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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CV 2019-01694

THASANBABU SINNATHURAI

Claimant

AND

THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO Defendant

BEFORE THE HONOURABLE MADAME JUSTICE JOAN CHARLES

Appearances: Claimant: Matthew G W Gayle instructed by Crystal S. Paul

Defendant: Natoya Moore, Maria Belmar-Williams instructed by Svetlana

Dass and Kadine Matthew

Date of Delivery: 12th day of March, 2020

JUDGMENT

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THE CLAIM

[1] By Fixed Date Claim Form filed on the 25th April 2019, the Claimant

sought the following reliefs against the Defendant:

a. A declaration that the detention of the Claimant from the 1st September

2015 to the 11th September 2015 or any part thereof at the Remand

Section of the Maximum Security Prison (MSP), was unlawful and/or

harsh and/or oppressive and/or arbitrary and/or unconstitutional, as it

infringed the rights of the Claimant enshrined by Sections 4 (a); 4 (c); 4

(d); 5 (2) (a); and 5 (2) (c) (i); 5 (2) (c) (ii); 5 (2) (c) (iii); 5 (2) (c) (iv) of the

Constitution of the Republic of Trinidad and Tobago;

b. A declaration that the Claimant’s right to equality before the law and the

protection of the law as guaranteed to him by Section 4(b) and Section 4(d)

of the said Constitution was infringed as a result of the Defendant’s failure

to carry out a Special Inquiry promptly;

c. A declaration that the Claimant’s right to a fair hearing pursuant to

Section 5(2) (e) of the Constitution was infringed at the Special Inquiry.

d. A declaration that the fifteen months, twelve days period of detention, that

is from the 11th September 2015 to the 23rd December 2016, or any part

thereof in Immigration custody was unlawful and/or violated the

Claimant’s rights as enshrined in Sections 4(a), 4(c), 4(d), 5 (2) (a), 5 (2)

(C)(1) of the Constitution;

e. Damages, including aggravated and exemplary damages for wrongful

detention and/or breaches of his fundamental rights and freedoms as

enshrined in the Constitution

f. Costs.

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THE HISTORICAL BACKGROUND

[2] a. On January 10th 2011, the Claimant arrived in Trinidad and Tobago

via the Piarco International Airport. Upon his arrival, he tendered to

Immigration officers a work permit which was determined after forensic

analysis to be fraudulent. A special Inquiry was held on that said date,

January 10th 2011, and adjourned pending further investigation;

meanwhile the purported work permit was sent to the Forensic Sciences

Centre for analysis and report;

b. On the 25th January 2011, it was confirmed that in fact the document was

fraudulent;

c. On the 28th January 2011, the Claimant was charged with the offence of

uttering a forged document; the matter was heard and determined at the

Arima Magistrate’s Court where he was remanded into custody on the 28th

January 2011;

d. On the 1st February 2011, he was convicted and sentenced to a term of

imprisonment of two years’ hard labour;

e. He filed a Notice of Appeal against the conviction and sentence;

f. On the 13th September 2011, his application for bail from the High Court

was successful and he was able to secure bail pending the appeal of his

conviction in the sum of fifty thousand dollars ($50,000.00) with a surety.

However, he was not able to access the bail until sometime thereafter.

g. On the 24th February 2012, the Immigration Division received information

from the Living Waters Community that the Claimant had applied for

refugee status. He was thereafter released on several orders of

supervision pending that application for refugee status as well as pending

the appeal against conviction.

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[3] The Orders of supervision continued up to January 7th 2015 when the

Special Inquiry was adjourned to the 4th February 2015. The Claimant did

not attend the hearing on the 4th February 2015, however; he instead

attempted to leave Trinidad and Tobago by means of a Canadian passport.

On the 24th August 2015, the Claimant was charged with attempting to

leave Trinidad and Tobago by means of a fraudulent Canadian passport.

He pleaded guilty to that charge and was fined the sum of $15,000.00, in

default of payment, 6 months’ hard labour. Thereafter he was remanded

into custody on a warrant of commitment issued by the Magistrate’s

Court as well as a Detention Order dated 24th August 2015. On the 1st

September 2015, the Claimant paid the fine but was returned to the

custody of the MSP under the authority of the Detention Order issued by

the Immigration authorities on the 24th August 2015. On 10th September

2015, an Order of Release was issued to the Commissioner of Prisons

directing the release of the Claimant to Immigration custody. An Order of

Detention was simultaneously issued to the Administrator of the

Immigration Detention Centre (IDC). On the 11th September 2015 he was

released into the custody of the Immigration Department. The Defendant

however asserted that the Claimant was released to Immigration Officials

on the 10th September 2015.

[4] The Claimant deposed that while detained at the MSP, he suffered mental

anguish not knowing the reason for his continued detention; endured

deplorable conditions (meals lacked basic nutrients ; he was confined to

a small overcrowded cell; there was a shortage of water to flush the

toilet and a shortage of drinking water available; he was deprived of

sleep because of disruptive behaviour of other inmates); he experienced

mood swings, headaches, dizziness and an overall feeling of

disorientation. He also alleged that he experienced feelings of depression

and anxiety and that to date he experiences difficulty sleeping.

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[5] On the other hand, Anwar Hoosaney, Assistant Superintendent of Prisons

(Ag.), deposed on behalf of the Defendant that the cells at the MSP measure

approximately 10 ft. by 10 ft.; within each cell there are 3 single beds, a

sink with running water and an open toilet bowl. The toilets contain

neither seats nor covers as these items were used in the past to make

improvised weapons. Anwar Hoosaney also deposed that running water is

supplied to the tap and toilet in the cells of the MSP and that this supply

is regular; that during the periods when there is a reduced supply of water

the MSP is able to access running water from a stored supply of water

which is pumped into the institution via mechanical equipment and at all

times inmates are allowed to store bottles of water in their cells for use

during those periods when the supply of water is turned off. With respect

to the allegations about non nutritional meals, Anwar Hoosaney testified

that there is no record of the Claimant making any complaints about his

diet. He also testified that there is no record of a complaint by the

Claimant of him being unable to sleep as a result of loud and/or incessant

talking of prisoners; that there is no record of any complaint which

was made by the Claimant about him experiencing mood swings

headaches, dizziness and an overall feeling of disorientation.

[6] On 22nd February, 2016 the Special Inquiry (which had been adjourned

on 10th January 2011 pending further investigations into the fraudulent

work permit, and further adjourned on 2nd March, 2012 pending

determination of the Claimant’s application for refugee status and his

ongoing appeal), was re-convened and the Claimant was ordered deported.

At the Special Inquiry, the Claimant was represented by an Attorney- at-

Law and he had the services of an interpreter. The Special Inquiry Officer

received and considered evidence in the form of Magisterial Court Extracts

for Information Numbers 747/11 and 5725/11. At the end of the Inquiry

the Claimant was ordered deported because he was found to be a member

of the prohibited class of persons described in Section 8 (1)(d) of the

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Immigration Act1. The Deportation Order was served on the Claimant on

the same day and signed by him as well. The Claimant stated that he

wished to appeal said Deportation Order and the necessary forms were

forwarded to him and his attorney. No notice of appeal was received within

the twenty-four hours after the decision of the Special Inquiry Officer.

[7] In or around April 2016 the Claimant was housed at the Eastern

Correctional and Rehabilitation Centre in Santa Rosa (ECRC) until 18th

July, 2016 when he was released from ECRC to custody of Immigration

Officers at IDC.

[8] The Claimant complained about the conditions under which he was

detained at the ECRC2. He claimed that whilst housed at ECRC over a

period of 4 months, he had been housed in a cargo container with 4 other

detainees, some of whom were accused of serious offences, including

murder; that he was confined to the said container for approximately 22

½ hours per day and endured extremely hot conditions therein; was

allowed 10 minute breaks for breakfast and lunch and about 1 hour in the

evening outside the container for recreation. He further deposed, without

any medical report to support his claims, that while at the ECRC he felt

fatigued, experienced headaches, dizziness, lightheadedness, blackouts

and blurred vision. The Claimant also stated that he often “felt that his

blood pressure was high.” Mr. Thassanbabu also claimed that he

experienced sharp pains on the left side of his chest but admitted that the

doctor who saw him did not confirm that he suffered a heart attack. He

also complained about “psychological pressure” he experienced because of

the length of his detention.

1 8(1)(d) persons who have been convicted of or admit having committed any crime, which if committed in Trinidad and Tobago would be

punishable with imprisonment for one or more years; 2 paragraphs 36 to 47 of the Claimant’s Affidavit

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[9] In response, Wedd Eastman, Acting Superintendent of Prisons stationed

at ECRC, deposed that detainees with Immigration offences are housed in

the Venculum Division at the ECRC, which is made up of retrofitted cargo

containers which contain 1 to 2 double decker beds, a sink and a toilet.

He testified that there are bars which allow air and light to enter the

containers housed within the warehouse building and there are four

showers located in a separate container for detainees’ use. He testified

further that Immigration detainees are housed separate and apart from

the prison inmates on remand in accordance with the prison service

practice of classification of inmates. Mr. Wedd also stated that at the ECRC

the various Divisions are not aired together and that inmates in each

Division are aired one hour daily in compliance with the United Nations

Standard Minimum Rules for the Treatment of Prisoners. Wedd Eastman

also revealed that a check of ECRC’s records revealed that there was no

information relative to medical or any other complaints made by the

Claimant whilst detained at ECRC.

[10] On 2nd August 2016, the Claimant’s attorney wrote to the Division

requesting the release of his client on Orders of Supervision. By letter

dated 5th August 2016, the Immigration Division informed Mr. Gayle that

they were not at that time in a position to release the Claimant by reason

of the latter’s multiple convictions in Trinidad and Tobago, failed United

Nations High Commission for Refugees (UNHCR) application, and failed

attempts to have his client produce a ticket for his repatriation.

[11] On 28th October 2016, the Claimant’s attorney once again wrote to the

Division enclosing a ticket for the repatriation of the Claimant. He

indicated that the ticket had been paid for, however it could be cancelled

if notice of the suitability of the route was received by him by 4:30p.m.

that evening. An Immigration Officer responded to the Claimant’s attorney

via telephone informing him that the route proposed was covered over two

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tickets, one ticket endorsing a route until Sao Paulo, Brazil, and a separate

ticket endorsing a route from Sao Paulo to Sri Lanka. The Claimant’s

attorney was informed that the ticket needed to be in the form of one

continuous ticket through all stops on the proposed route to avoid

cancellation of the proposed second ticket upon arriving in Sao Paulo. As

such, the tickets purchased and forwarded by the Claimant’s attorney was

not usable and he was advised to seek a refund. The Claimant was

therefore unable to travel on the proposed departure date of 30th October

2016.

[12] By letter dated 22nd December, 2016 the UNHCR informed the Chief

Immigration Officer that the Claimant’s case was re-opened and he was

reinterviewed on the 23rd November 2016. Further, that after

reassessment of his case, the Claimant was determined to be a refugee;

they accordingly requested that he be released from the IDC owing to his

new status.

[13] On 23rd December, 2016 the Claimant was placed on an Order of

Supervision as a result of his status as a registered refugee with the

UNHCR to report next on the 23rd January 2017 at the Refugee Unit of

the Immigration Division. An Order of Release was therefore issued to the

Administrator of the IDC to facilitate the Claimant’s release. In accordance

with Trinidad and Tobago’s obligations pursuant to the Refugee

Convention of 1951, the Immigration Division suspended execution of the

deportation order against the Claimant in order to facilitate his

resettlement to a suitable host country by the UNHCR.

[14] The Claimant has continued to be placed on consecutive Orders of

Supervision from the 23rd December 2016 to date, reporting to the Senior

Immigration Officer of the Refugee Unit pending resettlement.

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ISSUES

(i) Whether the Claimant had been wrongfully detained from the 1st

September 2015 to the 11th September 2015

[15] The Claimant submitted that he had not been given a Rejection Order

upon his entry into Trinidad and Tobago and was therefore a permitted

entrant under S9(1) of the Immigration Act Chapter 18:01.3The

Claimant submitted further that there was also no evidence, that the

Minister had issued a declaration changing the Claimant’s status from a

permitted entrant to that of a person not permitted to enter and in the

circumstances, he argued that the detention of the Claimant was therefore

void, illegal and unconstitutional.

[16] The Defendant argued to the contrary that upon the Claimant’s arrival, a

special inquiry was convened and that inquiry had been adjourned

pending an investigation into whether the work permit submitted by the

Claimant to Immigration officials was fraudulent. Once it was determined

that the work permit was indeed fraudulent the Claimant had been

charged; once he was charged and convicted, he was thereafter not a

permitted entrant.

3 9. (1) An immigration officer may allow to enter Trinidad and Tobago on such conditions and for such periods as may be fit and proper in any

particular case, the following persons or classes of persons, as the case may be: (a) persons who are diplomatic or consular officers or representatives or officials duly accredited, of any country, or of the United Nations or any of its agencies or of any inter-governmental organisation in which Trinidad and Tobago participates, coming to Trinidad and Tobago to carry out their official duties or passing through intransit, or members of the suites or families of such persons; (b) members of any naval, army or air forces who come to Trinidad and Tobago for training or otherwise in connection with the defence and security interests of Trinidad and Tobago, or under the provisions of any treaty or agreement between Trinidad and Tobago and another country and whose entry into Trinidad and Tobago is approved by the Minister, together with such members of their families or suites as may be approved; (c) tourists or visitors; (d) persons passing through Trinidad and Tobago to another country; LAWS OF TRINIDAD AND TOBAGO LAWS OF TRINIDAD AND TOBAGO (e) clergymen, priests or members of a religious order entering Trinidad and Tobago or who, having entered, are in Trinidad and Tobago in connection with the carrying out of their religious duties in accordance with regulations made in that behalf; (f) students entering Trinidad and Tobago for the purpose of attending, and who having entered Trinidad and Tobago are in actual attendance at, a university or college authorised by statute or charter to confer degrees; (g) persons who have been accepted as students by an educational or training establishment recognised by the Permanent Secretary to the Minister, or the Chief Immigration Officer, and who, after entering Trinidad and Tobago are in actual attendance at such educational or training establishment; (h) members of crews entering Trinidad and Tobago or who, having entered are in Trinidad and Tobago for shore leave or some other legitimate and temporary purpose; and (i) persons entering Trinidad and Tobago for the purpose of engaging in a legitimate profession, trade or occupation.

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[17] The Defendant also pointed out that upon conviction the Claimant

appealed and had been granted bail pending appeal. The Special Inquiry

had been adjourned pending the outcome of his appeal.

[18] The Defendant argued that once the Immigration Department had been

notified that he had applied for refugee status, it was important that that

application be determined having regard to Trinidad and Tobago’s

obligations under the United Nation’s treaty relative to persons applying

for refugee status in member countries. It was only upon the determination

of this application, that the inquiry was eventually held. When a

deportation order was issued at the conclusion of that Special Inquiry the

Claimant’s status as a non-permitted entrant was determined.

[19] The Defendant also urged, distinguishing the Privy Council case of

Naidike and others v the Attorney General of Trinidad and Tobago

[2004]4 that the Claimant had never been a permitted entrant, there had

been no declaration by the Minister that he was a permitted entrant; there

was therefore no need for a declaration by the Minister that the Claimant

had ceased to be a permitted entrant.

ANALYSIS

[20] I note first of all that there is no evidence of a Rejection Order issued to

the Claimant upon his arrival in Trinidad and Tobago. I note Section

21(1)(b) of the Immigration Act5 provides that where an Immigration

4 UKPC 49 5 (1)Where an immigration officer, after examination of a person seeking to enter into Trinidad and Tobago, is of opinion that it would or may

be contrary to a provision of this Act or the regulations to grant admission to such person into Trinidad and Tobago, he may either -

(a)make an order for the rejection of such person; or

(b)cause such person to be detained pending the submission of a report to a Special Inquiry Officer.

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Officer is of the opinion that it may be contrary to a provision of the Act or

regulations to grant admissions to such persons into Trinidad and Tobago

he may either:

a. issue a Rejection Order or

b. cause such person to be detained pending the submission of a report

to a Special Inquiry

[21] A Special Inquiry was convened at the airport on the 10th January 2011,

when the Claimant sought entry with a suspect work permit. That Inquiry

was adjourned pending further investigation with respect to the

authenticity of the work permit. The Claimant was then detained, lawfully

in my view, pending the outcome of the said Inquiry. On 25th January

2011, it was confirmed by the Forensic Science Centre that the work

permit was indeed fraudulent. Accordingly, the Claimant was charged for

this offence on the 28th January 2011 and convicted before a Magistrate

on the 1st February 2011. He was thereafter remanded into custody. He

obtained bail on the 13th September 2011, pending appeal, but he was

only able to access that bail on the 24th February 2012, when he was

placed on orders of supervision by the Immigration Division.

[22] The Claimant applied to the UNHCR for refugee status and was placed on

further orders of supervision pending this application, as well as his

appeal against conviction.

[23] On the 22nd April 2014, the UNHCR informed the Claimant that his

application for refugee status was refused. The Claimant was put under

further orders of supervision pending his appeal.

[24] On the 7th January 2015, he was ordered to return to the Immigration

Division on the 4th February 2015, but he failed to do so. He later

attempted to leave Trinidad and Tobago using a Canadian passport under

a different name. He was detained, interviewed by an immigration officer

and returned to the Detention Centre.

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[25] No complaint has been made by the Claimant about his detention in

February, rightly so in my view. Again, pursuant to Section 21(1)(b) the

Immigration Officer was entitled to order that he be detained pending

further Inquiries. He was charged on the 24th August 2015 with the

offence of leaving Trinidad and Tobago by means of a fraudulent passport

and pleaded guilty.

[26] On the 1st September 2015, he was fined $15,000.00, which he paid the

same day. By this time, the Claimant having been convicted of two criminal

offences and subject to a special inquiry being held, he was liable to be

deported. It is to be noted that the Claimant had not been declared a

permitted entrant upon his arrival on the 10th January 2011, he was

instead detained pending further inquiry into his suspect work permit.

[27] In the circumstances, this case is to be distinguished from Naidike and

others v the Attorney General of Trinidad and Tobago [2004]6, in that

the Claimant had never been determined to be a permitted entrant. His

status was to be determined upon conclusion of the Special Inquiry as I

outlined above. Given the history of fraudulent activity surrounding his

travel documents, the Immigration Department was well within its rights

to detain the Claimant for the purpose of concluding the adjourned Special

Inquiry.

[28] With respect to the detention from the 1st September 2015 to the 11th

September 2015, what complicates that situation is that the Claimant

having been brought to court, was sentenced, and the punishment was

that he pay a fine which he paid the very same day. It is within the remit

of the Immigration Department to either detain the Claimant at one of their

facilities or indeed to have him detained at any place which the Minister

may permit. No explanation has been given as to why the Claimant was

not transferred to one of the facilities operated by the Immigration

6 UKPC 49

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Department; that has caused me some difficulty in this matter. However,

given the fact of the history of the Claimant, and given the power of the

Immigration Department under Section 16 of the Immigration Act7 to

detain a person not only at one of the Detention Centres, but at any place

the Minister deems to be appropriate, then his detention at the MSP, before

transfer to the International Detention Centre, in my view, was lawful. I

have therefore come to the conclusion that there was no breach of the

Claimant’s Constitutional Right to liberty of the person insofar as his

detention for that period was concerned.

[29] The Claimant’s detention from 11th September 2015 to the 23rd December

2016 was in conformity with Section 16 of the Immigration Act in that

he was a person in respect of whom a Special Inquiry was to be held and

his detention is permitted pending such Inquiry. Further, the Claimant

had demonstrated up to that time that he was a flight risk having sought

to leave the country while on bail using a fraudulent Canadian passport.

It is to be noted that he was convicted for using a fraudulent work permit

upon entry into Trinidad and Tobago.

[30] I also do not consider that there was an inordinate delay in holding the

Special Inquiry some five months after he was detained by the Immigration

Division in September 2015. A Deportation Order having been issued by

the Division, the Claimant indicated his willingness to purchase his ticket

for repatriation to his home country; however it was not until October 2016

that he produced said ticket, which had to be refunded and reissued, in

order to secure the Claimant’s flight home. While this was still being

arranged, the Claimant was declared a refugee by the UNHCR on the 22nd

7 Section 16 of the Act provides as follows:

“16. Any person in respect of whom an inquiry is to be held, or an examination under section 18 has been deferred under section 20, or a

deportation or rejection order has been made may be detained pending inquiry, examination, appeal or deportation at an

immigration station or other place satisfactory to the Minister.”

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December 2016, whereupon he was placed upon orders of supervision

from the 23rd December 2016. It therefore follows in my view that the

Claimant’s detention from the 15th September 2015 to the 23rd December

2016 was lawful.

[31] I do not agree that the Claimant’s Rights to equality before the law and

the protection of the law were infringed at the Special Inquiry or at all.

[32] I did not accept the Claimant’s complaints about the conditions under

which he was held at the Maximum Security Prison, the ECRC and the

IDC. It was clear that there was a conflict on the evidence and in the

absence of an application for cross-examination by the Claimant, this

Court then had to accept the version proffered by the Defendant8. I also

note that no evidence has been adduced by the Claimant to support his

contention that he had been ill while in custody either at the Maximum

Security Prison or at the Immigration Detention Centre.

[33] The Claimant appeared to have abandoned this ground of relief since he

did not make any submissions in support thereof. In any event, no

evidence was adduced by the Claimant to establish that there was a breach

of his right to equality before the law. He has not shown that he was treated

any differently from similarly circumstanced persons - accordingly this

ground must fail. The well-known authority of Mohanlal Bhagwandeen v

The Attorney General of Trinidad and Tobago [2004]9 clearly set out

8PH Americas Limited v Trinidad and Tobago Civil Aviation Authority CV 2016-00715 “60. In R v Board of Visitor of Hull Prison, Ex parte St

Germain and Others (N0.2) [1979] 1 WLR 1401 at page 1411, the Court held that where the matter has to be decided on affidavit evidence

without the benefit of cross-examination the Court is obliged to take the facts, in issue, as they are deposed to on behalf of the Defendant.

61. Cross-examination is not a circumstance that would readily occur in the course of the determination of judicial review proceedings. Where

however there are factual disputes and the evidence by the parties are diametrically opposed they should generally be resolved in favour of the

Defendants. This approach was adopted in Sasha Seepersad v Her Worship, Magistrate Marcia Ayers Caesar et al CV 2015-02944 and in Grannum

v The Attorney General of Trinidad and Tobago HCA No. 1891 of 2002.”

9 UKPC 21, Privy Council Appeal No. 45 of 2003

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the principles of law to be applied in the case of an allegation that a

Claimant’s right to equality before the law has been breached.10

[34] As regards the Claimant’s allegation that his right to protection of the law

was breached, I note that at the Special Inquiry the Claimant was

represented by an attorney at law and his access to the court was not

hindered in any way. It was open to him to challenge his detention at any

time by applying for a writ of habeas corpus, which he clearly chose not to

do. In the circumstances I hold that his Right to the protection of the law

and due process was not infringed.

[35] In the circumstances, having come to the conclusion that Mr.

Thassanbabu had been lawfully detained by the Immigration Department

during the periods complained of by the Claimant, and especially from the

1st September 2015 to the 11th September 2015 and that there had been

no breach of his Constitutional Rights, I therefore hold that the Claimant’s

application is dismissed.

[36] In the circumstances I ordered:

a. That the Claimant’s Fixed Date claim be dismissed

b. That the Claimant to pay two thirds of the Defendant’s costs to be

assessed by the Registrar in default of agreement.

Joan Charles

Judge

10 "A claimant who alleges inequality of treatment or its synonym discrimination must ordinarily establish that he has been or would be

treated differently from some other similarly circumstanced person or persons, described by Lord Hutton in Shamoon v Chief Constable of

the Royal Ulster Constabulary [2003] 2 All ER 26 at paragraph 71 as actual or hypothetical comparators. The phrase which is common to the

anti-discrimination provisions in the legislation of the United Kingdom is that the comparison must be such that the relevant circumstances in

the one case are the same, or not materially different, in the other.”