Nasiri v The Governor of Cloverhill Prison

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice John MacMenamin
Judgment Date14 April 2005
Neutral Citation[2005] IEHC 471
Docket NumberRECORD No. 2005/305 SS
Date14 April 2005

[2005] IEHC 471

THE HIGH COURT

RECORD No. 2005/305 SS
NASIRI v GOVERNOR OF CLOVERHILL PRISON
IN THE MATTER OF AN APPLICATION FOR AN ENQUIRY PURSUANT TO ARTICLE
40.4 OF THE CONSTITUTION OF IRELAND, 1937

BETWEEN

SANGAR NASIRI
APPLICANT

and

THE GOVERNOR OF CLOVERHILL PRISON
RESPONDENT

CONSTITUTION ART 40.4

REFUGEE ACT 1996 S9(10)

IMMIGRATION ACT 2003 S7

REFUGEE ACT 1996 S9(8)(c)

REFUGEE ACT 1996 S9(8)(f)

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001

MCSORLEY v GOVERNOR MOUNTJOY PRISON 1997 2 IR 258 1997 2 ILRM 315

SHEEHAN v O'REILLY & GOVERNOR LIMERICK PRISON 1993 2 IR 81 1993 ILRM 427

MCDONAGH v GOVERNOR OF CLOVERHILL PRISON 2005 1 ILRM 340

HAUGHEY, IN RE 1971 IR 217

BAIL ACT 1997

ARRA v GOVERNOR OF CLOVERHILL PRISON & ORS UNREP HIGH COURT RYAN J 26.1.2005

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, RE 2000 2 IR 360

ROYLE, STATE v KELLY 1974 IR 259

O'MAHONY v BALLAGH & DPP 2002 2 IR 410

BYRNE v GREY 1988 IR 31

IMMIGRATION ACT 2003 S7

BENNION STATUTORY INTERPRETATION 4ED SECTION 273 714

HOGAN & MORGAN ADMINISTRATIVE LAW 415

DPP v GAFFNEY 1987 IR 177 1988 ILRM 39

CONSTITUTIONAL LAW

Habeas corpus

Natural justice - Failure to rule on arguments - Warrant - Evidence - Whether evidence before District Judge to support findings - Appropriateness of habeas corpus procedure - Whether failure to disclose information to applicant - Whether reasonable efforts made to establish identity - Whether identity cards destroyed - In re Haughey [1971] IR 217; Byrne v Grey [1988] IR 31; O'Mahony v Ballagh [2002] 2 IR 410; McDonagh v Governor of Cloverhill Prison [2005] 1 ILRM 340 and Arra v Governor of Cloverhill Prison (Unrep, Ryan J, 26/1/2005) followed - Refugee Act 1996 (No 17), ss 9(8) and 9(10); Immigration Act 2003 (No 26), s 7 - Declaration that detention unlawful granted (2005/305SS - MacMenamin - 14/4/2005)

NASIRI v GOVERNOR OF CLOVERHILL PRISON

Facts: The applicant instituted habeas corpus proceedings seeking his release following the making of an order by District Justice John Coughlan directing the detention of the applicant pursuant to section 9(10) of the 1996 Act. In making his decision the District Court Judge had regard to certain material, the existence and content of which was not made known to the solicitor representing the applicant and he made the order on the basis that the applicant had not made reasonable efforts to establish his true identity and was in possession of forged identity documents.

Held by MacMenamin J. in directing the release of the applicant: That the applicant was not placed on notice of the full case against him in the District Court having regard to the fact that he was not made aware that certain material was before the court. The want of fair procedures in the District Court rendered the proceedings in essence unfair. Furthermore, the District Court Judge failed to set out his reasons for concluding that the applicant ought to be detained nor did he recite the evidential basis for his decision.

Reporter: L. O'S.

Mr. Justice John MacMenamin
1

At the conclusion of the hearing of thesehabeas corpus proceedings the court directed the release of the applicant on the grounds that his detention was unlawful. I indicated that the reasons therefor would be furnished later. I now do so.

2

On 25th February, 2005, the applicant in these proceedings was arrested at Dublin airport and brought by members of An Garda Síochána to Santry garda station. The applicant had been detained by An Garda Síochána pursuant to the provisions of s. 9(8) of the Refugee Act,1996, as amended.

3

On 26th February, 2005, the applicant herein came before District Justice John Coughlan in the Dublin Metropolitan District Court. This was in the circumstance where Detective Garda Denise McMahon wished to apply to commit the applicant pursuant to the provisions of s. 9(10) of the Refugee Act,1996, as amended, for a further period of detention.

4

The applicant was on this occasion represented by Ms. Shalom Binchy of Shalom Binchy and Company, Solicitors.

5

Under s. 9(8) of the Refugee Act,1996, as amended by s. 7 of the Immigration Act, 2003, it is provided:-

"Where an Immigration Officer or a member of An Garda Síochána with reasonable cause, suspects that an applicant û"

6

2 (a) Poses a threat to national security or public order of the State,

7

3 (b) Has committed a serious non-political crime outside the State,

8

4 (c) Has not made reasonable efforts to establish his or her true identity,

9

5 (d) Intends to avoid removal from the State in the event of his or her application for asylum being transferred to a Convention country pursuant to s. 22 or a safe third country (within the meaning of that section),

10

6 (e) Intends to leave the State and enter another State without lawful authority,

or
11

7 (f) Without reasonable cause has destroyed his or her identity or travel documents or is in possession of forged identity documents,

12

8 (g) He or she may detain the person in a prescribed place referred to subsequently in this Act as “a place of detention”."

Section 9(10) of the same Act provides:-
13

2 "(a) A person detained pursuant to subs. (8) shall, as soon as practicable be brought before a judge of the District Court assigned to the District Court district in which the person is being detained.

14

3 (b) Where a person is brought before a judge of the District Court pursuant to subs. (a) the judge may -

15

(i) Subject to para. (c) and is satisfied that one or more of the paragraphs of subs. (8) apply in relation to the person commit the person concerned to a place of detention for a period not exceeding 21 days from the date of his or her detention,

or
16

(ii) Without prejudice to para. (c) release the person…"

17

Detective Garda McMahon wished to apply to the District judge for the further detention of the applicant on the grounds set out at ss. 9(8)(c) and (f) of the Refugee Act,1996, as amended.

18

The court is satisfied that in the course of the District Court proceeding, Detective Garda McMahon testified that the applicant had arrived on a flight from Barcelona that he was refused leave to land, and that when he was questioned he said that he held an Iranian passport but that it was forged and that he paid $11,000.00 for it. Detective Garda McMahon also informed the District Court that the applicant had told members of An Garda Síochána that he had an identification card in Afghanistan, and concluded that the applicant had "made no reasonable efforts to produce identification". She also concluded that the applicant was in possession of forged identification.

19

It was accepted that the applicant had applied for asylum in this jurisdiction.

20

The evidence further disclosed that when the applicant arrived at Santry garda station he had made a phone call. This phone call was in his native language, which was Pushto. The contents were not understood by Detective Garda McMahon. It was apparently put to Detective Garda McMahon in the District Court that the applicant had, in this phone call, contacted his family in Afghanistan and requested that they send his identification documents to him. Detective Garda McMahon was not in a position to confirm or deny this before the District Court.

21

It was contended on behalf of the applicant that no other evidence was offered by Detective Garda McMahon and no further basis provided for the application for his detention.

22

Ms. Binchy, Solicitor, acting on behalf of the applicant applied to the District judge to release the applicant. She submitted:-

23

(i) That it was sometimes necessary for persons seeking asylum to present false documentation and that it was not unusual;

24

(ii) That her instructions were that the applicant's life was in danger;

25

(iii) That the applicant had made reasonable efforts to secure and produce identification, and that as an asylum applicant, he could present himself at the office of the Refugee Application Commissioner and would be given temporary identification and accommodation.

26

(iv) that "possession of forged identification" or "having forged documents"simplicter were not grounds for the continued detention of a person under the Act. The reference at s. 9(8)(f) of the Act of 1996 to the phrase "without reasonable cause" obliges the moving party, that is the gardai, to address the issue as to whether or not there was reasonable cause for the destruction of identity or travel documents or the possession of forged documents.

27

In the course of her grounding affidavit in these habeas corpus proceedings Ms. Binchy states that the detective garda did not do so in this case. That being the position, it is now contended on behalf of the applicant that it was incumbent on the District Court judge to address the issue in a discernable manner in order to reach a valid decision.

28

It is further submitted in this court that it was not sufficient for a member of An Garda Síochána to make unsubstantiated allegations in respect of the grounds, or any matter arising under s. 9(8) of the aforesaid Act. In respect of the subsection the question of what relevant efforts had been made or might have been made by the applicant to prove his identity or to produce identification documentation was, it is now contended, never addressed in evidence either by Detective Garda McMahon or more particularly by the learned District Court judge in reaching his decision.

29

The applicant's case is that the District judge then refused the application on the grounds that the applicant was "a liar and a fraud" and "had forged documents". The applicant submits that at no stage during the District Court proceeding was there any evidence from Detective Garda McMahon or any...

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3 cases
  • Sisk v District Judge O'Neill
    • Ireland
    • High Court
    • 23 March 2010
    ...H v Residential Institutions Redress Board [2007] IEHC 381 (Unrep, McCarthy J, 3/1/2007); Nasiri v Governor of Cloverhill Prison [2005] IEHC 471 (Unrep, MacMenamin J, 14/4/2005); Regina v Knightsbridge Crown Court ex parte International Sporting Club (London) Limited [1982] 1 QB 304; Regina......
  • Grant v Governor of Cloverhill Prison
    • Ireland
    • High Court
    • 27 November 2015
    ...be converted to a judicial review in order to put relevant parties on notice, MacMenamin J. decided in Nasiri v. Governor of Cloverhill [2005] IEHC 471 that the subsequent decision in McDonagh was binding on him in this regard rather than that of McSorley. I would respectfully entirely agre......
  • Doolan v The Governor of Arbour Hill Prison
    • Ireland
    • High Court
    • 9 April 2019
    ...submits that the importance of the advance provision of materials was emphasised in Sangar Nasiri v The Governor of Cloverhill Prison [2005] IEHC 471 where McMenamin J. stated as follows:- ‘Fair Procedures It is a remarkable fact that the proceedings in the District Court took place in cir......

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