added important information in respect of the main issues to be decided on the application. Albeit no explanation has been provided for its late filing, the interests of the administration of justice and the welfare of the child weighs in favour of its non-exclusion and the court so finds. In any event, Attorney for the Respondent has referred to the exhibit attached to the supplemental affidavits during his submission so it must mean that he would have had some sight of it there and then after mention was made of it by the Applicant's Attorney. In the round no prejudice arises in relation to the Respondent should it be admitted in the view of the court
The test for the grant of leave to file Judicial Review is well-known and the court does not propose to review same. The Applicant must demonstrate an arguable case with a realistic prospect of success. Further, the grant is discretionary and is subject to the common law bars to the grant of leave most of which have been codified in the Judicial Review Act Chap 7:08 3. Both parties agree that should the issue of leave be determined against the Applicant then the application for interim relief must likewise be dismissed. It is not the remit of the court at this stage to determine matters of fact or to conduct a mini trial as it were.
The Respondent has submitted that there exists an alternate remedy that is as or more suitable in this case. Section 9 of the Judicial Review Act reads:
The Court shall not grant leave to an applicant for judicial review of a decision where any other written law provides an alternative procedure to question, review or appeal that decision save in exceptional circumstances.
This section has been interpreted not in a narrow manner so as to defeat the grant by the mere existence of another remedy but the section has been accorded a wide interpretation.
In Anthony Leach v Public Service Commission 4 Jones J held that the alternative remedy available would not resolve the issue at hand. Her Ladyship cited the statements of Glidewell LJ in Ex parte Waldron [1985] 3 WLR 1090 at page 1108 in which he stated:
“Whether the alternative remedy will resolve the question at issue fully and directly; whether the statutory procedure would be quicker, or slower than procedure by way of judicial review; whether the matter depends on some particular or technical knowledge which is more readily available to the alternative appellate body these are amongst the matters which a Court should take into account when deciding whether to grant relief by judicial review when an alternate remedy is available.”
In Luis Castillo v Her Worship Annette Mc Kenzie5, Pemberton J (as she then was) reiterated the definition of ‘exceptional circumstances’ stated at para. 8:
“…(they) would include when the pursuit, or where there is a great need for immediate judicial relief or the alternative procedure will serve no useful purpose. The party seeking leave bears the persuasive burden to show that the exception applies.”
Therefore, the burden lies on the Applicant to show that the alternative remedy is not suitable or equally effective.
The Applicant's response on this issue is that he would have in fact availed himself of the alternative procedure but that he was not specifically informed of same, was tricked into signing the Notice given to him on the understanding that he would get a hearing and further that his signing of the Notice is evidence of his appeal.
Section 21 of the Immigration Act Chap 18:01 reads:
21. (1) Where an immigration officer, after examination of a person seeking to enter into Trinidad and Tobago, is of opinion that it would or may be contrary to a provision of this Act or...
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