BARBADOS


[Unreported]


IN THE SUPREME COURT OF JUDICATURE


HIGH COURT


Civil Division


 


Suit No: CV117 of 2009


Consolidated with Suit No: CV14 of 2009


 


BETWEEN


 


 


                 “ORSC”                                                                               APPLICANT


                                                                     AND


                       THE SUPERINTENDENT OF PRISONS                               1st RESPONDENT


           THE MINISTER RESPONSIBLE


           FOR IMMIGRATION                                                             2nd RESPONDENT


           ATTORNEY GENERAL OF BARBADOS                            3rd RESPONDENT


 


Before The Honourable Madam Justice Maureen Crane-Scott, Q.C. Judge of the High Court


(In Chambers)


 


2009: August 31


 


Mr. Douglas Trotman in association with Miss. Veronica McFarlane for the Applicant


Ms. Irene Stephney, instructed by the Solicitor General for the Respondents


 


DECISION


 


[1]        This is an urgent application to secure the applicant’s release from Her Majesty’s Prison at Dodds (HMP Dodds) where he is detained pursuant to orders made by the Minister Responsible for Immigration under the Immigration Act, Cap. 190 of the Laws of Barbados.


[2]        The applicant was born in Cuba on the 29th day of August, 1974. He entered Barbados as a visitor on August 24th, 2006 for a period of 1 month. On expiration of his 1 month entry permit, he applied for and was granted an extension of 15 days. Thereafter he illegally resided and worked in Barbados until January 22, 2008 when he was arrested by police and handed over to the immigration authorities. 


[3]            Following his arrest, the applicant was detained at the Grantley Adams International Airport for an initial period of 2 months. On March 18th, 2008 the Minister Responsible for Immigration signed orders for his deportation and detention pending deportation from Barbados. He was served with the Deportation Order on March 18, 2008 and thereafter transported from the airport to HMP Dodds where he still remains under detention pending his deportation.


[4]            Counsel for the applicant argued that while the applicant was admittedly not a Barbadian citizen or permanent resident, he was nevertheless entitled to the protection guaranteed by section 13 of the Constitution of Barbados against deprivation of his personal liberty save as authorized by law. He referred to sections 13(6) and 22(2) of the Immigration Act and contended that while the Minister Responsible for Immigration admittedly had the power to detain the applicant pending deportation, the power to detain was not without limit.


[5]        He contended that the applicant had been under detention pending deportation for in excess of 17 months and that his continued detention was now unreasonable since all efforts by the Immigration Department to remove the applicant from Barbados had failed and the immigration authorities could not say with any certainty when he would be removed from Barbados.


[6]        It was generally agreed that although he was a Cuban national, the applicant was now a ‘stateless person’ since he would not be accepted back into Cuba by Cuban authorities by reason of his having remained out of Cuba without the prior permission of the Cuban authorities.


[7]        He contended that Barbados was a party to the 1954 Convention Relating to the Status of Stateless Persons and that as a ‘stateless person’, the applicant could not now lawfully be expelled from Barbados save on grounds of national security or public order. Furthermore, although the applicant had no statutory right of appeal under the Immigration Act against the deportation order, the applicant could not lawfully be denied access to the Courts, having regard to Article 16 of the Convention. The applicant, he submitted, was therefore entitled to apply for a writ of habeas corpus and/or for judicial review of the detention order and was properly before the Court seeking redress. 


[8]            Counsel for the Applicant cited the Privy Council case of Tan TE Lam and others v. Superintendent of Tai A Chau Detention Centre et al [1996] 2 WLR 863 and urged the Court to order the release the applicant from Prison on the basis that as there was no immediate prospect of the applicant’s lawful deportation or removal from Barbados, his continued detention was accordingly unreasonable and unlawful.


[9]        While conceding that the applicant was in fact a ‘stateless person’, Counsel for the Respondents nonetheless opposed the application for his release. She argued, inter alia, that the applicant’s detention at HMP Dodds had been effected through the lawful exercise of a discretionary power conferred on the Minister Responsible for Immigration under section 13(6) of the Immigration Act, Cap 190.


[10]      The Minister, she said, had followed all procedures laid out in the Act. Furthermore, the place of detention was not unlawful and the detention itself was both reasonable and appropriate. Finally, she contended, section 23 of the Act operated to oust the Court’s jurisdiction to review the detention order.


[11]      She urged the Court to pay deference to the decision of the Minister of Immigration as the primary decision maker. The Court, she argued, should also avoid the temptation to evaluate the evidence before the immigration authorities so as to avoid usurping the role of the immigration authorities. In support of this submission, she cited Regina (Farrakhan) v. Secretary of State for the Home Department [2002] 3 WLR 481 and Secretary of State for the Home Department v. Rehman [2003] 1 A.C. 153.


            Discussion


[12]      The Court has considered the evidence filed by the applicant together with the legal submissions of Counsel for both parties for and against the application together with the applicable law. It was also noted that no affidavit had been filed on behalf of the 2nd Respondent justifying the continued detention at HMP Dodds or explaining why the applicant’s deportation had not yet been achieved.


[13]      Having examined relevant legal authorities, the Court is satisfied that the power of detention conferred by section 13(6) of the Immigration Act, Cap. 190 is not at large but is subject to limits. The power of detention is limited to only such period of time as is reasonable necessary to enable the Minister Responsible for Immigration to carry out the process of the applicant’s deportation and removal from Barbados.


[14]      It is implicit in the power to detain that the Minister should exercise all reasonable expedition to ensure that following the detention, the individual is deported or removed from Barbados within a reasonable time.  If it is apparent to the Minister Responsible for Immigration that the deportation or removal of a person who is intended to be deported will not be achieved within a reasonable period, it would be wrong for the Minister to seek to exercise the power of detention under the Act.


[15]            Furthermore, if having exercised the discretion to detain a person, it becomes apparent to the Minister that that person’s deportation or removal from Barbados can no longer be achieved within a reasonable period, the person’s continued detention would no longer be reasonable or lawful unless the Minister is able to establish by evidence that continued detention is necessary on grounds of national security or public order. The foregoing principles have been applied in a variety of factual situations. See R v. Durham Prison ex parte Hardial Singh [[1984] 1 WLR 704; Tan TE Lam et al v. Superintendent of Tai A Chau Detention Centre et al (cited above); The Queen on the application of A, MA, B, ME v. Secretary of State for the Home Department [2007] QBD (Admin Ct.) 142; Also see Hawkesworth [et al] v Attorney General and Commissioner of Police (Unreported) H.C. B'dos. Suit No. 1025, 1028 and 1029 of 2004, 2004-07-27; and Atain Takitota v. The Attorney General, Director of Immigration and Minister of National Security Bahamas Privy Council Appeal No. 71 of 2007.


[14]      The applicant has been held in detention at H.M.P Dodds pending deportation for in excess of 17 months. Counsel for the Respondents conceded that as the applicant is a ‘stateless person’, his deportation and expulsion from Barbados could not now be achieved having regard to Barbados’ obligations under the 1954 Convention Relating to the Status of Stateless Persons.


[15]      In the circumstances, as the Minister Responsible for Immigration is unable to say when the applicant is likely to be deported from Barbados and as no evidence has been provided that his continued detention is necessary on ground of national security or public order, the Court holds that the applicant’s continued detention under the Immigration Act, is no longer reasonable or lawful and the applicant should be released from detention at HMP Dodds.


            Disposal:


[16]      Against the foregoing decision of the Court, Counsel for both parties then consented to the following terms and conditions for the applicant’s release from detention which were duly approved by the Court as follows:


(1)   The Superintendent of Prisons shall release the applicant “ORSC”, with immediate effect;


(2)   The Applicant shall be released into the care of Mr. Harry Collymore of Dunlow Lane, Bay Street, St. Michael pending the execution of the Deportation order dated March 18, 2008 subject to the following terms and conditions:-


a)      The applicant shall report to Mr. Clarence Harewood, at the Immigration Department, Careenage House, Wharf Road, Bridgetown on Mondays and Fridays by 10:30 am;


b)     The applicant shall not engage in employment (paid or unpaid) during this period.


(3)    Liberty to apply.


 


 


Maureen Crane-Scott


Judge of the High Court