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Cite as: [2008] IEHC 227

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Neutral Citation: [2008] IEHC 227

THE HIGH COURT

2008 No. 863 S.S.

BETWEEN

BRYAN DAVID BENNETTS

APPLICANT

AND

THE GOVERNOR OF CLOVERHILL PRISON,

DISTRICT JUDGE WILLIAM EARLY, and

THE MINISTER FOR JUSTICE, EQUALITY & LAW REFORM

RESPONDENTS

EX TEMPORE JUDGMENT of Mr. Justice Birmingham delivered on the 20^th day of June, 2008

This matter comes before the Court as an Article 40 inquiry. The applicant is currently detained in Cloverhill prison. An inquiry was directed earlier this week and the Deputy Governor of Cloverhill prison has indicated and certified that the detention is pursuant to s. 9 of the Refugee Act 1996 (as amended). He has produced the Order of the District Court providing for that detention. In that Order, the judge of the District Court recited that he is satisfied that the applicant poses a threat to public order in the State and has committed a serious non-political crime outside the State.

As will emerge, the applicant in this case was arrested by a member of the Garda National Immigration Bureau ("GNIB"). That member's information to the District Court indicates that he, too, was of the view that a serious non-political crime had been committed outside the State and that the applicant poses a threat to public order in the State.

Factual Background

The applicant is apparently a national of South Africa, who came to this State on 20^th May, 2008. On arrival, he applied for asylum at Dublin Airport. It seems that he was referred from the Airport to the Office of the Refugee Applications Commissioner ("ORAC") where, on the following day, he was met by Detective Garda Brendan O'Somachain. Thereafter, an interview that took place, and the Detective Garda took the view that he had reasonable grounds to suspect that the applicant posed a threat to public order in the State and that he had committed a serious non-political crime outside the State. He made a decision to detain him pursuant to s. 9(8)(a) and (b) of the Refugee Act 1996, as amended.

The circumstances in which Detective Garda O'Somachain came to that decision would seem to be as follows. The applicant, as I have noted, is a South African national, but it seems that he has spent a very large number of years in the United States and, indeed, that he has served in the United States defence forces. It appears that his arrival in Ireland from South Africa comes against a background where he was deported from Australia to the United States and then from the United States - from Atlanta, Georgia - to South Africa.

The background to those deportations is that it appears that the applicant found himself in trouble with the law in Australia and was convicted in April, 2007 of a number of offences. Four of the offences in respect of which he was convicted are offences, of various descriptions, under the Firearms Act, and the fifth offence was an offence of assault occasioning actual bodily harm. The firearms offences comprise of possession of an unregistered firearm pistol, possession of ammunition, and receiving and sending firearms or parts of firearms by mail. The highest sentence that the applicant received for any of these offences was one period of six months imprisonment.

Further inquiries indicate that the applicant has also been in difficulty with the authorities in the United States. He was convicted in the State of Michigan of the offence of driving a motor vehicle while intoxicated. It is perhaps worth observing that the offence of drunk-driving seems to be regarded very seriously in Michigan, in that it carries a maximum sentence of 15 years imprisonment. He was also convicted in the United States of two offences of assault, which seem to have occurred in a domestic context; i.e. acts of domestic violence.

The Function of the District Court Judge

The order on foot of which the applicant is detained, as I have noted, involves a recital by a judge of the District Court that he is satisfied that (a) the applicant poses a threat to public order in the State and (b) that he has committed a serious non-political crime outside the State.

In the first place, it is necessary to consider the function of a judge of the District Court when dealing with the s. 9 procedure. That matter has been considered in a number of decisions of this Court. Probably the most substantial decision is that of Ryan J. in the case of Arra v The Governor of Cloverhill Prison & Ors [2005] 1 I.R. 379. In Adejegba v Judge Deerey & Ors (Unreported, High Court, Dunne J., 6^th April, 2006), Dunne J. makes the point that the function of the District Court, while of course it must be exercised judicially, is essentially ministerial or administrative. Dunne J. equates the role of the District Court to the role of the Court in issuing a warrant.

That being so, it seems to me that this Court would have to pay very high respect to the views formed by a judge in the District Court, because s. 9 of the Refugee Act 1996 (as amended) provides that the detention takes place when a judge of the District Court is satisfied that any of the conditions specified therein apply. It seems to me that this Court should be slow to substitute its own views for that of a judge of the District Court, unless the conclusion reached by the District Court judge was one that was irrational or appeared to fly in the face of reason or common sense.

However, insofar as the question of the basis on which the conclusion was reached in this case has been debated by counsel, I will take the opportunity to express some thoughts in relation to it, while anxious not to trespass on the function of the judge of the District Court and certainly anxious not to, in any sense, fetter the discretion of any judge of the District Court the matter might come before in the future.

Section 9 of the Refugee Act 1996, as amended

Section 9 of the Refugee Act 1996 (as amended) stipulates when applicants for refugee status may be detained in custody. It borrows the language of Article 1F(b) of the Geneva Convention Relating to the Status of Refugees 1951. The difference in context between these provisions is significant, because Article 1F(b) of the Geneva Convention is dealing with a situation where persons can be excluded from international protection, whereas what is involved in s. 9 of the Act of 1996, is a situation where somebody is to be detained having been brought before the District Court, with provision for regular reviews by the court, where an entitlement to refugee status has yet to be established.

Section 9(8)(b): "committed a serious non-political crime outside the State"

Both counsel, with great industry, have searched for definitions of "public order" and, more particularly, of a "serious non-political crime". We have had reference to those phrases, and particularly to the "serious crime" phrase as it appears in other statutes.

Taken at face value, it seems to me that offences involving firearms are inherently serious. Obviously, a particular offence and the facts of a particular offence may be more or less serious, but it seems to be hard to regard any firearms offence as being other than serious. That emerges from the maximum penalties that are provided for firearms offences in this jurisdiction. In recent times, the Oireachtas has indicated a particularly serious view of firearms offences by providing, in many cases, for presumed minimum sentences. Likewise, it appears that the offences are potentially regarded as very serious in Australia, having regard to the maximum penalties that are provided there.

Offences of violence in a domestic setting are offences that are regarded with particular opprobrium by society and, it seems to me, can properly be regarded as serious. It is of some note in that regard that one of the offences of violence with which the applicant was convicted in Australia was the offence of assault occasioning actual bodily harm. That offence has effectively been replaced in Ireland by s. 3 assault, under the Non-Fatal Offences against the Person Act 1997, but when on the statute books, it carried a maximum penalty of five years imprisonment and, interestingly, it was regarded as a serious offence both in terms of being an arrestable offence and also being an offence to which the Bail Acts applied.

In light of these considerations, I am of the view that the offences that prompted the decision to arrest and detain the applicant, and the decision of the judge of the District Court that he was satisfied to continue to detain the applicant, are offences that can properly be called serious offences.

Section 9(8)(a): "Poses a threat to […] Public Order in the State"

So far as the question of public order is concerned, there is no doubt that in this case, the concept of public order and the view formed by the arresting member of the GNIB was closely linked to the existence of a criminal record involving the commission of the offences of which I have already described. However, it does seem to me that the phrase "public order" is potentially wider, in that it may - in some situations at least - permit a detention where an individual act that would be regarded as a serious crime has not been committed. It may be that somebody who has a track record of persistently committing offences that would be regarded as minor might be regarded as a threat to public order. In that context, when an applicant presents themselves in this State with a criminal record in two other jurisdictions, and where that combined criminal record involves acts of violence in two jurisdictions, firearms offences and an offence of drunk-driving, it seems to me that it would be hard to categorise a conclusion by the arresting officer that there was a threat to public order as irrational.

In all the circumstances, I am satisfied that the continued detention of the applicant is lawful and I refuse to order his release under Article 40.

Approved: Birmingham J.