Gutrani v Minister for Justice

• Jurisdiction: Ireland
• Judgment Date: 01 January 1993
• Date: 01 January 1993
• Docket Number: [S.C. No. 173 of 1992]
• Court: Supreme Court

Supreme Court

[S.C. No. 173 of 1992]

[S.C. No. 181 of 1992]

Gutrani v. Minister for Justice

In the matter of an application for an Inquiry pursuant to Article 40, s. 4 of the Constitution, Marey Gutrani, Applicant

and

The Governor of the Training Unit, Mountjoy Prison

Respondent

Gutrani v. Minister for Justice

Marey Gutrani

Applicant

and

The Minister for Justice, Respondent

Cases mentioned in this report:—

Clarke v. McMahon [1990] 1 I.R. 228; [1988] I.L.R.M. 648.

Finucane v. McMahon [1990] 1 I.R. 165; [1990] I.L.R.M. 505.

P. & F. Sharpe Ltd. v. The Dublin City and County Manager [1989] I.R. 701; [1989] I.L.R.M. 565.

R. v. The Home Secretary, Ex p. Bugdaycay [1987] 1 A.C. 514; [1987] 2 W.L.R. 606; [1987] 1 All E.R. 940.

R. v. The Home Secretary, Ex p. Khawaja [1984] 1 A.C. 74; [1983] 2 W.L.R. 321; [1983] 1 All E.R. 765.

Russell v. Fanning [1988] I.R. 505; [1988] I.L.R.M. 333.

The State (Daly) v. The Minister for Agriculture [1987] I.R. 165; [1988] I.L.R.M. 173.

Aliens - Refugee status - Minister empowered to make deportation order - International convention on principles applicable to applications for refugee status and asylum not part of Irish law - State informing international body that principles of convention would be applied - State informing international body that humanitarian considerations would also be taken into account - Libyan national forging papers to evade military service and gain access to State - Application for refugee status refused - Deportation ordered - Whether applicant had legitimate expectation that principles of international convention would be applied - Whether Minister obliged to apply such principles - Meaning of "humanitarian considerations" - Whether including fear of persecution in country of origin - United Nations Convention on Status of Refugees and Stateless Persons, 1951 - United Nations Protocol on Status of Refugees and Stateless Persons, 1967 - Aliens Order, 1946 (S.R. & O. No. 395), art. 13 - Aliens Act, 1935 (No. 14), s. 5.

Judicial review - Practice - Evidence - Application for refugee status and asylum refused by Minister - Whether High Court should hear evidence of material not presented to Minister.

Equity - Legitimate expectation - International convention not part of Irish law - State informing international body that principles of convention would be applied in appropriate cases - Applicant for refugee status and asylum - nether applicant having legitimate expectation that such principles would be applied.

Application for an Inquiry pursuant to Article 40 of the Constitution and Judicial Review.

The facts are summarised in the headnote and set out in more detail in the judgment of McCarthy J., infra.

By notice of appeal dated the 29th May, 1992, the applicant appealed from the judgment and order of the High Court (O'Hanlon J.) of the 28th May, 1992, for an order that the detention of the applicant was in accordance with law.

On the 3rd June, 1992, the High Court (O'Hanlon J.) refused the applicant leave to apply by way of judicial review quashing the deportation order made by the Minister for Justice on the 18th September, 1991. On the same day, the Supreme Court (Finlay C.J., O'Flaherty and Egan JJ.) prohibited the Minister for Justice from deporting the applicant out of the jurisdiction of the Court until further order.

The appeal in respect of the inquiry pursuant to Article 40 of the Constitution was heard by the Supreme Court (Hederman, McCarthy and O'Flaherty JJ.) on the 17th June, 1992. On the same day, by motionex parte, the applicant sought the leave of the Supreme Court to apply for judicial review of the deportation order of the 18th September, 1991.

Section 5 of the Aliens Act, 1935, empowers the Minister for Justice to make provision for the control of aliens. By virtue of art. 13 of the Aliens Order, 1946, made pursuant to s. 5 of the Act of 1935, the Minister "may, if he deems it to be conducive to the public good so to do make an order . . . requiring an alien to leave the State and to remain thereafter out of the State."

Ireland is a signatory to the United Nations Convention on the Status of Refugees and Stateless Persons, 1951, and the United Nations Protocol on the Status of Refugees and Stateless Persons, 1967, but neither has been made part of the domestic law of the State. In a letter dated the 13th December, 1985, addressed to the representative in London of the United Nations High Commissioner for Refugees, an assistant secretary of the Department of Justice wrote on behalf of the Minister for Justice that Ireland would implement procedures for applications for refugee status and asylum suggested by the High Commissioner's representative. The letter provided in particular:—

"The asylum application will be examined by the Department in accordance with the 1951 Convention and 1967 Protocol on the Status of Refugees. This shall not preclude the taking into account of humanitarian considerations which might justify the grant of leave to remain in the State."

The applicant, a Libyan national, had evaded military service and obtained a student visa to enter the State by forging papers. On the expiration of the visa in 1984, he had gone into hiding, was found working illegally in September, 1989, and on the 18th September, 1991, was ordered to leave the State by the Minister for Justice, pursuant to art. 13 of the Aliens Order, 1946.

Following various legal proceedings and an attempt to deport him which had to be abandoned when the applicant's violent resistance led the captain of the plane to order his removal, future attempts to deport him were restrained by injunction pending a judicial review of the decision of the Minister for Justice to refuse his application for refugee status and asylum. In November, 1991, the judicial review proceedings were struck out on consent and the Minister agreed to consider a fresh application for refugee status and to consult with the United Nations High Commissioner for Refugees in relation thereto. The applicant was notified of the refusal of that application in mid-May, 1992. The High Commissioner had agreed that the information presented was not sufficient to substantiate the applicant's claim to be recognised as a refugee within the terms of the 1951 Convention or the 1967 Protocol.

At the end of May an inquiry pursuant to Article 40 of the Constitution concluded that the applicant's detention was legal; in the course of that decision, the High Court accepted that the applicant had a legitimate expectation that his application would be considered in the manner specified in the letter of the 13th December, 1985. The High Court refused to allow oral evidence to be given of the possible treatment facing the applicant if he returned to Libya, which had not been proffered to the Minister for consideration.

In June, 1992, the applicant sought the leave of the High Court to apply by way of judicial review for an order quashing the deportation order of the 18th September, 1991, on the grounds that the Minister had failed to take into account humanitarian considerations. The High Court refused to grant leave, on the grounds that the...