Q.W v Minister for Justice Equality and Defence

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 17 July 2012
• Neutral Citation: [2012] IEHC 375
• Judgment citation (vLex): [2012] 7 JIC 1705
• Docket Number: [No. 1098 JR/2011]
• Court: High Court
• Date: 17 July 2012

[2012] IEHC 375

THE HIGH COURT

[No. 1098 JR/2011]

W (Q) v Min for Justice

BETWEEN/

Q.W.

APPLICANT

AND

MINISTER FOR JUSTICE, EQUALITY AND DEFENCE

RESPONDENT

IMMIGRATION ACT 2004 S14

IMMIGRATION ACT 1999 S6(1)

IMMIGRATION ACT 1999 S6(1)(A)

IMMIGRATION ACT 1999 S6(1)(B)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S10(C)(i)

ALIENS ORDER 1946 SI 395/1946 ART 11(1)(A)

ALIENS ORDER 1946 SI 395/1946 ART 3

ALIENS ORDER 1946 SI 395/1946 ART 13

IMMIGRATION ACT 1999 S2(1)

LEONTJAVA & CHANG v DPP & ORS 2004 1 IR 591

P (D) v GOVERNOR OF THE TRAINING UNIT & ORS 2001 1 IR 492 2000/15/5888

IMMIGRATION

Deportation

Service - Proposal to deport - Address - Whether applicant validly served with proposal to deport - Whether applicant obliged to provide address to registration officer - Whether applicant changed address without notifying minister - Whether service of statutory notices effected - DP v Governor of the Training Unit [2001] 1 IR 492 followed - Leontjava v DPP [2004] IEHC 58, [2004] IESC 37, [2004] 1 IR 591 considered - Aliens Order 1946 (SI 395/1946), arts 3, 11 and 13 - Immigration Act 1999 (No 22), ss 2 and 6 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 10 - Immigration Act 2004 (No 1), s 14 - Proceedings dismissed (2011/1098JR - Hogan J - 17/7/2012) [2012] IEHC 375

W(Q) v Minister for Justice and Equality

Facts: The applicant, a Chinese national, entered the State in April 2004 on a student visa which was due to expire in July 2006. He did not leave the State by that date and, after the birth of his child in 2008, eventually got married to his partner in March 2009. In June 2009, a letter was sent to the applicant stating the respondent's intention to deport him. However, due to the applicant's change of address he was unaware of the live proceedings.

Following a routine inspection by the Garda National Immigration Bureau, the applicant was discovered working in a shop. He was therefore served with a notice pursuant to the Immigration Act 2004 requiring him to reside at a certain address, attend meetings with his immigration officer and to cease his employment. He was not, however, made aware about the deportation proceedings, and when he failed to attend was deemed to be an "evader".

The applicant later became aware of the deportation order, and despite seeking an opportunity to make representations, was arrested and deported in November 2011. The applicant now sought judicial review alleging the deportation notice had not been legally served.

Held by Hogan J, that the applicant as non-national was under a duty pursuant to art 11(1)(a) of the Aliens Orders 1946 to update his address with his Registration Officer. He had failed to do so, and therefore had not received the notice. The respondent had served documents to the last known address provided by the applicant, and having done so was deemed to have duly served the documents.

Mr. Justice Hogan

1 The issue which is presented in this application for judicial review is the extent of the obligations which are cast upon the Minister for Justice, Equality and Defence ("the Minister") to effect service on the subject matter of a proposed deportation order. It has been agreed that this application would be treated as a telescoped hearing. The issue arises in the following way.

2 The applicant ("Mr. W") is a Chinese national who arrived in Ireland in April, 2004 on a student visa. His permission to stay in Ireland expired at the end of July, 2006. On his arrival Mr. W. had originally registered with the Garda National Immigration Bureau ("GNIB") and gave his address at 18 Mary Street, Galway.

3 In August, 2005 the applicant's permission to remain was renewed until the end of July 2006, giving his address at 33 Abbeygate Street, Galway. This was the last address provided to the GNIB by Mr. W. until shortly before the present proceedings commenced.

4 Mr. W. did not, however, leave the State after July, 2006 but remained here residing with this then partner (and now wife) Ms. H. The couple had a daughter who was born in the State on 30^th September, 2008. The applicant and Ms. H. were married in March, 2009. Sometime previously, however, the applicant approached a prominent member of the Oireachtas and the Minister received a letter from that member on November, 2006 requesting an extension of the student visa. The address given for the applicant in that communication was also 33 Abbeygate Street, Galway. This application for an extension of the student visa was finally refused in April 2009. By this stage, however, the applicant had moved address and the letter was not received by him.

5 On 9^th June, 2009, the Minister issued a letter addressed to the Abbeygate address containing a proposal to deport the applicant and affording him an opportunity to make representations in that regard. It would appear that Mr. W. did not receive that this communication and, of course, no representations concerning these proposals were duly made.

6 In May, 2010 the applicant came to the attention of GNIB following a routine inspection of a local shop where he was working. He was required to attend at a meeting with GNIB on 17^th May, 2010. At that meeting Mr. W. was served with a notice pursuant to s. 14 of the Immigration Act 2004 ("the Act of 2004"), which required him to reside at No. 32, The Elms, Forster Street, Galway; to report to his local immigration officer and to cease employment.

7 Mr. W. was issued thereafter with further notices pursuant to s. 14 of the Act of 2004, but at no stage was he informed that the Minister proposed to issue a deportation order against him. In the meantime the deportation process continued apace and a letter confirming the making of the deportation order was sent to him by letter dated 28^th March, 2011. The letter was, however, addressed to 33 Abbeygate Street Upper, Galway. When Mr. W. did not attend at GNIB offices in April 2011 in the terms required by this...