Hernandez (Reuben) v Attorney General

• Jurisdiction: Jamaica
• Judge: Campbell J
• Judgment Date: 18 September 2006
• Judgment citation (vLex): [2006] 9 JJC 1803
• Court: Supreme Court (Jamaica)
• Date: 18 September 2006
• Docket Number: SUIT NO. 2006 HCV02093

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

SUIT NO. 2006 HCV02093

BETWEEN

REUBEN HERNANDEZ

CLAIMANT

AND

THE ATTORNEY GENERAL

DEFENDANT

CIVIL PROCEDURE - Habeas Corpus

1 Aliens Act - Deportation Order, Administrative/Executive decision, whether reviewable

Campbell J

2 (1) On 13 ^th June 2006, a Fixed Date Claim Form was filed, seeking that a Writ of Habeas Corpus be directed to bring up the Claimant, Reuben Hernandez, a Colombian national, for such further Orders as the Court may direct. On that same date, the Claimant, through his attorneys, filed Notices for Court Orders, seeking the following Orders.

1.

• (a) that he be released from custody pending the final order herein and or pending the completion of the proceedings now pending before the Resident Magistrate for the parish of St. James in relation to the charge of Unlawful Possession of Property brought against him on information no. 11906 of 2006.

• (b) A stay of the Order for deportation made herein pending the completion of the applicant's trial on information no. 11906 of 2006 charging him within Unlawful Possession of Property.

• (c) Leave be granted to apply for judicial review namely;

  • (1) Writ or Order of Certorari to remove into the Supreme Court and to quash the Order of Deportation made by the Minister of Security dated May 1, 2006.

  • (2) A writ or Order of Prohibition preventing any further proceedings or steps pursuant to the order of Deportation aforesaid;

• (d) Such other relief as this Honourable Court seems just.

3 (2) The grounds on which the Applicant is seeking the Orders are as follows:

• (a) That the deportation Order made in relation to the Applicant is being contested by the Claimant/Applicant.

• (b) That the Applicant is obliged to remain in the jurisdiction to face the charges brought against him and which are now pending in the Resident Magistrate Court for the parish of St. James.

• (c) That the Applicant has been offered bail in respect to the said charges and prior to his arrest pursuant to the deportation order had faithfully abided by the terms of his bail.

• (d) That the Applicant having been charged with a criminal offence is entitled to a fair trial with a view to clearing his name and recovering any relevant property unless the charge is otherwise conclusively disposed of.

• (e) Should a stay not be granted it would render any decision of the Court herein in favour of the Applicant, Reuben Hernandez nugatory and the Applicant will accordingly be prejudiced.

4 (3) The Applicant filed an affidavit in support of his application, in which he stated that he had been residing in Jamaica since September 2003. He has been issued a work permit which allows him to work with Waddada Football Club in Montego Bay. He claims to having been kidnapped and held for a period of 20 weeks in his native Columbia, as a result he has chosen to live in Jamaica. He claims that he along with his family are legitimate business people and it is the funds from these business operations to which he has access. He claims never to have been convicted of any offence, neither here nor in Columbia. However, on 20 June 2005, he was arrested and charged for unlawful possession of US$335,000.00, he was acquitted.

5 (4) On the 8 ^th March 2006 a police party returned to his home. A search warrant was presented to search for guns and drugs. No guns or drugs were found. A search was effected of the same safe in which the $335,000.00 had previously been found. Monies were found. He said he told them it was part of the same money that they had taken from him on the first occasion. Taken before the Court, he was bailed on 14 ^th March 2006 and had adhered to the conditions imposed by the Court.

6 (5) However, the police again returned to his home on the 10 ^th May 2006, and effected another search of the Applicant's home. This time nothing was found. Despite this, he states "I was taken to the police station where I was informed that I was to be deported."

7 (6) The Applicant's case is two-pronged. Firstly, there is a challenge raised to his detention which he claims his without charge, no reason being given, and is unlawful. This challenge is by way of Habeas Corpus.

8 Secondly, he seeks the leave of the Court to apply for judicial review to quash the Minister's decision of the 1 ^st May 2006 ordering the Claimant deported from Jamaica.

9 Claimant's Case

10 Unlawful Detention

11 (7) Counsel for the Claimant, argues that Section 15(6) of the Aliens Act provides that, the Minister may order the deportation of an Alien if the Minister deems it conducive to the public good. Section 15(4) provides that where a deportation order is made, the Minister may direct that the alien be detained in such manner as the Minister may direct. Counsel contended that Ministerial direction ought to be exhibited, so that the Court can ascertain if the detention was in accordance with those directions. Even if the detention was in accordance with the Minister's order, if the detainee is not given the legal and factual basis at the time the detention occurs, the detention will be unlawful.

12 Leave to Apply for Judicial Review

13 (8) In respect of leave to apply for judicial review, the Claimant contended that the Minister is obliged to give reasons to demonstrate that he acted within the parameters of the law. Further, the Minister's decision represents a quasi-judicial decision and is therefore reviewable. It was argued that, Minister's position is not dissimilar to a judge sitting alone who is obliged to set out the factual basis on which he invokes the provision of Section 15(6) (d) of the Aliens Act. If there are matters that ought not to be made public, that has to be brought to the attention of the Court. The Minister cannot be the sole determinant of "what is conducive to the public interest." The Minister is not the final arbiter.

14 Defendant's Case

15 (9) Counsel for the Attorney General contended that the Minister's decision is not reviewable, it being an executive decision. The Constitution recognises...