Former refugee commissioner had voiced concern over tourist boat detainees, court hears

Former Refugee Commissioner Roberta Buhagiar has told a court that she had flagged concerns over the government’s detention of migrants aboard tourist vessels.

Buhagiar a lawyer had been Commissioner for Refugees in 2020, responsible for the administration of asylum procedure in Malta, was testifying in the human rights case filed by 32 asylum seekers who had been detained at sea for nearly 40 days.

“There was no communication, in the sense that I didn't receive information about the progress. But at some point... I had received a phone call from Clyde Caruana, former chief of staff for the Prime Minister, asking if I could meet the PM. This was before they applied for asylum. I was following the media and felt the need to inform the authorities of my views and bring them to shore,” she testified on Tuesday.

She told the court that she was not involved in the case, saying the commission is not involved in decisions relating to search and rescue

Malta had claimed that sea rescue was not possible because of limited resources, and prohibited humanitarian rescue vessels from entering port (Photo: James Bianchi/mediatoday)

The 32 plaintiffs, coming from Sierra Leone, Ivory Coast, Nigeria, Liberia and Bangladesh among others, had been detained on board boats normally used for coastal sightseeing cruises, after being rescued at sea in the Maltese search and rescue region in April 2020.

The case revolves around the government's chartering of four commercial sightseeing boats from Captain Morgan, a local sightseeing cruise company, and their use as floating detention centres for asylum seekers who had been rescued in the Maltese search and rescue region.

She said she had informed the authorities concerned that if any one of them expressed an intention to apply for asylum, they were to be allowed to do so. “My office was not given access to the boats, nor did we ask for it because the circumstances did not allow it.”

Prime Minister defends decision

First to testify during Tuesday’s proceedings, was Prime Minister Robert Abela who insisted that the decision to use the boats as offshore detention centres “was not a political decision, but a government one.”

“The country was in the grip of an emergency. The Superintendent of Public Health had declared a health emergency, our airport was closed, our ports were closed, there was a travel ban and the citizenry was not able to leave the country. We did not neglect our duty to save life at even a single instant,” he said.

He insisted that the rescued migrants were held in conditions which were as comfortable as the situation permitted.

Prime Minister Robert Abela (left) and Home Affairs Minister Byron Camilleri (right) arriving to court on Tuesday morning (Photo: James Bianchi/mediatoday)

"The Superintendence of Public Health (SPH) issued the directives but finding a solution was our problem," Abela said, reminding the court that he had gone to Libya himself to discuss the issue. "We did not have onshore facilities to house the migrants."

Abela said it was contingency based on a public health emergency. "The choice was either to let a number of people drown or save them. We chose to save them."

He also reiterated the government position that “immigration is a problem that must be addressed by all member states."

Home Affairs minister says he was not involved in tourist boat selection

Home Affairs Minister Byron Camilleri also took the stand today, telling the court that those aboard the boats had all their needs taken care of.

“We provided every type of supply we could think of. Food and drink, medical supplies, phone coverage, cigarettes. We gave them all of these, but like the rest of society, they had to wait until they could enjoy full freedom," he said.

He added that he was not involved in the selection of which tourist ferry operator would be hosting the migrants.

"Everybody who knows me, knows I don't interfere in processes," he said. "It was a collective decision by government."

"It was a government decision," he repeated when pressed as to whether it was a decision taken by the Cabinet, the parliamentary group or some other body.

The plaintiffs are being assisted by aditus Foundation director and human rights lawyer Neil Falzon, aditus Foundation assistant director Carla Camilleri, aditus lawyer Mireille Boffa, lawyer and JRS director Katrine Camilleri, and lawyer Cedric Mifsud.

13:48 The case has been adjourned to 9 November at 12:15pm. Thanks for following. Karl Azzopardi

13:45 The case has been adjourned to 9 November at 12:15pm. Karl Azzopardi

13:42 Mifsud asks for an adjournment, until a decision on whether or not to admit new parties to the case. Soler did not object, as long as he was not accused of dragging the proceedings out. Karl Azzopardi

13:40 O Neil received the instructions from his superior at the time, he said. "The AFM doesn't decide who comes in and who doesn't," replies the witness to a question from Mifsud, insisting that the AFM had only assisted with the logistics. Karl Azzopardi

13:38 "They were constantly calling the AFM, but you must understand that [the Captain Morgan boats] were not under our control or command... they had their own ship chandler... they had a private company taking care of them." Karl Azzopardi

13:37 Mifsud confronts him with the captain's testimony, in which he said he had been in constant contact with the AFM. Karl Azzopardi

13:37 At the time he was head of operations, he says. The AFM had "little to no involvement," he insists. “It had only transported some Red Cross members to the boats in rough weather.” Karl Azzopardi

13:35 Tuesday’s last witness, AFM representative Brigadier Clinton O'Neil, who is commander of the AFM takes the stand. Karl Azzopardi

13:32 “The other passengers did not fall within the police's remit,” she says. "They were never under detention under the authority of the Principal Immigration Officer, but under that of the health authorities." Karl Azzopardi

13:29 Buhagiar leaves the stand. Next witness is Inspector Lara Butters, appearing on behalf of the Principal Immigration Officer. Karl Azzopardi

13:28 There was no written reply she said. "But shortly after sending my communications, I received a phone call from Aleander Balzan... who said the situation was under control and there were discussions with Germany about relocation." Karl Azzopardi

13:27 Buhagiar: “There was no communication, in the sense that I didn't receive information about the progress. But at some point... I had received a phone call from Clyde Caruana, former chief of staff PM, asking about the legal position of the migrants. This was before they applied for asylum. I was following the media and felt the need to inform the authorities of my views and bring them to shore.” Karl Azzopardi

13:25 "I informed the authorities concerned that if any one of them expressed an intention to apply for asylum, they were to be allowed to do so. My office was not given access to the boats, nor did we ask for it because the circumstances did not allow it," says the witness in reply to another question by Mifsud. After disembarking, the migrants had applied for asylum. Karl Azzopardi

13:22 The judge asks what would happen when the application happened in the SAR area, but outside territorial waters. The witness replies that as the boats were Malta flagged, they were effectively Maltese territory. Karl Azzopardi

13:20 She had not received word of any asylum applications while the boat was at sea, but added that she had told the authorities that if people on board wanted to apply for asylum they should be allowed to, “as long as they are in Maltese territorial waters." Karl Azzopardi

13:20 The Judge asked about her office's involvement. "I received no information from any government office or ministry about how these people's applications were to be processed." After disembarking, the migrants had applied for asylum. Karl Azzopardi

13:19 Mifsud asks about her involvement in this case. "I was not involved in the decisions per se. The Commissioner for Refugees does not interfere in decisions relating to search and rescue... so as such I had no involvement in these decisions." Karl Azzopardi

13:17 Buhagiar is a lawyer. In 2020, she had been Commissioner for Refugees, responsible for the administration of asylum procedure in Malta. Karl Azzopardi

13:16 When the sitting continues Dr. Roberta Buhagiar is called to the witness stand. Karl Azzopardi

13:09 The sitting is briefly suspended to allow other brief sittings to be heard. Camilleri steps off the stand. Karl Azzopardi

13:09 Mifsud: "What does collective mean?" "A decision by the government," replies Camilleri. Karl Azzopardi

13:08 Camilleri says he did not know and was not involved in the selection of Captain Morgan to provide this service. "Everybody who knows me, knows I don't interfere in processes." "It was a collective decision by government" replies the witness. Pressed as to whether it was a decision taken by cabinet, parliamentary group or otherwise. "It was a government decision." Karl Azzopardi

13:00 He asks Mifsud to explain the link between mistreatment and the right to apply for asylum. "I do not want to argue in the presence of the witness," replies the lawyer. "Then go straight to the action," replies the judge. Karl Azzopardi

12:59 The judge reminds the witness that the issue is their complaints of mistreatment on board. "The issue is did this message reach you or not?" Karl Azzopardi

12:58 "I know they all applied for asylum. When they made landfall... when these migrants were still at sea, we did several things to protect their rights.... when they arrived in Malta, they were given the right to legally, even though their arrival was illegal under the Dublin regulations, to go to Germany..." Camilleri says. Karl Azzopardi

12:56 Mifsud asks whether the migrants were offered the opportunity to apply for asylum. “They waited for several weeks on the boats,” says the lawyer. Karl Azzopardi

12:54 "Everything would be provided: food, clothing, medical services, there were doctors and nurses who were continuously assisting." The sick would receive treatment and some were transferred to hospital, said the minister. Karl Azzopardi

12:53 The judge insists on the witness answering whether he had heard the migrants' complaints about space, food quality or failure to provide medical care. Karl Azzopardi

12:52 Judge asks witness whether he was aware of the complaints. "We provided every type of supplies we could think of. Food and drink, medical supplies, phone coverage, cigarettes. We gave them all of these, but like the rest of society, they had to wait until they could enjoy full freedom." Karl Azzopardi

12:51 The minister continues. "Our centres, both open and closed, were overflowing. So as a government..." "Were the hotels also full?" interrupts Mifsud. Karl Azzopardi

12:50 Camilleri begins by explaining that it was a time of great challenges. Mifsud asks the witness to cut to the chase, but State Advocate Chris Soler objects, telling him not to interrupt the witness "when he doesn't like his testimony." Karl Azzopardi

12:49 Lawyer Mifsud asks why the people rescued were not held on military vessels but commercial ones. Karl Azzopardi

12:49 Home Affairs Minister Byron Camilleri takes the stand. Karl Azzopardi

12:48 Abela: “It was a contingency based on a public health emergency. "The choice was either to let a number of people drown or save them. We chose to save them." Mifsud asked why they were held outside Maltese territorial waters. The witness replies that the location was not chosen on the basis of territorial criteria but on safety ones. Karl Azzopardi

12:45 The judge does not like the lawyer's line of questioning and warns him not to drag out the proceedings. Karl Azzopardi

12:42 The migrants were held offshore as a stopgap measure until a more permanent solution could be found, Abela says. Karl Azzopardi

12:41 Abela: "Malta and Lampedusa were facing a disproportionate burden in relation to our size. The detention facilities were all full. We are talking about territory which is part of the European Union, immigration is a problem that must be addressed by all member states..." Karl Azzopardi

12:39 Mifsud asks whether it was a political decision. Judge asks whether he means policy or politics. "Policy," is the reply. Karl Azzopardi

12:38 The boats were the option selected. "The Superintendence of Public Health (SPH) issued the directives but finding a solution was our problem," Abela said, reminding the court that he had gone to Libya himself to discuss the issue. "We did not have onshore facilities to house the migrants." Karl Azzopardi

12:36 Mifsud confronts Abela with the testimony of Charmaine Gauci, who had previously told the court that she had not been consulted. The judge interrupts, saying the issue was the treatment of the migrants, disallowing the question. Karl Azzopardi

12:35 Cedric Mifsud: "Was it a political decision or a public health decision?" Robert Abela: "Public health. In fact it never repeated itself. We had the choice to either save lives... the country was paralyzed by COVID-19 restrictions at the time,” Abela said, but insisted that the rescued migrants were held in conditions which were as comfortable as the situation permitted. Karl Azzopardi

12:34 Yes, Abela replies. "It was a government decision." Karl Azzopardi

12:34 Mifsud asks about the decision to use private vessels. "As Prime Minister, were you involved in this decision, which you described as collective?" Karl Azzopardi

12:33 Questioned about his Involvement on the transfer to Captain Morgan, he said it was the government's obligation to save everyone it could. "There were two operators. It was not a political decision, but a government one... at the time, the government did not have the comfort of being in an airconditioned courtroom. The country was in an emergency. The Superintendent of Public Health had declared a health emergency, our airport was closed, our ports were closed, there was a travel ban and the citizenry was not able to leave the country. We did not neglect our duty to save life at even a single instant." Karl Azzopardi

12:30 He said he was not but, "as a Prime Minister I am kept updated." Karl Azzopardi

12:30 PM Robert Abela takes the witness stand. MIfsud asks about the rescue operation on 30 April 2020. “Were you involved in the coordination?” Karl Azzopardi

12:29 But the judge says that only the first two would be heard. He warns Mifsud that he "doesn't want fishing expeditions." Karl Azzopardi

12:29 Lawyer Cedric Mifsud tells the court the Prime Minister Robert Abela, Home Affairs Minister Byron Camilleri and the Principal Immigration Officer are among the witnesses summonsed to testify. Karl Azzopardi

12:20 Judge Toni Abela notes that it appears that the Prime Minister has other commitments. It is unclear as to whether this means the Prime Minister will not testify today or will simply affect the timing of his testimony. Karl Azzopardi

12:19 Good morning and welcome to our live-blog. Our court reporter Matthew Agius is in the courtroom. Karl Azzopardi