Okebiorun v Minister for Justice
| Jurisdiction | Ireland |
| Judge | MR. JUSTICE T.C. SMYTH |
| Judgment Date | 09 July 2002 |
| Neutral Citation | 2002 WJSC-HC 5590 |
| Court | High Court |
| Docket Number | RECORD NO. 73 JR/2002 |
| Date | 09 July 2002 |
Between
and
2002 WJSC-HC 5590
THE HIGH COURT
Synopsis:
IMMIGRATION
Asylum
Constitutional law - Judicial review - Certiorari - Refugee law - Separation of powers - Practice and procedure - Whether State entitled to deport refugee prior to conclusion criminal proceedings - Whether detention of applicant lawful - Whether interference by executive in judicial process - Refugee Act, 1996 - Immigration Act, 1999 (2002/73 & 93JR - Smyth J - 9/7/2002)
Okebiorua v Minister for Justice, Equality and Law Reform
Facts: The applicant sought and had been refused refugee status in the State. The respondent notified the applicant that it was proposed to make a deportation order. Prior to the service of the deportation order the applicant faced criminal charges in the District Court. After a hearing in the District Court, at which charges were adjourned, the applicant was served with a deportation order and arrested on the suspicion that he would not comply with the deportation order. Judicial review proceedings were commenced by the applicant seeking to challenge his detention on the basis that it was unlawful and ultra vires the power of the respondent. It was claimed that the respondent was attempting to interfere with the judicial process as the District Court proceedings were still ongoing at the time of the service of the deportation order.
Held by Mr. Justice Smyth in refusing the application. The existence of court proceedings was known before any deportation order was signed. It was reasonably anticipated at that time by the respondent that the District Court proceedings would be attended to and no interference in those proceedings was intended. The entitlement to make a deportation order was separate and distinct from matters under the jurisdiction of the Courts. The issuing of the deportation order did not concern any of the justiciable issues which were before the District Court. It could not have been the intention of the legislature that applicant seeking refugee status could frustrate the operation of a deportation order by committing a crime. The functions vested in the respondent by the Oireachtas in relation to the making of deportation orders did not amount to an administration of justice by the Executive. The relief sought would be refused.
Citations:
IMMIGRATION ACT 1999 S3(6)
IMMIGRATION ACT 1999 S3(6)(F)
IMMIGRATION ACT 1999 S3(6)(G)
IMMIGRATION ACT 1999 S3(6)(J)
IMMIGRATION ACT 1999 S3(6)(K)
REFUGEE ACT 1996 S9(4)(A)
IMMIGRATION ACT 1999 S11(1)
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S9
ALIENS ORDER 1946 S R & O 395/1946 ART 15
ALIENS ACT 1935 S6(1)
REFUGEE ACT 1996 S9(3)
CONSTITUTION ART 40.4.2
CONSTITUTION ART 6
CONSTITUTION ART 34
CONSTITUTION ART 37
CONSTITUTION ART 40
KELLY THE IRISH CONSTITUTION 3ED 360
HAMILTON V HAMILTON 1982 IR 466
QUINLIVAN V GOVERNOR OF PORTLAOISE PRISON 1998 2 IR 113
BUCKLEY & ORS (SINN FEIN) V AG 1950 IR 67
MAHER V AG 1973 IR 140
COSTELLO V DPP 1984 IR 436
KELLY V O'NEILL 2001 1 IR 354
DPP V OLYMPIC AMUSEMENTS (BUNDORAN) LTD 1987 ILRM 320
ART 26 OF THE CONSTITUTION & S5 & S10 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999 2000 2 IR 360
GUTRANI V GOVERNOR OF WHEATFIELD UNREP FLOOD 19.2.1993
IMMIGRATION ACT 1999 S5(5)
IMMIGRATION ACT 1999 S5(6)
SINN FEIN FUNDS ACT 1947 S10
IMMIGRATION ACT 1999 S3(2)(F)
DEATON V AG 1963 IR 170
C, STATE V MIN FOR JUSTICE 1967 IR 106
MCCORMACK, STATE V CURRAN 1987 ILRM 225
CONSTITUTION ART 34.1
MR. JUSTICE T.C. SMYTH DELIVERED ON TUESDAY, 9TH JULY 2002
I hereby certify the following to be a true and accurate transcript of my shorthand notes of the evidence in the above-named action.
| MR. JUSTICE SMYTH: | In these proceedings the Applicant seeks:- |
(a) An Order of Certiorari quashing the decision of the Respondent to continue his detention.
(b) A declaration that the continued detention of the the Applicant is unlawful and ultra vires the powers of the Respondent.
(c) An Order directing the release of the Applicant 13. on such terms and conditions as to the Court seem just and proper.
The grounds upon which the relief is sought are as follows:-
(a) The decision of the Respondent to continue the 20 detention of the Applicant is unlawful, ultra vires and contrary to the provisions of Article 34.1 and Article 40 of the Constitution;
(b) The decision of the Respondent constitutes an abuse of the process to detain granted to the Respondent under the Immigration Act, 1999as 27 amended;
(c) The Respondent has failed, refused and neglected to discharge the Order of detention on discovery of new facts and/or circumstances which 3 render the continued detention of the Applicant unlawful and/or an abuse of his power under the Immigration Acts, 1996/2000.
These proceedings raise a net issue concerning the effect, if any, of proceedings in the District Court (or other proceedings) on:-
(1) The entitlement of the Minister to make a Deportation Order, such as the Order in question, and serve same with a letter of notification.
(2) The entitlement of a member of An Garda Siochana to arrest and detain a person for the purpose of executing the Deportation Order.
(3) The execution of the Deportation Order.
To understand why these matters came to be litigated, it is necessary first to consider the facts.
(a)The Asylum and Immigration Process:
The Applicant is a Nigerian national who departed from his country of origin on 1st December 1999. He travelled by boat from Nigeria to France and then on to Rosslare by ferry. He had a false passport on arrival. On arrival in Ireland on 11th December 1999, he immediately sought asylum. His application was refused in the first instance, and he was so notified by letter dated 8th August 2001. The Applicant appealed against that decision and an appeal hearing was set for 17th October 2001, but the appeal was refused and the Applicant so notified by letter of 30th October 2001 from the Refugee 11 Appeals Tribunal. This was followed by a letter from the Respondent (the Minister) of 28th November 2001 indicating his proposal to make a Deportation Order in accordance with Section 3 of the Immigration Act, 1999(hereinafter referred to as the Act of 1999).
It is clear, that as of the date of the consideration of the Section 3(6) application under the Act of 1999, on 17th January 2002, by Mr.Galvin and Miss Fitzgerald (and before final determination thereon on 29th January 2002) that the following matters were particularly noted:-
"Section 3(6)(f) Employment (including self-employment) Prospects of the Person -"
Mr. Okebiorun was not issued with a right to work letter and therefore is not permitted to work in the State (Tab 14). However, if permitted and given the present economic climate, he should have no problem in securing some form of employment.
Section (3) (6) (g) - Character and Conduct of the Person Both Within and (where relevant and ascertainable) Outside the State (including any criminal convictions) -
Mr. Okebiorun was arrested on 16th December 2001 and charged with handling stolen property, having no documentation and attempting to leave the State without the permission of the Minister. He is due to appear at court on 29th January 2002 (Tab 13). This division is not aware of any convictions or misconduct by Mr. Okebiorun outside of this State.
Section 3 (6) (j) - The Common Good - It is in the interest of the common good to uphold the integrity of the asylum and immigration procedures. As stated above, Mr. Okebiorun is due to appear in court on 29th January 2002 (Tab 13).
Section 3(6)(k) - Considerations of National Security and Public Policy - Considerations of national security and Public policy do have a bearing on this case."
it is clear from the exhibited documents in Tab 13 that charges against the Applicant were in respect of offences:-
(a) Contrary to the provisions of S.9(4)(a) of the Refugee Act, 1996(hereinafter referred to as the Act of 1996) as amended by S.11(1) of the Act, 1999 and S.9 of the Illegal Immigrants (Trafficking) Act, 2000(hereinafter referred to as the Act of 2000);
(b) In contravention of Article 15 of the Aliens Order Act, 1946 and contrary to S.6(1) of the Aliens Act, 1935as amended by S.10 of the Act of 1999 and S.9(3) of the Act of 1996.
When arrested at Dublin Airport on his way to Dallas in the United States of America on 16th December 2001, the Applicant was in possession of £2,000stg. and US$3,000. It appears that the Applicant was in possession of a British passport in the name of Richard Lewis Gelderd. The Applicant asserted he had paid £150 for the passport in Dublin. The refinements as to whether the document was purchased or stolen were canvassed during the hearing of these Judicial Review proceedings: what is of importance is that the existence of court proceedings was known before any Deportation Order was signed. A Deportation Order was signed on 29th January 2002 and a letter of notice thereof, dated 30th January 2002, was served on the Applicant on 31st January 15, 2002, which advised him to attend at the Garda National Immigration Bureau at Harcourt Street, Dublin at 4p.m. on that day to make arrangements for deportation from the State and to effect deportation not later than 28th February 2002.
(b) Court Proceedings:
On or about 4th September 2001, the Applicant was summoned to appear before the District Court in Carlow (hereinafter referred to as "the Carlow proceedings") on 19th September 2001 to answer charges under Section 10 of the...
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