CAUGHT: Under the watchful gaze of a policeman, these Venezuelans caught illegally entering Trinidad in Carenage make their way to a police bus back in 2019. FILE PHOTO –
REFUGEES and asylum-seekers can be deported if they run afoul of local immigration laws since obligations under the 1951 UN Refugee Convention, and the principles of non-refoulment, do not apply to TT as they are not incorporated into domestic law, the High Court has ruled.
This means all migrants are subject to provisions of the Immigration Act and they, asylum and refugee seekers can be deported even if they register with the UN’s Refugee Agency (UNHCR).
These declarations were made by Justice Frank Seepersad on Tuesday as he settled the long-standing issue over the applicability of local immigration laws on refugees.
The judge was presiding over a judicial review and constitutional claim of Venezuelan national Yohan Jesus Rangel Dominguez who challenged a deportation order by the Minister of National Security in March.
Seepersad was asked to consider whether local immigration law was compatible with this country’s international obligations to refugees.
Dominguez, 33, was charged with illegal entry in August. His application said he fled Venezuela in fear of being persecuted by that country’s government. He was granted refugee status by the UN High Commissioner for Refugees (UNHCR) in April, last year, but was arrested months later while in a taxi in Fyzabad.
The father of four pleaded guilty to illegally entering TT and was fined $2,000. In March, he was issued a deportation order.
In the lawsuit, he claimed his proposed deportation was illegal based on this country’s international obligations to refugees.
His lawyers pointed to the UN’s 1951 Convention Relating to the Status of Refugees which advocates against returning refugees to a country where they would probably face persecution (non-refoulement). TT signed on to this convention in 2000.
Justice Frank Seepersad –
Seepersad said the enactment of legislation to incorporate provisions of the 1951 refugee convention fell squarely in the legislature’s remit.
“This body must invariably respond to the macro-political and macro-economic policies and directives as determined by Government.
“No court can legitimately usurp the authority of a Government to formulate its macro-economic and socio-policy positions.”
He said although there was a 2014 policy developed by Government to address the situation of refugees and asylum seekers, which was adopted by Cabinet, it did not make the unambiguous statement that TT agreed to accept refugees or asylum-seekers.
“Notably, no evidence was adduced before this court to suggest that by virtue of the said policy that any 1951 Refugee Convention implementing procedure or process was actually adopted and/or engaged.”
Seepersad said the Executive could not, by way of policy formulation, circumvent the legislative authority of Parliament.
“Cabinet does not make law and that power falls under the sole remit of the Legislature. The contention that the 2014 policy formalised and/or incorporated the 1951 Refugee Convention obligations into the domestic legal framework is quite frankly absurd and devoid of merit.”
Up to April, TT had over 25,000 asylum-seekers and refugees from 38 countries.
Seepersad said TT’s borders are being breached with impunity and the inflow of migrants continues unabated.
“For over 23 years, the State has vacillated with respect to the implementation and incorporation of the obligations outlined under the 1951 Refugee Convention into the domestic legislative framework.
“This indecision has not augured well for this Republic. A proactive legislative response is now urgently required to deal with this current circumstance and there should be legislative clarity and a determination should be made with respect to the extent to which the 1951 Refugee Convention obligations are to be incorporated into domestic law,” Seepersad said.
He said it may well be that TT can benefit from the presence of migrants with specific skill sets. However, he noted the prevailing economic climate suggests the country may lack resources to adopt a “come all ye who labour and are heavily laden and we shall give you rest” approach.
“A structured, measured and formalised legislative process may therefore encourage and facilitate the meaningful incorporation and integration of a manageable number of migrants into society and its workforce. This type of measured approach can ultimately endure to the economic benefit of TT.”
He also said the failure of the State to incorporate the convention or take decisive action to effect its obligations was “unfortunate and regrettable.”
“This situation can have consequences and this non-compliance may adversely affect this nation’s international reputation and possibly attract the imposition of sanctions to register international disapproval of TT’s failure to legislatively incorporate treaty obligations.
“However no international body can, at this stage, mandate or demand that this sovereign Republic is bound by or that it must adhere to and/or implement the 1951 Refugee Convention obligations.”
For this reason, Seepersad said, the convention could be used to circumvent local immigration laws so Dominguez could not argue that the principle of non-refoulment applied to him.
“The matters complained of by the claimant with respect to perceived rights and/or entitlements…are misguided, patently non-justiciable and fall outside the scope of either judicial or constitutional review.”
In his ruling, Seepersad said there was no evidence to suggest that the 2014 policy formed part of the Immigration Division’s practices or procedures which would have allowed asylum/refugee status seekers to override provisions of the Immigration Act.
“The said 2014 document has never been cloaked with legal efficacy and cannot be used to usurp the provisions of the Immigration Act,” he said.
He said for the court to say there was such an expectation for protection “would be tantamount to the indirect enforcement of the treaty.”
Seepersad said when Dominguez entered TT, Government had expressly said illegal immigrants, whether or not they had an asylum-seeker certificate, would be treated in accordance with provisions of the Immigration Act.
He said, from the evidence, it could not be said that the government’s approach was “arbitrary or irrational.”
“This is a small island State with limited and over-taxed resources. The unlawful, unregulated, uncontrolled and unrelenting influx of migrants purporting to be refugees and/or asylum seekers posed and still poses critical challenges and has significant societal consequences.
“The influx of migrants is a circumstance which materially impacts upon the lives and resources of every citizen of this Republic. The Government was therefore entitled to reconsider the approach to be adopted and to re-evaluate its policy implementation response.”
He also rejected arguments that by ratifying the 1951 convention, Government had accepted the UNHCR as the body to handle potential refugees who came to TT.
“This body has not been incorporated into this Republic’s domestic immigration and/or legislative network.”
Seepersad said, at times, international organisations, emboldened by unlimited resources and the support of developed nations, can “lose sight of the prevailing economic, societal and infrastructural limitations under which small nations such as TT operate.
“Though well-intentioned and driven by their principled enthusiasm, they may disregard or discount the practical operative conditions and constraints which may need to be addressed to ensure the receiving country’s continued survival, viability and functionality.”
He said it must be understood that “international agreements cannot obviate the need to respect a nation’s sovereignty or dismiss its constitutional supremacy.
“On a humanitarian level, there does exist the requirement, so far as is practicable, to assist and support refugees.”
In treating Dominguez’s objection to the deportation order, Seepersad said the minister’s decision was reasonable, rational, fair and proportionate.
He said Dominguez admitted to entering TT illegally at a beach in the Morne Diablo area on an unknown vessel. He also did not have a Venezuelan passport nor did he have a visa and gained employment without a work permit, violating several immigration regulations.
“This type of disrespect and disregard for the laws of Trinidad and Tobago, the supremacy of the Republican Constitution and the sovereignty of this State must be condemned and cannot be condoned. The laws of this Republic must be respected and should be rigidly enforced.”
Dominguez was represented by John Heath, SC, Shalini Sankar and Annesia Gunness. The division’s legal team included Sasha Sukhram, Jayanti Teeluckdharry and Vincent Jardine.
Editor’s Note: This is an update to a story which was published online earlier and which can be read below.
HUNDREDS of refugee seekers can be deported if they run afoul of local immigration laws as the High Court has declared that the obligations under the 1951 United Nations Refugee Convention and the principles of non-refoulment do not apply to TT as they are not incorporated in domestic law.
This means that all migrants are subject to the provisions of the Immigration Act and migrants, asylum and refugee seekers can be deported even if they have registered with the UN’s Refugee Agency (UNHCR).
The declarations were made by Justice Frank Seepersad on Tuesday, as he settled the long-standing issue over the applicability of local immigration laws on refugees.
He was presiding over the judicial review and constitutional claim of Yohan Jesus Rangel Dominguez, who challenged a deportation order by the Minister of National Security in March.
Seepersad had been asked to consider whether local immigration legislation is compatible with this country’s international obligations to refugees. According to the evidence in the case, in April last year, the United Nations High Commissioner for Refugees (UNHCR) granted the man refugee status. Several months later, he was arrested while travelling in a taxi in Fyzabad and charged with entering the country illegally. The 33-year-old father of four pleaded guilty to the offence and was fined $2,000.
He was then placed on an order of supervision by the division after providing a $2,100 bond.
In March, the division detained him and issued him a deportation order. In the lawsuit, he claimed his proposed deportation was illegal based on this country’s international obligations to refugees.
His lawyers pointed to the United Nations’ 1951 Convention Relating to the Status of Refugees, which this country signed on to in November 2000 and advocates against returning refugees to a country where they would probably face persecution (non-refoulment). The man was represented by John Heath, SC, Shalini Sankar, and Annesia Gunness. The division’s legal team included Sasha Sukhram, Jayanti Teeluckdharry, and Vincent Jardine.
Click here to read our initial story on this matter.