Lin Qing Aka Qing Lin v Governor of Cloverhill Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice Mac Eochaidh
• Judgment Date: 25 November 2016
• Neutral Citation: [2016] IEHC 710
• Date: 25 November 2016
• Court: High Court
• Docket Number: [2016] No.1184 S.S. [2016] No.859 J.R.

IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLE 40.4.2° OF THE CONSTITUTION OF IRELAND

BETWEEN

LIN QING AKA QING LIN

APPLICANT

AND

THE GOVERNOR OF CLOVERHILL PRISON

RESPONDENT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

NOTICE PARTY

LIN QING AKA QING LIN

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

[2016] IEHC 710

[2016] No.1184 S.S.

[2016] No.859 J.R.

THE HIGH COURT

JUDICIAL REVIEW

Constitution – Art. 40.4.2 of the Constitution – Asylum Immigration and Nationality – S. 3(3)(b)(ii) of the Immigration Act, 1999 – S. 5(2) of the Illegal Immigrants (Trafficking) Act (2000) – Extension of time – Form of deportation order

Facts: The applicant had filed the present application to extend the time for the proceedings challenging a deportation order and s. 3(3)(b)(ii) of the Immigration Act, 1999 notification. The present hearing was combined with the habeas corpus hearing and the key issue was pertaining to the form in which the deportation order was issued. The respondents argued that since the applicant was served the deportation order and notice at the last mentioned address, the failure to receive those was owing to the fault of the applicant to furnish his current address, and thus, the time began to commence on the date on which the said deportation orders were served. The respondents submitted that the detention of the applicant was in accordance with law for the failure to comply with the detention order.

Mr. Justice Mac Eochaidh extended the time for the institution of the present proceedings. The Court, in conformity with the judgment of the Supreme Court, held that a deportation order should be in the form prescribed or in the form to the like effect. The Court found that the deportation order issued by the respondents did not notify the applicant of the date by which he had to leave the State and that no explanation was put forward as to why a deportation order signed in 2013 had not been served until February 2016. The Court held that despite the fact that the deportation orders were served to the applicant on the date in question, the applicant did not have actual knowledge of its existence until a later date and the time would begin to run from the date on which he had the actual knowledge that such orders indeed existed and not on the date on which the service had been effected.

JUDGMENT of Mr. Justice Mac Eochaidh delivered on the 25th day of November, 2016.

1 This is the judgment of the court on an application to extend time for proceedings challenging a deportation order and a s. 3(3)(b)(ii) Immigration Act, 1999 notification. The intended judicial review proceedings are being heard with habeas corpus proceedings, as explained presently.

2 The principles governing applications for extension of time in a provision such as that contained in s. 5 of Illegal Immigrants (Trafficking) Act (2000) have been authoritatively stated by Clarke J. in Kelly v. An Bord Pleanála [2005] 2 I.R. 404. The learned Judge said as follows, at page 411:-

‘Without being exhaustive it seems to be me that the following factors may need to be considered prior to a decision as to whether or not to exercise a discretion conferred to extend time of the type referred to above:-

(a) The length of time specified in the relevant statute within which the application must be made. In The Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 I.R. 360 the Supreme Court at p. 394 stated that a party who in all the circumstances of the case could be shown to have used reasonable diligence might well be in a position to persuade the court to extend the fourteen day period provided for in that legislative regime. Obviously the shorter the period of time which a person has to make application to the court, the easier it may be to show that despite reasonable diligence that person has been unable to achieve the time limit.

(b) The question of whether third party rights may be affected…

(c) …while it may well be legitimate to take into account the fact that no third party rights are involved, that should not be regarded as conferring a wide or extensive jurisdiction to extend time in cases where no such rights may be affected. The overall integrity of the processes concerned is, in itself, a factor to be taken into account.

(d) Blameworthiness. It is clear from all the authorities to which I have been referred in each of the areas to which stricter rules in respect of judicial review have been applied that one of the issues to which the court has to have regard is the extent to which the applicant concerned may be able to explain the delay and in particular do so in circumstances that do not reflect any blame upon the applicant. However in that context it should be noted that McGuinness J. in C.S. v. Minister for Justice [2004] IESC 44; [2005] 1 I.L.R.M. 81 at p.101 said:-

“There is, it seems to me, a need to take all the relevant circumstances and factors into account. The statute itself does not mention fault; it simply requires “good and sufficient reason”. The dicta of this court in the reference judgment quoted earlier indicate many factors which may contribute to “good and sufficient reason”. By no means all of these can be attributed to fault or indeed absence of fault, on the part of the applicant.”

While the blameworthiness (or the lack of it) on the part of the applicant is, therefore, a relevant factor it is only one such factor to be weighed in the balance.

(e) The nature of the issues involved. Both this court and the Supreme Court in C.S. v. Minister for Justice [2004] IESC 44; [2005] 1 I.L.R.M. 81 seem to have had regard to the severe consequences of deportation to a State where fundamental rights might not be vindicated. The consequences of being excluded from challenging a planning or public procurement decision, while significant, are not in the same category.

(f) The merits of the case. Some considerable argument took place during the course of the hearing before me as to whether the merits of the case in the sense of whether the applicant had established an arguable case was a factor which could properly be taken into account. In favour of that proposition reliance was placed upon the judgments of the Supreme Court in G.K. v. Minister for Justice [2002] 2 I.R. 418 in which Hardiman J., at p. 423, delineated the approach to applications for extension of time as follows:-

“On the hearing of an application such as this it is, of course, impossible to address the merits in the detail of which they would be addressed at a full hearing, if that takes place. But it is not an excessive burden to require the demonstration of an arguable case. In addition, of course, the question of the extent of the delay beyond the fourteen day period and the reasons if any for it must be addressed.”’

3 The court has been asked to determine this application to extend time at an interlocutory stage and conclusions about the facts are therefore based on untested evidence.

4 The applicant is a 29 year old man from China. He speaks very little English and is illiterate in the English language, and I infer - for reasons expressed below - that this is a fact known to the respondent. The applicant entered the State in either 2008 or 2009 and he has been working illegally for some, if not most of that time, and has been present without permission. He was arrested and imprisoned briefly in connection with immigration offences in 2009 and 2011.

5 On three occasions he gave authorities his various addresses - in Mayo, Monaghan and Kildare. These were genuine addresses.

6 He made application for asylum in April 2011 - from prison. As part of that process he was given a form which required him to indicate his address. The simple, short from was completed in English, indicating an address in Monaghan. I assume the applicant did not complete the form personally. I also assume that his written and oral application for asylum was completed with the assistance of an interpreter/translator. It is from this interaction with the State that I infer that officials know he neither writes nor speaks English.

7 A letter was sent to him on the 20th April, 2011, at his Monaghan address informing him that he had been refused asylum. The letter informed him of his right to appeal. No appeal was made. The letter was sent by registered post. It was not returned. The letter was accompanied by a form requiring him, pursuant to art. 18 of the Aliens Order 1946, to confirm his address and keep named officials informed of any change of address. The correspondence was addressed to him personally and it was not copied to any lawyer. I therefore assume that he was not professionally represented during the asylum process because asylum decisions are invariably copied to applicants' lawyers. The correspondence including the art. 18 notice in respect of changing addresses was in English. The correspondence was sent by registered post to the address he had given in Monaghan. I assume on the current state of the evidence, that he received it and he could not read any of it. He did not appeal it to the Refugee Appeals Tribunal. He did not complete the art. 18 Aliens Order Form - confirming his address. Thus the last address notified to officials was the Monaghan address which he gave in April 2011 and he must have been assisted with this.

8 In early 2016, the applicant moved to Kildare. He was working in a Chinese Restaurant. Payslips exhibited - indicating place and dates of work - support this version of events.

9 The applicant was aware of his precarious immigration status. In August 2016 his agents - BRL accountants - contacted the Department of Justice to regularise his presence in the State. They sent a letter on 29th August, 2016, to this effect, indicating his home address in County Kildare, and...