THE SUPREME COURT
THE GOVERNOR OF THE TRAINING UNIT, MINISTER FOR JUSTICE EQUALITY AND LAW REFORM & ORS.
Ex-tempore Judgment of the Court delivered by Keane C.J. on the 28th day of November, 2001.
This is an appeal from a judgment and order of the High Court (Mr. Justice Finnegan). An issue arose as to what precisely was before this court, because there had been before the High Court an application for an inquiry pursuant to Article 40 of the Constitution and, that application having been refused, the learned High Court judge then proceeded to hear an application for leave to apply by way of judicial review for certain reliefs arising out of the same events. The same respondents being present he permitted them to file affidavits, heard submissions from both sides and then gave his judgment on what was really the central issue between the parties namely the validity of the deportation order made by the second named respondent.
A matter was canvassed at the opening of this appeal as to whether there was, in fact, before this court an appeal from the decision of the learned High Court judge refusing to make absolute any conditional order of Habeas Corpus and simply then proceeding to consider the matter in the context of a judicial review application. The court has asked the registrar to see if he can ascertain what notes there are of the judgment of the court on that occasion with Mr. Justice Murray presiding and I will ask the registrar, since the matter has been canvassed, to read his note of what transpired.
"My note of the joint motion which was brought on the 238/00 which was the Habeas Corpus appeal and 245/00 which was the judicial review was that the party indicated that it is seeking on foot of a notice motion to strike out the Habeas Corpus appeal for want of prosecution. Judge Murray indicated that the certificate of evidence had since been lodged and Mr. McCarthy said that the only issue that appeared to arise at that stage was the judicial review and it was indicated the Habeas Corpus proceedings could be struck out. Dr. Forde asked for costs and Judge Murray indicated that there would no order as to costs in the Habeas Corpus and that the judicial review appeal could be put into the next lists to fix dates and that application could then be made. Mr. McCarthy sought the costs of the motion, Dr. Forde asked that they be reserved and Judge Murray indicated that the costs of the motion be reserved to the appeal hearing. "
I have asked the registrar to read the above, since there was uncertainty as to what exactly transpired on the last occasion when the matter was being mentioned. However, in my view, whether in fact the Habeas Corpus proceedings were struck out by this court is not really of any practical significance or importance at this stage.
What happened in the High Court undoubtedly was that the High Court judge, who explained his reasons very clearly, said that if this was simply Habeas Corpus proceedings or an inquiry under Article 40, however one chooses to describe it, he would be satisfied that a proper return had been made to the conditional order in the form of a detention order by the Minister for Justice, Equality and Law Reform which appeared to be valid, no question on its face as to its legality or constitutionality arising. Since the applicants were making it quite clear that they were indeed contesting the validity of the deportation order he proceeded to hear their application for leave by way of judicial review on the basis of an undertaking by the State authorities that the deportation order would not be enforced while the judicial review proceedings were being determined and on the basis that the defendants would be allowed to file affidavits and advance whatever submissions they considered appropriate. That in my view is an entirely appropriate procedure for the trial judge to have adopted, it met the justice of the case and enabled the applicant, now the appellant to this court, to advance whatever reasons factual and legal were available to him for quashing the deportation order. That was fully heard by the trial judge and in a careful written judgment he dealt with all the issues that had been argued before him and I can find no fault whatever with that procedure which he adopted.
I come to then to what are really the substantial points advanced by Dr. Forde this morning. One of them is in a sense procedural, because he submits that the trial judge, even allowing that to have been in general an appropriate procedure, did err in receiving evidence on affidavit from the defendants, because he says, and I do not think I do any injustice to his submission, that effectively we are still concerned with an application for leave even thought the defendants are there and that an applicant for leave is entitled to his application considered on the basis of the evidence he produces in his affidavit, on the basis of whatever submissions he advances.
While in the circumstances of this case, Dr. Forde takes no objection to the respondents being there and hardly could, as they were there anyway, or to their even being heard on legal matters, he says that it was not appropriate that they should be allowed put in material on affidavit because this was essentially converting a leave application into a trial of the judicial review proceedings, a trial of the actual substantive judicial review proceedings themselves, and that was incorrectly to conflate the whole procedure.
I find it myself unnecessary to express any opinion as to whether Dr. Forde is right in that submission or not because, whether he is right or not in that submission, it does not seem to me to affect the outcome of the present appeal or what happened in the High Court. It could only be material if the High Court judge had, on the basis of the affidavits before him, arrived at a conclusion of fact which was dependent on what was sworn to and which was contested on the affidavits before him. The relevant facts on which he arrived at his determination were not, as far as I can ascertain, in dispute between the parties. There was certainly a dispute as to the extent of the knowledge by the applicant of the English language. That matter is in dispute on the affidavits because it is right to say that one of the Gardai witness deposed that the applicant had excellent English and that indeed it was his second language at school. The applicant's solicitor, it should be said on the other hand, said that he had poor English and that really he needed an interpreter for the purpose of these court proceedings. So there that issue rests and of course if that were a live issue in the case then it would be necessary to consider whether Dr. Forde was right in saying that the High Court judge should not have approached this matter on the basis of the affidavits before him and equally would have been wrong to convert it into a trial. Dr. Forde says he was not obliged to look for cross-examination or oral evidence and to convert an application for leave into a trial. I find it unnecessary to arrive at any conclusion as to whether that submission is, in law, correct. The undisputed facts are that the entire procedure under the relevant legislation had been gone through, so far as the determination of the applicant's status, namely, as to whether he was entitled to asylum as a refugee or not, was concerned. All of that had been gone through. None of that is at this stage challenged and all that is challenged is the deportation order itself.
In relation to the deportation order the obligation on the State is to notify the applicant of the making of the deportation order. That was done, and it is not in dispute that the notice was sent. It was sent to an address at which the applicant, as is admitted, was no longer residing when it was sent. It is not in dispute that under the relevant regulations, a person in the position of the applicant must notify the authorities of any change of address on his part and if he fails to do so, then in legal terms a failure to give him notice of the intention of the making of a deportation order is not a matter which is the legal responsibility of the Minister. It is entirely the applicant's responsibility because he has failed to comply with the relevant regulations.
I am satisfied that accordingly the determination by the High Court judge on matters of fact was solely on the basis of uncontested facts. He did not arrive at his determination on the basis of facts which were contested on the affidavits before him.
The next point raised on behalf of the applicant is that the Minister cannot now rely on the deportation order admittedly made in April of 2000 because he submits that in the events which happened it was spent. He says that, because in an earlier sequence of events arising out of this particular case, there is no doubt that the State were in the process of implementing the deportation order and had done so by effectively putting the applicant on a flight ultimately intended to arrive in Bucharest, the capital of his native country. The first leg of the flight by Aer Lingus was as far as Schiepol airport in Amsterdam, thereafter there was another flight, presumably by some other carrier to Bucharest. Before the second leg of the flight could take place, Aer Lingus had been notified, as they understood it, of, (and I will put this in as neutral terms, as there is some dispute about it), court proceedings in relation to the applicant's deportation. The Gardai who were accompanying the applicant having been informed by Aer Lingus that this was their understanding of the position, the Gardai brought the applicant back to Dublin on a flight. Aer Lingus said they were cancelling the second leg of the flight because of what they had been told about court proceedings and it has to be said that the Gardai acted perfectly properly and the court, in fact, would express their commendation of the Gardai for so acting because there is an unfortunate history in this jurisdiction, which one hopes is now simply a matter of history, of attempts to circumvent people's rights to apply for orders protecting their right to be at liberty. That one hopes is past history and certainly in the case of the Gardai in this situation, whether they were over scrupulous or whether they were over meticulous is certainly not a matter on which I would wish to address any criticism of them. They did what they thought was proper having regard to their information that there were in existence court proceedings.
I would conclude from that, that it would be quite wrong to say that in those circumstances the deportation order was spent. It would be quite wrong to infer the Gardai having properly acted, or certainly acted at worst with an excess of caution of deference to the position of the courts in this country, that one should then treat the consequence of their action as in some way retrospectively invalidating the deportation order. The deportation order was an order which meant that the applicant was no longer entitled as a matter of law to remain in this country and was further an order which entitled the State to take any necessary steps to ensure that he did not remain in this country. Those are the twin effects of a deportation order and I have no doubt that it remained in force in both those contexts, notwithstanding the fact that the plaintiff came back to the country in order, as the Gardai saw it, that he could exhaust whatever legal remedies might be open to him in this country.
There remains then the submission by Dr. Forde that the deportation was also invalid, in that he was being brought to Romania and that he should be deported to a country of his choice. That is, I am satisfied, is a total misconception of the process of deportation. The deporting State, are entitled to choose the destination to which they will deport the applicant. They must, of course, be in a position from their point of view to ensure that they can effect his entry into the country to which they decide to deport him because otherwise it would simply involve them in difficulty and further expense. They are perfectly entitled to make an election. In this case they made a very obvious election to return him to the country of origin, the country from which he had come. I am satisfied that was perfectly within their competence as the deporting State, if I can so describe them and I am satisfied that that ground also fails. That is not to say that the issue of refoulement might not arise if there was a possibility of persecution of the applicant existing in some other country, but that did not arise in this case.
In those circumstances I would dismiss the appeal and affirm the order of the High Court.