Ayinde and Ayinde v Minister for Justice
| Jurisdiction | Ireland |
| Judge | MR. JUSTICE T.C. SMYTH |
| Judgment Date | 11 March 2002 |
| Neutral Citation | 2002 WJSC-HC 433 |
| Court | High Court |
| Date | 11 March 2002 |
2002 WJSC-HC 433
THE HIGH COURT
Between
Citations:
IMMIGRATION ACT 1999 S3(6)
TRIMBOLE V GOVERNOR OF MOUNTJOY PRISON 1985 ILRM 465
CONSTITUTION ART 40
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S10
ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, IN RE 2000 2 IR 360
AMUUR V FRANCE 1996 22 EHRR 533
CHAHEL V UK 1996 23 EHRR 413
EUROPEAN CONVENTION ON HUMAN RIGHTS ART 5
EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8
MAHMOOD, R V SECRETARY OF STATE FOR HOME DEPARTMENT 2001 1 WLR 840
P & L & B V MIN FOR JUSTICE 2002 1 ILRM 16
P & L & B V MIN FOR JUSTICE 2002 1 ILRM 38
FAJUJONU V MIN FOR JUSTICE 1990 2 IR 159
IMMIGRATION ACT 1999 S3(2)(a)
IMMIGRATION ACT 1999 S3(2)(i)
Synopsis:
IMMIGRATION
Judicial review
Constitutional law - Detention -Fair procedures - Family law - Whether respondent failed to have proper regard to rights of family unit - Immigration Act, 1999 - Illegal Immigrants (Trafficking) Act, 2000 - Bunreacht na hÉireann, 1937 Articles 41, 42 (775JR/2001 - Smyth J - 11/3/2002)
Ayinde and Ayinde v Minister for Justice, Equality and Law Reform
Facts: The first-named applicant (“the applicant”) had applied for asylum in the State. The application was rejected as was the appeal. A deportation order was signed in respect of the applicant. In addition the applicant was sentenced to a period of imprisonment in respect of a fraud offence. Upon release from prison an attempt was made to deport the applicant which failed due to the behaviour of the applicant on the plane. The applicant issued judicial review proceedings seeking leave to challenge the respondent’s deportation order. It was argued that the respondent operated a fixed policy in respect of the applicant. In addition it was claimed that the applicant, as the father of an Irish-born citizen (the second-named applicant), was entitled to reside in the jurisdiction.
Held by Smyth J in dismissing the application. The deportation order was a valid order. The applicant had acted with contempt towards the service of legal documents upon him. The previous proceedings concerning the wrongful detention of the applicant had been determined and were res judicata. The applicant would be returned to Mountjoy Prison as a ‘safe place’ pending the implementation of the deportation order.
MR. JUSTICE T.C. SMYTH ON MONDAY, 11TH MARCH 2002
I hereby certify the following to be a true and accurate transcript of my shorthand notes of the evidence in the above-named action.
FOR THE APPLICANTS:
MR. CATHAL McGREAL B.L.
FOR THE RESPONDENT:
MS. SARA MOORHEAD B.L.
| MR. JUSTICE SMYTH: | The first-named Applicant is a Nigerian national. |
He applied for refugee status and was refused on 16th February 1999. He appealed the decision to the Appeals Authority which refused his appeal on 16th December 1999. The Applicant was then notified by letter dated 4th January 2000 of the Appeals Authority's decision and was notified that the Respondent proposed to make a deportation order in respect of him. This required the first-named Applicant to make written representations within a period of 14 working days of the sending of the letter, which would have enabled the Applicant to make representations pursuant to the provisions of Section 3(6) of the Immigration Act 1999. Within the time no representations were made by the first-named Applicant and a deportation order was signed on 24th May 2000.
On 5th March 2001 in the Dublin Circuit Court the first-named Applicant entered a plea of guilty in respect of an intention to defraud/attempt to obtain cash and sentence was deferred until 26th July 2001, when the first-named Applicant was sentenced to two years imprisonment from the date of his arrest on 22nd May 2000, in respect of the intention to defraud contrary to common law. The first-named Applicant was released on 13th November 2001 from Mountjoy Prison.
The main contentions on behalf of the Applicant were:-
1. There was a fixed policy which applied discretely to the Applicant, and that consistently.
2. There was demonstrable mala fides by the Respondent, particularly under the aegis of the Garda National Immigration Bureau in the past (specifically from 13th November 2001 to date) and the expectation that it will continue into the future.
3. That there has been and is failure by the Respondent to respect the family life and unit of the Applicant.
in support of these propositions, which were each contested by the Respondent, it was submitted that the present process of deportation against the Applicant is tainted by illegality as the result of conscious and deliberate violation of constitutional rights. In this regard, reference was made to the passage in the judgment of McCarthy J. in the Supreme Court in Trimbole -v- Governor of Mountjoy Prison [1985] I.L.R.M. 465 at 493:
"Other than the President, no holder of an office under the Constitution save the members of the Judiciary is required to make a declaration to uphold the Constitution and the laws… This circumstances emphasise, if emphasis was needed, the high responsibility that lies upon the judiciary to ensure that constitutional rights are not flouted with impunity. The release upon what may appear to have been a technical ground of an individual “wanted” on serious charges may seem at first sight undesirable and, indeed, contrary to public policy; it may seem slightly contrary to public policy that elaborate arrangements for extradition should be set at naught by what may be termed an excess of zeal; in my judgment, however, a far greater principle is at stake - that part of the Executive represented by the Garda authorities and those others responsible for what I have termed the plan to extradite the prosecutor must not be permitted to think that conduct of this kind will at worst result in a judicial rebuke, however severe; it will result in the immediate endorsement, without qualification, of the constitutional rights of the individual concerned whatever the consequences may be. If the consequences are such as to enable a fugitive to escape justice, then such consequences are not of the courts” creation; they stem from the police illegality."
For an understanding of this submission, it is necessary to refer to the facts set forth in the affidavits as supplemented by the oral evidence put before the Court. I find these facts to be that Mr. Terry Lonergan, an Assistant Principal Officer in the Immigration Division of the Respondent's Department, who both swore an affidavit and gave oral evidence upon which he was cross-examined, swore to the existence of a Deportation Order made on 24th May 2000. Two days before that date the Applicant had been arrested in respect of a criminal offence. On 26th June 2000 Mr. Lonergan attended before court on a bail application being made by the Applicant. The function of Mr. Lonergan at that hearing was to give evidence about Mr. Ayinde's status in the State and to confirm whether or not a deportation order had been made or whether the case had, in fact, advanced that far. The Applicant was in court at the bail application and was represented, I am informed by Mr. McGreal, by Senior and Junior Counsel and Solicitor. At that hearing Mr. Lonergan swore in open court in the presence of the Applicant and all his advisors that there was in existence a Deportation Order dated 24th May 2000 and in fact handed a copy thereof to the Court. Mr. McGreal informed me that he was aware of the existence and believed that he had seen it before, but it did not form part of his documentation but he was aware of its date.
Mr. Lonergan agreed in cross-examination that when in the witness box on the bail application he was shown a passport with the name of a child on it, but he did not get much time to examine the passport. His evidence was at that time, that if it was a passport belonging to an Irish born child and one or both of the parents were non-nationals, they would have a case to make to the Minister to be allowed to remain in the country, but he could not say-what that decision would be ultimately. He did make a note of the existence of this passport and his view of the significance of that passport for his colleagues in his office.
The witness swore that the practice of his office at that time was that the Deportation Order and letter of notice thereof was put in the hands of the National Immigration Bureau of the Garda authorities. The letter of notice was dated 26th July 2001 but though addressed in the name of the Applicant, it contained no address but was marked "by hand". Mr. Lonergan could not say if the Deportation Order had been served on the Applicant, but that the Applicant was aware of the Deportation Order as it had been presented in COurt in his presence. Mr. Lonergan was unable to say whether the Deporation Order had been served on the Applicant prior to the date of the bail application.
On or about 26th July 2001 the Applicant was convicted at the Dublin Circuit Court of “Falsification of Documents intent to Defraud” and was sentenced in respect of them to run from 21st May 2000, which term was to terminate by remission on 19th November 2001. These matters were averred to in paragraph 3 of the affidavit filed on behalf of an Article 40 Inquiry before Kelly J. on 15th November 2001 (of which more anon). That averment is stated to the based on information given to an unidentified member of Mr. Gaffney's office by an unidentified officer (including unidentification of rank) of Mountjoy Prison...
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