Tang v Minister for Justice

• Jurisdiction: Ireland
• Judge: Hamilton C.J,MRS. JUSTICE DENHAM
• Judgment Date: 01 January 1996
• Neutral Citation: 1995 WJSC-SC 5597
• Court: Supreme Court
• Date: 01 January 1996

TANG v. MIN JUSTICE

(JUDICIAL REVIEW)

BETWEEN:

KAP SUN TANG LIN CHOI LEUNG AND CHING SZETANG

Applicants

and

THE MINISTER FOR JUSTICE, IRELAND AND THE ATTORNEYGENERAL

Respondents

1995 WJSC-SC 5597

HAMILTON C.J.

O'FLAHERTY J.

DENHAM J.

327/94

THE SUPREME COURT

Synopsis:

ALIENS

State

Entry - Leave - Conditions - Breach - Discovery - Application for permission to remain in State - Official's refusal of application - Authority of official to make decision on behalf of Minister of State - Presumption that official had authority - Terms of refusal - Reasons for refusal not required to be stated - Aliens Order, 1946 (S.R.& O. No. 395), article 5 - Aliens (Amendment) Order, 1975 (S.I. No. 128), article 13 - Aliens Act, 1935, s. 5 - (327/94 - Supreme Court - 19/12/95) - [1996] 2 ILRM 46

|Tang v. Minister for Justice|

JUDICIAL REVIEW

Remedy

Scope - Relief - Benefit - Absence - Document - Paragraph inserted ~ultra vires~ writer - Paragraph a nullity - Certiorari refused since nobody benefited by quashing paragraph - (327/94 - Supreme Court - 19/12/95) - [1996] 2 ILRM 46

|Tang v. Minister for Justice|

MINISTER OF STATE

Powers

Exercise - Delegation - Validity - Proof - Presumption of due delegation - Alien's application for permission to remain in State - Official's refusal of application - Authority of official to make decision on behalf of Minister of State - Presumption that official had authority - Terms of refusal - Reasons for refusal not required to be stated - (327/94 - Supreme Court - 19/12/95) - [1996] 2 ILRM 46

|Tang v. Minister for Justice|

TRIBUNAL

Decision

Reasons - Disclosure - Necessity - Absence - Minister of State - G7 Exercise of statutory discretion - Official's decision to refuse to grant to alien permission to remain in the State - No reason stated at time of decision - (327/94 - Supreme Court - 19/12/95)

|Tang v. Minister for Justice|

Citations:

CONSTITUTION ART 50

OSHEKU V IRELAND 1987 ILRM 330

ALIENS ORDERS 1946 – 1975

ALIENS ACT 1935 S5

ALIENS ORDER 1946 SR & O 395/1946 ART 13(1)

ALIENS (AMDT) ORDER 1975 SI 128/1975 S13(1)

ALIENS ACT 1935 S5(1)(b)

ALIENS ACT 1935 S5(1)(e)

ALIENS ACT 1935 S5(1)(h)

ALIENS ORDER 1946 SR & O 395/1946 ART 13

ALIENS ORDER 1946 SR & O 395/1946 ART 5(2)

CARLTONA LTD V COMMISSIONERS OF WORKS 1943 2 AER 560

KIELY V MIN FOR SOCIAL WELFARE 1977 IR 267

HAUGHEY, IN RE 1971 IR 217

IRISH FAMILY PLANNING V RYAN 1978 IR 313

MALLOCH V ABERDEEN CORPORATION 1971 1 WLR 1578

ALIENS ACT 1935 S5(8)

WADE ON ADMINISTRATIVE LAW 6ED 366

1 JUDGMENT delivered on the 19th day of December 1995 by Hamilton C.J .[O'FLAHERTY CONC]

2 This is an appeal brought by the Respondents (hereinafter collectively referred to as "the Minister") against the judgment and order made by Mr. Justice Flood on the 11th day of October 1994.

3 By the said order the learned trial judge granted:-

4 (1) An order of certiorari quashing the decision of the Minister for Justice contained and communicated in a letter dated 12th October, 1993 signed byM. O'Reilly, Aliens Division, Department of Justice and directed to the Applicants whereby she refused the Applicants permission to remain in the State.

5 (2) An order of certiorari quashing the decision of the Minister for Justice instructing the Applicants to make arrangements for their departure from the State within 21 days from the date of the said letter dated the 12th day of October 1993 and signed M. O'Reilly, Aliens Division, Department of Justice.

6 (3) An order restraining the Minister, her servants or agents from taking any further steps to deport the Applicants from the State based upon the said decision alleged to have been made in that behalf and referred to in the said letter of October 12th 1993.

7 (4) An order declaring that the said decision contained in and referred to in the said letter to the Applicants dated the 12th October 1993 insofar as the same are founded upon the provisions of the Aliens Orders, 1946 to 1975 are ultra vires the powers conferred upon the Minister by statute.

8 In addition to this relief, the Applicants had sought in the alternative a declaration that such provisions of the Aliens Act, 1935which purport to empower the Respondents to deport the Applicants fromthe jurisdiction of this Honourable Court are inconsistent with the Constitution and were not carried over as laws by Article 50 of the saidConstitution.

9 In connection with this claim, the learned trial judge statedthat:-

"It has been argued before me that the said Aliens Orders, 1945 to 1975 and the Aliens Act, 1935are unconstitutional. In my opinion, the matters in issue in this application can be resolved without considering the constitutionality of the said Act and orders. This question of constitutionality must wait another occasion for consideration."

10 In these circumstances, this Court is not required to deal with the constitutionality or otherwise of the Aliens Act, 1935and the statutory instruments made in pursuance thereof.

11 However, it should be pointed out that in addition to enjoying the presumption of constitutionality, it had been held by Gannon J. in the case of Osheku and Others .v. Ireland and Others (1987)I.L.R.M. page 330 that -

"The Aliens Act, 1935and the Statutory Orders395 of 1946 and 128 of 1975 are not inconsistent with theConstitution."

Facts relevant to the proceedings

12 The facts relevant to these proceedings are set forth in the judgment of the learned trial judge as follows:

13 1. The first named Applicant is a fifty year old Hong Kong national holding a current British Hong Kong passport. The second and third named Applicants are his wife and his 17 year old daughter, both of whom likewise are Hong Kong nationals holding valid British Hong Kongpassports.

14 2. The first named Applicant came to Ireland in the month of January 1990 and was subsequently followed by his said wife in the month of July 1991. The third named Applicant, his said daughter appears to have arrived in Ireland in or about July 1990 in the company of her elder sister who is now married to another Chinese and now have an infant son who was born in Ireland on October 14th, 1991.

15 3. An inspection of their passports establishes that they lawfully entered the country subject to conditions endorsed on their passports, namely, that they did not remain beyond the limited date therein, and did not engage in business or take up employment. The third named Applicant is a student at the Holy Faith Convent in Skerries.

16 4. The family presently reside at No. 11A Newtownpark, Skerries, Co. Dublin, premises which they purchased with the aid of an A.I.B. mortgage of £40,200. The first named Applicant was a restaurant manager for a period of 36 years in Hong Kong. After his arrival in Ireland, he worked in his brother-in-law's restaurant, the Ocean City in Skerries. Subsequently, he obtained from his brother-in-law a long lease of the said premises and runs a restaurant in it himself since September 1st, 1990. In the said restaurant he employs his son-in-law, his elder daughter, his wife and himself and one other Irish national.

17 The learned trial judge further stated that:-

"They have at all times earned their living by lawful activities, have been self-sufficient and have duly paid all theirtaxes."

18 However, the learned trial judge held that each of the Applicants were in breach of the conditions upon which they were permitted to land in this country, in that they had over-stayed a period for which permission had been granted and in relation to the first and second named applicant engaged in the restaurant business: again in breach of the conditions under which they were permitted to land in this country.

19 It also appears from the said judgment that:-

"In or about the month of January, 1993 their irregular presence in the State came to the attention of the Aliens Office as a result of enquiries into the number of Chinese/Hong Kong nationals who were resident in the Balbriggan area. They were interviewed by Det. Gda. John O'Connor of Balbriggan Garda Station who visited the said premises in Skerries.

The said Det. Gda. O'Connor forwarded a report to the Aliens Office, and consequent upon the said report, was requested by the AliensOffice to have filled in forms known as Appendix 11 being application forms seeking permission to remain in this State and he duly assisted the Applicants herein in the completion of the saidforms."

20 The circumstances and activities of the said three Applicants were considered by two Clerical Officers in the Department of Justice who made recommendations to the Assistant Principal Officer Mary O'Reilly, who decided to refuse them permission to remain in the State and it appears from the affidavit of the said Miss O'Reilly that she did not consult with or refer the matter to any other person and in particular did not refer the matter to the Minister.

21 By letter dated "October 1993" she wrote to each of the Applicants in terms following:

"I am directed by the Minister for Justice to refer to your application for permission to reside in the State. I am to inform you that your case has been given careful and detailed consideration and on the basis of the information available it has been decided not to grant you permission to remain in the State."

22 You are therefore instructed to make arrangements for your departure from the State within 21 days from the date of this letter. Failure to comply with this instruction may result in you being deported.

23 Yours sincerely."

24 The learned trial judge found as a fact that from and after the interview held by Det. Gda. O'Connor when he filled in the application forms known as Appendix 11, no further communication issued from the Department by way of enquiry or otherwise to the Applicants prior to the dispatch of the said letter. The information at the disposal of...