The Tribune

By RICARDO WELLS

Tribune Staff Reporter

rwells@tribunemedia.net

BAHAMIAN taxpayers could pay out “millions” in immigration lawsuits over the next few decades, a prominent immigration attorney has suggested.

In an interview with The Tribune, attorney Fred Smith, QC, said given the raft of illegal and indefinite detention of migrants at the Carmichael Road Detention Centre, the government could face dozens of lawsuits all because “no one will teach the Immigration department or hold them accountable to the law”.

Mr Smith, the attorney on record in several high-profile migrant cases over the last decade, said there is “absolutely no excuse” for Bahamian taxpayers having to pay out millions of dollars in damages every year due to the failures of government departments and law enforcement agencies.

He contended these cases of unconstitutional conduct are only just the beginning, insisting that as more and more lawyers sue, and the government continues to demonstrate its “complete ineptness” in defending cases, the taxpayers are left the “holding the bag”.

Mr Smith highlighted the case of Wilken Garson, a 28-year-old Bahamas-born man claiming to have been deported to Haiti by immigration officials last year but sent back to the Bahamas, as the latest in a run of matters where the department has allegedly failed to do its due-diligence in processing and identifying persons placed in the custody.

“Garson is yet another example of costs to the taxpayer without accountability by the ministers of government or the immigration department,” Mr Smith claimed.

“The government must stop defending the indefensible. As Dr Minnis swore on his inauguration to defend the rule of law, the Immigration department is making a mockery of his oath.”

Mr Garson was released from the Carmichael Road Detention Centre (CRDC) over a week ago, bringing an end to his “mind-boggling” four-month detention at the facility.

“I told them what they gonna do with me?” Mr Garson told The Tribune, “because I born here, I school here. They put handcuffs on me, put me in the bus, they send me to the detention centre and after that I spend like a month in there, and then they deport me.”

He continued: “Haiti refused me because I tell them I didn’t have no family in Haiti. Then they send me back Nassau and I end up in the detention centre again. I ask them when they gonna release me, they say soon.

“I keep asking them when they going to release me, they say soon, soon.

“I just was waiting,” he added.

Further to Mr Garson’s case, Mr Smith also highlighted several other case where the government’s continued defence of failed detention protocols have resulted in payouts to complainants skyrocketing in litigation.

“Let us take the (Anthony) Deveaux case recently where a matter which could have been settled for about 60k has ultimately led, over the years because of stubborn defending, to a cost of over $400,000 to the taxpayer,” he said.

In the case, the government had been ordered to pay a man more than $120,000 in damages because police failed to release his car from custody after charges against him were dropped.

Mr Deveaux’s 1990 Cadillac Fleetwood Brougham was confiscated during an alleged traffic stop in 2005. The car was held as evidence after Mr Deveaux was charged but never returned after the case against him was dismissed.

He appealed the court and got an order from Magistrate Gwendolyn Claude for it to be returned in 2011, but it was never done.

Mr Deveaux was awarded $40,737.28 in damages for replacement of his vehicle; $10,000 for the use of a rental for one year; $34,652.32 for loss of use; $25,000 in exemplary damages; and $10,000 in aggravated damages. Total damages amount to $120,389.60, not inclusive of interest from the date the issue arose in 2005, and up to the entry of the consent judgment in 2012.

Mr Smith added: “Costs awarded against the government in habeas corpus cases, in judicial reviews, false imprisonment, police and immigration brutality, damages for unconstitutional conduct, are all going to continue to increase, and yet the politicians in charge of Immigration and the Attorney General’s office are never held accountable,” Mr Smith added.

“It’s also nonsense for people like Fred Mitchell to suggest outlawing costs in constitutional or tort cases because the root of the problem is the continued illegal behaviour of immigration and the policing forces.

“Civil rights education, and respect for our fellow human beings in the Bahamas,” Mr Smith argued.

“(It) should be the foundation of our future. Then you will see less lawsuits and a more humane and respectful society.

“Another example is the Harvey Tynes or Tamara Merson case, which could have been settled in the low hundreds of thousands but ultimately cost the Bahamian taxpayers millions because of a decades-long defence to try to avoid the inevitable.”

Mr Smith went on to urge Prime Minister Dr Hubert Minnis and his government to end their “obstinate” behaviour, claiming that much of their actions are often done just for the sake of it and not on the grounds of doing what is right.

Mr Smith further called on government officials to begin to reign in and control the renegade policing forces, namely the Immigration department.

Mr Smith is presently representing Douglas Ngumi, a Kenyan man allegedly detained unlawfully in the Carmichael Road Detention Centre for six and half years.

Mr Ngumi testified last week that he was beaten, teargassed and contracted tuberculosis during his detention.

During proceedings, the Office of the Attorney General failed to submit witness statements and evidence in the case in accordance with Supreme Court Justice Indira Charles’ directives.

Mr Smith has sought leave during trial yesterday to amend the writ of summons to seek aggravated damages –– special damages imposed on a defendant when the court determines its conduct increased injury to the plaintiff.

Doing so in response to Kenria Smith, a lawyer from the Office of the Attorney General, opposition to his attempt to persuade Justice Charles to deliver judgment last Tuesday after both sides finished cross-examining Mr Ngumi.

It was in the wake of this action, Mr Smith has mounted a public campaign against the government and its continued “defence of the indefensible”.