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REPUBLIC OF TRINIDAD AND TOBAGOIN THE HIGH COURT OF JUSTICEClaim No. CV2017-01623BETWEENFRANCISCO JAVIER POLANCO VALERIOJOHAN RODOLFO CUSTODIO SANTANAClaimantANDTHE CHIEF IMMIGRATION OFFICERTHE ATTORNEY GENERAL OF TRINIDAD AND TOBAGODefendantBefore the Honourable Madam Justice Margaret Y MohammedDated the 8th June 2017APPEARANCESMr. Matthew Gayle Attorney at law for the Claimants.Mr. D Neil Byam, Ms Ronnelle Hinds instructed by Ms Ryanka Ragbir Attorneys at law forthe Defendants.RULING1.On the 5th May 2017 (“the order”) I granted the Claimants permission to apply forjudicial review of the following decisions:Page 1 of 28

“(1)The decision by Gewan Harricoo to resile from the initial positioncommunicated to the Applicants that they would be free to leave thejurisdiction at their pleasure following their release from police custodyon 28th April 2017;(2)The decision to prevent the Applicants from departing from thejurisdiction;(3)The decision to arrest and detain the Applicants for [sic] “has become aninmate of any prison or reformatory”;(4)The decision to arrest and detain the Applicants’ passports;(5)The decision not to/the failure to inform the Applicants of when theChief Immigration Officer intends to permit their departure from thejurisdiction;(6)The failure to promptly process the Applicants and permit theirdeparture from the jurisdiction.”2.In essence the Claimants were challenging the Chief Immigration Officer’s decision toarrest and detain their passports; to prevent them from departing Trinidad andTobago; and to process them so that they can depart the jurisdiction. They were alsochallenging a decision by Mr Haricoo where he allegedly changed his position ascommunicated to the Claimants that they would be free to leave the jurisdiction attheir pleasure following their release from police custody on 28th April 2017.3.On the 12th May 2017 (“the Defendants application to set aside”) the Defendantsapplied to set aside the order. On the 17th May 2017 the Defendants filed a Notice tostrike out (“the Defendants application to strike out”) paragraphs 5 and 6 of theaffidavit of Robin Montano (“the Montano affidavit”) which was filed in support ofthe Claimants leave application (“the Claimants’ leave application”). On the same day,the Claimants filed a Notice (“the Claimants application to cross examine”) to crossPage 2 of 28

examine Mr Gewan Haricoo with respects to paragraphs 5, 7 and 8 of his affidavitfiled on the 10th May 2017 (“the Haricoo affidavit”).The Claimants’ leave application4.In the Claimants’ leave application they sought the following substantive reliefs:“1.A Declaration that the revoking of the initial position communicated tothe Applicants that they would be free to leave the jurisdiction at theirpleasure following their release from police custody on 28th April, 2017is illegal and/or irrational and/or procedurally improper and/or inbreach of the principles of national justice and/or amounts to an irregularor improper exercise of discretion and/or is an abuse of power and/or isin breach of legitimate expectation.2.A Declaration that the decision to arrest and detain the Applicants isillegal and/or irrational and/or procedurally improper and/or in breachof the principles of national justice and/or amounts to an irregular orimproper exercise of discretion and/or is an abuse of power and/or is inbreach of legitimate expectation.3.A Declaration that the decision to prevent the Applicants from departingthe jurisdiction is illegal and/or irrational and/or procedurally improperand/or in breach of the principles of national justice and/or amounts toan irregular or improper exercise of discretion and/or is an abuse ofpower and/or is in breach of legitimate expectation.4.A Declaration that the decision to prevent the Applicants from departingthe jurisdiction is unconstitutional in that it denies their right to freedomof movement afforded to them by section 4 (g) of the Constitution of theRepublic of Trinidad and Tobago.5.A Declaration that the decision to determine that the Applicants’ arepersons to whom section 9(4) (c) of the Immigration Act Chap 18:01 isunconstitutional in that it abrogates the Applicants’ right to presumptionof innocence, the right to procedural fairness and the right to beprotected against arbitrary detention and exile as provided by sectionsPage 3 of 28

5(2)(f)(i), 5(2)(e), 5(2) (a) and 5 (2) (h) of the Constitution of Trinidad andTobago.6.A Declaration that the decision to determine that the Applicants’ arepersons to whom section 9(4) (c) of the Immigration Act Chap 18:01applies is illegal and/or irrational and/or procedurally improper and/orbreach of the principles of national justice and/or amounts to an irregularor improper exercise of discretion and/or is an abuse of power and/or isin breach of legitimate expectation.7.A Declaration that the decision to arrest and continue to detain theApplicants’ passports is illegal and/or irrational and or procedurallyimproper and/or in breach of the principles of national justice and/oramounts to an irregular or improper exercise of discretion and/or is anabuse of power and/or is in breach of legitimate expectation.8.The decision not to/the failure to inform the Applicants of when theChief Immigration Officer intends to permit their departure from thejurisdiction, whether byholding a Special Inquiry or otherwise isunconstitutional in that it denies the Applicants’ the right to proceduralfairness as enshrined in section 5(2) (h) of the Constitution of Trinidadand Tobago.9.The decision not to/ the failure to inform the Applicants of when theChief Immigration Officer intends to permit their departure from thejurisdiction, whether by holding a Special Inquiry or otherwise is illegaland/or irrational and/or procedurally improper and/or in breach of theprinciples of national justice and/or amounts to an irregular or improperexercise of discretion and/or is an abuse or power and/or is in breach oflegitimate expectation.10.An Order Mandamus compelling the Chief Immigration Officer to orderthe unconditional release of the Applicants’.11.An Order Mandamus compelling the Chief Immigration Officer to orderthe unconditional release of the Applicant’s Passports.12.An Order Mandamus compelling the Chief Immigration Officer to orderthat no officer, agent or assign of the Immigration Division intervene orseek to prevent the Applicants’ Departure from the jurisdiction.Page 4 of 28

13.An Order Mandamus compelling the Chief Immigration Officer to directthat all Immigration proceedings against the Applicants be dismissedand/or discontinued.14.An Order Mandamus compelling the Chief Immigration Officer to directthat all and any monies paid by way of deposit or otherwise to theImmigration Division by the Applicants be returned to them forthwith.15.Alternatively, An Order Mandamus compelling the Chief ImmigrationOfficer to direct that a Special Inquiry be held in relation to theApplicants within twenty four (24) hours of the Order of the Court.16.Damages.17.Such other orders, directions or writs as the Court considers just and asthe circumstances warrant pursuant to section 8 of the Judicial ReviewAct.18.5.Costs.”The Claimants also sought the following interim relief:“(1)An Order that the Chief Immigration Officer return and/or Order theimmediate return of the Applicants passports;(2)An Order that the Chief Immigration Officer not prevent and/or Orderthat no Officer of the Immigration Division prevent the Applicants’ immediatedeparture from the jurisdiction;(3)An Order staying all Immigration Proceedings against the Applicants;(4)An Order directing the Immigration Division to return the 4,000.00paid by way of bond by each Applicant.”6.The grounds in the Claimants’ leave application and the evidence in the Montanoaffidavit were more or less the same. The Claimants stated that they are both nationalsof the Dominican Republic. They entered Trinidad and Tobago legally on the 8thJanuary 2016 and they were permitted to remain in the jurisdiction until the 8th March2016. On the 14th February 2016, both Claimants were married in Trinidad and Tobagoto women they met online. They were arrested together in relation to a criminaloffence on the 3rd March 2016 namely possession of a firearm and ammunition.Page 5 of 28

Despite several attempts having been made, they were unable to secure bail and wereheld awaiting trial. They were tried summarily in the Siparia First Magistrates Courtbefore Her Worship A. Deonarinesingh, who on the 27th April 2017 dismissed allcharges against them. On the charges being dismissed, the Inspector in Charge at theSiparia Magistrates Courts and Process branch submitted to the Court that he hadbeen informed by Mrs. Hood of the San Fernando Immigration Division that therewere Orders of Detention in force in relation to the Claimants and they returned tocustody.7.On the 27th April 2017, the Claimants were conveyed to the Arouca Maximum SecurityPrison. However upon arrival, they were denied admission on the grounds that noOrder of Detention was in force in relation to them and thereafter they were returnedto the Siparia Police Station.8.On the 28th April, 2017, the Claimants were informed by the Inspector in charge of theSiparia Magistrates Courts and Process Branch that there was no order of detention inforce in relation to them and they were duly released.9.On the 28th April 2017, the Claimants Attorney-at-Law was informed by ImmigrationOfficer IV, Gewan Harricoo that there was no Order of Detention in relation to eitherof them and he requested that they report to the San Fernando Immigration Divisionon Monday 1st May 2017, and that they would thereafter be permitted to leave thejurisdiction at their leisure.10.On the 1st May 2017, the Claimants reported to the San Fernando ImmigrationDivision, Investigations Unit, accompanied by their attorney at law Mr Gayle wherethey were each interrogated by Immigration Officer 1, Ramjit and Immigration OfficerPage 6 of 28

Mrs Hood. While being interrogated by Officer Ramjit each Claimant was shown andobserved a file in relation to himself which included his original passport, as well ascopies thereof. Each file was also observed to contain an extract from the MagistratesCourt showing that the matters against the Claimants had been dismissed on the 27 thApril 2017. The First Claimant was informed that he would be detained because hiswife had not attended the interview with him . Up to that point, no one had told himthat his wife needed to attend. After some discussions, Mrs Hood stated that theClaimants could return the following day and would be released only if their wivesattended, together with their identity documents and marriage certificates.11.Upon the conclusion of that interrogation, the Claimants were informed that theywould not be permitted to leave the jurisdiction, and they were placed on an order ofsupervision and instructed to report to the San Fernando Immigration Division on the2nd May 2017.12.On the 2nd May 2017, both Claimants reported to the San Fernando ImmigrationDivision, Investigations Unit. They were instructed to pay a bond of 4,000.00 andthey did so. Upon arrival, the Claimants requested to be informed by ImmigrationOfficer 1 Dana Dookan, who attended to them both, of when they would be permittedto depart from the jurisdiction to which they received no response. The Claimantswere then placed on a further order of supervision/the terms of their order werealtered and they were instructed to report to the San Fernando Immigration Divisionon the 3rd May 2017.13.On the 3rd May 2017, the Claimants both reported to the San Fernando ImmigrationDivision. They were each interrogated as to the whereabouts of their wives byImmigration Officer Mrs Hood where they were arrested and detained by Officers ofPage 7 of 28

the San Fernando Office of the Immigration Division. They were presented with adocument entitled “Reasons for Arrest and Detention” which stated that they had (each)become “an inmate of any prison or reformatory”. Shortly, thereafter they were placed ona further Order of Supervision demanding that they return on the 10th May 2017“pending SI”.14.The Claimants stated that their wives are reluctant to get involved with ImmigrationOfficials and that any attempts to compel them to do so will jeopardize theirrelationships and alienate their wives from them.15.The Claimants then requested to be informed through Counsel, when they would bepermitted to depart from the jurisdiction. Immigration Officer Mrs Hood informedthem that it was not possible to say. The Claimants further asked if and when a SpecialInquiry would be held in relation to them, to which Immigration Officer Mrs Hoodinformed them that it was not possible to say.16.The Claimants stated that they have repeatedly requested to be allowed to depart fromthe jurisdiction and are they desirous of doing so immediately and that the officers ofthe Immigration Division have repeatedly refused to allow them to do so.Furthermore, the Claimants had repeatedly requested to be informed as to when theImmigration Division will complete their process with them and/or convene a specialinquiry and/or permit them to depart from the jurisdiction and they have not beengiven an answer.17.In considering whether to grant the Claimants permission to apply for judicial reviewI applied the test that a Court should grant permission to a Claimant to file for judicialreview once it is satisfied that there is an arguable ground for judicial review havingPage 8 of 28

a realistic prospect of success and not subject to a discretionary bar such as delay oran alternative remedy (Sharma v Browne Antoine1).18.I made the order for the Claimants to apply for the aforesaid substantive reliefs basedonly on the Claimants evidence which was before me at the time. I was of the viewthere was conflicting information from the officers of the Immigration Department tothe Claimants on whether they were free to leave the jurisdiction in circumstanceswhere they were willing to depart the jurisdiction and they were not asking to bepermitted to stay; they were placed on a Supervision Order on the 1st May 2017pending the Special Inquiry and there was no information from the 29th April 2017 upto the institution of the instant action on the 5 th May 2017 when the Claimants wouldbe permitted to depart the jurisdiction and/or when a Special Inquiry would be held.19.At the hearing of the Defendants application to set aside, Counsel for the Defendantsindicated to the Court that they were no longer pursuing the Defendant’s applicationto strike out and that he would address paragraphs 5 and 6 of the Montano affidavitin his submissions. He also stated that he was not relying on the Haricoo affidavit.Having indicated this position the Claimants application to cross examine was moot.The Defendants application to set aside20.The Defendants applied to set aside the order on the basis that on the 10th May 2017,the First Defendant declared that the Claimants ceased to be permitted entrants inTrinidad and Tobago under section 9(4) of the Immigration Act2 with effect from the4th March 2016. The First Defendant also ordered a Special Inquiry to be held to12[2006] UKPC 57Chapter 18:01Page 9 of 28

determine whether each Claimant is a person other than a citizen of Trinidad andTobago or a resident and is a person described in paragraph (g) of subsection (1) ofsection 22 of the Immigration Act. The Special Inquiry was scheduled to be held on18th May 2017 but was postponed pending the outcome of the Defendants applicationto set aside. As such the Claimants have an alternative remedy available to them,namely the Special Inquiry, which will allow for the Claimants’ passports to bereleased to them and that under section 9 of the Judicial Review Act3 the Court oughtnot grant leave to an applicant for Judicial Review of a decision where any otherwritten law provides an alternative procedure to question, review or appeal thatdecision.21.At the hearing, Counsel for the Defendants argued three reasons for the Court to setaside the order. He submitted that the Claimants failed to comply with rule 56.4(11)Civil Proceedings Rules (“the CPR”); paragraphs 5 and 6 of the Montano affidavitcontained information provided by attorney at law for the Claimants, Mr Gayle whichwas in violation of Rule 35 of the Legal Profession Act4 and as such they Claimantsought not to have been permitted to rely on those paragraphs and most importantlythere was material non-disclosure of several relevant provisions of the ImmigrationAct, in particular section 15 which deals with Special Inquiries, section 27 which dealswith the procedure for appeals from the decision of the Special Inquiry Officer, andthe exclusion clause at section 30 which oust the jurisdiction of the Court frominterfering with any Immigration Proceedings for person who are not residents orcitizens of Trinidad and Tobago. He submitted that the decision of Mr Haricoo whichthe Claimants complained about is irrelevant since Mr Haricoo is not the FirstDefendant neither is he the Special inquiry Officer.34Chapter 7:08Chapter 90:03Page 10 of 28

22.Counsel for the Defendants also asked the Court to take judicial notice that theClaimants have subsequent to the institution of the instant proceedings, filed a FixedDate Claim on the 15th May 2015 (CV 2017-01766) seeking to strike down section 9(4)(c) of the Immigration Act (“the constitutional action”) as being inconsistent with theConstitution or alternatively it should be read in conformity with the Constitution ofTrinidad and Tobago.23.Counsel for the Claimants submitted that at the hearing on the 18th May 2017 Counselfor the Defendants agreed to extend the time for filing of the Fixed Date Claim to the25th May 2017 and that the Defendants are also guilty of material non-disclosure. Healso argued that there are three heads of reliefs which the Claimants seek in thesubstantive claim namely legitimate expectation based on the promises made byImmigration Officer Haricoo; the need for a Special Inquiry since at the time of theClaimants leave application and the order the Special Inquiry was not set up; theirrationality of the decisions to arrest the Claimants and detain their passports and theunconstitutionality of the application of section 9(4) of the Immigration Act to theClaimants.24.In Sharma v Browne Antoine the Privy Council stated that the test for setting asideleave to move for judicial review is a power which the Court should exercise “verysparingly” and only where the “leave is one that plainly should not have been granted”.More recently in this jurisdiction Jamadar JA Devant Maharaj v National EnergyCommission5 described the test as: “The jurisdiction to set aside leave for good cause andwhere the initial granting of leave is subsequently recognized as being clearly erroneous.”5Cv App 115 of 2011Page 11 of 28

Non-compliance with Rule 56.4 (11)25.Rule 56.4(11) CPR provides that the leave to file for judicial review is conditional onthe applicant making a claim for judicial review within 14 days. In the order, the Courtgranted the Claimants permission to make a claim for judicial review by filing a FixedDate Claim Form within 14 days from the 5th May 2017 for the substantive reliefs setout aforesaid. According to the Court records the time for filing the Fixed Date Claimwas extended by consent to the 25th May 2017 which was one week after the hearingof the 18th May 2017. I therefore do not agree with the argument by Counsel for theDefendants that the proceedings are a nullity.Paragraphs 5 and 6 of the Montano affidavit26.Paragraphs 5 and 6 of the Montano affidavit state:“5.Mr Gayle informs me that on the 28th April 2017, while enquiring as towhen his client’s would be permitted to depart the jurisdiction, he wasinformed by Mr Geewan Haricoo, IOIV that they would be able to “collec