Yanitza Del Valle Leon v The Minister of National Security

• Jurisdiction: Trinidad & Tobago
• Judge: Madame Justice Margaret Y Mohammed
• Judgment Date: 25 January 2024
• Neutral Citation: TT 2024 HC 29
• Docket Number: Claim No. CV2021-00206
• Court: High Court (Trinidad and Tobago)

IN THE MATTER OF THE JUDICIAL REVIEW ACT CHAPTER 7:09

AND

IN THE MATTER OF THE LEGALITY OF THE DEPORTATION ORDER MADE BY THE HONOURABLE MINISTER OF NATIONAL SECURITY ON THE 12 ^TH JANUARY 2021 IN RELATION TO YANITZA DEL VALLE LEON

AND

IN THE MATTER OF AN APPLICATION BY YANITZA DEL VALLE LEON FOR JUDICIAL REVIEW OF THE DECISION OF THE HONOURABLE MINISTER OF NATIONAL SECURITY TO ISSUE A DEPORTATION ORDER ON THE 12 ^TH JANUARY 2021 IN RELATION TO YANITZA DEL VALLE LEON

BETWEEN

Yanitza Del Valle Leon

Claimant

and

The Minister of National Security

Defendant

Before

the Honourable Madame Justice Margaret Y Mohammed

Claim No. CV2021-00206

IN THE HIGH COURT OF JUSTICE

APPEARANCES:

Mr Gerald Ramdeen and Mr Umesh D Maharaj instructed by Ms Dayadai Harripaul Attorneys at Law for the Claimant

Mr Gilbert Petersen SC, Ms Vanessa Gopaul and Mr Raphael Ajodhia instructed by Ms Michelle Benjamin and Ms Janine Joseph Attorneys at law for the Defendant

1 The Claimant is a national of the Bolivarian Republic of Venezuela. She was arrested and detained on 24 November 2020 and kept at the Heliport at Chaguaramas under a quarantine order. On 29 November 2020 she instituted proceedings in CV 2020-04045 (“CV 2020-04045”) for relief under section 14 of the Constitution of Trinidad and Tobago (“the Constitution”) including interim relief. On even date she obtained an order from Quinlan-Williams J (“the Quinlan-Williams Order”) which restrained the Attorney General, its servants and or agents from taking any steps to remove the Claimant from the jurisdiction pending the hearing and determination of her application for relief under section 14 of the Constitution. Thereafter, the Defendant issued an order of detention dated 15 December 2020 at the end of the Claimant's quarantine period and on 12 January 2021, he issued an order authorizing the Claimant's detention and deportation (“the Deportation Order”).

2 The Claimant has brought this action seeking the following orders.

• (i) A declaration that the decision of the Defendant to issue a Deportation Order dated 12 January 2021 and brought to the attention of the Claimant on 14January, 2021 while there is in existence and effect a subsisting Order of Madam Justice Quinlan-Williams dated 29 November, 2020 restraining any steps with a view to removing the Claimant from the jurisdiction pending the hearing and determination of CV2020-04045 Andrea Carolina Caraballo Leon (By Her Kin And Next Friend Yanitza Del Valle Leon), Carlos Jose Caraballo Leon (By His Kin And Next Friend Yanitza Del Valle Leon) Jean Carlos Caraballo Leon (By His Kin And Next Friend Yanitza Del Valle Leon) Yanitza Del Valle Leon v The Attorney General of Trinidad and Tobago is irrational, unreasonable and illegal.

• (ii) A Declaration that the decision of the Defendant to issue a Deportation Order dated 12 January 2021 and brought to the attention of the Claimant on 14January, 2021 while there is in existence and effect a subsisting Order of Madam Justice Quinlan-Williams dated 29 November, 2020 restraining any steps with a view to removing the Claimant from the jurisdiction pending the hearing and determination of CV2020-04045 Andrea Carolina Caraballo Leon (By Her Kin And Next Friend Yanitza Del Valle Leon), Carlos Jose Caraballo Leon (By His Kin And Next Friend Yanitza Del Valle Leon) Jean Carlos Caraballo Leon (By His Kin And Next Friend Yanitza Del Valle Leon) Yanitza Del Valle Leon v The Attorney General of Trinidad and Tobago was in breach of the Claimant's fundamental rights guaranteed under Sections 4 (a) and (b) of the Constitution of the Republic of Trinidad and Tobago.

• (iii) A Declaration that the issuance of the Deportation Order dated 12 January 2021 and brought to the attention of the Claimant on 14 January, 2021 by the Defendant while there is in existence and effect a subsisting Order of Madam Justice Quinlan-Williams dated 29 November, 2020 restraining any steps with a view to removing the Claimant from the jurisdiction pending the hearing and determination of CV2020-04045 Andrea Carolina Caraballo Leon (By Her Kin And Next Friend Yanitza Del Valle Leon), Carlos Jose Caraballo Leon (By His Kin And Next Friend Yanitza Del Valle Leon) Jean Carlos Caraballo Leon (By His Kin And Next Friend Yanitza Del Valle Leon) Yanitza Del Valle Leon v The Attorney General of Trinidad and Tobago amounted to a breach of the rule of law.

• (iv) A Declaration that the issuance of the Deportation Order dated 12 January 2021 and brought to the attention of the Claimant on 14 January, 2021 was in breach of the Quinlan-Williams Order.

• (v) An Order of Certiorari to remove to this Court and quash the Deportation Order.

• (vi) An Order that the Defendant do pay the Claimant's costs of this Claim to be assessed by the Registrar of the Supreme Court in default of agreement.

3 The Defendant has opposed the orders sought on two bases, namely that: (a) the Quinlan-Williams Order was not served on the Defendant prior to the issuing of the Deportation Order as such the Defendant had no notice of it and was not bound by it; and (b) the Quinlan-Williams Order did not prevent the Defendant from issuing the Deportation Order.

4 Based on the position adopted by the Defendant there are only two issues which are to be determined, namely: (a) whether the Quinlan-Williams Order was served on the Defendant; and (b)whether the Quinlan-Williams Order precluded the Defendant from issuing the Deportation Order.

5 In my reasons sets out hereafter I am of the view that service of the Quinlan-Williams Order on the Defendant was proper and therefore by extension the Defendant ought to have been aware of its terms. I have also concluded that the natural and ordinary meaning of the Quinlan-Williams Order was that the Defendant was prevented from issuing the Deportation Order prior to the determination of the substantive issue in the claim CV 2020-04045 and that this Court is bound by the Court of Appeal judgment in the Chief Immigration Officer v Coralza Del Valle Martin Torres 1.

WHETHER THE QUINLAN-WILLIAMS ORDER WAS SERVED ON THE DEFENDANT

6 Counsel for the Claimant argued that: (a) the Claimant has discharged the burden of proving service of the Quinlan-Williams Order as the documentary evidence adduced by the Claimant and the Defendant, namely the emails from Ms Dayadai Harripaul (“Ms Harripaul”) to Ms Carol Hernandez, Solicitor General (“Ms Hernandez”) dated 29 November 2020 at 9:53 am and the email from Ms Hernandez to Ms Harripaul

dated 29 November 2020 at 2:11 pm demonstrated that there was no factual dispute with respect to service; (b) there was no evidence from Ms Hernandez to dispute the contents of her email dated 29 November 2020 at 2:11 pm to Ms Harripaul; (c) the Court should make an adverse inference against the Defendant for failing to file any evidence by Ms Hernandez disputing service; (d) the Defendant did not comply with its duty of candour as it failed to put the email from Ms Hernandez to Ms Harripaul before the Court but rather it was the Claimant who adduced the said email into evidence; and (e) the cross examination of Ms Rhonda Kelly (“Ms Kelly”) would not have assisted the Court on the issue of service as she could not provide any facts of what took place between Ms Harripaul and Ms Hernandez

7 Senior Counsel for the Defendant argued that there is a factual dispute whether the Quinlan-Williams Order was served on the Defendant and in the absence of cross-examination on this factual issue the evidence of the Defendant must be accepted. To support this position the Defendant relied on the affidavit of Ms Kelly filed on 16 September 2022 in its entirety, which attached the email from Ms. Harripaul together with the attachments thereto which were forwarded to her from Ms Hernandez; the affidavit of Laura Ramcharitar, Immigration Officer IV, filed on 16 September 2022 which stated at paragraph 5 that, the Quinlan-Williams Order was not served or received by the Immigration Division; and the affidavit of Stuart Young, Minister of Energy and former Minister of National Security, filed on 19 September 2022, which stated at paragraph 6 that he was unaware of the Quinlan-Williams Order when he signed the Deportation Order.

8 Section 20 of the State Liability and Proceedings Act 2 makes provision for service of proceedings on the State. It provides that:

20. (1) In any civil proceedings instituted against the Attorney General, or to which the Attorney General is joined as a party or third party, as mentioned above,

the first document required to be served on him, and any other document required to be served before an address for service has been given by him, shall be served on the Attorney General by the delivery thereof to the Solicitor General or such officer in the Department of the Solicitor General as he may designate by Notice published in the Gazette, or by leaving it at the office of the Solicitor General or of that officer, or by sending it by post in a registered letter addressed to the Solicitor General or to that other officer at his office. (Emphasis added)

9 It is not in contention that by Practice Direction dated 16 September 2005, published in the Trinidad and Tobago Gazette No. 168, Vol. 44 of 2005, service of documents on the office of the Solicitor General is to be effected via electronic means.

10 The affidavit of Ms Harripaul filed on 25 October 2022 (“the Harripaul Affidavit”) stated that the Quinlan-Williams Order was served on Ms Hernandez on 29 November 2020 at 9:53 am and that Ms Hernandez reply was sent to her on the same day at 2:11:12pm AST. Exhibit “DH 1” of the Harripaul Affidavit set out both emails.

11 The Harripaul Affidavit also stated at paragraphs 5 to 6 that:

“5. By the order of Madam Justice Quinlan-Williams dated the 29 ^th November 2020 the returnable date for the injunction that was granted by the Court on the 29 ^th...