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Govt To Appeal Disclosure Of Immigration Documents

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Fred Mitchell

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

THE government intends to appeal a Supreme Court judge’s ruling that called for its disclosure of all relevant documents relating to its immigration policy introduced a year ago.

A statement was issued by the Ministry of Immigration and Foreign Affairs, noting Minister Fred Mitchell’s legal right to have the Court of Appeal examine the decision of Justice Rhonda Bain.

Justice Bain is presiding over an ongoing judicial review action brought by an alleged victim of the government’s immigration reform policy that was implemented November 1, 2014.

“The decision in the matter is being appealed by the minister,” the ministry said in a statement on Friday.

“This is not a decision on the substantive matters raised in the application of the applicant. It relates only to an order to reveal the internal and confidential papers of the file relating to the policy,” the statement added.

The Grand Bahama Human Rights Association (GBHRA) yesterday challenged the government on whether it had anything to hide from the public on the issue.

“At a time when violent crime is out of control and the court system is overwhelmed with serious matters, the government must explain why it would seek to waste judicial resources, the valuable time of the Attorney General’s Office and public funds in an attempt to keep this information secret,” the group said.

“Minister of Immigration Fred Mitchell has repeatedly defended the new policy as both legal and necessary. Needless to say, we disagree with him on both counts. The court has essentially asked him to back up his claims with the facts. What could it be that Mitchell and his senior staff have to hide?”

Kayla Green-Smith and Melissa Wright, Crown attorneys for the respondents in the case, had objected to 21-year-old Widlyne Melidor’s judicial review request for discovery on the basis that her circumstances did not fall in the category of “exceptional.”

Last Wednesday, however, Justice Bain ruled that discovery was necessary.

“After considering the facts of the case at hand, the court holds that discovery is necessary to enable the court to resolve the matter justly and fairly,” Justice Bain said on Wednesday. “The respondents have an obligation to make frank disclosure to the court of the decision making process.”

She ordered the government to produce in 21 days all relevant documents, including, but not limited to letters, policy papers, internal memoranda, minutes, reports, directives in relation to “the initiatives (that) were implemented on November 1, 2014”.

The respondents in this legal action – Minister of Immigration Fred Mitchell, Minister of Education Jerome Fitzgerald, the Columbus Primary School Board, Minister of Health Dr Perry Gomez and the administrator of the Fleming Street Community Clinic – were given until December 2 to comply with the court’s order for disclosure of the documents.

Melidor has alleged that she was repeatedly denied access to a local clinic and that her son was not allowed to attend school in the Bahamas due to the new immigration policy.

Fred Smith, QC, Dawson Malone and Martin Lundy II represent Melidor and her son in the judicial review.

Melidor seeks judicial review of the Immigration Department’s policy requirement for persons born in the Bahamas to carry identity papers proving their right to reside in the country; and the decision to refuse consideration of her citizenship application until she is able to produce a Haitian passport, special residency or Belonger’s permit.

Melidor is seeking relief in the form of a declaration that the decisions were ultra vires, or without legal authority; a declaration that the minister of immigration is in breach of his duty to determine her citizenship in a timely manner; and orders of certiorari to quash each of the decisions.

She has also requested orders of mandamus: to require the minister of immigration to consider her citizenship application according to law and within a reasonable time; to require the minister of education and the Columbus Primary School Board to register her son, Petroun; and to require the minister of health and the administrator of the Fleming Street Community Clinic to provide access to medical care for herself and her dependents.

At the time of the application, Melidor was 39 weeks pregnant with her fourth child. She has since given birth.

Comments

Economist 4 years ago

If this is legal then why appeal the courts ruling?

This is such a waste of the taxpayers money.

You have all this crime and you are spending tens of thousands to keep secrets?

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Publius 4 years ago

Behold, the true criminals!

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TruePeople 4 years ago

Child is born here to a no -doubt honest working family and is told by the country of his birth no only that he is not Bahamian, but is actually FORBIDDEN from receiving an education or healthcare........... According to Mr. Foolery Mitchell his policy is a matter of national security.... but it's only keeping the criminals in....... and in full control

and some think FOI is possible here............ damn

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jus2cents 4 years ago

Defending Basic Human Rights is the best way to spend taxpayers money. The only party that is wasting time & money is the government, they are the ones evading and delaying.

The government MUST be held accountable, it is a sad indication of the government chipping away and destroying democracy. The Bahamian government is blindly heading toward becoming a dictatorship, some think it already is.

We all should be on our knees thankful for any lawyer that's willing to stand up for human rights ....these are all OUR rights too.

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Economist 4 years ago

It will be just a matter of time before this and other actions wind their way to the Privy Council where the Justices have no political affiliation.

The government will lose and some of the, what one must assume, underhanded dealings will be reviled.

But we the people are being forced to pay hundreds of thousands of dollars to help a government keep secrets that which we want out in the open. That's perverse.

Yes, and most of this would be saved if we had a FOI act.

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Abaconian 4 years ago

I usually agree with you Economist, but unfortunately, most of this would NOT be saved if we had a FOI act. At least not the FOI act that is currently being proposed. FOI acts are riddle with "exemptions". All you have to do is read the Act to realise that the actual information that citizens can REQUEST to obtain renders the act teeth-less. For instance, the Act explicitly exempts "records affecting security, defence or international relations"; "records relating to law enforcement"; "records AFFECTING THE NATIONAL ECONOMY"; and "records RELATING TO COMMERCIAL INTERESTS".....Basically, the government does not have to give substantive information relating to policy decisions in these areas. This almost certainly includes policies relating to immigration, and importantly, how and why the government spends our tax dollars the way they do! Now, that being said, you can still request information on certain administrative and procedural issues such as the salaries of public offices, how many employees are employed by a government body, or how much money a government body spends on tea and coffee a year and things of that nature. But to get solid information on the most important questions relating to the economy and the country? The substantive questions that people want answers for?....Not going to happen with any FOI Act, I can guarantee you that.

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TalRussell 4 years ago

Comrades while FOI laws can give voice to ordinary people to seek out the truth surrounding the actions of their government, the peoples right to know information in the hands government can have its costs. No governing party. with or without FOI act, will give up information they don't want to be seen to citizens who seek answers..Those citizens who seek to hold their government accountable for their actions will always face politicians and officials who will think nothing to turn the tables by dishing out victimization against those demanding information.
What makes it much difficult to know who to vote for come the 2017 Genera, is the knowing that the Bay Street Boys, UBP's, FNM's and so have the PLP's - all have denied citizens the information they sought.
There MUST be an alternative, or little to anything will change for the best come the 2017 General.

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Economist 4 years ago

But Tal, the more of us who stand up the more difficult it becomes for a government to victimize.

It is like the bully in the school yard. When faced with a large number the bully backs away.

These are politicians, as soon as it looks like the general population is against them they will back down and make it look as if they are giving us something special out of the goodness of their hearts.

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TalRussell 4 years ago

Comrade Economist i don't think you really believe politicians will react as a school yard bully will once called out.

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Alex_Charles 4 years ago

I disagree. If they won't listen to our pleas then we go international on them. That ALWAYS works. They prefer it when you can be intimidated to shut up. but once you join in a chorus and shout and scream to international communities and the cameras start rolling things change to save face.

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Tarzan 4 years ago

"No governing party with or without FOI act, will give up information they don't want to be seen to citizens who seek answers."

Yes Tal. That is particularly true of a government engaged in the systematic plundering of the public treasury.

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TalRussell 4 years ago

Comrade Tarzan I understand fully it's not popular to utter but while it creates excitement to harangue politicians and call for mass street protests - I would prefer to lead the march in favor of retaining the appeals to the Privy Council - cuz even if you implement a FOIA, you will need to use the Privy to have it enforced.
And, it will matter not which political party holds the power as it will be ignored. Case in point has been the total disregard by MP's, Senators and high government officials to fie their Financial Disclosure Statements as called for under the law - despite facing imprisonment.

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The_Oracle 4 years ago

Those who would trade Freedom for security from their Government, usually gain nothing but lose much. The Government is powerless to do anything but preside over the decline of their own creation, and promise even more futile solutions.

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sheeprunner12 4 years ago

This is the dark side of the PLP at its best ............ and you expect FOIA from them??????

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birdiestrachan 4 years ago

Ms: Melidor has many lawyers. This is her fourth child. she is a young single parent. so I am sure she was given medical care before.. Fred Smith is trying to prove a point. If she is required to have certain documents What is the problem? I am always asked to produce certain documents over and over again and I must comply. So many persons are in need of lawyers would any of the above lawyers assist them no way. Of course not. Fred Smith human rights is not for every one it is only for certain groups.

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Economist 4 years ago

Birdie, the principal behind a Judicial Review is the right to have a court analyze on decisions made by public bodies such as any licensing authority and government decisions.

For the court to see if the public body followed proper procedures in accordance with the rules of "Natural Justice" it needs to see what the thinking was and what it was based on. This includes the papers and documents ordered to be released.

Maybe you want a dictatorship like Haiti had under papa doc, but many of us want a free and open democracy.

I support Mr. Smith for protecting my freedom and the freedom of progressive intelligent Bahamians.

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licks2 4 years ago

Do you mean "customary law"? You should research the meaning and epistimilogical construct behind the UN concept of local and international customary laws and how they impact member states protection of their borders and the requirements of international accords!!

Natural justice supports the Bahamas in that she has the "natural right" to determine who is allowed to enjoy the fruits of her resources. . .not persons from another nation. . .other member states are allowed to fight to protect their homeland from outside incursions!!

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Chucky 4 years ago

Democracy is an illusion as long as the people can be divided and kept from standing together.

All governments use divisive issues to divide and conquer the populations.

Only when faced with a marching majority do the people really force those "democratically elected" to truly represent, to answer for their actions and to act in the people's interest.

The more you bend over the more you show your ass! Stand up together or keep bending over, it's you're choice.

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John 4 years ago

Jamaica news reporting that C&W. /. BTC has been sold. If government has 51 percent ownership in BTC did they not have a say in the sale? Understood that the buyer is an American Who involved in global communications. Is this a good thing or bad for Bahamian customers and staff of BTC

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sealice 4 years ago

Last thing Fweddy wants is a WOMAN telling him what to do...... homosexual, racist, sexist, xenophobe = perfect candidate for minister of foreign affairs.

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birdiestrachan 4 years ago

Economist Thank you . Now when it comes to Fred Smith protecting progressive intelligent Bahamians right there and then you left out Fred smith ., He is not a part of that group. Also does he ever try to help any poor Bahamian young men who may be innocent and can not afford a lawyer? He is selective in who he tries to help..

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licks2 4 years ago

When I saw that court ruling the first word came to mind. . .APPEAL. . .then. . .PRIVY COUNCIL!!

No Judge has the right to request any private documents that are protected by the Constitution of the Bahamas!! Check your Constitution and you will see that the Judicial has no power to request decision making documents protocols from the Legislators. . .which include the Governor General!! This new requirement is now law of the Bahamas!

The court can only take written decisions and compare them to the Constitution and submit a ruling based on the constitutionality of the law, policy etc. The court cannot make the legislator produce any private documents that shows decision making protocol for that independent and constitutional body.

I can cite a specific Bahamian case (court #10, 2007) where one party lost the case because he lost his copy of a letter that could have proved his case against the complainant. The letter in the possession of the complainant had the terms of the agreement between both parties. The defendant requested that the judge "forced" the complainant to produce the letter that can prove the defendant case.

The court ruled that the court could not "force" the complaint to produce any private documents even if it could show the true terms of the dispute. . .THE COURT CAN ONLY CONSIDER DOCUMENTATIONS PRESENTED AS PRIMA FACIE EVIDENCE PRESENTED BY THE COMPLAINANT TO SUPPORT THEIR CLAIMS FOR REDRESS!!

The court is not allowed to go on fishing expedition or witch hunts in independent legislator documents to "find" support for the complainant's case!! If the prima facie evidence presented by the complainant cannot show where the complainant was "wronged". The judge is not solid in asking the defendant to go bring "your papers so I can find something to support the complainant's case"! LOL!!

THAT REQUEST WILL NOT BE COMPLIED WITH!! Furthermore, the new immigration requirement became law May 18th, 2015. . .sign by the GG. . .over whom no court in this land can constitutionally appeal, repeal any law or question his/her decision!

The problem with persons here who I assume are of Haitian decent and question Government decisions is that they do not take time to educate themselves on these issues before they "run" their mouths all over the place and become all emotional, rude and loud.

Fred Smith just throwing "good cases" at the court and hoping that one will "stick" so he can prove his point! So far. . .the Jamaican man who was in jail for years without a trial case is the only one that will "bite" the Bahamas in the butt!!

That's why the court immediately granted its Habitus Corpus ruling after hearing the evidence. . . however, the Bahamian Government is still "looking" into the case. . .

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