Asylum seekers appeal ‘surreal’ court decision demanding ‘impossible’ proof from claimants

Demanding more evidence from a group of asylum seekers returned to Libya by Malta in order to establish whether a human rights case was validly filed on their behalf would be asking them the “impossible.”

This was the main thrust of an appeal application filed yesterday on behalf of lawyer Paul Borg Olivier, as mandatary of the 52 men and women who were pushed back to Libya in 2020 on board the Dar es Salaam, a fishing vessel hired by the Maltese government for this purpose.

The group of 52, who had been pushed back to Libya on the fishing vessel Dar al Salaam, had filed the case in 2020 asking to be allowed to apply for asylum and to receive compensation.

The plaintiffs are appealing a decision handed down earlier this month by the First Hall in its Constitutional jurisdiction, which had dismissed their claims. Instead, the judge had upheld the Government’s argument that documents appointing lawyer Paul Borg Olivier as the plaintiffs’ special mandatary or proxy had not been validly exhibited in the acts of the case, because the documents had not been made according to law.

The law requires appointments of proxies or mandates to first be presented to the authorities in the foreign country where the mandators (in this case the asylum seekers) were, as well as to a diplomatic or consular representative of the Maltese government. 

This requirement was hardly practical in the current scenario, argued lawyers Evelyn Borg Costanzi and Michael Camilleri, who filed the appeal on Borg Olivier’s behalf. “So a person who is alleging serious abuse on the part of the Maltese State must first authenticate the documents issued in the foreign country, through the diplomatic or consular representative of the Maltese Government, in a case that the person is filing against that same State!”#

The situation is very dangerous for the plaintiffs, argued the lawyers, because the State can therefore refuse to authenticate documents which were necessary for the filing of a case against it.

This state of affairs created an imbalance of power against the appellants and prejudiced the case they wished to file from the outset, said the lawyers, “because the fear, the trauma and the cruel experiences that they had endured, can never bring them to knock on the door of those who had breached their fundamental rights.”

The lawyers added that under Maltese law, the authentication procedure mentioned by the court of first instance did not apply to private writings such as the mandate in question.

The documents appointing Borg Olivier as the asylum seekers’ proxy all had asylum seekers certificates attached to them, which established the identity of the asylum seekers,  as confirmed by UNHCR officials, reads the appeal application.  

Describing as “surreal” the First Hall’s observation about the absence of the appointers’ fingerprints on the proxy form, the application goes on to state that there were emails from the UNHCR, copied to the Assistant Chief of Mission and other officials, which confirmed that Borg Olivier’s appointment had been approved by the agency, and was not an isolated initiative on the part of a single official.  “If anything, the confirmation of the identities of the mandators by the UNHCR is a much stronger confirmation than an unverified fingerprint.”

The documents confirming Borg Olivier’s appointment were only drawn up as confirmation of a mandate that had already been given verbally, he said. The lawyer explained that he had felt it necessary to request this step because it would not have been easy to prove he was representing them while they were in a country at war, in difficult sanitary conditions due to the COVID-19 pandemic, as well as because of the traumatised state of the people seeking asylum. “With all the embassies and consulates being closed, the only refuge and safe harbour for them was the UNHCR. Therefore, there is nothing that still contradicts the document appointing the proxy, with the impossible formalisms of the level of proof that the First Court wanted to establish.”

Arguing that the sworn testimony of both the appointed proxy and the lawyer representing the plaintiffs, together with the documentation exhibited in support of his appointment, were sufficient evidence of a “clear and unequivocal mandate” and that the appointment had been made in writing, the lawyers asked the court of appeal to revoke the earlier judgement in its entirety.