D.P. v Governor of the Training Unit

• Jurisdiction: Ireland
• Judge: Finnegan J.
• Judgment Date: 18 August 2000
• Neutral Citation: [2000] IEHC 104
• Court: High Court
• Docket Number: [2000 No. 447 J.R.]
• Date: 18 August 2000

[2000] IEHC 104

THE HIGH COURT

No. 447JR/2000

P (D) v. GOVERNOR OF THE TRAINING UNIT & ORS

BETWEEN

D.P.

APPLICANT

AND

THE GOVERNOR OF THE TRAINING UNIT, MINISTER FOR JUSTICE EQUALITY AND LAW REFORM, COMMISSIONER OF AN GARDA SIOCHANA, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Citations:

IMMIGRATION ACT 1999 S5(1)

IMMIGRATION ACT 1999 S3

CONSTITUTION ART 40.4

IMMIGRATION ACT 1999 S5(5)

SHEEHAN V REILLY 1992 1 IR 81

IMMIGRATION ACT 1999 S5(2)

IMMIGRATION ACT 1999 S5

IMMIGRATION ACT 1999 S3(3)(ii)

IMMIGRATION ACT 1999 (DEPORTATION ) REGS 1999 SI 319/99

IMMIGRATION ACT 1999 3(3)(a)

IMMIGRATION ACT 1999 S3(3)

IMMIGRATION ACT 1999 S6(b)

IMMIGRATION ACT 1999 S5(1)(ii)

IMMIGRATION ACT 1999 S5(5)(b)(iii)(sic)

RSC O.84 r20(1)

RSC O.84 r26(5)

RSC O.84 r22

INTERPRETATION ACT 1923 S7

IMMIGRATION ACT 1999 S6

ALIENS ORDER 1946 SI 395/46 REG 11(1)(c)

R V SECRETARY OF STATE FOR THE HOME DEPARTMENT EX-PARTE YEBOAH 1987 3 AER 999

IMMIGRATION ACT 1999 S3(3)(b)(ii)

G V DPP 1994 1 IR 374

DPP, PEOPLE V DOYLE 1977 IR 336

DPP, PEOPLE V HEALY 1990 2 IR 73

IMMIGRATION ACT 1999 S5(6)(b)(iii)

IMMIGRATION ACT 1999 S5(6)

RSC O.84 r24

RSC O.84 r26

RIORDAN V AN TAOISEACH 1999 4 IR 343

APPLICATION OF WOODS 1970 IR 154

ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999 S5(1)(c)

NEWMAN JURISDICTION AND THE RULE OF LAW AFTER THE 1996 IMMIGRATION ACT 2000 113 HARV LR 1963

ESHUGBAYI ELKO V OFFICER ADMINISTERING NIGERIA 1931 AC 662

R V BRIXTON GOVERNOR EX-PARTE ASHAN 1969 2 QB 222

ZAMIR V SECRETARY OF STATE 1980 AC 930

GOERTZ, STATE V MIN FOR JUSTICE 1948 IR 45

R V BOW STREET MAGISTRATES EX-PARTE PINOCHET UGARTE 1998 3 WLR 1457

SHARPE THE LAW OF HABEAS CORPUS 2ED 51

O'C V GOVERNOR OF CURRAGH PRISON 2000 ILRM 76

SHARPE THE LAW OF HABEAS CORPUS 2ED 23–24

SHARPE THE LAW OF HABEAS CORPUS 2ED 58–59

QUINN, STATE V RYAN 1965 IR 70

R V SECRETARY OF STATE EX-PARTE MUBOYAYI 1992 QB 244

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5(4)

O'LAIGHLEIS, RE 1950 IR 93

CONSTITUTION ART 29.3

CONSTITUTION ART 29.4

CONSTITUTION ART 29.5

NORTHERN IRELAND "GOOD FRIDAY AGREEMENT" (1998)

FAKIH V MIN FOR JUSTICE 1993 2 IR 406

MIN FOR STATE V TEOH 1995 183 CLR 273

DE GEOUFFRE V FRANCE 1992 A 253

ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999 S10(a)

ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999 S10(a)(ii)

CRIMINAL LAW (AMDT) ACT 1885 48 & 49 VICT C69

IMMIGRATION LAW DECISION CONSEIL CONSTITUTIONAL (FRANCE) 9–109 DC

CHALAL V UNITED KINGDOM (UK) 1996 23 EHRR 413

PEOPLE V O'CALLAGHAN 1966 IR 501

PEOPLE V GILLILAND 1985 IR 643

ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999 S7

KENNEDY V IRELAND 1987 IER 587

R V GOVERNOR OF BROCKILL PRISON EX-PARTE EVANS (NO 2) TLR 2.8.2000

OSMAN V UNITED KINGDOM (UK) 1998 29 EHRR 245

BENETT V COMMISSIONER OF POLICE 1995 1 WLR 488

R V SECRETARY OF STATE EX-PARTE LAUDER (NO 2) 1998 QB 914

Synopsis:

Adminstrative Law

Administrative; leave to apply for judicial review; deportation order; asylum application made and refused; applicant appealed decision but did not appear at the hearing; appeal was dismissed; letter sent to applicant informing him of decision and of his right to appeal to the Minister for Justice, Equality and Law Reform within 15 days; applicant claims he never received the letters; deportation order was made; applicant was arrested but was returned to the State; whether respondent was estopped from deporting applicant by virtue of having him returned to the State; whether arrest of applicant was breach of Article 40.4 of the Constitution;

Held: Application denied; failure by applicant to inform of change of address as required by law.

P (D) v. Govenor of the Training Unit - High Court: Finnegan J. - 18/08/2000 - [2001] 1 IR 492

The applicant sought to challenge a deportation order made against him. The applicant challenged his impending deportation. Finnegan J, delivering judgment, held the applicant had not made out a prima facie case and refused the relief sought.

1 Finnegan J. delivered the 18th day of August 2000.

THE PROCEEDINGS

2 The Applicant was arrested on the 9th August, 2000 outside the Four Courts, Dublin pursuant to the powers conferred upon the Garda Siochana by the Immigration Act, 1999Section 5(1) thereof upon the grounds that he is a person against whom a Deportation Order is in force and that he has failed to comply with the provisions thereof. He is at present detained pursuant to the said Section at the Training Unit, Glengariff Parade, Dublin. In these proceedings the Applicant seeks relief by way of judicial review the reliefs sought being those set out in the First Schedule hereto and the grounds relied upon being those set out in the Second Schedule hereto. On 14th August, 2000 the Applicant sought leave to apply for judicial review ex-parte and I adjourned the application to Thursday 7th August, 2000 and directed that the application be made upon notice to the Respondents.

THE FACTS

3 The Applicant is a Romanian National. He gives his date of birth as 5th October, 1973 this being the date of birth given on a forged Italian identity card which was in his possession: if this date is correct he is now just short of his 27th birthday. He arrived in Ireland on the 25th August, 1997 and applied for asylum on that date. His application was considered in accordance with the procedures for processing asylum applications known as the Hope Hanlan Procedures. He was interviewed on the 2nd December, 1998. His application was assessed on the 12th January, 1999. By letter dated 25th May, 1999 the Applicant was informed that his application for asylum was refused. On the 8th June, 1999 the Applicant appealed the decision to refuse his application and the appeal was heard on the 12th January, 2000. Both the Application and his solicitor were informed of the date, time and place of the hearing and while the Applicant's then solicitor attended without instructions from the Applicant the Applicant did not. The Appeals Authority having considered the papers recommended that the appeal be dismissed. On the basis of the recommendation from the Appeals Authority on the 10th February, 2000 a decision was made to uphold the decision to refuse the Applicant refugee status. Notice of the making of the decision was sent to the Applicant by registered post on the 10th February, 2000. This letter also informed the Applicant that the Minister for Justice, Equality and Law Reform proposed to make a Deportation Order in respect of him pursuant to the Immigration Act, 1999Section 3 and notified him that, he was entitled to make representations to the Minister setting out any reasons as to why he should be allowed to remain in the State and requiring him to do so within 15 days of the sending of the letter. A copy of this letter was sent to the Applicant's solicitor. The letters were not returned as undelivered. However the Applicant deposes that he did not receive the letter sent to him. There must considerable doubt as to the correctness of this having regard to the Affidavits filed in this matter and sworn by Mary O'Sullivan on the 15th August, 2000, by Dan Ciulean sworn on the 12th August, 2000, by Detective Superintendent Michael Finn sworn on the 14th August, 2000, and the Affidavit of Gerry McConnell sworn on the 11th August, 2000. However for the purposes of this application only I accept that the Applicant either did not receive the letter at all or alternatively did not receive it in sufficient time to enable him to make a submission within the 15 day time limit imposed by the letter. The Minister for Justice, Equality and Law Reform duly received a recommendation from the Appeals Authority in relation to the Applicant which recommended deportation and on foot thereof the Minister made a Deportation Order in respect of the Applicant on the 12th April, 2000. Arrangements for the deportation of the Applicant having been put in place by letter dated 28th April, 2000 the Applicant was notified of the making of the Deportation Order and he was requested to present himself to the member in charge at the Immigration Registration Office, Harcourt Square, Dublin 2 on Sunday May 7th at 2.30 p.m. to enable his deportation to take place. This letter was sent by prepaid registered post to the Applicant at the address furnished by him. The letter was not delivered and an advice from An Post that the letter be called for was not responded to and the letter was returned to the Department of Justice, Equality and Law Reform. On the 1st August, 2000 the Applicant was arrested and his deportation put in train. His arrest and detention was challenged by way of an application for an inquiry under Article 40.4 of the Constitution/habeas corpus and in circumstances which are not material to me he was returned to the State and detained. His detention after his return was declared unlawful by order of Mr. Justice Quirke dated the 9th August, 2000. The Applicant was released but was arrested outside the Four Courts on that day. On the 10th August, 2000 a further application for an inquiry under Article 40.4 of the Constitution/habeas corpus was made to me and I directed that the Applicant be produced before the Court on the 11th August, 2000. Upon that day the application was withdrawn but it was re-entered before me on the 14th August, 2000 on which day I refused the application. On that day an application for leave to apply for judicial review and for relief under the Immigration Act, 1999Section 5 (5) was made to me and I adjourned the same for hearing to the 17th August, 2000 the application to be on notice to the Respondents. This application is for the reliefs set out in the First Schedule hereto and upon the grounds set out in the Second Schedule hereto.

THE LAW RELEVANT TO THE RELIEF'S CLAIMED AND DECISION THEREON

4 The principles of law governing the several reliefs sought are as...