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….says it lacked merit
Minutes before quashing the orders of deportation issued by the Magistrates’ Court against 26 Haitian nationals, Chief Justice (ag) Roxane George threw out an application filed by the Attorney General Anil Nandlall, which had intended to have the case challenging the deportation orders struck out.
In a last minute move to the High Court approximately two weeks ago, the Attorney General filed an Application for the dismissal of the case – Allandres Archer-v-The Attorney General – on the grounds that the applicant in the matter had no knowledge that his name was used to block the deportation order.
In laying his grounds, the Attorney General said that “…the Respondent [Archer] in a video recording obtained from the National Communication Network (NCN) indicated that the Respondent had no knowledge that he was the person bringing the action, against the Government of Guyana, represented therein, by the Applicant.”
The Attorney General is contending that while the Association of Haitian Nationals in Guyana asked Archer to provide its Attorney, Darren Wade with an Affidavit as a witness of what transpired the night the Haitians were arrested, it was never his intention to file a proceeding.
But the Chief Justice, in handing down her ruling on Wednesday, said the application filed by Nandlall was a “very strange” one and in fact lacked merit.
In noting that she would have listened to the recording, which was exhibited by the Attorney General, the Chief Justice said it was her humble opinion that Archer, in disputing the application, should have filed a Notice of Withdrawal, especially, when he was present during the hearings.
Further, she said it is unclear when the recording was done, who did it, and how it came to be done. The Attorney General had indicated that the recording was done on January 7, 2021, however, the Chief Justice said that it was rather strange that though Archer indicated in the very interview that he was going to seek legal advice to withdraw the case, he has not done so to date.
“It is my understanding that if someone feels as strongly as the applicant does, especially given what he said in the recording, then he would have filed his Notice of Withdrawal, he has not done so,” the Chief Justice said, while ruling that the application brought by the Attorney General lacked merit.
In doing so, the Chief Justice quashed the deportation orders on the grounds that there was a breach of natural justice.
On December 3, Principal Magistrate Sherdel Isaacs-Marcus, had granted orders for the 26 Haitian nationals to be deported, however, the Chief Justice, in quashing the orders, said there was a clear breach of the natural justice provisions.
“My reading of the provisions, especially Section 16 and 28 of the Immigration Act, indicate that the subjects [the Haitians] should have been taken to Court so that they could be heard,” the Chief Justice explained.
On December 18, 2020, the Chief Justice had asked the Attorney General to indicate whether the Combating of Trafficking in Persons Act was strictly complied with by the State in the handling of the Haitians, whom the State claimed were alleged TIP victims.
On Wednesday, the Chief Justice said though the directions of the Court were received, they were not complied with. Further, she said it is also clear that Article 139 of the Constitution, which provides for the protection of the right to personal liberty, and Article 148, protection of freedom of movement, were also breached.
The Haitians, seven of whom were children, were arrested hours after their arrival in Guyana on November 7, and transported to the Hugo Chavez Centre for Rehabilitation and Reintegration at Onverwagt, Region Five on November 10.
The Ministry of Home Affairs had said that the Haitians were part of a Human Trafficking ring, but the President of the Association of Haitian Nationals in Guyana, Kesnel Toussaint, in rebuffing the claim, said the Haitians were all granted a six month stay upon their arrival in Guyana on November 7, 2020.
After detaining the Haitians for close to a month, the State moved to the Magistrates’ Court to secure deportation orders, however, when the Chief Justice on December 3, suspended the Orders pending the hearing and determination of the case, it days later took a decision to release the Haitians. The Haitians were represented by Attorney-at-Law Daren Wade.