Yohan Jesus Rangel Dominguez v Minister of National Security

• Jurisdiction: Trinidad & Tobago
• Judgment Date: 04 July 2023
• Neutral Citation: TT 2023 HC 201
• Court: High Court (Trinidad and Tobago)
• Docket Number: Claim No. CV 2023 – 00767

In the Matter of the Judicial Review Act Chap 7:08

and

In the Matter of An Application for Judicial Review Purusant to the Provisions of the Judicial Review Act 2000

and

In the Matter of the Immigration Act Chap. 18:01

and

In the Matter of An Application Under Section 14(1) of the Constitution

and

In the Matter of the Decision of the Honourable Minister of National Security to Issue a Deportation Order on the 7th March, 2023 to Yohan Jesus Rangel Dominguez

Between

Yohan Jesus Rangel Dominguez

Claimant

and

Minister of National Security

First Defendant

and

Attorney General

Second Defendant

United Nations High Commissioner of Refugees (UNHCR)

First Interested Party

and

Living Water Community

Second Interested Party

Claim No. CV 2023 – 00767

IN THE HIGH COURT OF JUSTICE

Appearances:

1. Mr. J. Heath S.C., Ms. S. Sankar, Ms. V. Ramroop instructed by Ms. A. Gunness, Attorneys-at-law for the Claimant.

2. Ms. S. Sukhram, Ms. S. Singh, Ms. J. Teeluckdharry instructed by Mr. V. Jardine, Ms. R. Wright and Ms. F. Ali, Attorneys-at-law for the Defendants.

3. Ms. G. Maharaj and Mr. G. Rampersad, Attorneys-at-law for the First and Second Interested Parties.

DECISION

1 The instant matter is a hybrid claim in which both judicial review and constitutional relief has been sought in relation to the decision of the Minister of National Security (“the Minister”) to issue in relation to the Claimant, a deportation order on the 7 of March 2023 (“the Deportation Order”) pursuant to the provisions of the Immigration Act Chap 18.01 (“the Immigration Act”).

2 The issues to which the Court must address its mind are as follows:

• a. Whether the First Defendant acted illegally in issuing the Deportation Order dated 7 March 2023;

• b. Whether the decision of the First Defendant to issue the Deportation Order was disproportionate;

• c. Whether the decision of the First Defendant to issue the Deportation Order was irrational and unreasonable;

• d. Whether the Claimant was deprived of the opportunity to be heard;

• e. Whether the First Defendant failed to take into consideration certain relevant information and therefore acted in bad faith in issuing the Deportation Order;

• f. Whether the 2014 Policy created a legitimate expectation that the Claimant would not be ordered deported;

• g. Whether the 1951 Refugee Convention created a legitimate expectation that the Claimant would not be ordered deported;

• h. Whether the Standard Operating Procedures gave rise to a legitimate expectation that the Claimant would not be deported;

• i. Whether the decision of the First Defendant to issue the Deportation Order was unreasonable and amounts to a breach of the Claimant's constitutional right under section 4(a) of the Constitution of Trinidad and Tobago to be afforded a right to liberty and security and not to be deprived thereof except by due process;

• j. Whether the decision of the First Defendant to issue the Deportation Order was unreasonable and amounts to a breach of the Claimant's constitutional right under section 4(b) of the Constitution of Trinidad and Tobago to be afforded equality before the law and protection of the law;

• k. Whether the First Defendant failed to take into account relevant information and acted in bad faith and whether the decision to issue the Deportation Order amounts to a breach of the Claimant's constitutional right under section 4(d) of the Constitution of Trinidad and Tobago to have equality of treatment from any public authority in the exercise of any functions;

• l. Whether the decision of the First Defendant to issue the Deportation Order deprived the Claimant of his legitimate expectation that his Asylum Seeker Status issued by the United Nations High Commissioner for Refugees would be considered and he would not be arbitrarily exiled in breach of his constitutional right under section 5(2)(a) of the Constitution of Trinidad and Tobago;

• m. Whether the First Defendant failed to take into account relevant information and whether the decision to issue the Deportation Order amounts to a breach of the Claimant's constitutional right under section 5(2)(e) of the Constitution of Trinidad and Tobago to be afforded the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;

• n. Whether the First Defendant failed to take into account relevant information, acted in bad faith and whether the decision to issue the Deportation Order breached the Claimant's constitutional right under section 5(2)(h) of the Constitution of Trinidad and Tobago to be afforded the protection of procedural provisions which give effect to his rights;

• o. Whether Section 11 of the Immigration Act Chap. 18:01 is unconstitutional as it offends the rule of law in contravention of section 1 of the Constitution and therefore is void and of no effect pursuant to section 2 of the Constitution;

• p. Whether the Claimant is entitled to damages for the alleged breaches of his constitutional rights.

The Evidence:

3 The evidence adduced before the Court on behalf of the Claimant came from:

• a. Affidavit of Yohan Jesus Rangel Dominguez sworn to and filed on the 20 March, 2023.

• b. Affidavit of Shalini Sankar sworn to and filed on the 20 March, 2023.

• c. Affidavit of Yohan Jesus Rangel Dominguez sworn to and filed on the 3 April, 2023.

• d. Affidavit of Yohan Jesus Rangel Dominguez sworn to and filed on the 22 May, 2023.

• e. Affidavit of Yohan Jesus Rangel Dominguez sworn to and filed on the 22 May, 2023.

4 On behalf of the Defendants the following persons deposed to affidavits:

• a. Gary Joseph, Acting Permanent Security, Ministry of National Security whose affidavit was sworn to and filed on the 1 May, 2023.

• b. Laura Ramcharitar, Immigration Officer IV, Enforcement Unit, Immigration Division, Ministry of National Security whose affidavit was sworn to and filed on the 1 May, 2023.

Preliminary Issue:

5 Subsequent to the filing of this claim, evidence was adduced to outline that the Claimant had been granted refugee status by the First Interested Party, the United Nations High Commissioner of Refugees (“UNHCR”). Notably, at the time the Minister issued the Deportation Order, the Claimant had registered with the Second Named Interested Party, Living Water Community (“LWC”). This Court adopted the view that the change in the Claimant's status does not impact upon the manner in which the Court must resolve the aforementioned issues.

6 To effectively and efficiently determine the outlined issues the Court must first comprehensively address and analyse the legal purport and effect of:

• a. The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol and the impact of ratified unincorporated treaties on due process, protection of law and the rights and protections enshrined under the Republican Constitution of Trinidad and Tobago;

• b. The national policy to address Refugee and Asylum Seekers in the Republic of Trinidad and Tobago 2014 as well as the impact and relevance of the 2008 Immigration manual and the interim standing operating procedures (SOPs) which were forwarded by the Permanent Secretary of the Ministry of National Security to Rhonda Maingot of LWC on the 11 August 2017.

The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol:

7 Trinidad and Tobago on 2 November, 2000 became the 140th country to sign the 1951 Convention Relating to the Status of Refugees (1951 Refugee Convention) and its 1967 Protocol. By acceding to the two international instruments which govern the treatment of asylum seekers and refugees, this country acknowledged the vulnerability of refugees and the role that the international community plays in the protection of the rights of refugees.

8 Article 1 of the 1951 Refugee Convention prescribes the categories of persons to whom the status of refugee may be ascribed and Article 1A (2) defines “refugees” as:

“any person who, as a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

9 The principle of non-refoulement constitutes the cornerstone of international refugee protection and is provided for in Article 33 of the 1951 Refugee Convention. This principle prohibits member countries from expelling or returning a person, in any manner, whatsoever, to a place where his life or liberty would be endangered on account of his race, religion, nationality, membership of a particular social group or political opinion. Asylum-seekers are protected from forced return to their country of origin from the time they express a fear of return until a final decision on refugee status is determined.

10 To date, Trinidad and Tobago has not denounced the 1951 Refugee Convention in accordance with the procedure outlined under Article 44.

11 Article 31 of the 1951 Refugee Convention specifically provides for the non-penalisation of refugees and asylum-seekers who may have entered or stayed in a receiving country irregularly, if they present themselves without delay and show good cause for their illegal entry or stay. It further provides that restrictions on movement shall not be applied to such refugees (or asylum-seekers) other than those which are necessary and such restrictions shall only be applied until their status is regularised or they gain admission into another country.

12 Pursuant to the Advisory Opinion on the Extraterritorial Applicant of Non Refoulement...