the republic of trinidad and tobago in the high court...

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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No.: CV2019 – 00858

IN THE MATTER OF A CLAIM BY

GLEN FITZROY ALVIAREZ FUENTES AND MARYURIS JOSE AVILEZ BARRIOS FOR JUDICIAL

REVIEW UNDER PART 56 OF THE CIVIL PROCEEDING RULES (1998) (AS AMENDED) AND THE

JUDICIAL REVIEW ACT, CHAPTER 7:08

AND

IN THE MATTER OF A FAILURE BY THE MINISTER OF NATIONAL SECURITY TO REVIEW HIS

DECISION ON THE APPLICATIONS OF GLEN FITZROY ALVIAREZ FUENTES AND MARYURIS JOSE

AVILEZ BARRIOS TO BE GRANTED THE STATUS OF RESIDENT OF TRINIDAD AND TOBAGO

WITHIN A REASONABLE TIME

BETWEEN

GLEN FITZROY ALVIAREZ FUENTES

First Claimant

MARYURIS JOSE AVILEZ BARRIOS

Second Claimant

AND

MINISTER OF NATIONAL SECURITY

Defendant

Before the Honourable Madame Justice Margaret Y Mohammed

Date of Delivery 07 April 2020

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Appearances

Mr. Devvon Williams instructed by Mr Aaron Seaton Attorneys-at-law for the

Claimants.

Ms. Coreen Findley and Mr. Ryan Grant Attorney-at-law for the Defendant.

JUDGMENT

INTRODUCTION

1. The Claimants are a married couple who are nationals of the Bolivarian Republic of

Venezuela seeking residency in this country. In 2010, the First Claimant decided he

wanted to invest, work and reside in this country and the Second Claimant agreed to seek

residency with him. They applied to the Defendant asking him to grant them the status of

resident pursuant to section 5(3) of the Immigration Act1.

2. On 12 February 2015, they received a letter from the Permanent Secretary of the Ministry

of National Security informing them that their application for permanent residency was

unsuccessful. They filed an application for judicial review2 (“the 2015 action”) challenging

the decision of the Defendant. On the 13 June 2017 (“the 2017 Order”) they were

successful in obtaining the following orders: (a) The Defendant's decision to refuse

residency was unfair and made in breach of the principles of natural justice and

procedural fairness; (b)The Defendant breached or omitted to perform his duty to make

his decision to refuse residency within a reasonable time; (c) The Defendant's decision to

refuse residency is irrational, unreasonable and/or an improper exercise of discretion and

(d) The Defendant's decision to refuse residency is null void and of no effect.

3. The Court also granted the following orders:

1 Chapter 18:01 2 CV2015-02417 Glen Fitzroy Alviarez Fuentes & Maryuris Jose Avilez Barrios v The Minister of National

Security

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a. An Order of certiorari quashing the Defendant's decision to refuse residency.

b. An order compelling the Defendant to reconsider his decision in light of the

declarations made by the Honourable Court.

4. Due to the failure of the Defendant to comply with the 2017 Order, the Claimants filed

the instant action on the 27 February 2019 seeking the following reliefs:

(i) A declaration that the Defendant failed to perform his duty to make a decision

on the Claimants’ application to be granted the status of resident of Trinidad and

Tobago within a reasonable time;

(ii) A declaration that further documents required by the Defendant in letter dated

27 August 2018 constitute an unreasonable, irregular or improper exercise of

discretion;

(iii) An order of mandamus compelling the Defendant to within a reasonable time or

in any event on or before the expiration of 30 days of the date of the Court’s final

order to review his decision on the applications of Glen Fitzroy Alviarez Fuentes

and Maryuris Jose Avilez Barrios to be granted the status of resident of Trinidad

and Tobago within a reasonable time in light of the 2017 Order;

(iv) Compensatory damages for the Claimant’s loss of employment opportunities,

business losses and other loss;

(v) Vindicatory damages for the Defendant’s failure to make a decision within a

reasonable time before and after being ordered to do so by the Honourable

Court;

(vi) Costs;

(vii) Such further and other relief as may seem just and equitable.

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BACKGROUND FACTS

5. The Claimants position was set out in the affidavit of the First Claimant filed on 27

February 2019 (“the First Claimant’s Affidavit”), and an affidavit of Mr Aaron Seaton their

attorney filed on 30 September 2019 (“the Seaton Affidavit”).

6. According to the evidence of the First Claimant, he was born on 27 September 1961 in

Venezuela to a mother of Trinidad and Tobago nationality and a father of Venezuelan

nationality. He lived in Trinidad and Tobago continuously from 1964 to 1969 as a child and

during that time, he attended the San Fernando Boys Roman Catholic School. In 2010, he

decided he wanted to invest, work and reside in this country and he had good connections

to this country because his mother was a citizen. His wife, the Second Claimant agreed to

seek residency with him.

7. In April 2010, he registered a company, Navieramar Trinidad Limited (“Navieramar”), in

this jurisdiction, which was to be a shipping company to provide him with employment if

he was legally permitted to work here.

8. By letter dated 11 October 2010, the Claimants applied to the Defendant for residency

status pursuant to section 5(3) of the Immigration Act. By letter dated 6 December 2010,

they were invited to a meeting at the Immigration Office in San Fernando, which took

place on 19 July 2011. There were follow up meetings at the Immigration Office while

they awaited the decision of the Defendant.

9. On 9 March 2011, they received a letter dated 12 February 2011 informing them that their

application for permanent residency was unsuccessful. As the Claimants were not

satisfied with the Defendant’s decision, they challenged it in the 2015 action. They were

successful and obtained the 2017 Order.

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10. In the instant action, the Claimants contend that to date the Defendant has not complied

with the 2017 Order and has not provided any good reason for failing to do so.

11. The Claimants also stated that their attorneys at law have communicated with the

Attorneys at law for the Defendants by correspondence dated 12 September 2017, 10

January 2018 and 4 April 2018 in order to get the Defendant to comply with the 2017

Order in order to save costs. However, the Claimants Attorney at law only received a

response from the Office of the Attorney General by letter dated 15 May 2018, which

stated that it was in discussions with the Defendant on the best way to give effect to the

2017 Order.

12. By letter dated 24 August 2018, the Claimants were requested to visit the office of the

Defendant in Port of Spain, which they complied with on 27 August 2018. At this time,

they were given a list of documents (“the documents”), which the Defendant requested

namely:

a. Passport with Valid Landing Extension and a Photocopy.

b. Valid Police Certificate of Character from Trinidad and Tobago.

c. Certificate of Character from any country in which you may have resided for

more than three (3) months after October 15, 2012.

d. Financial Statements.

e. Job letter showing monthly earnings. (If self-employed a statutory declaration

indicating type of work and average monthly income.)

f. A Statutory Declaration and supporting Documents detailing Investments

made in Trinidad and Tobago.

g. Tax Clearance Certificate.

h. Living arrangements. (Recent rental receipt & Rental agreement or a statutory

declaration stating your living arrangements, if it is rent free).

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i. If you own your own home a copy of your deed is required.

13. The nature of the documents which the Defendant requested from the Claimants caused

them to form the opinion that the Defendant was restarting their application process, and

not reconsidering the decision as was directed in the 2017 Order.

14. According to the Claimants, some of the documents which the Defendant requested after

the 2017 Order demonstrated that the process he was engaging was unfair. The Claimants

stated that the request by the Defendant for a job letter showing monthly earnings and a

tax clearance certificate are unfair since the Defendant knows or ought to know that

without residency, citizenship or a work permit a job letter showing monthly earnings and

a tax clearance certificate are impossible to obtain.

15. The Claimants also stated that some of the documents requested by the Defendant were

not germane to the latter’s original reasons. The Claimants explained that by letter dated

3 June 2016, the Defendant’s original reasons for refusing their application for permanent

residence were:

(a) The First Claimant ‘produced no evidence of his academic qualification’ and/or

that the Claimants ‘do not have evidence of their academic qualifications.’

(b) The Claimants ‘now have to rely on the benevolence of Inshan Mohammed to

grant them rent free accommodation’ and the Claimants were ‘unable to provide

for themselves.’

(c) The First Claimant failed to present audited financial statements for Navieramar,

despite being asked several times; and

(d) Navieramar Trinidad Limited ‘is no longer in operation.’

16. According to the Claimants, with respect to academic qualifications, the Immigration

Officer responsible for conducting their interviews and preparing a report indicated in his

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affidavit dated 30 June 2016 in the 2015 action that the First Claimant ‘said he did not

have his academic certificates in Trinidad and I did not press it. Nothing turned on the fact

that the first [applicant] was not able to provide his academic record or certificates.’

According to the evidence in the 2015 action, the academic qualifications never had a

bearing on the residency process.

17. The Claimants stated in the 2015 action that they produced unchallenged evidence in the

form of rent receipts and rental agreements attached to their affidavit to refute claims

made by the Defendant with respect to their accommodation in the jurisdiction. Their

living accommodations were verified by two affidavits of two separate immigration

officers filed on 13 November 2016 in the 2015 action.

18. The Claimants indicated that they were never asked to produce the financial statements

for Navieramar. However, Navieramar always kept financial statements prepared by

chartered accountants and the said financial statements were presented in evidence in

the 2015 action.

19. According to the Claimants, their attorney at law argued that it was unreasonable for the

Defendant to cite Navieramar’s closure as a reason for failing to make a decision for more

than 2 years. It was also stated that it was not reasonable for the First Claimant to

continue to keep the office open, and lose money without the personal ability to work

and generate income from the company.

20. The Claimants stated that the Defendant acted unfairly by asking them after the 2017

Order for the Certificates of Good Character since they had already incurred expense in

providing them. They contend that when the Defendant made his decision in 2015, he did

not have any issues with the Certificates of Good Character presented by them but after

the 2017 Order, he has requested the Claimants to provide Certificates of Good Character.

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21. According to the Claimants, they lost their entire investment into Navieramar. In the

financial year ending 2010, Navieramar had an expenditure of $411,423 TTD and in the

financial year ended 2011, it had an expenditure of $774,047 TTD. During those respective

periods Navieramar’s income was $42 TTD and $31 TTD. During that time, the First

Claimant could not operate or perform any income generating activity without a work

permit or grant of residency. For those reasons, Navieramar sustained losses of $413,555

TTD in the year ending December 2010 and $776,520 TTD in the year ending December

2011. They stated they would have been able to earn the lost income if the Defendant

made a proper decision in a reasonable time.

22. They contend that their right to a fair and just process has been and continues to be

infringed and that right ought to be vindicated by an award of damages. They also

asserted that the situation is particularly embarrassing because the First Claimant’s

mother is a Trinidad and Tobago citizen by birth and only because she was female and

married that he cannot get citizenship by right.

23. The Seaton Affidavit stated the following:

(a) By letter dated 6 December 2010 signed by the Chief Immigration Officer, the Second

Claimant was informed that she would be interviewed at the San Fernando

Immigration office in connection with her application for residency.

(b) He represented the Claimants in the 2015 action, and it was not alleged that the

Second Claimant did not have an application. On the contrary, the Defendant

presented affidavit evidence showing that the Second Claimant’s application went

through the regular channels and presented reasons why her application was refused.

(c) The Second Claimant has always had her landing certificate extended on the basis that

she had a pending residency application.

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24. The Defendant’s position was set out in an affidavit of Ms Sashiprabha Arjoonsingh (“the

Arjoonsingh Affidavit”) Administrative Officer IV (Ag.) in the Citizenship and Immigration

Section, which is responsible for receiving and processing applications for residency

amongst other things. By virtue of her post, she has access to the files and has knowledge

of this matter.

25. The deponent of the Arjoonsingh Affidavit stated that she was informed by the Legal Unit

of the Ministry that since the 2017 Order the Ministry has sought to comply with it. The

Ministry requested an audio recording of the Judge’s decision to ascertain the reasons for

the decision, to determine where the fault in the decision making process lay so that the

Minister may benefit from the Court’s guidance in reconsidering his decision. The audio

recording was received on 16 July 2018. On 30 July 2018, the Legal Unit appraised the

Permanent Secretary of the basis of the Court’s findings.3

26. Ms Arjoonsingh also stated that she was informed that in giving its decision in the 2015

action the Court disbelieved certain aspects of the report of the Immigration Officer dated

26 September 2014 (“the impugned report”) and critiqued the Defendant’s reliance upon

it in making the initial determination to refuse the application for residency. She stated

that the impugned report will not be relied on when the Defendant is reconsidering his

decision.4

27. The Arjoonsingh Affidavit explained the process for applying for residency under section

5(3) of the Immigration Act as:

(i) The application is made by letter to the Defendant.

(ii) The application is forwarded to the Citizenship and Immigration Section.

(iii) The applicant is provided with a list of supporting documents to accompany his

application.

3 Paragraph 6 of the Arjoonsingh Affidavit 4 Paragraph 14 of the Arjoonsingh Affidavit

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(iv) After the supporting documents are received, an acknowledgement letter is

given to the applicant and a file is created.

(v) The supporting documents are forwarded to the office of the Chief Immigration

Officer, for his/ her attention and necessary action.

(vi) The Immigration Division conducts an investigation process, which includes an

interview with the applicant where further documents may be requested.

(vii) The Chief Immigration Officer after completion of the investigation will forward

to the Ministry of National Security a report usually containing a

recommendation on the applicant’s application.

(viii) If there is a significant time gap between the receipt of the report, updated

documents are requested.

(ix) Once received a file is forwarded to the Defendant for his decision.5

28. The Arjoonsingh Affidavit stated that the letter dated 27 August 2018 requested

updated documents due to the length of time since the initial application6 as this

allows the Defendant to have all the pertinent information before him in making a

decision.7

29. The Arjoonsingh Affidavit also stated that according to the records at Immigration

Department, there is no application on behalf of the Second Claimant for residency

and that the Second Claimant will need to submit an application to correct this

procedural misstep and provide any supporting documents.8

5 Paragraph 8 of the Arjoonsingh Affidavit 6 Paragraph 11 of the Arjoonsingh Affidavit 7 Paragraph 13 of the Arjoonsingh Affidavit 8 Paragraphs 15 - 17 of the Arjoonsingh Affidavit

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THE ISSUES

30. There are three preliminary issues namely: (i) can the Second Claimant obtain relief in the

absence of an affidavit filed on her behalf; (ii) whether the Court should strike out the

Seaton Affidavit; and (c) how is the Court to treat with the Arjoonsingh Affidavit.

31. The two substantive issues are: (i) Did the Defendant unreasonably delay in complying with

the 2017 Order; and (ii) Did the Defendant act unfairly by requesting the documents from

the Claimants.

CAN THE SECOND CLAIMANT OBTAIN RELIEF IN THE ABSENCE OF AN AFFIDAVIT FILED

ON HER BEHALF?

32. It was submitted on behalf of the Defendant that the First Claimant’s Affidavit filed in

support of the claim does not state that it was also filed on behalf of the Second Claimant

and it failed to state any reason why the Second Claimant was unable to make an affidavit.

Counsel argued that this is a procedural defect by the Second Claimant’s failure to comply

with Rules 56.7 (5) and (6) of the Civil Proceedings Rules 1998 (“the CPR) and that this

prevents the Court from granting the Second Claimant any relief in this matter.

33. In response, Counsel for the Claimants submitted that: (a) there is no requirement under

Rules 56.7 (5) and (6) CPR for each Claimant to file an affidavit where a claim for judicial

review is made jointly; (b) the Claimants are husband and wife and in the instant claim they

rely on the same facts, legal proposition and seek the same reliefs; (c) it is consistent with

the overriding objective of the CPR to save costs ; (d) there is no prejudice to the Defendant;

and (e) to dismiss the Second Claimant’s claim on this basis is not a fair and balanced

approach. In support, Counsel referred the Court to the learning in the Privy Council

decision of De Zwarte Band v Kanhai9.

9 [2019] UKPC 48

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34. Rule 56.7 (3) CPR states that the Claimant must file with the Fixed Claim Form an affidavit.

Rule 56.7 (4) sets out the information which should be contained therein. Rule 56.7(5)

states that the affidavit must be made by the Claimant or where the Claimant is not an

individual by an appropriate officer of the body making the claim and Rule 56.7(6)

provides that if the Claimant is unable to make the affidavit it may be made by some other

person on his behalf.

35. Rule 1.2 CPR enables the Court to give effect to the overriding objective. Rule 1.1 CPR

states that when the Court exercises its discretion in giving effect to any Rule and

interpreting the meaning of any Rule it must take into account the overriding objective.

One of the tenets of the overriding objective at Rule 1.1 is that in dealing with a case justly

the Court must ensure that steps are taken to save expense.

36. In De Zwarte Band a wife appealed a Family Court property settlement order to the Court

of Appeal of Trinidad and Tobago. In separate legal proceedings, brought prior to the

wife’s appeal, debtors had been granted an order for sale of the matrimonial home to

enforce judgement debts against the husband. The order for sale was not appealed. Even

though the order for sale was not appealed, the Court of Appeal stayed the order for sale

in the course of dealing with the Family Court property settlement order. At the hearing

of the stay application before the full Court of Appeal, the Appellants were represented.

At the Privy Council, the Appellants contended that it was improper procedure for the

Court of Appeal to grant a stay of the order for sale while hearing only the appeal against

the property settlement order.

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37. The Board allowed the appeal and set aside the stay ordered by the Court of Appeal on

the basis that as a matter of statutory construction any property adjustment order, which

the courts might make under the Matrimonial Property and Proceedings Act in

proceedings between the husband and wife, could not affect judgment charges created

by the Remedies of Creditors Act before the conclusion of those proceedings. The Board

also found that the wife's loss of the home for herself and the children could not

constitute exceptional circumstances. The fact that the wife would only be able to

purchase a more modest property with her share of the sale proceeds could not

constitute exceptional circumstances.

38. However, Sir Rupert Jackson who gave the unanimous judgement noted at paragraph 52:

“Looking at the pleadings and orders, one can see that Mr Beharrylal is right in

his observation that as a matter of form the Court of Appeal made and

continued the order for a stay in the context of the family proceedings, not the

debt proceedings. But the Board is concerned with substance, not form. All the

judges who dealt with this matter at first instance and on appeal exercised both

civil and family jurisdiction. Although there was some procedural confusion, it

has not caused prejudice to any party. The judgment creditors were

represented at the hearing before the full court, when the question of

continuing the stay was debated. The Board is not prepared to allow the

judgment creditors’ appeal on the basis that the order for a stay was made in

the wrong proceedings.” (Emphasis added)

39. I have decided that there is no merit in this preliminary submission on behalf of the

Defendant for the following reasons. There is no specific provision in Rule 56.7 CPR which

requires every Claimant to file an affidavit in support of a claim made in judicial review

proceedings. It was not in dispute that the instant action was filed by both Claimants who

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are a husband and wife who are seeking to review the failure by the Defendant to comply

with the 2017 Order. It was also not in dispute that the 2017 Order arose out of the 2015

action where both Claimants had sought and obtained relief against the Defendant.

40. I accept that only the First Claimant filed the Claimant’s Affidavit in support of the instant

claim and he failed to state that it was filed for both Claimants and he failed to give an

explanation for the Second Claimant not filing a separate affidavit. In my opinion this is a

procedural defect, which the Court has the discretion to remedy by treating it as an

affidavit filed by both Claimants given the factual matrix of the instant action. In my

opinion, given the factual matrix of the instant case, an affidavit on behalf of the Second

Claimant was not necessary as her factual positon was the same after the 2017 Order. To

this extent, it was consistent with the overriding objective since it saved expense.

41. In any event, it would be a draconian step by this Court not to consider any relief for the

Second Claimant for this sole basis since in the context of the facts in the instant action,

the Defendant knew from the 2015 action that it concerned both Claimants, that the 2017

Order was with respect to both Claimants and the instant action, which concerns the

failure by the Defendant to comply with the 2017 Order, concerns both Claimants. Indeed,

for these same reasons there is no prejudice caused to the Defendant by the absence of

an affidavit by the Second Claimant.

SHOULD THE COURT STRIKE OUT THE SEATON AFFIDAVIT?

42. The Defendant submitted that the Seaton Affidavit should be struck out since: (a) it is in

violation of Rule 35 of the Code of Ethics of the Legal Profession Act10 as the matters

stated therein are not formal but material facts, which go to the root of the claim. In

support Counsel for the Defendant relied on the guidance by this Court in the judgment

of Valerio and Santana v The Chief Immigration Officer and the Attorney General11.

10 Chapter 90:03 11 CV 2017-01623

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43. Counsel for the Claimants disagreed. His position was that the purpose of the Seaton

Affidavit was to formally annex a letter dated 6 December 2010 issued by the Defendant

to the Second Claimant concerning her application for permanent resident status. The

information contained in the said letter is non contentious since it formed part of an

affidavit filed by the First Claimant on the 15 July 2015 in the 2015 action as it was

exhibited a “G.A 9”. Counsel also submitted that in the 2015 action, the Defendant did

not indicate that there was no application filed by the Second Claimant. Further, the 2017

Order quashed the Defendant’s decision with respect to both the First and Second

Claimants, which implied that there was an application by the Second Claimant for

permanent resident status. Counsel relied on the learning in a Canadian case The Los

Angeles Salad Company v Canadian Food Inspection Agency12.

44. Rule 31.3 CPR sets out the requirements, which an affidavit must comply with. It states:

“(1) The general rule is that an affidavit may contain only such facts as the

deponent is able to prove from his or her own knowledge.

(2) However, an affidavit may contain statements of information and belief:-

(a) where any of these Rules so allows; and

(b) where it is for use in an application for summary judgment,

provided that the source of such information and the ground of such belief

is stated in the affidavit.

(3) The court may order that any scandalous, irrelevant or otherwise

oppressive matter be struck out of any affidavit.

(4) No affidavit containing any alteration may be used in evidence unless all

such alterations have been initialled by the person before whom the

affidavit was sworn.”

12 2011 BCSC 503

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45. In short, an affidavit is supposed to contain facts, which are within the deponent’s own

knowledge and belief and where it is not, it must set out the source of the information

and belief or it would be hearsay. Statements based on information and belief are

permissible in proceedings, which were interlocutory in nature.

46. Rule 35 of the Code of Ethics of the Legal Profession Act provides:

(1) An Attorney-at-Law should not appear as a witness for his own client

except as to merely formal matters or where such appearance is

essential to the ends of justice.

(2) If an Attorney-at-law is a necessary witness for his client with respect

to matters other than such as are merely formal, he should entrust the

conduct of the case to another Attorney-at-law of his client’s choice.

47. In Valerio and Santana, I concluded that an affidavit sworn to by an Attorney at law based

on material facts told to him by the instructing attorney at law should be struck out as

being in breach of Rule 35 of the Code of Ethics of the Legal Profession Act.

48. The Los Angeles Salad Co was a decision of the Supreme Court of British Columbia. It

concerned an application by the Defendants that two affidavits sworn by a solicitor acting

for the Plaintiff were inadmissible or alternatively they requested to cross-examine the

solicitor. The Defendants contended that the affidavits were improper as they breached

the principles set out in the Canadian Bar Association Code of Professional Conduct and

the Professional Conduct Handbook under the British Columbia Society Rules governing

the circumstances in which a solicitor may file an affidavit in support of his or her client's

position on a matter before the court. The issue, which the Court had to determine, was

whether solicitors can swear affidavits in interlocutory proceedings in which they or their

firm are counsel.

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49. The Court dismissed the applications to strike out the affidavits. The Court also dismissed

the application to cross-examine counsel. The Court found that there are occasions when

the use of counsel affidavits are justified as a matter of practice. Sometimes, at least in

respect of interlocutory matters, the evidence of counsel may be the best evidence

available. It found that it may often be economical and timely to have counsel swear an

affidavit in support of interlocutory applications. The Court opined that introducing a legal

rule that upsets this practice would defeat the object of the Supreme Court Civil Rules to

secure the just, speedy and inexpensive determination of every proceeding on its merits

including conducting the proceeding in ways proportionate to the amount involved in the

proceeding, the importance of the issues in dispute and the complexity of the proceeding.

50. The Court concluded that it would be a mistake to recognize or create a special rule

requiring the rejection of affidavits sworn by counsel if those affidavits contain both

admissible and inadmissible evidence. The Court found that insofar as admissibility was

concerned, solicitors' affidavits are governed by the same rules as any other affidavit and

that inadmissible content may be ignored or formally struck, but the affidavit as a whole

need not be rejected.

51. There are five reasons I have decided against striking out the Seaton Affidavit.

52. First, paragraph 1 of the Seaton Affidavit, sets out the reasons he has sworn to it namely,

the Claimants are out of the jurisdiction and cannot do it themselves and he was

authorised by them to swear to it. In my opinion, the Seaton affidavit set out an adequate

basis for him deposing to the affidavit.

53. Second, paragraph 2 of the Seaton Affidavit set out the source of his information as the

basis for annexing the letter exhibited as A.S 1. This is in compliance with Rule 31.3 CPR.

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54. Third, the purpose of exhibiting the said letter was to formally place it before the Court in

light of the position stated in the Arjoonsingh Affidavit that the Defendant had no record

of the Second Claimant’s application. In my opinion, the said letter speaks for itself and

it gives the Court relevant information to assist in determining the issues.

55. Fourth, paragraph 3 of the Seaton Affidavit stated matters within his personal knowledge

as an attorney at law involved in the 2015 action. Again, this is in compliance with Rule

31.3 CPR.

56. Fifth, the Seaton Affidavit stated at paragraph 4 the source of his information stated

therein in compliance with Rule 31.3.

HOW IS THE COURT TO TREAT WITH THE ARJOONSINGH AFFIDAVIT ?

57. It was submitted on behalf of the Claimants that the Court should treat with scepticism

two matters stated in the Arjoonsingh Affidavit. Counsel submitted that the deponent of

the Arjoonsingh Affidavit failed to state how she was involved in the decision, after the

2017 Order, on how to proceed with the Defendant’s reconsideration of his decision as

she stated this was the task of the Legal Unit of the Ministry of National Security. As such,

it is not appropriate for her to relate second hand information from unnamed persons

from the Legal Unit.

58. Counsel also submitted that the deponent of the Arjoonsingh Affidavit did not write the

letter dated 24 August 2018 requesting the documents from the Claimants so she cannot

speak to the motives for the said letter.

59. The Arjoonsingh Affidavit stated that the deponent is the Administrative Assistant IV (Ag.)

in the Citizenship and Immigration Section of the Ministry of National Security, which is

responsible for receiving applications from foreign nationals for residency and citizenship,

and the processing of the Chief Immigration Officer's report on these applicants. She

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stated that by virtue of her post she has access to the files and has knowledge of the

matter. She also stated that she is responsible for “supervising the work of junior officers

in the Section” and she has only “recently became aware of the case, CV2015 -02417:

Glen Fitzroy Alviares Fuentes and Maryuris Jose Avilez Barrios v The Minister of National

Security”.

60. In my opinion, the deponent of the Arjoonsingh Affidavit, as the head of the Unit

responsible for processing applications for residency and the same Unit, which is dealing

with the Claimants matter, the deponent of the Arjoonsingh Affidavit can depose to

matters such as the documents, which were requested in the letter dated 24 August 2018.

She has access to the files in that section in the performance of her duties. However, she

was not the author of letter dated 24 August 2018 and as such, she cannot give her

opinion as to the motive for requesting the documents since it would be based on

speculation. Indeed the deponent of the Arjoonsingh Affidavit failed to account for the

failure of the author of the letter dated 24 August 2018 providing an affidavit in the instant

action. For these reasons, I cannot attach any weight to her opinion as to the motive for

requesting the documents.

61. I have also decided to attach limited weight to paragraph 6 of the Arjoonsingh Affidavit

where she sets out the reasons for the delay in complying with the 2017 Order between

the date of the said Order and the 30 July 2018. The information contained therein was

not in compliance with Rule 31.3 (3) CPR as it failed to state the source of the information.

DID THE DEFENDANT UNREASONABLY DELAY IN COMPLYING WITH THE 2017 ORDER?

62. Counsel for the Claimants submitted that the Defendant unreasonably delayed in his

reconsideration of the Claimants application for permanent residency status pursuant to

the 2017 Order since he only took steps 28 months after the 2017 Order was made.

Counsel argued that the Defendant was reminded of his duty on 3 occasions during the

period September 2017 to April 2018 as the Claimants Attorneys at law had written to

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him on the 12 September 2017, 10 January 2018 and 4 April 201813. It was also submitted

that all the reasons put forward in the Arjoonsingh Affidavit for the delay by the

Defendant in complying with the 2017 Order were irrational, unreasonable, irrelevant and

lacking in substance. In support of these contentions, the Claimants relied on the

provisions of the Judicial Review Act14; the Interpretation Act15 ; Part 43 CPR and the Privy

Council judgment of Oliviera v the Attorney General16 .

63. It was submitted on behalf of the Defendant that his delay in taking steps to comply with

the 2017 Order must be considered in the circumstances of the particular case. Counsel

argued that there was no written reasons for the 2017 Order. In order for the Defendant

to be properly appraised of the Court’s reasons for the 2017 Order, the audio recording

of the proceedings was requested and the period between the pronouncement of the

2017 Order and the receipt of the audio recording was approximately 13 months. Within

1 month after receipt of the audio recording, the Claimants were invited to attend the

Immigration Department with a view to having their applications dealt with. Counsel

submitted that Oliviera was distinguishable from the facts of the instant case. Instead

Counsel relied on the learning in Richard Ramnarace v Police Service Commission and

Anor.17, R v Children and Family Court Advisory and Support Services18; and Patricia

Bryan and anor. v The Honourable Minister of Planning and Sustainable Development

and Edfam Ltd19.

64. It was not in dispute that section 15 of the Judicial Review Act allows a person to file for

judicial review if he is adversely affected due to the unreasonable delay in making a

decision. It provides:

13 Exhibit GA 2 of the First Claimant’s Affidavit 14 Chapter 7:08 15 Chapter 3:01 16 (2016) UKPC 24 17 CV 2007-00218 18 (2003) 1 FLR 953 19 CV 2015-01498

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“15. (1) Where—

(a) a person has a duty to make a decision to which this Act applies;

(b) there is no law that prescribes a period within which the person is required

to make that decision; and

(c) the person has failed to make that decision, a person who is adversely affected by

such failure may file an application for judicial review in respect of that failure on the

ground that there has been unreasonable delay in making that decision.”

65. In the cases cited by both parties, the Court considered what amounts to unreasonable

delay by a public authority. R v Children and Family Court Advisory and Support Service

was a 2003 decision of the English High Court. In the two cases giving rise to these

proceedings the local authority had been granted interim care orders before Children and

Family Court Advisory and Support Service (CAFCASS) had been able to provide officers

for appointment as the children's guardians. In one case, the children had been removed

from home, taken into police protection and an emergency protection order

subsequently made. A guardian was appointed at that time but that person was not

available for appointment in the later care proceedings. In the other case, the child

remained with her mother in a refuge following the making of an interim care order but

was later removed by the local authority. An application to discharge the interim care

order was refused and the order continued on the basis that the child was not returned

to the mother's care. A guardian had not been available for appointment until after the

application to discharge the order had been dealt with although CAFCASS had identified

a solicitor to represent the child at the relevant hearings.

66. The applicants sought judicial review of the duty and obligation of CAFCASS with respect

to officers for appointment by the court as children's guardians in specified proceedings

under the Children Act 1989. The Court dismissed the applications. On the issue of delay,

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the Court held that section 12(2) of the Criminal Justice and Court Services Act 2000 did

not expressly impose a duty upon CAFCASS to immediately, on request by the court, to

make available an officer of the service for appointment as a guardian. The relevant

statutory provisions implied that, while CAFCASS should respond as soon as practicable

after a request was made, there could be a gap between the request made by the court

and CAFCASS making an officer available for appointment.

67. Richard Ramnarace was a High Court decision of Dean- Armorer J (as she then was)

delivered in April 2008. In the early hours of 9 August 1998, the Claimant, Richard

Ramnarace had been socializing in a bar, in the company of his brother and two other

persons. An altercation broke out, and PC Visham Boodoosingh, intervened, slapped the

Claimant in the face and shot him in the jaw. The Claimant suffered severe injury and

instituted civil proceedings against PC Boodoosingh. Bereaux J (as he then was) entered

judgment in favour of the Claimant and awarded general damages, including aggravated

damages, for personal injury. PC Boodoosingh appealed unsuccessfully to the Court of

Appeal and the Privy Council. The decision of the Privy Council was delivered in March

2005. It re-affirmed the decision of Bereaux J (as he then was).

68. The Claimant sought to compel the Police Service Commission to make a decision as to

whether PC Boodoosingh should be placed on disciplinary charges pursuant to the Police

Service Commission Regulations. The Claimant alleged that the Police Service Commission

had delayed unreasonably towards making a decision.

69. Dean Armorer J (as she then was) dismissed the application. The Court held that

unreasonable delay must be considered in light of what is unreasonable as set out in the

case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation20. The Court

assessed the different times of events in the matter and found that the Police Service

Commission had not crossed the threshold from delay to unreasonable delay. The Court

20 [1948] 1 KB 223

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concluded that the Police Service Commission bore a responsibility to ensure that the

officer, who is subjected to disciplinary proceedings, is given adequate opportunities to

be heard in his own defence and that there is no bias in the decision-making process.

70. Oliviera was a Privy Council decision of 2016. In April 2009 the appellant, Clive Oliveira, a

native of Guyana, filed his application to be registered as a citizen of Antigua and Barbuda,

on the basis of his wife’s citizenship of Antigua and Barbuda and his subsisting marriage

to her for more than three years, as he was entitled pursuant to section 114(1)(b) of the

Antigua and Barbuda Constitution Order 1981. On 18 July 2011, nearly 27 months after

his application for registration, Mr Oliveira was so registered.

71. Mr Oliveira’s wife had also been a Guyanese citizen. On 30 September 2002, she was

registered as a citizen of Antigua and Barbuda on the basis that she had been domiciled

there and for a period of not less than seven years preceding her application for

registration, she had been lawfully ordinarily resident there, pursuant to article

114(1)(c)(ii) of the Constitution Order.

72. In his appeal, Mr Oliveira complained that the time taken to register him as a citizen of

Antigua and Barbuda was unnecessarily and unreasonably long. He claimed that this was

a breach of his constitutional rights pursuant to the Constitution Order, as well as being a

matter for judicial review, and that he was entitled to damages as a consequence. He

submitted that his damages should include damages for his inability to work in the interim

between application and registration.

73. The Attorney General for Antigua and Barbuda, resisted the appeal, on the ground that

there was no basis for departing from the findings in the courts below that Mr Oliveira’s

application was handled rationally and within a reasonable time and thus lawfully. At first

instance, Harris J rejected Mr Oliveira’s claim. He held that although the circumstances of

the case came perilously close to being a fetter on the Claimant’s rights, ultimately there

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was insufficient evidence to support the Claimant’s contention that the period between

the application for registration and the interview was unnecessarily long and

unreasonable.

74. On appeal, the Court of Appeal upheld the judgment of Harris J. They said that a delay of

nineteen months between the application and possible registration may not, in the

circumstances, be inordinate, even if it came perilously close to being a fetter on the

Claimant’s rights.

75. The Board allowed the Claimant’s appeal; made a declaration that the appellant's

application for registration should have been concluded within 12 months from being

made and remitted to the trial court in Antigua for it to assess the damages.

76. The Board held that the relevant test for a determination of the right of citizenship was

'within a reasonable time'. It was not correct that registration should typically and as a

matter of the interpretation of the Constitution be immediate or almost immediate, viz

within one month. In that context, there needed to be a process for the consideration of

applications under section 114 of the Constitution and that the granting of the application

could not simply be automatic. The Board found that taking into account every allowance

for the customary ways of doing things in Antigua, and for the lumping together of

relatively straightforward applications such as those under section 114 with other

immigration applications of a different nature, a period of one year, from application to

registration, for the consideration of a section 114 application was in general the outside

limit of a reasonable time. The Board also found that delay beyond that time, without

special considerations, was likely to be unlawful as a fetter on the legitimate applicant's

right to be registered. In Oliviera the Board found that a period of 19 months was

unjustifiable and without any reasonable basis and that the evidence in support of the

decisions below that the appellant had been given the earliest available appointment had

been of too general and superficial a quality to merit the weight that was placed on it,

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and it was not supported by any documentary evidence. The Board also found that it was

unclear that the full gamut of the inquiries undertaken by the Immigration Department

had been necessary. In those circumstances, the delay up to November 2010, which the

first instance judge had to consider, was itself a breach of the appellant's constitutional

rights, let alone any further delay post-interview.

77. The Patricia Bryan case was a decision of the High Court in this jurisdiction in 2017. It

dealt with the test for irrationality. The Claimants challenged the decision of the Minister

of Planning and Sustainable Development by way of judicial review. They sought certiorari

and declaratory relief in respect of the Minister’s decision of the 5 February, 2015, to

grant conditional and temporary planning permission to the Interested Party, EDFAM

Limited, for the use of No. 129, Long Circular Road as a school.

78. The issue was whether the Minister acted irrationally; took into account irrational

considerations; frustrated the legitimate expectation of the Claimants; and breached the

right of the Claimants to consultation.

79. The Court dismissed the claim. The Court considered that the ground of irrationality is

notoriously high and that the Court will set aside an impugned decision on the ground of

irrationality, only if the decision is proved to be one which could not be made by any

reasonable decision maker or alternatively, the Court will act on the ground of

irrationality, if the decision is shown to be one which is so outrageous in its defiance of

logic and accepted moral standards that no decision maker who had applied his mind to

it would have arrived at the decision. The Court concluded that the Minister did not act

irrationally when he took the views of the Director of Highways into account and chose to

reverse his earlier decision and grant permission.

80. The Court applied the Wednesbury yardstick of reasonableness to the Minister’s decision

to apply weight to the Traffic Impact Assessment, and found that he had not placed

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excessive weight on the traffic plan but gave proportional weight to the interests of the

community and to the policy of using education as a tool for development. The Court

found that the Minister had not taken into account irrational considerations as no

promise was made to the Claimants and there was a proportionate response on the part

of the Minister in considering the parties’ views and granting conditional approval.

Therefore, there could not be frustration of the Claimants’ legitimate expectation. The

evidence showed that the residents were consulted, and the Minister had an obligation

to give consideration to their representations, but not comply with them.

81. Based on the aforesaid learning, the question of delay by the public authority is

determined by the particular circumstances of each case.

82. According to the Arjoonsingh Affidavit the timeline was :

13 June, 2017 Court makes the 2017 Order quashing the decision of the

Defendant to refuse the application for residency and ordering

the Defendant to reconsider his decision in light of the

declarations given by the court.

16 July, 2018 Ministry receives audio recording of the Court’s decision of 2017

Order.

30 July, 2018 Legal Unit appraises the Permanent Secretary of the Ministry of

the basis of the court’s findings

10 August, 2018 Letter to Claimants requesting that they visit the Ministry. This

letter was received by the Claimants on 24 August, 2018.

27 August, 2018 Claimants visit Ministry and are provided with a list of

documents, which they need to provide in support of their

application.

2 May, 2019 Instant proceedings are filed

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83. The Arjoonsingh Affidavit stated that the reasons for the Defendant’s delay between the

date of the 2017 Order (ie 13 Jun 2017) and the Defendant’s compliance were (a) there

was no written decision; (b) the Defendant’s legal advisers had to apply for an audio

recording of the decision to ascertain the reasons for the Court’s decision; and (c) the

Defendant needed to see if there were any change in circumstances.

84. In the instant case the Defendant delayed by approximately 14 months in taking steps to

comply with the 2017 Order. There are three reasons I have concluded that the Defendant

acted Wednesbury unreasonable in delaying to take steps to comply with the 2017 Order.

85. First, there was a duty on the Attorney at law for the Defendant who is present to take

proper and complete notes of the oral reasons for the 2017 Order. Rules 43.2(a), 43.8 and

43.9 of the Civil Proceedings Rules 1998, as amended provide that:

Parties present when order made or notified of terms to be bound

43.2 A party is bound by the terms of the order or judgment whether or not the

judgment or order is served where—

(a) he is present whether in person or by attorney-at-law when the

judgment given or order was made

Time when judgment or order takes effect

43.8 A judgment or order takes effect from the day it is given or made, unless

the court specifies that it is to take effect on a different date.

Time for complying with a judgment or order

43.9 A party must comply with a judgment or order immediately, unless —

(a) the judgment or order specifies some other date for compliance;

(b) the court varies the time for compliance; or

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(c) when the claimant enters judgment in default under Part 12 or

judgment on an admission under Part 14, he specifies a different time for

compliance

86. There is no requirement that a Court must deliver a written decision for every order which

is made for it to be valid. An oral decision is as valid and effective as a written decision.

The Arjoonsingh Affidavit stated that since there was no written decision the Defendant

had to apply for an audio recording of the oral ruling to determine the reasons for the

decision. The Defendant did not assert that when the 2017 Order was delivered that none

of his Attorneys at law were present. In this regard, there was absolutely no evidence

from the Attorneys at law for the Defendant who attended Court when the 2017 Order

was pronounced that no oral reasons were provided. In the absence of such evidence, it

is reasonable to assume that the Defendant’s Attorneys at law were present and took

notes of the oral reasons for the 2017 Order. Therefore, this is not a reasonable basis for

the delay by the Defendant between the date of the 2017 Order and the time of the

receipt of the audio recording in July 2018.

87. Second, even if the written reasons were required, the Arjoonsingh Affidavit has not

provided a shred of evidence to account for the steps taken by the Defendant during the

period from the date of the 2017 Order ie 13 June 2017 and the date of receipt of the

audio recording on the 16 July 2018. The Arjoonsingh Affidavit is absolutely silent on when

the request was made for the audio recording, to whom it was made, what efforts were

made in following up the said request, if any letters were written to the Registrar of the

Supreme Court indicating the importance of receiving the audio recording with haste. In

my opinion, in the absence of such particulars, I cannot find based on the facts presented

by the Defendant that he acted reasonably in waiting over 1 year for the audio recording

of the oral reasons.

88. Third, the Defendant failed to indicate to the Claimants Attorneys at law during the 1-year

period the reason for his failing to comply with the 2017 Order. It was not in dispute that

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the Claimants’ Attorney-at-Law reminded the Defendant of the duty for complying with

the 2017 Order with undue delay by way of correspondence dated 12 September 2017,

10 January 2018 and 4 April 201821. I accept that upon the receipt of the audio recording

of the reasons for the 2017 Order, the Defendant acted within 1 month in contacting the

Claimants. However, the Defendant failed to respond to the Claimants’ Attorneys at law

indicating the reasons for the delay and the steps, which were being taken to comply with

the 2017 Order.

DID THE DEFENDANT ACT UNFAIRLY BY REQUESTING THE INFORMATION FROM THE

CLAIMANTS?

89. Counsel for the Claimants submitted that the request by the Defendant for the documents

is essentially restarting the Claimants application and not reconsidering their application.

Counsel argued that the Defendant acted unreasonably, irrationally and unfairly by

requesting the documents since information as the Claimants academic qualifications and

accommodation were already provided to a previous Immigration Officer who

interviewed them. Further, it was unfair to request other information such as a job letter

showing monthly earnings and a Tax Clearance Certificate since the Defendant ought to

know that without residency, citizenship or a work permit such information cannot be

provided.

90. Counsel for the Defendant argued that in the 2015 action the Court found fault with the

impugned report and the Defendant’s reliance on it. Therefore, the request for the

information was necessary, as a new report must be prepared for the Defendant’s

consideration. This requirement for a new report is not unreasonable or irrational since it

is part of the process and procedures to be undertaken in deciding whether to grant an

application for residency. Counsel for the Defendant also submitted that the Arjoonsingh

Affidavit went into detail why each document was necessary and why it was requested

and that if the Claimants are unable to provide the document they can state the reason

for not doing so.

21 “ G.A. 2” of the Claimant’s Affidavit.

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91. The authors of the text Judicial Review Principles and Procedure22 at paragraph 30.45

described the role of the decision maker where the decision is quashed and remitted for

the decision maker to reconsider as:

“In addition to quashing decision, a court may also remit the matter to the

relevant public body with a direction that it reconsider the matter and reach a

decision in accordance with the findings of the court….

Where a matter is remitted back to a public body for redetermination, the public

body must usually reconsider the entire matter and reach a fresh decision; the

effect of the quashing order is that there will be no original decision that can be

merely amended or supplemented. Whether the public body, on a remittal, is to

consider matters as they stood at the date of its original decision, or in light of any

further information that has become available or developments since that date, is

likely to depend on the effect of any statutory scheme providing for the decision-

making function.” (Emphasis added)

92. Section 5(3) of the Immigration Act gives the Defendant the discretion to confer the status

of resident on any person he considers fit. Section 6 of the Immigration Act sets out the

persons who may be permitted to become residents. It states:

“6. (1) Subject to this Act and the regulations, persons who come within the

following classes may on application in the prescribed form, be granted permission

by the Minister if he thinks fit, to become residents, that is to say:

(a) a permitted entrant who-- (i) by reason of his education, occupational

qualifications, personal history, employment record, training, skills or other

22 Auburn, Moffett and Sharland

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special qualifications has established or is likely to be able to establish himself

successfully in Trinidad and Tobago in a profession, trade, self-operating business

or agricultural enterprise and who has sufficient means of support to maintain

himself and his immediate family in Trinidad and Tobago; and (ii) has been

continuously resident in Trinidad and Tobago for five years or such shorter period

(not being less than twelve months) as the Minister may in the special

circumstances of any particular case accept;

(b) a person who is the parent or grandparent of either a citizen or resident of

Trinidad and Tobago, residing in Trinidad and Tobago, if such citizen or resident is

willing and able to provide care and maintenance for that person;

(c) the spouse of a citizen or resident of Trinidad and Tobago; and

(d) a person who has ceased to be a citizen of Trinidad and Tobago by reason of

his voluntary acquisition of citizenship of another country.”

93. The Arjoonsingh Affidavit outlined the procedure followed by the Immigration

Department with respect to how applications for residency are treated. At paragraph 8

she stated:

“8…..When a person applies for residency under section 5(3) of the Act the process is

as follows:

a) The Applicant makes an application to the Ministry of National Security for

residency under section 5(3) by way of letter addressed to the Minister of National

Security. The application is forwarded to the Citizenship and Immigration Section.

The Applicant is provided with a list of supporting documents which is needed to

accompany his application. This list of supporting documents includes but is not

limited to:

i. Birth Certificate of the applicant

ii. Birth Certificate of children under 18

iii. Marriage Certificate

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iv. Police certificate of character from country of birth

v. Police certificate of character from Trinidad and Tobago

vi. A certificate of character from any country that the applicant resded in for more

than three months

vii. Passports (old and new)

viii. Work permit

ix. Job letter

x. Tax clearance certificate

xi. Naturalization certificate (if applicant has dual citizenship Financial Statements)

xii. Financial Statements

These documents are requested of every applicant and they serve to support the

application for permanent residency. These documents are requested as the Minister

will consider these facts in coming to a decision on an application. Where an applicant

is unable to provide any documents that are requested, they will usually state this

along with the reasons(s) why the document cannot be provided.

b) After receiving the supporting documents, an acknowledgement letter is given to

the Applicant informing that the application has been accepted. A file is then created

by the Citizenship and Immigration Section for the Applicant.

c) Thereafter the documents are forwarded to the office of the Chief Immigration

Officer, for their attention and necessary action. The Immigration Division conducts

an investigation process, which includes an interview with the Applicant where they

may request the provision of further documents.

d) The Chief Immigration Officer after completion of its investigation will forward to

the Ministry of National Security a report usually containing a recommendation on

the Applicant’s application.

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In my experience there can be a significant time gap between the receipt of the

Applicant’s application and the submission of the report by the Chief Immigration

Officer to the Ministry. Where this occurs, the Ministry will request updated

documents from the Applicant as to his circumstances, for example, his address, his

status in the country etc. may have changed during this period.

e) Once updated documents are received the file is forwarded to the Minister for a

decision on the application.

94. Based on the Arjoonsingh Affidavit, one aspect of the procedure outlined is for the

Immigration Division to conduct an investigation, which includes an interview with the

Applicant where information and documents can be requested from which a report is

prepared and forwarded to the Minister with a recommendation.

95. Paragraph 11 of the Arjoonsingh Affidavit explained the reasons why each of the

document was requested from the Claimants. She stated:

“11. I would now deal with the documents requested in turn:

a) Passport with valid Landing extension and Photocopy – When a foreign national

enters Trinidad and Tobago their passport is stamped with the landing certificate

indicating the length of time they are allowed to remain in the country. If a

person desires to remain in Trinidad and Tobago for a period beyond the

expiration of the certificate, they must obtain an extension of their landing

certificate prior to its expiration. This document is requested to support the First

Claimant’s application as it will show that he is legally in the country.

b) Valid Police Certificate of Character from Trinidad and Tobago – The police

certificate of character originally submitted by the First Claimant is dated 28th

June 2011. A true copy of the First Claimant’s Police Certificate of Character is

now produced, shown to me and hereto annexed and marked “S.A.2”. Given the

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lengthy time period which has elapsed since its submission, which is about 9

years, the Ministry requested an updated certificate to ensure that the Claimant

has not committed any crimes in Trinidad and Tobago in the intervening time

period. Whether someone has a criminal record is a factor the Minister may wish

to consider in making a decision on an application for residency.

c) Certificate of Character from any country which you may have resided for more

than three months after 15th October, 2012 – Again, given the lengthy time

period which has passed since the submission of these documents the Ministry

will not be aware whether the First Claimant has in the intervening period

resided outside of Trinidad and Tobago and/or committed any crimes in any

jurisdiction in which he resided. However, if the First Claimant has not resided

outside of Trinidad and Tobago for more than 3 months since last submitting

these documents he may state so and there would be no need to provide same.

Additionally if there is any difficulty in obtaining these documents he can also

state this and the reasons why.

d) Financial Statement/s – In support of the First Claimant’s application he

submitted a listing of assets and bank statements emanating in 2011. True copies

of these documents submitted by the First Claimant are now produced, shown

to me and hereto annexed and marked “S.A.3”. The Ministry requested these

documents so that the Minister in reconsidering his decision may consider

whether the financial status of the First Claimant is relevant to his decision. In

the period of 9 years that has elapsed since the submission of these documents

the financial situation of the First Claimant may have changed.

e) Job letter showing monthly earnings – A foreign national is free to work in

Trinidad and Tobago once they have obtained a work permit or work permit

exemption. Given the time period which has elapsed since the First Claimant’s

application the Citizenship and Immigration Section will not be aware whether in

the intervening period he has applied for and obtained a work permit and is

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gainfully employed. If this is not the case the First Claimant can state this and of

course will not be required to provide these documents.

f) A Statutory Declaration and supporting Documents detailing investments made

in Trinidad and Tobago – The First Claimant’s application for residency which is

attached as “S.A.1” his attorney indicates, “our client has already made a large

investment in the country by entering into two long term leases for the purposes

of business and his family residence. We have formed a company for him which

was incorporated under the Laws of Trinidad and Tobago.” Given that this was a

basis upon which the First Claimant was asking the Minister to exercise his

discretion pursuant to section 5(3) a request for these documents was made. I

understand from the First Claimant’s affidavit in this matter that the company

Navieramar Trinidad Limited is no longer in operation. If the First Claimant has

made no other investments in Trinidad and Tobago he of course will not be

required to provide these documents and he can state this.

g) Tax Clearance Certificate – As stated above at (f) this was requested based on

the information contained in the First Claimant’s application. If it is no longer

applicable, then he does not need to provide same and can state this.

h) Living Arrangements – In the First Claimant’s application of 11th October, 2010 it

is stated that the Claimants reside at No. 5 Moonridge Drive Palmiste, San

Fernando. By letter dated 22nd January 2014 the First Claimant asked that all

letters and documents concerning his application be forwarded to “32 San

Augustine Circular Road Tunapuna Caribbean Lounge Apartment 2” A true copy

of the letter dated 22nd January 2014 is now produced, shown to me and hereto

annexed and marked “S.A.4.” In CV2015 -02417 Glen Fitzroy Alviares Fuentes

and Maryuris Jose Avilez Barrios v The Minister of National Security in the First

Claimant’s Affidavit in support of his Fixed Date Claim Form, the First Claimant

deposed to the fact that he resided at “No 683 Edinburgh Gardens, Chaguanas.

In the instant matter the Claimants give their address as “Lot # 10 St. Lucian Road

Diego Martin.” Since the First Claimant’s application it can be seen that he has

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changed addresses at least three times. The Ministry accordingly requested these

documents to ascertain whether the Claimants living arrangements remain the

same.

96. At paragraphs 12 and 13 of the Arjoonsingh Affidavit, the deponent explained that

notwithstanding the request for the documents the Claimants (like any applicant for

residency) are free to submit any documents that they believe will assist in their

application. It was also stated that the documents are necessary so that the Minister can

have all pertinent information before him to assist in making his decision.

97. The Claimants did not dispute that the Defendant’s consideration and reliance on the

impugned report dated 26 September 2014 was the reason the Defendant’s initial

decision on the Claimants application for permanent residency was flawed.

98. In my opinion, the Defendant acted reasonably, fairly and rationally by requesting the

documents for the following reasons.

99. First, the guidance from the oral ruling for the 2017 Order was that in considering the

Claimants application afresh he has to do so without the impugned report. Therefore,

even if there was information provided to a previous Immigration Officer such as that

pertaining to the Claimants academic qualifications and accommodations, once that

information formed part or the basis of the impugned report, the Defendant cannot and

ought not to consider this information previously provided as the finding by the Court in

the 2017 Order was that the impugned report was tainted. In my opinion, it was

reasonable for the Defendant to request information, which may have already been

provided to avoid falling into the same error by considering information previously

provided.

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100. Second, there is nothing from the Judge’s Reasons in the 2017 Order, which prohibited

the Defendant from considering updated information as contained in a new report from

an Immigration Officer. The undisputed evidence from the Arjoonsingh Affidavit is that,

before the Defendant makes his decision to determine the residency of an applicant, he

considers a report from the Chief Immigration Officer, which contains the information

listed in the documents. In my opinion, since the impugned report cannot be considered,

there is nothing stopping the Minister from considering a new report. If the intention of

the Court in making the 2017 Order was that the Defendant was to reconsider the matter

afresh without a new report it would have expressly stated so. However, there was

nothing stated in the 2017 Order which expressly prohibited the Defendant from

considering a new report. The information requested in the documents was consistent

with the matters stated in section 6 of the Immigration Act, which the Defendant is

required to consider.

101. Third, the process used by the Defendant in the compilation of the new report by the

Immigration Officer was fair since the Claimants were given the opportunity to provide

the information requested and to respond accordingly.

DAMAGES

102. The Claimants asserted a claim for compensatory and vindicatory damages. The Claimants

did not address their claim for damages in their closing submissions, however in their

submissions in reply, Counsel argued that the Court should accept the uncontested

evidence on quantum of damages which ought to be granted or alternatively that it

should be sent to a Master to be assessed.

103. The Defendant reserved its position on the issue of damages, as the Claimant did not

address it in the closing submissions.

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104. In light of the position articulated by the parties, I would invite the parties to present

further submissions on whether the Claimants are entitled to an award of damages and if

so the quantum.

ORDER

105. It is declared that the Defendant failed to perform his duty to make a decision on the

Claimants’ application to be granted the status of resident of Trinidad and Tobago within

a reasonable time.

106. It is declared that the documents requested by the Defendant in letter dated 27 August

2018 are not an unreasonable, irregular or improper exercise of discretion.

107. The Defendant is compelled to make a decision on the Claimants application for residency

status within 30 days of being provided with the Claimants response to the request for

the documents.

108. The Defendant to pay the Claimants’ costs to be assessed by the Registrar in default of

agreement.

Margaret Y Mohammed

Judge