CJ quashes deportation order for Haitians, says there was breach of natural justice

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By Kurt Campbell

Chief Justice (ag) Roxane George, SC, on Wednesday wrapped up the Haitian deportation case in which she quashed a December 1, 2020, Order by Principal Magistrate Sherdel Isaacs-Marcus for 26 Haitians to be deported and also dismissed an application by Attorney-General, Anil Nandlall, SC, for the matter to be thrown out.

Justice George has also refused to grant an order for the referral of the matter to the Caribbean Court of Justice (CCJ).  The Haitians – ten men, nine women and seven children – had approached the High Court on December 3, 2020, through their lawyer, Darren Wade, and had the deportation order halted by the Chief Justice.

The magistrate had ordered that the nationals be taken to the nearest port of exit and deported on the grounds that they violated Guyana’s immigration laws.

Attorney-at-law, Darren Wade

In her ruling on Wednesday, which disposes of the case, Justice George said a breach of natural justice occurred when the deportation order was issued by Magistrate Isaacs-Marcus. The Chief Justice said the Haitians, who were detained by the State at the time, should have been taken to court to be heard, but they were not.

She said the Order breached Articles 139 and 148 of the Constitution which deals with the deprivation of personal liberty and a person’s freedom of movement, respectively.  In addition, the Chief Justice ruled that there was insufficient evidence to prove that Articles 141, 142, 143,144 and 149 of the Constitution were not upheld in the detention of the Haitians.

Those articles deal with inhumane and degrading punishment, the seizing of property, unauthorized searches, the affording of a fair hearing and discriminatory treatment. In so ruling, Justice George said that all Orders sought, including for referral of the matter to the CCJ and for damages, are not granted.

She said with the release of the Haitians since the halting of the deportation, no order is made in relation to costs.

Application by the AG

Before her ruling was handed down, Justice George had to first throw out an Application brought before her by Nandlall to strike out the case.

Nandlall had submitted a recording to the court in which the applicant, Allandres Archer, can be heard saying that he was tricked into signing the court document on behalf of the Haitians which first brought the case to light at the High Court.

The proceedings were initially filed by Archer for and on behalf of the 26 Haitians, contending that a breach of fundamental rights of the individuals had occurred when they were placed in protective custody at the Hugo Chávez Centre for Rehabilitation and Reintegration.

But Archer later claimed that he never agreed to file the case on behalf of the Haitians.

But Justice George, in her ruling, said it was also clear from the recording that Archer clearly understood that he could have sought legal advice and filed a Notice of Withdrawal, something that he has not done.

The Chief Justice said given that Archer was part of the court hearing before and so, she does not consider Nandlall’s application to have merit. She insisted that Archer should have filed a Notice of Withdrawal.

Attorney General, Anil Nandlall, S.C (Photo: News Room/December 18, 2020)

During the case, the State’s treatment of the Haitian nationals, who were detained and taken in protective accommodation on suspicions of human trafficking/smuggling, were called into question.

Nandlall always maintained that the Haitians entered Guyana simply as a transient point to enter other countries unlawfully. He said it was while detained that the State learnt that they also furnished immigration officers with misleading information.

No one knows the whereabouts of the Haitians since their release from the custody of the state on December 9, 2020. In the affidavits released by the Attorney-General’s Chambers, the State, through sworn statements by three police detectives, maintained that the Haitian nationals lied to immigration officers about where they would be staying while in the country when they arrived in Guyana on November 7, 2020.

This, the State insisted, is a violation of the immigration laws.

Police Sergeant, Nankumar Dalloo claimed that he has personal knowledge of the fact that over the past few years, hundreds of Haitians have entered Guyana legally, and a minimal number have left, at least, legally. He said these include large numbers of women and children.

The Guyana Police Force is reported to have received reliable intelligence that a large number of these persons have left Guyana illegally for Brazil and Suriname.

Meanwhile, Mark Dover, the Administrator at the Hugo Chavez Centre for Rehabilitation and Reintegration has testified that the detained Haitians were treated fairly while at the centre.

Additionally, Detective Assistant Superintendent of Police, Mitchell Caesar has supported the State’s defence and testified that there was inconsistency in the information provided by the guardian of one of the children detained.

The Haitians arrived in Guyana on November 7, and were reportedly granted a six-month stay; days after, they were intercepted at a city hotel and in a minibus on the Linden-Mabura Road by the police.

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