Jesus Marcano, third from right, embraces his son, Jesus Martinez, second from right, and wife, Luisa Martinez Hernandez, after their release from the Chaguaramas Heliport on the order of a High Court judge. At left are attorneys Gerald Ramdeen and Narisa –
A HIGH COURT judge on Friday ordered the immediate release of a Venezuelan teenager and his mother.
The two had been detained at the Chaguaramas Heliport since December 15, 2020. On July 14, the Privy Council ruled the boy’s detention for 19 months was unlawful.
The apex court deferred to the High Court on whether Luisa Martinez Hernandez and her 15-year-old son Jesus Martinez’s period of detention was reasonable.
On Friday, Justice Margaret Mohammed said it was not.
In an oral decision, Mohammed said she considered the detention period of over ten months and their likely future detention beyond 2022 until their constitutional claim is heard by another court.
She said the status of the constitutional claim was important, but it had not advanced since May 19, 2021.
A status hearing is set for October 20, with decisions on preliminary objections to evidence and a recusal application to be made by the judge hearing it.
She said the delay was no fault of the two and, as a result, she was of the opinion their continued detention was unreasonable.
On Thursday, Mohammed refused an application by the State to have the hearing treated as a case-management conference to set dates for filing affidavits on behalf of the Chief Immigration Officer.
She refused the request because the length of detention of the two, one of whom was a minor, and the inability of senior counsel to argue the case at the time were not good reasons for her to prolong the issue remitted by the Privy Council for her to consider.
She said the State was aware of the Privy Council’s ruling and should have started to put its case together to assist the court.
“There was a duty to treat the matter with urgency and work diligently to assist the court.”
Mohammed referred to an affidavit filed overnight by the State, saying it showed attorneys were capable to treat the matter with urgency.
In response to submissions by the State’s lead counsel, Fyard Hosein, SC, that the constitutional motion had no real prospect of success, she said there were merits in the case which raised important and serious issues to be determined and the State had conceded this at the Privy Council hearing.
Mohammed said if this was not the case, then the State would have already taken steps to have it struck out.
On ruling on the reasonableness of the mother and son’s continued detention, she said, “Much weight is to be attached to the period of time they have been detained while pursuing a meritorious constitutional motion.”
She also spoke of the effects of their detention at the state-run military facility, saying it had adversely affected their mental and physical health.
“As a young person in his formative years, there is no evidence he has been afforded educational training,” she said, adding it was not in the boy’s best interest.
She also said there was minimum risk of either of them absconding, as the boy’s father was living in Trinidad as an asylum seeker. The mother and the boy are part of his case before the UNCHR.
“He has a place to stay.”
She also said the two were willing to subject themselves to orders of supervision.
“This court is of the view it would not be reasonable to continue to detain them while the constitutional motion is pending.”
Mohammed ordered their immediate release on orders of supervision in keeping with the Immigration Act.
Mohammed was hearing the habeas corpus application filed on behalf of the child and his mother, which called on the Chief Immigration Officer to justify their detention from December 15, 2020, to the present.
They have each been issued deportation orders but these have been stayed pending the determination of the constitutional claim before Justice Avason Quinlan-Williams.
They were part of a group that entered TT illegally in November 2020. They were escorted out of TT by the Coast Guard but returned days later. They were held again and detained in quarantine and then on deportation orders.
The Privy Council’s landmark ruling dealt with the State’s exercise of power to detain children under an unwritten policy that when a parent and child enter Trinidad and Tobago illegally, a deportation order is also taken as a deportation order against the child.
They held the child had been subject to “a non-judicial detention” and said: “Lawful authority to detain cannot be derived from the respondent’s policy.”
The mother and son were represented by attorney Gerald Ramdeen, Umesh Maharaj and Dayadai Harripaul.
Also appearing with Hosein for the State were Sanjiv Sookoo, Vincent Jardine and Ameera Rahaman.