Mark Defreitas Claimant v Attorney General Defendant

• Jurisdiction: British Virgin Islands
• Judge: Ellis, J.
• Judgment Date: 19 May 2015
• Neutral Citation: VG 2015 HC 5
• Judgment citation (vLex): [2015] ECSC J0519-1
• Court: High Court (British Virgin Islands)
• Docket Number: CLAIM NO. BVIHCV208 of 2014
• Date: 19 May 2015

[2015] ECSC J0519-1

EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE (CIVIL)

CLAIM NO. BVIHCV208 of 2014

In the Matter of Section 40(1) (A) and (B) of the Immigration and Passport Ordinance, Cap. 130

and

In the Matter of Article 9 and 19 of the Constitution of the Virgin Islands, Order 2007

and

In the Matter of Statutory Instrument No. 36 of 2014 – Deportation Order Dated the 5th Day of June, 2014 and Gazetted on June 13th, 2014

and

In the Matter of an Application by Mark Antonio Defreitas for Redress Pursuant to Article 31 of the Said Constitution, for the Likely Contravention of Article 9, 19 and 20 Thereof, in Relation to Him

Between:

Mark Defreitas

Claimant

and

The Attorney General

Defendant

Appearances:

Mr. Patrick Thompson for the Claimant

Mrs. Joann William-Robert and Ms. Sarah Potter for the Defendant

JUDGMENT

Ellis, J.

[1] The facts out of which this Motion arises are not in dispute and are shortly summarised below:

1. a) On or about 3^rd day July 1999, the Claimant caused the death of Darrel Jacobs of Diamond Village, St. Vincent. On 20^th day July 2000, the Claimant was convicted of the offence of murder. The Claimant appealed against his conviction and on September 17^th, the Claimant's appeal was allowed and his conviction for murder was substituted for one of manslaughter. He was sentenced to serve a 10 year term of imprisonment and was subsequently released from prison in St. Vincent on March 19^th, 2007.

2. b) By Deed Poll dated November 22^nd, 2007 the Appellant changed his name from Mark Peters to Mark DeFreitas. Thereafter a passport was issued to the Claimant in the name of Mark Antonio DeFreitas on December 5^th, 2007. On page 2 of that passport there is an endorsement confirming that the bearer's name had been changed from Mark Cousel Peters to Mark Antonio DeFreitas.

3. c) By letter dated 7^th February 2008 to Harold and Harriett Anderson (Claimant's proposed employers in the Territory), the Claimant was informed that he had been granted a work permit to work as a joiner for a period of one year. On 15^th March 2008, the Claimant entered the Territory of the Virgin Islands to take up employment. Upon entry, the Claimant completed an Application for an Entry for Immigration purposes. On both applications the Claimant stated that his name was previously "Mark Cousel Peters." Following this initial permit, the Claimant's entry and work permit were renewed yearly.

4. d) In or about 20^th January 2014, the Claimant was interviewed by the Immigration Department about his immigration status in the Territory. On or about 25^th January 2014, the Claimant was asked to surrender his passport to the Immigration Department by 3^rd February, 2014 and leave the Territory by 13^th February, 2014.

5. e) By a letter dated 11^th February 2014, the Claimant's legal practitioners wrote to the Immigration Department requesting the basis for their decision to have the Claimant removed from the Territory.

6. f) The Chief Immigration Officer made a request for deportation on 7^th March, 2014. The basis of the request was expressed as follows: "subject was convicted in a court in a foreign jurisdiction for the following" Manslaughter. Pursuant to section 40.1 of the Immigration and Passport Ordinance Cap 130 ("the Act") of the revised edition 1991 of the laws of the Virgin Islands, it is my opinion that Mark Defreitas is an undesirable immigrant and his presence in the Territory is not conducive to the public good."

7. g) On 3^rd April 2014, the then Governor, His Excellency Boyd McCleary, notified the Claimant in writing that he intended to make an order of deportation against him following the receipt of information that he had been convicted by a court of competent jurisdiction in St. Vincent of the offence of manslaughter, sentenced to 10 years imprisonment and as such he was not eligible to legally land in the Territory. The Claimant was informed that he was required to show cause on or before 9^th April 2014 why the Governor should not exercise his discretion under section 40 of the Immigration and Passport Ordinance to make the deportation order against him.

8. h) On 8^th April 2014, the Claimant's attorneys, Maximea & Co. wrote to the Governor seeking an extension of time of seven days to make submissions. This request was approved by the Governor by letter dated 10^th April, 2014.

9. i) On 14^th April 2014, Maximea & Co. wrote to the Governor setting out the reasons why the Claimant should not be deported, which included:

   1. i. His engagement to Ms. Perlin Dawson, who is a Belonger;

   2. ii. His name was changed at the request from his grandmother;

   3. iii. His passport which was submitted with both Labour and Immigration Department on several occasions stated that his name was changed;

   4. iv. He has not contravened any provisions of the Act;

   5. v. He has never been convicted of any offence while in the Territory.

10. j) On 3^rd June 2014, the Governor wrote to Maximea & Co. stating that he had weighed the grounds cited and had considered whether the Claimant remaining in the Territory would be conducive to the public good. He concluded that the Claimant should be deported. As a result by Statutory Instrument No. 36 of 2014 dated 5^th June 2014, a deportation order for the Claimant was issued and served on the Claimant on 17^th June, 2014.

11. k) Thereafter then Acting Chief Immigration Officer, Mr. Guy Hill, cancelled the Claimant's entry permit in accordance with section 32(1)(e) of the Ordinance.

12. l) Two (2) days after being served with the deportation order, on 19^th June, 2014, the Claimant and Ms. Pearlin Dawson completed a marriage license application which was denied on the basis that the Claimant did not have a valid entry permit and therefore no legal status in the Territory.

13. m) In a letter dated 23^rd June 2014, McW Todman & Co. (the new legal representative of the Claimant), responded that:

    1. i. There was no basis for the assertion that the Claimant wilfully deceived immigration authorities;

    2. ii. The Governor did not give sufficient weight to the fact the claimant has been residing in the Territory for the past 7 years;

    3. iii. The Claimant has applied for a pardon for his manslaughter conviction and he is awaiting the ruling;

    4. iv. The Claimant intends to marry his fiancé shortly;

    5. v. The Claimant's employment permits him to provide for his children and

    6. vi. The Claimant and his fiancé have significant business interest in the Territory.

14. n) By letter dated 24^th July 2014, the Governor informed McW Todman & Co. that he does not agree that the deportation order would breach the Claimant's constitutional right to private and family life and asked that the issues raised be substantiated by 29^th July 2014.

15. o) The Claimant provided no response to this letter. Instead, by originating motion filed on 25^th July 2014, the Claimant seeks the following relief:

    1. i. A declaration that statutory instrument No. 36 of 2014 dated 5th June 2014 is a disproportionate interference with the Claimant's fundamental right to private and family life and right to marry and found a family as enshrined in Article 9, 19 and 20 of the Constitution.

    2. ii. A declaration that the Claimant's deportation is a disproportionate interference with the Claimant's fundamental right to private and family life and right to marry and found a family as enshrined in Article 9. 19 and 20 if the Constitution.

    3. iii. An order for certiorari quashing statutory instrument No 36 of 2014 dated 5th June 2014 ordering the Claimant's deportation from the Territory.

    4. iv. An order prohibiting the Chief Immigration Officer, his servants and or agents from removing the Claimant from the Territory pursuant to the said statutory instrument No. 36 of 2014 pending the hearing and determination of the Claimant's constitutional motion.

    5. v. Costs.

COURT'S ANALYSIS AND CONCLUSIONS

[2] Counsel in the matter have identified two main issues arising out of the Originating Motion (1) Is the Claimant's deportation a disproportionate interference with the Claimant's fundamental right to private and family life? and (2) Is the Claimant's deportation a disproportionate interference with the Claimant's fundamental right to marry and found a family?

[3] Each issue has been separately considered by the Court and in doing so the Court took into account the following affidavit evidence filed in compliance with the Court's orders.

1. 1. Affidavit of Mark De Freitas filed on 25^th July 2014.

2. 2. Affidavit of Guy Hill filed on 12^th November 2014.

3. 3. Affidavit of His Excellency the Governor, John S. Duncan filed on 18^th November 2014.

4. 4. Affidavit of Janice Rhymer filed on 17^th November 2014.

5. 5. Affidavit of Natalie S Smith filed on 17^th November 2014.

Is the Claimant's deportation a disproportionate interference with the Claimant's fundamental right to private and family life?

[4] In his address to the Court, Counsel for the Claimant made it clear that this Court was obliged to first consider whether the Claimant can be classified as an illegal immigrant for the purposes of the Immigration and Passport Ordinance Cap 130 (as amended) (the Ordinance). Counsel conceded that in the event that the Court finds that the Claimant is in fact an illegal immigrant, then certain inescapable consequences would follow.

[5] This Court agrees that any discourse on this first issue must commence with that precursor.

Is the Claimant an illegal immigrant?

[6] Counsel submitted that it was clear that the deportation order was premised on the fact that the Claimant wilfully deceived the immigration authorities, but he disputed that there was any wilful deceit or misrepresentation on the part of the Claimant. First, Counsel submitted that there is no evidence that the Claimant wilfully changed his name for the purpose of entering the Territory. In his view, the fact that the Claimant changed his name in November 2007 and sought to...