Qing v The Governor of Mountjoy Prison ; Qing v The Minister for Justice and Equality No.2

• Jurisdiction: Ireland
• Judge: Mr Justice David Keane
• Judgment Date: 02 July 2019
• Neutral Citation: [2019] IEHC 478
• Date: 02 July 2019
• Court: High Court
• Docket Number: [2016 No. 1184 S.S.] [2016 No. 859 J.R.]

[2019] IEHC 478

THE HIGH COURT

JUDICIAL REVIEW

Keane J.

[2016 No. 1184 S.S.]

[2016 No. 859 J.R.]

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

BETWEEN

LIN QING also known as QING LIN

APPLICANT

AND

THE GOVERNOR OF MOUNTJOY PRISON

RESPONDENT

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

NOTICE PARTY

BETWEEN

LIN QING also known as QING LIN

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENT

(No. 2)

Unlawful detention – Judicial review – Deportation order – Applicant seeking an inquiry into the lawfulness of his detention – Whether the detention warrant was valid

Facts: The first of two sets of proceedings before the High Court was an inquiry, pursuant to Article 40.4.2° of the Constitution of Ireland, into the lawfulness of the detention of the applicant, Mr Qing, on foot of a ‘notification of arrest and detention’ (the detention warrant), issued pursuant to s. 5(8)(a) of the Immigration Act 1999, on 24 September 2016. The respondent, the Governor of Mountjoy Prison, and notice party, the Minister for Justice and Equality, Ireland and the Attorney General, contended that the applicant’s detention was lawful. The applicant had been released on bail, pending the outcome of that inquiry. The second set of proceedings was an application for the judicial review of both a deportation order made against the applicant on 23 December 2013, pursuant to s. 3(1) of the 1999 Act (the deportation order), and a notification in writing of the decision to deport, dated 12 February 2016, pursuant to the requirements of s. 3(3)(b)(ii) of the same Act (the written notification). Counsel for the applicant acknowledged that the decision of the Supreme Court in M.A.K. v Minister for Justice and Equality [2018] IESC 18 had resolved the principal issue in the case against his contention that the deportation order against him failed to comply with requirements of s. 3(1) of the 1999 Act. However, counsel for the applicant submitted that there was still an issue on the validity of the detention warrant and, hence, on the lawfulness of the applicant’s detention for the purpose of the Article 40 inquiry, because of the recital on its face (signified by ticking a box beside it) that the basis for the applicant’s arrest and detention was the relevant officer’s suspicion, with reasonable cause, that the applicant, against whom a deportation order was in force, had ‘failed to leave the State within the time specified in the order’.

Held by Keane J that this was not a case in which a technical infirmity that might not mandate the grant of discretionary relief in an application for judicial review must nonetheless result in an order for the applicant’s release where that infirmity taints the detention warrant relied upon to deprive him of his liberty. Keane J held that, as the decisions of the Supreme Court in both P. v Minister for Justice, Equality and Law Reform [2002] 1 IR 164 and M.A.K. make clear, there is no legal infirmity in the form prescribed under the Immigration Act 1999 (Deportation) Regulations 2005 in failing to prescribe in it the date of effect of the deportation. Thus, applying the closest scrutiny, Keane J held that there had been no error in the exercise of the relevant power of detention.

Keane J held that the applicant was not entitled to the relief sought in his judicial review proceedings and those proceedings were dismissed. Keane J was satisfied that the detention of the applicant on foot of the deportation order under challenge was lawful and that concluded the Inquiry pursuant to Article 40.4.2° of the Constitution of Ireland.

Proceedings dismissed.

JUDGMENT of Mr Justice David Keane delivered on the 2nd July 2019

Introduction

1 There are two sets of proceedings before the Court.

2 The first is an inquiry, pursuant to Article 40.4.2° of the Constitution of Ireland, into the lawfulness of the detention of the applicant on foot of a “notification of arrest and detention” (“the detention warrant”), issued pursuant to s. 5(8)(a) of the Immigration Act 1999, as amended (“the Act of 1999”), on 24 September 2016. The respondent and notice party contend that the applicant's detention is lawful. The applicant has been released on bail, pending the outcome of that inquiry.

3 The second is an application for the judicial review of both a deportation order made against the applicant on 23 December 2013, pursuant to s. 3(1) of the Act of 1999 (“the deportation order”), and a notification in writing of the decision to deport, dated 12 February 2016, pursuant to the requirements of s. 3(3)(b)(ii) of the same Act (“the written notification”).

4 In Lin Qing Aka Qing Lin v Governor of Cloverhill Prison [2016] IEHC 710, (Unreported, High Court, 25th November, 2016), Mac Eochaidh J, having ordered and embarked upon the Article 40.4.2** inquiry, and having considered the decision of the Supreme Court in The Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 IR 360 (at 398-9), granted the applicant an extension of time to bring an application for leave to seek judicial review of the lawfulness of both the deportation order and the written notification, and then acceded to that application for leave.

The issues raised

5 While the applicant pursues the reliefs he seeks in the judicial review proceedings on twenty one separate grounds (excluding the discrete grounds on which he sought injunctive relief and an extension of time in which to bring his proceedings), and while Mac Eochaidh J identifies four issues in his decision to grant the extension of time sought, it became clear – and was accepted - in the course of argument that the proceedings turn on two specific issues.

6 The first, or principal, issue is whether the requirement in an order made under s. 3(1) of the Act of 1999 that the non-national to whom it is directed leave the State...