Kanaya v Min for Justice Equality & Law Reform

JurisdictionIreland
JudgeMr. Justice Roderick H. Murphy
Judgment Date21 March 2000
Neutral Citation[2000] IEHC 29
CourtHigh Court
Docket NumberNo. 17 J.R./1999
Date21 March 2000
KANAYA v. MIN FOR JUSTICE EQUALITY & LAW REFORM
JUDICIAL REVIEW
IN THE MATTER OF THE ALIENS ACT,1935 AND THE ALIENS ORDERS 1946 AND 1975

BETWEEN

NAOMITSU KANAYA
APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
RESPONDENT

[2000] IEHC 29

No. 17 J.R./1999

THE HIGH COURT

Synopsis

Aliens

Administrative law; immigration; applicant, a Japanese national, purportedly intending to study in Ireland, refused leave to land in Dublin and detained pending deportation on foot of two notices issued by respondent's agent; first notice asserted applicant's intention to take up employment in the State without a valid work permit; second notice stated that the applicant was not in a position to support himself and that he was to be detained pending deportation; applicant seeks order of certiorari quashing the orders of the immigration officer contained in the two notices, an injunction restraining the respondent from deporting the applicant from the State, an order of mandamus requiring the respondent to release the applicant from detention and damages for wrongful detention; applicant released pending current hearing; whether discretionary powers granted to immigration officer by ministerial order so "wide and unfettered" as to be ultra vires the powers granted to the respondent by the relevant legislation and comprised an unconstitutional delegation of legislative power; whether agent of respondent had acted reasonably in issuing notices; whether failure of respondent to make any regulation or give any direction in relation to the information which every person landing or embarking in the State shall furnish to an immigration officer denied the applicant natural and constitutional justice and deprived him of fair procedures; respondent admitted that a. 5, Aliens Order, 1946, is invalid as having been made under s. 5(1)(a), Aliens Act, 1935, and thereby constitutes an unconstitutional delegation of legislative power; Art. 15.2 of the Constitution; a. 14(2) of the Aliens Order, 1946.

Held: Relief refused.

Kanaya v. Minister for Justice, Equality and Law Reform - High Court: Murphy J. - 21/03/2000 - [2000] 2 ILRM 503

The applicant had attempted to enter the country having landed at Dublin airport. the immigration official was not satisfied with the applicant’s bona fides and refused him permission to land. The applicant was subsequently detained pending deportation. The applicant brought judicial review proceedings seeking, inter alia, an order of certiorari in respect of the order of deportation and damages for wrongful detention. Murphy J held that the applicant had not showed that the decision to deport him was unreasonable and accordingly refused all reliefs sought.

Citations:

ALIENS ACT 1935 S5(1)(a)

ALIENS ORDER 1946 S R & O 395/1946 ART 5(4)

ALIENS (AMDT) ORDER 1975 SI 128/1975 ART 3

ALIENS ORDER 1946 S R & O 395/1946 ART 14(2)

ALIENS ORDER 1946 S R & O 395/1946 ART 5

CONSTITUTION ART 15.2

IMMIGRATION ACT 1999 S2(1)

ALIENS (AMDT) ORDER 1975 SI 128/1975 ART 3(4)

ALIENS (AMDT) ORDER 1975 SI 128/1975 ART 3(5)

ALIENS ORDER 1946 S R & O 395/1946 ART 14(1)

CONSTITUTION ART 15.2.1

CITYVIEW PRESS V COMHAIRLE OILIUNA 1980 IR 381

IMPOSITION OF DUTIES ACT 1957

MCDAID V SHEEHY 1991 1 IR 1

LAURENTIU V MIN FOR JUSTICE 2000 1 ILRM 1

ALIENS ACT 1935 S5(1)

O'NEILL V MIN FOR AGRICULTURE 1997 2 ILRM 435

ALIENS ACT 1935 S5(1)(e)

TANG V MIN FOR JUSTICE 1996 2 ILRM 46

KEEGAN, STATE V STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642

O'KEEFFE V BORD PLEANALA 1993 1 IR 39

CARLTONA LTD V COMMISSIONERS OF WORKS 1943 2 AER 560

Mr. Justice Roderick H. Murphy
1

Naomitsu Kanaya is a Japanese advertising executive who was refused leave to land at Dublin Airport on Wednesday, 13th January, 1999. He had come from Frankfurt in the company of an Irish citizen, Stephen Smith, who had business connection with the Applicant's father. Mr. Smith offered to accommodate the Applicant for three months while the Applicant attended a course of study in the English language at the Centre for English Studies in Dame Street. The Applicant did not. however, have any documentation on his person in relation to the said centre. He said he told the immigration officer that he had documentation with him in his suitcase but he says that he was not allowed access to his suitcase. In relation to the course a fax from Mr. Justin Quinn of the Centre for English Studies was received at Dublin Airport dated the 13th January, 1999 confirming that the Applicant had been accepted to attend a full time English language course for a period of twelve weeks commencing on the 18th of January. 1999. This fax is exhibited in the Grounding Affidavit of the Applicant filed on the 15th of January. 1999.

2

Mr. Quinn in an Affidavit sworn on the 25th February, 1999 states in relation to the fax letter that the fax does not say that (the Applicant)is a student but states that he has been accepted to attend a course. Registration would be effected in the usual manner after his arrival in this country and he would only then be considered a student.

3

Mr. Kanaya told the officer that he had £600 in Irish currency and other foreign currencies bringing the total to approximately IR£1,000.

4

He says he informed the immigration officer that he had been in Ireland from the 16th of November 1998 to the 29th of November, 1998 and from the 6th of December. 1998 to the 12th of December, 1998.

5

While there is some dispute as to the actual denominations of foreign currency and their amount and, indeed, as to the amount of time that the Applicant told the immigration officer that he had been in Ireland, I accept that the Applicant had approximately IR£1,000 and that he had been in Ireland on a number of occasions beforehand.

6

John McKevelley who is a Detective Garda was on duty at the immigration office at Dublin Airport on the 13th January, 1999.

7

In his Affidavit he says that the Applicant informed him that he was looking for a school and that he had not a school booked. The Applicant had stated in his Affidavit that the purpose of his visit to Ireland was to pursue a course in the English language at the centre of English studies and that the letter confirmed his enrolment. This, however, is not in accordance with the fax letter and the Affidavit of Justin Quinn already referred to.

8

I prefer the evidence of Detective Garda John McKevelley on this account that the Applicant did not have a school booked.

9

It appears from Detective Garda McKevelley's Affidavit that he did not require the Applicant, in these circumstances, to produce any money. He says that intended students who come into Ireland from non-European Union countries must have a course of study pre-booked and pre-paid before arrival in order to satisfy immigration officials of the bona fides of their intention to study. Intending students must show whether they are in a position to support themselves for the duration of their intended stay in this country. I accept that this was the case.

10

Detective Garda McKevelley says that the Applicant's residence permit for the United Kingdom covers the years 1995 to 1998 and had expired on the 31st of August, 1998. This was not contested by the Applicant.

11

Detective Garda McKevelley further says that the Applicant presented him with two airline tickets. The return leg of the flight from London-Bangkok-Tokyo was for the same day. on 13th January, 1999 and that, accordingly, the Applicant was not in possession of a valid return flight to his country of origin. Notice to cross-examine was given and in cross-examination the Applicant said that he had purchased the return ticket Dublin-London-Bangkok-Tokyo on 3rd December, 1998 from Colette Pearson Travel but when pressed stated that he could have asked Stephen Smith to buy the ticket and explained that when he said that he had bought it he meant it was bought with his money. In any event, he said that he went to the travel agent personally to check about that ticket. When put to him that the ticket was issued on 3rd December, 1998 which was outside the dates he had deposed to being in the country he said he did not remember the date. When it was pointed out to the Applicant that the issuing travel agent was Twohig Travel he could give no explanation.

12

While the Applicant's evidence was given via a Japanese interpreter, I am satisfied from his evidence that he was not in possession of a valid return flight to his country of origin.

13

It seems clear to me that the immigration officer. Detective Garda McKevelley, had, in the circumstances, not acted unreasonably in refusing the Applicant leave to land.

That was not, however, the end of the matter
14

Two notices dated 13th January, 1999 were issued by Detective Garda McKevelley refusing the Applicant leave to land. The first stated that he was satisfied that, although wishing to take up employment in the State, the Applicant was not in possession of a valid permit for such employment issued to the prospective employer by the Minister for Labour. The second notice stated that he was satisfied that the Applicant was not in the position to support himself and that the Applicant would be detained in Glengarriff Parade until such time, being as soon as practicable, he was to be removed from the State. Both of these notices were headed "Aliens Act,1935".

15

A Detention Order dated 13th January, 1999 then issued, also under the Aliens Act,1935and in exercise of powers conferred upon the immigration officer by Article 5(4) of the Aliens Order. 1946 (inserted by Article 3 of the Aliens (Amendment) Order, 1975). That Order directed that, pending the making of arrangements for his removal from the State, the Applicant be detained in the Training Unit, Glengarriff Parade, Dublin in the custody of such officer of the Minister for Justice as is for the time being in charge of that place.

...

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