Arra v Governor of Cloverhill Prison and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Ryan
• Judgment Date: 26 January 2005
• Neutral Citation: [2005] IEHC 12
• Court: High Court
• Date: 26 January 2005

[2005] IEHC 12

THE HIGH COURT

[No. 1083 JR/2004]

ARRA v GOVERNOR OF CLOVERHILL PRISON & ORS

JUDICIAL REVIEW

BETWEEN

NIKOLIN ARRA

APPLICANT

AND

THE GOVERNOR OF CLOVERHILL PRISON, JUDGE BRADY, JUDGE COUGHLIN, THE COMMISSIONER OF AN GARDA SÍOCHÁNA THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

IMMIGRATION

Detention

Preventative detention - Identity - Forged documents - Whether preventative detention unconstitutional - Whether detention unlawful - Whether application to renew detention fresh application - Whether obligation on applicant to assist in processing of application for refugee status - G.K. v Minister for Justice [2002] 2 IR 418 followed - Refugee Act 1996 (No 17), s 9 - Judicial review refused - (2004/1083JR - Ryan J - 26/1/05) [2005] IEHC 12 - Arra v Governor of Clover Hill Prison

section 9(10) of the Refugee Act 1996, as amended, provides that “where a person is brought before…the District Court…the judge may…if satisfied that one or more of the paragraphs of subsection (8) applied…commit the person [to prison]”. Section 9(14)(a) provides that “where a judge of the District Court commits a person [to prison]…a judge of the District Court…may, if satisfied that one or more of the paragraphs of subsection (8) applied…commit him…for further periods…” The District Court made an order committing the applicant to prison pursuant to section 9(8), paragraphs (c) and (f), of the Refugee Act 1996 which provide respectively that the applicant “has not made reasonable efforts to establish his true identity” and “…is in possession of forged identity documents”. The applicant applied for his release and a declaration that his detention was unlawful pursuant to leave granted to judicially review the order of the District Court. He argued that the judge had no jurisdiction to order his detention under ground (f) as his colleague had previously not been satisfied on ground (f) in relation to his prior detention. The applicant also argued that ground (c) did not apply as he had made reasonable efforts to establish his identity. The applicant also argued that section 9 of the Act of 1996 was in breach of the European Convention on Human Rights and that Article 5(f) thereof had to be given a strict interpretation.

Held by Ryan J in holding that the applicant was not entitled to the relief sought that section 9(14) of the Act of 1996 envisaged a separate and distinct hearing whenever there was an application to commit an applicant for a further period of detention under the section and there was no res judicata in relation thereto. In respect of the argument advanced in relation to ground (c), that once there was evidence before the District Court on which it was entitled to act, the High Court, on a judicial review, would not substitute its view for the court which heard the evidence and considered the matter in accordance with the law. That the European Convention was not to be read as if it were a revenue statute or criminal provision and the applicant’s interpretation of a document embodying principles of protection of rights was too technical.

Reporter: P.C.

1 Judgment of Mr. Justice Ryan delivered the 26th day of January, 2005.

Introduction

2 This is an application for judicial review pursuant to leave granted by the Court (Mr. Justice Clarke) on the 26th November, 2004. The reliefs sought are recited as follows in the order of this Court:-

3 1. A declaration that the detention of the applicant at Cloverhill Prison is unlawful.

4 2. A declaration that the applicant is not detained pursuant to s. 9 (8)(f) of the Refugee Act, 1996.

5 3. A declaration that the applicant has made reasonable efforts to establish his true identity.

6 4. [A declaration] that the applicant has done all that is required to establish his identity in the circumstances pursuant to the provisions of the Refugee Act, 1996.

7 5. A declaration that s. 9 (8)(c) and (f) as applied by s. (9)(10)(b)(i) of the Refugee Act, 1996 are incompatible with the provisions of Bunreacht na hEireann.

8 6. A declaration pursuant to s. 5 (1) of the European Convention on Human Rights Act, 2003 that s. 9(a)(c)(f) as applied by s.(9)(10)(b)(i) of the Refugee Act, 1996 are incompatible with the State's obligations under the European Convention on Human Rights.

9 7. Bail pending the determination of —— the within proceedings.

10 8. Such further or other order as to this Honourable Court shall seem meet.

11 9. An order providing for Costs.

The Facts

12 The facts of the case are undisputed in all important respects. The applicant was arrested by Detective Garda John Kingston on the 1st October, 2004, in Dublin. The Garda was with a colleague in Parnell Street when he saw the applicant in company with a man who was the subject of a deportation order and who had been deported on three occasions. When the applicant was asked for identification, he produced a FAS Safepass card in the name Nikola Veguela and a social welfare card in the same name. He said he was Italian. He agreed to bring the Gardai to his apartment nearby to show them his identity card. On the way to the apartment, Mr. Arra tried to get away and Garda Kingston arrested him under s. 12 of the Immigration Act, 2004. The applicant was brought to Store Street Garda Station where he was questioned under caution. He then told the Gardai that he was Nikolin Arra, an Albanian, and that he had been in the State for approximately two to three weeks. He came to Ireland by truck but did not know through which port he entered. He was then released from custody under s. 12 and the Garda then refused him leave to land pursuant to the Immigration Act, 2004 on the ground:-

"That the non-national is not in possession of a valid passport or other equivalent document issued by or on behalf of an authority recognised by the Government, which establishes his or her identity and nationality."

13 Mr Arra was then arrested under s. 5(2)(a) of the Immigration Act, 2003 and he was conveyed to Cloverhill Prison.

14 The next relevant development was that the applicant applied for a declaration as a refugee in Ireland in accordance with s. 17 of the Refugee Act, 1996 (as amended). That application was made on the 2nd October, 2004.

15 It should be mentioned here that the grounding affidavit for this application is sworn by the applicant's solicitor in which it is stated that he:

"Arrived in Ireland on 25th September, 2004 to join his wife Dila Arra and his Irish child, who was born on the 10th May, 2004. It appears that he did not know the exact whereabouts of his wife and child upon his arrival; and set to looking for them."

16 An application was then brought under Article 40.4 of the Constitution and pursuant thereto an Order was made by this Court on consent on the 7th October, 2004, for the release of the applicant from detention. Following his release, the applicant was arrested by Detective Garda Kingston under s. 9 (8) of the Refugee Act, 1996 on the grounds that he had not made reasonable efforts to establish his true identity and that he was in possession of forged identity documents. He was brought before the District Court sitting at Clover Hill on the 8th October, 2004. This case is concerned with the lawfulness of his detention following the 8th October, 2004. The events which I have set out above are the backdrop to the application now before the Court.

Events from 8th October, 2004 to 26th November, 2004.

17 On the 8th October, 2004, Detective Garda Kingston applied to the District Judge at Clover Hill Court to detain the applicant. His application was based on an Information dated 7th October, 2004. In the Information, the Garda set out fully the grounds for his application under s. 9(8). The Garda was seeking an order committing the applicant to a place of detention for a period not exceeding 21 days under s. 9(10)(b)(i) of the Refugee Act, 1996. He sought to satisfy the Court that there were two grounds for the detention of the applicant. First, the Garda contended that Mr. Arra had not made reasonable efforts to establish his true identity. Secondly, he maintained that the applicant was in possession of forged identity documents. He relied on the facts as set out above and, in addition, the inference that he said should be drawn from the information to the effect that the applicant was still in possession of a forged Italian identity card. The applicant had told the Gardaí he was in possession of such a card and inquiries established that an Italian identity card was produced for the purpose of obtaining the social welfare card which was in the applicant's possession. There was of course the question of when the applicant had arrived in the country. His solicitor says, obviously on instructions and only on the basis of instructions given by the applicant, that he arrived in Ireland on September 25, 2004. Detective Garda Kingston says that Mr. Arra put his arrival in the State at some two to three weeks prior to the 1st October, 2004, (he says that the time three to four weeks stated in the Information is a mistake). If the applicant is the person who applied for and obtained the two cards which were in his possession on the 1st October, 2004, it is clear that he must have been in the State for a great deal longer period. The PPS card was issued on the 4th January, 2001, at Dun Laoghaire and the FAS Safepass on the 23rd February, 2002, at the Montrose Hotel in Stillorgan.

18 These matters were before Judge Brady at the District Court sitting at Cloverhill on the 8th October, 2004. The District Judge made an order committing the applicant to Cloverhill Prison pursuant to s. 9(8) of the Refugee Act, 1996 until the 29th October, 2004, being a period not exceeding...