CJ quashes deportation order against Haitians

-finds breach of natural justice

Acting Chief Justice
Roxane George-Wiltshire SC
Acting Chief Justice Roxane George-Wiltshire SC

Finding a breach of natural justice, acting Chief Justice Roxane George-Wiltshire SC yesterday quashed a deportation order which had been issued against the 26 Haitian nationals who were detained for weeks last year by the government at the state-run Hugo Chavez Centre for Rehabilitation and Reintegration.

In a brief oral ruling, the Chief Justice said that the foreign nationals ought to have been first taken to court and given a chance to be heard before being ordered to be deported.

Additionally, finding no merit in an application filed by Attorney General (AG) Anil Nandlall SC to have the matter struck out, the Chief Justice refused that request.

Justice George-Wiltshire in her ruling on the substantive application filed in the name of Allandres Archer on behalf of the Haitians said that there was a breach of natural justice in the issuance of the deportation orders. 

She said that in accordance with Sections 16 and 28 of the Immigration Act, the foreigners should have been taken to court so that they could be heard. In those circumstances she quashed the orders of deportation.

The Chief Justice said that as a consequence, it was clear that Article 139 of the Constitution which provides for the protection of the right to personal liberty and Article 148—for the protection of freedom of movement were both breached.

She said, however, that there was insufficient evidence to support any finding for a breach of the other rights provisions in Articles 141, 142, 143, 144 and 149 of the Constitution.

Moreover, she said that since the Haitians have been released and have already left Guyana, no orders as to costs would be made.

In his notice of application (NOA), Nandlall had called for the action to be struck out stating that the respondent—Archer in whose name the action was filed on behalf of the Haitians, had recently indicated that he had no idea that a court action would be initiated in his name and that he never agreed to anything of that nature.  

Observing that Archer had been a part of previous virtual hearings of the matter, however, the Chief Justice questioned the merit of the AG’ s application which she described as strange to have been made by him (the AG) and not Archer.

She said that even though Archer had communicated that he was in the process of seeking advice from his counsel towards making steps to have the application filed in his name withdrawn, this was not done.

The judge surmised that if Archer felt as strongly as Nandlall sought to advance about an action being commenced in his name without his approval, then he (Archer) would have filed his notice of withdrawal.

“If the applicant wants to withdraw, he should have done so. That’s how we work things out,” the judge asserted.

When asked, attorney Darren Wade who represented the Haitians in the application filed in Archer’s name, told the chief justice that he had never received any instructions from Archer to withdraw the matter.

The judge also questioned the origin and authenticity of the recording in which Nandlall averred that Archer had said he had no idea that an action was being drafted in his name.

On this point Chief Justice George-Wiltshire said that she listened to the recording which was submitted as an exhibit and that she was still unclear when exactly that recording was done and even by what means it came to be.

Nandlall sought to advance that the court still needed to be concerned that an application had been filed in the name of Archer, who according to him had given no such authority.

After outlining her reasons, however, the chief justice told Nandlall that his application had no merit and was therefore being dismissed.    

At a December 18th hearing, the Chief Justice had said that she would not grant Nandlall’s application to strike out the matter since, contrary to his contention, the issues that need to be addressed were not necessarily academic but for future guidance on how such a matter should dealt with.

At that time, the revelations made by Nandlall of Archer saying that he was unaware of the action being filed in his name had not yet been made.

Before delivering her ruling yesterday, the chief justice noted that her December 18th order to have submissions on issues which she wanted clarified had not been complied with.

She had stated back then that the absence of the subjects in the court and by extension the country at that time, did not mean that they no longer wanted to proceed with the case.

Outlining some of the issues she wanted clarified and addressed, Justice George-Wiltshire had  stated that she was trying to understand at what point were the subjects no longer considered victims of trafficking and at what point it was determined that they were prohibited immigrants.

She added that she also wished to know the status of the subjects between November 8th and November 30th, among several other things in proceeding with the matter.

Last December the chief justice granted a conservatory order staying a previous order made by Principal Magistrate Sherdel Isaacs-Marcus for the 26 Haitian nationals to be deported.

The foreign nationals, including seven children, had been detained for weeks at the state-run Hugo Chavez Centre for Rehabilitation and Reintegration.

They were to be deported for allegedly lying about where they would be staying during their visit to Guyana.

According to Wade, the action is “arbitrary” and was conducted with a clear disregard to his clients’ rights to natural justice.

The Ministry of Home Affairs announced during the latter part of November that the Haitian nationals were found after the police conducted two search-and-cordon exercises in Georgetown and Region Ten.

Some of the Haitian nationals were discovered in a city hotel, while others were found in a minibus on the Linden-Mabura road.

According to a ministry statement, the discovery was made as part of an investigation into a suspected human smuggling racket and trafficking in persons ring.

The Haitians have, however, denied any involvement in trafficking.

Wade, in presenting their case, had argued that since those detained had committed no crime or been accused of committing any crime, their detention was illegal.

The AG’s Chambers had, however, disclosed that the Haitians were being kept in custody for deportation.