Days after Acting Chief Justice Ian Chang made a ruling against the six-month-old birth certificate requirement for a new passport, a city businessman has moved to the court after he too was denied his travel document which he says he needs urgently.
Just over a month ago, attorney Saphier Husain Subedar took legal action after an immigration official refused to accept his application for a new passport because his birth certificate was not issued within the last six months, a new requirement which was enforced by the Ministry of Home Affairs. After hearing arguments, Justice Chang on Wednesday made an absolute order directed to the Chief Immigration Officer who is also Police Commissioner (ag) Seelall Persaud quashing a decision as orally stipulated by Immigration Officer Mr Parris on June 18, that the attorney must produce a birth certificate issued within the last six months. Justice Chang also commanded Persaud and his agents to accept Husain’s birth certificate which was issued in 2004 and to issue a machine readable passport to him.
While this matter was before the court, the ministry issued a press release stating that with immediate effect, applicants for passports and other travel documents will be required to present original birth certificates that were issued no less than two years prior to the date of submission of the applications, instead of the six months which had been previously stated.
Businessman Gainlall Sookraj approached Husain earlier this week after he presented a birth certificate issued in 2009 along with his application for a new passport. The Bel Air Gardens resident was told by the immigration officer that he must produce a birth certificate issued within the last two years before a passport can be issued to him.
According to the court documents which were filed on Friday, the applicant (Sookraj) is seeking four orders. One is an order or Rule Nisi directing the police commissioner to show cause why an order of writ of certiorari should not be issued to quash what the immigration officer had orally stipulated. He is seeking an order or Rule Nisi directing the police commissioner to show because why an order of writ of mandamus should not be issued commanding that the birth certificate be considered and a passport issued. He is also seeking an order to serve the police commissioner a sealed and certified copy of the motion and affidavit in support as well as an order directing the respondent to file an affidavit in answer within 14 days.
In the affidavit in support of motion, Sookraj stated that because of business reasons he has to travel frequently to various international locations. He said that his last passport was issued on August 27, 2009. According to the document, on July 22, 2014, he visited the immigration office in Camp Street to make an application for a new passport armed with the required documents; an application form, his expired passport, two passport size pictures, birth certificate and $4,000.
He said the immigration officer rejected his application on the ground that he must produce a birth certificate issued within the last two years. He said he enquired of the immigration officer on what authority he was rejecting the application and birth certificate and the response was that he was instructed by senior officers to do so.
According to Sookraj, he was advised by his attorney that his birth certificate was issued under the Registration of Births and Deaths Chapter 44:01 of the Laws of Guyana and cannot be invalid except by law or amendment of the constitution.
“I know it is very difficult for me to be able by regular process to get a new birth certificate before the next few months,” he said adding that he was informed that several persons may get birth certificates within a few weeks by payment of a huge sum of money.
It was noted too that the businessman was required to travel urgently to the United States but cannot without a new passport. The document stated that the requirement of a birth certificate “is for ulterior motive, denial of a passport, violation of the right to travel and personal liberty guaranteed under Act 139 of the Constitution of Guyana.” He said that as a result of this decision he cannot travel freely to and from Guyana and as such his constitutional right is contravened by the refusal to grant a passport because of the requirement.
It was stated that he was advised by his attorney that there is “no law, regulation, rule, publication in the Official Gazette, official publication in any newspaper circulating in Guyana requiring a birth certificate issued within the last two years as a prerequisite to the issue of a passport. He stated that the chief immigration officer and subordinate officers are acting “in excess of their jurisdiction and failure to carry out their statutory duty under the Immigration Act of the Laws of Guyana.”
The attorney, during an interview with Stabroek News on Friday, stated that one cannot implement subsidiary legislation without taking it through the regular process, a part of which is to have it published in the Official Gazette.
He said that it is clear that the minister who gave the instruction was acting in excess of his authority and he did not follow any “regular procedure.”
He stated that when the matter he filed was in progress, there was a notice from the minister extending the six months requirement to two years. He stated that in the light of this he was preparing to file contempt proceedings against the minister because he was interfering with a subject matter that was before the court. “He attempted to interfere but the Chief Justice has disregarded that and granted the order,” he said.
Husain made the point that the most authentic birth certificate is the one issued around the time of birth. Subsequent to that he said it can be tampered with. “So they are reversing the process. The process should be that you should bring your oldest and most genuine birth certificate…” he said, adding that this new requirement would open more avenues for corrupt practices.
He stated there is now a fraudulent collection of revenue as persons now have to apply for a birth certificate at a cost of $300. He said that persons have come to him complaining about the length of time it is taking for them to get their passports.
He said he did not see how adding an additional year and a half can increase the quality of security. He said it is the office that issues birth certificates that had to be targeted. He said too that the government should have held public consultations first before going ahead with these requirements.
Recalling his situation, he said that he had needed to travel to Canada urgently and was in need of a new passport. He said that when he went with his documents, he was told that his birth certificate had to have been issued within the last six months. He said he indicated that this was a violation of his constitutional right of freedom to travel and was infringing his personal liberty. He said that while at the passport office he met many frustrated people who later left in tears after being told that they could not submit their applications since their birth certificates did not meet the requirements.
He said he used information from the India Passport Act as well as an International Convention to prove his case. He made the point that there is no Passport Act in place in Guyana.
The attorney said he plans to visit the Immigration Office tomorrow with a copy of Justice Chang’s judgment with a view to having his application accepted and processed.