Kajeepan, Paintamilkavalan v Derek Been, Director of Immigration
| Jurisdiction | Turks and Caicos Islands |
| Judge | Mottley P. |
| Judgment Date | 31 December 2020 |
| Neutral Citation | TC 2020 CA 17 |
| Docket Number | CL-AP 4/20 |
| Court | Court of Appeal (Turks and Caicos) |
Sir Elliott Mottley President
The Hon. Mr. Justice Stanley John Justice of Appeal
The Hon. Mr. Justice Ian Winder Justice of Appeal
CL-AP 4/20
IN THE COURT OF APPEAL
Mr. Philip Rule with Mr. Tim Prudhoe for the Appellants
Ms. Clemar Hippolyte for the Respondents
The Turks and Caicos Islands consists of 8 main Islands and more than 22 smaller Islands. The land area of the Islands is approximately 616.3 square kilometers. The islands form a chain which stretch north to south. The borders of the Islands are open without any security except in some of the larger Islands. The Islands are vulnerable to human trafficking and smuggling. Sri Lanka is an Island in the Indian Ocean about 15560 kilometers away from the Turks and Caicos Islands (TCI).
On 10 October 2019, a Haitian sloop with 154 persons onboard was intercepted in the territorial waters of the Turks and Caicos Islands by the Marine Branch of the Royal Turks and Caicos Islands Police Force (“RTCIPF”). Because of the porous nature of the borders of TCI, the immigration authorities have serious concerns about human trafficking and/or smuggling. On board on the sloop were twenty-eight (28) Sri Lankan nationals (including the appellant) and one (1) Indian national (all males). The Sri Lankans and the Indian national were detained at the Immigration Detention Center, where they were under the control of the Department of Immigration and Border Control. The assistance of the RTCIPF was sought to assist the Immigration Enforcement Unit with the investigations into the circumstances surrounding the Sri Lankan Nationals being in the territorial waters of the Turks and Caicos Islands. It was a very unusual occurrence to have Sri Lankan nationals illegally or unlawfully seeking to enter the Turks and Caicos Islands.
It is a criminal offence under section 102 of the Immigration Ordinance Cap. 5.01 (the Ordinance) for a person to enter TCI from any place outside of the Islands unless leave has been given to do so by an Immigration Officer. It was in these circumstances that the Sri Lankans including the appellants had been detained.
On 31 March 2020, Simons J (Ag) made an Order for a Writ of Habeas Corpus ad Subjiciendum to be issued to the First Respondent as Director of Immigration.
Following a hearing of the application by the Chief Justice on 24 April 2020, judgment was delivered on 1 May 2020. The Chief Justice stated “ the respondents on whom the burden lay to demonstrate the lawfulness of the applicants' detention have discharged that burden by showing a continuing intention to repatriate the applicants even in the face of the travel issues raised by COVID 19 pandemic. The continued engagement of Sri Lankan authorities by IOM on behalf of the first respondent indicates that the first respondent is not lax regarding his duty to effect the repatriation”
The Chief Justice was satisfied that, at that time, the delay in removing the applicants from TCI was for just cause, and therefore it did not affect the legality of the detention. She stated that it went without saying that should the detention of the applicants continue even after the restrictions on air travel had eased in both TCI and Sri Lanka, the detention, now lawful will at that point become unlawful.
The Chief Justice concluded that in her view, the detention of all the fifteen illegal immigrants (including the appellant who had refused to sign voluntary repatriation) was lawful in the beginning as done pending their removal from the Islands, continued to be lawful in spite of the delay in repatriation caused by the unforeseen circumstance of COVID 19.
The Chief Justice stated that she was satisfied that on the balance of the probabilities, the respondents had demonstrated that the applicants were not being unlawfully detained.
She went on to hold that the detention of the applicants pending removal was lawful, as pursuant to Ss.54(3) and 56(4) of the Ordinance.
The Chief Justice pointed out that she was mindful of the court's duty to protect and enforce fundamental rights enshrined in the Constitution of Turks and Caicos Islands (the Constitution), including freedom from the deprivation of liberty and the security of the person, as well as its caveats set out in S.5, and more particularly S.5 (2)(h) of the Constitution of the Turks and Caicos Islands.
The Chief Justice declined to interfere with the detention of the applicant at that time, as she considered the delay in repatriation was sufficiently explained as justified, especially as she stated, she was satisfied that the first respondent's intention to repatriate was active and continuing, and there is some prospect of achieving it without unreasonable delay.
The Chief Justice declared that the detention of the Applicants from 10 October 2019 up to the date of the hearing was deemed lawful having regard to all the circumstances and no order for release would be made at that time.
The appellants filed an amended Notice of Appeal against the Declaration of the Chief Justice in which she stated that the appellants' detention was deemed lawful and that no release would be ordered.
The second ground dealt with the appellants' objection, both to the production of the applicants on the Writ of Habeas Corpus of 21 April 2020 (“the Writ”) via video and audio facilities and the incomplete or partial appearance in that way of each of the Appellants from the Immigration Detention Centre, South Dock Road, Providenciales.
The appellants sought Orders from this Court that the appellants' detention was or is now unlawful and consequently the appellants should be released from detention. The appellants also sought orders that there was neither adequate production of the appellants on the Writ nor sufficient appearance of each of the appellants thereon.
It is common ground between the parties that the appellants were no longer in custody, having been released on 24 August 2020.
Counsel for the appellants submitted that under the Rules of the Court of Appeal, Rule 11.1, an appeal before the Court of Appeal is by way of re-hearing. Counsel submitted that this Court is therefore required to review the purported justification for detention advanced by the Respondent subsequent to the hearing of the applications for habeas corpus. This Court is invited by counsel to reach the contrary conclusion to that reached by the court below which held that the detention from 10 October 2019 to the date of 24 April 2020 “is deemed lawful having regard to all the circumstances and no order for release shall be made at this time”. It was submitted that this Court should consider the matter both as at 24 April 2020, by which date it is submitted the detention was already unjustified, but also as at the date of hearing of the appeal. It was argued that to do otherwise would be a failure on the part of the Court of Appeal to exercise the vigilant supervision over detention that is the raison d'etre of the court's habeas jurisdiction and right of appeal to speedily bring the request for the jealous safeguard of and return of liberty before this Court. It was also contended on behalf of the appellants that this Court should not only review the decision of the respondents to detain the appellants, but, instead, it has a duty to ascertain for itself whether the decision was lawful.
In the written submissions on behalf of the respondent, it was submitted that the appellants are constrained by the restriction with respect to the filing of fresh evidence which had not been brought before the judge in the court below. The evidence sought to be introduced was not “fresh” evidence as that term is generally understood, for it was not evidence in existence at the time of trial which could have affected the result. Instead, it was contended that it is evidence of events that occurred subsequent to the trial judgment. Generally speaking, the need for certainty and finality leaves no room for the admission of such evidence on appeal.
Counsel for the respondent submitted that a rehearing as expressly stated in rule 11 of the Court of Appeal Rules could not be interpreted as a rehearing “in the fullest sense of the word”. It was argued that rehearing on appeal under RSC Orders 55 and 59 were well understood not to extend to rehearings in the fullest sense of the word. Further, it was suggested, that the Court did not hear the case again from the start but reviewed the decision under appeal giving it the respect appropriate to the nature of the court, the subject matter and, importantly, the nature of those parts of the decision making process which were challenged. Ascribing one label or the other is a semantic exercise which does not answer such questions of substance as arise in any appeal.
The respondents respectfully submitted that the attribution of the label “rehearing” is not, other than exceptionally, necessary to enable the court upon a hearing by way of review to make the evaluative judgments necessary to determine whether the decision under appeal was manifestly wrong. The court will not normally interfere with the exercise of a discretion unless the decision of the lower court was reached on wrong principles or was otherwise plainly wrong. And this can be done on a hearing by way of review. It was said that Although Rule 11 of the Court of Appeal Rules expressly refers to a rehearing, the exercise upon which this Court was engaged was essentially one of review. In assessing whether the judge was clearly wrong in her assessment that the detention up to the 24 April, 2020 was...
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