The Tribune

By DENISE MAYCOCK

Tribune Freeport Reporter

dmaycock@tribunemedia.net

SUPREME Court Justice Petra Hanna Weekes has ruled that Canadian Bruno Rufa was unlawfully deported from The Bahamas and that his second arrest and detention by immigration officers in Freeport were in violation of the law.

Mrs Hanna Weekes delivered her ruling in the Judicial Review trial brought by Mr Rufa against the Minister of Immigration, The Director of Immigration and the Attorney General over the decision finding that Mr Rufa was an undesirable, a threat to public peace and was to be deported as soon as possible.

In her written ruling of October 29 she found that the actions taken by immigration authorities concerning Mr Rufa’s second arrest “amounted to a breach of the rules of natural justice”.

“To be arrested without reasonable suspicion, taken into custody, not informed of the reasons for the arrest, not allowed an opportunity to refute allegations, if any, made against him taken under heavy guard to his residence and given a very short time to pack a bag and board a flight out of the country, are actions by the immigration authorities which amount to a breach of the rules of natural justice,” she said.

Mr Rufa, a condominium owner at the Coral Beach Hotel, was initially arrested on January 3 by Immigration officers and appeared before Magistrate Debbye Ferguson on February 2, when he was charged with allegedly engaging in gainful occupation. He was released on $2,500 cash bail and the proceedings adjourned.

Following his appearance on February 18, Mr Rufa was arrested a second time by immigration officers who told the Magistrate’s Court  that he had been deemed an undesirable by the Director of Immigration and was to be deported as soon as possible.

Mr Rufa was held in custody, taken to his residence to pack a bag and told to book a ticket on the next flight. He was escorted to the airport by immigration officials to purchase a ticket and to the US pre-clearance departure lounge for a 3.08pm flight to Miami.

Mr Rufa’s attorney, Carey Leonard, senior associate at Callenders and Co, wrote to the Assistant Director of Immigration requesting a copy of the Deportation Order, but had received none.

An injunction restraining Mr Rufa’s deportation was granted at 3.20pm, but the flight to Miami had already departed from Grand Bahama International Airport (GBIA).  

At the time, Mr Rufa was – and still is – president of the Board of the Directors for Coral Beach Management Company Ltd, had been the owner of units for 10 years and had periodically resided in Grand Bahama for years.  

When Mr Rufa attempted to book a flight back to Freeport around 8pm on February 18, he was prevented from doing so by an official at Miami airport who had informed him that the Bahamas Department of Immigration had placed a stop on his re-entry.  A summons was filed on March 27 seeking permission for him to be allowed to remain in Grand Bahama.

After discussions between his attorneys and the Immigration Department, a Consent Order was agreed and he was allowed to return to Grand Bahama.

Because Mr Rufa’s case in the Magistrate’s Court was furthered adjourned to April 22, he had gone to the Immigration Department in person on March 26 to apply for a 60-day extension.  While there, he met senior immigration official Jerome Hutcheson, who told him to return on Monday to speak with the Assistant Director of Immigration.

Mr Rufa applied and was granted leave to apply for judicial review on March 27. After hearing evidence from both sides, Justice Hanna Weekes delivered her oral ruling on October 29. In her written ruling, eight issues were identified. 

On the first issue of whether the respondents arrived at a decision to deport Mr Rufa, Justice Hanna Weekes ruled that there was no evidence that the respondents made a “decision” to deport Mr Rufa. “While the utterances of Immigration Officer Sands before Magistrate Ferguson amounts to an almost inescapable inference that such a decision was made by immigration authorities, there is no factual evidence that this was the case. Immigration Officer Sands could have acted ultra vires the instructions of his superiors. I cannot say. Other than his utterances before the Magistrate, there is no evidence that the decision was made.”

On the issue of whether Mr Rufa was taken into lawful custody by Immigration officers, referring to Section 18 of the CPC which provides that a subject shall within 48 hours of such an arrest be taken before a Magistrate or released on police bail, Justice Hanna Weekes ruled that there was no new evidence to justify further action being taken against Mr Rufa (the second arrest) by Immigration authorities.

On the issue of whether an immigration officer has the power to vary the stay of any person entitled to remain in the Bahamas is paramount, the judge said that while she accepts the respondents’ argument that a person who is not a citizen or permanent resident does not have an unqualified right to remain in the state, she “does not accept is that the immigration authorities can unceremoniously ‘scoop up’ a subject of the  State, legally landed in the country, and escort them out of the country without more.”

She noted that the  provisions of Section 19 of the 1967 Act and Section 22 of the Act are almost identical. Both sections, she said, sets out the basis upon which a person may be granted leave to enter or to remain in The Bahamas by an Immigration officer.

Justice Hanna Weekes noted that Mr Rufa had resided in The Bahamas intermittently for 15 years; that he was a Canadian citizen and there is no evidence that he could not return there or had no means of travelling to some other country; and he had permission to be in the country for another week after the date of his second arrest.

He was charged before the Magistrate’s Court with working without a work permit but the matter had not been completed and he had been admitted bail and under the rule of law is innocent until proven guilty.

She further stated that no particulars were proffered by the Immigration Department as to the nature of the “reports” made against him or the manner in which he was attempting to interfere with the witness in the case against him or in what manner he threatened security measures – in other words, proof that he behaved in a manner prejudicial to the peace, order and good governance of the Bahamas.

“There is no evidence that he is suffering from any mental disorder or defect; or that he was engaged in some immoral activity; he has not been convicted of any offence criminal or otherwise; up to the point of his departure he was not put on the stop list; up to the time of his departure he was not the subject of a deportation order; and according to the respondent had not been deemed an undesirable by the Immigration Board.

“To be arrested without reasonable suspicion, taken into custody, not informed of the reasons for the arrest, not allowed an opportunity to refute allegations, if any, made against him taken under heavy guard to his residence and given a very short time to pack a bag and board a flight out of the country, are actions by the immigration authorities which amount to a breach of the rules of natural justice.”  

On the issue of whether Mr Rufa was able to remove himself from or leave the custody of the Immigration Officers on his own volition, she noted that he was placed under heavy guard from the time he was arrested until he was escorted to the US departure lounge of the GBIA. He had no control over his movements and that his attorney could not obtain his release before he was airborne. 

Justice Hanna Weekes further noted that “Rufa was paraded under heavy guard as he was led through public areas at his condominium, through a public parking lot, through an international airport and before TV cameras. If he could have removed himself he would have.”

On the issue of whether Mr Rufa was free to remain in The Bahamas of his own volition, the judge noted that Mr Rufa was forced to purchased an airline ticket, at his own expense, not to his place of origin but to Miami, Florida, on the next available flight out of the country.

“He was not even afforded the decency of 24 hours to pack his belongings. Again, this is an individual who is a property owner, who has lived here periodically for 15 years and he was given an hour or less to pack. The applicant was not free to remain in The Bahamas,” she concluded.

She noted that when Mr Rufa attempted to return to The Bahamas on February 18, he could not. “I accept his evidence that he was informed by US authorities that he had been placed on the stop list. The applicant has had to obtain special permission to return to the Bahamas ever since his departure on February 18 and has only been given permission to enter for the purpose of attending court,” she noted.   

She concluded that for Mr Rufa to be required to obtain special permission to enter the Bahamas in the circumstances is unfair and unreasonable and amounted to a breach of the rules of natural justice.

“For these reasons, I find that the Applicant (Mr Rufa), was deported from The Bahamas. Whether one says that he was ‘seen out’ or ‘asked to leave’ or ‘escorted out’, he was deported. The absence of a Deportation Order issued by the Minister of Immigration makes the deportation unlawful. I also find that his arrest and detention by the Immigration Officer was contrary to the provisions of Section 9 of the Act and Section 18 of the CPC and unlawful,” Justice Hanna Weekes ruled.