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1. Naomitsu Kanaya is a Japanese advertising executive who was refused leave to land at Dublin Airport on Wednesday, 13th January, 1999. He had come from Frankfurt in the company of an Irish citizen, Stephen Smith, who had business connection with the Applicant’s father. Mr. Smith offered to accommodate the Applicant for three months while the Applicant attended a course of study in the English language at the Centre for English Studies in Dame Street. The Applicant did not, however, have any documentation on his person in relation to the said centre. He said he told the immigration officer that he had documentation with him in his suitcase but he says that he was not allowed access to his suitcase. In relation to the course a fax from Mr. Justin Quinn of the Centre for English Studies was received at Dublin Airport dated the 13th January, 1999 confirming that the Applicant had been accepted to attend a full time English language course for a period of twelve weeks commencing on the 18th of January, 1999. This fax is exhibited in the Grounding Affidavit of the Applicant filed on the 15th of January, 1999.

2. Mr. Quinn in an Affidavit sworn on the 25th February, 1999 states in relation to the fax letter that the fax does not say that (the Applicant) is a student but states that he has been accepted to attend a course. Registration would be effected in the usual manner after his arrival in this country and he would only then be considered a student.

3. Mr. Kanaya told the officer that he had £600 in Irish currency and other foreign currencies bringing the total to approximately IR£1,000.

4. He says he informed the immigration officer that he had been in Ireland from the 16th of November 1998 to the 29th of November, 1998 and from the 6th of December, 1998 to the 12th of December, 1998.

5. While there is some dispute as to the actual denominations of foreign currency and their amount and, indeed, as to the amount of time that the Applicant told the immigration officer that he had been in Ireland, I accept that the Applicant had approximately IR£1,000 and that he had been in Ireland on a number of occasions beforehand.

6. John McKevelley who is a Detective Garda was on duty at the immigration office at Dublin Airport on the 13th January, 1999.

7. In his Affidavit he says that the Applicant informed him that he was looking for a school and that he had not a school booked. The Applicant had stated in his Affidavit that the purpose of his visit to Ireland was to pursue a course in the English language at the centre of English studies and that the letter confirmed his enrolment. This, however, is not in accordance with the fax letter and the Affidavit of Justin Quinn already referred to.

8. I prefer the evidence of Detective Garda John McKevelley on this account that the Applicant did not have a school booked.

9. It appears from Detective Garda McKevelley’s Affidavit that he did not require the Applicant, in these circumstances, to produce any money. He says that intended students who come into Ireland from non-European Union countries must have a course of study pre-booked and pre-paid before arrival in order to satisfy immigration officials of the bona fides of their intention to study. Intending students must show whether they are in a position to support themselves for the duration of their intended stay in this country. I accept that this was the case.

10. Detective Garda McKevelley says that the Applicant’s residence permit for the United Kingdom covers the years 1995 to 1998 and had expired on the 31st of August, 1998. This was not contested by the Applicant.

11. Detective Garda McKevelley further says that the Applicant presented him with two airline tickets. The return leg of the flight from London-Bangkok-Tokyo was for the same day, on 13th January, 1999 and that, accordingly, the Applicant was not in possession of a valid return flight to his country of origin. Notice to cross-examine was given and in cross-examination the Applicant said that he had purchased the return ticket Dublin-London-Bangkok-Tokyo on 3rd December, 1998 from Colette Pearson Travel but when pressed stated that he could have asked Stephen Smith to buy the ticket and explained that when he said that he had bought it he meant it was bought with his money. In any event, he said that he went to the travel agent personally to check about that ticket. When put to him that the ticket was issued on 3rd December, 1998 which was outside the dates he had deposed to being in the country he said he did not remember the date. When it was pointed out to the Applicant that the issuing travel agent was Twohig Travel he could give no explanation.

12. While the Applicant’s evidence was given via a Japanese interpreter, I am satisfied from his evidence that he was not in possession of a valid return flight to his country of origin.

13. It seems clear to me that the immigration officer, Detective Garda McKevelley, had, in the circumstances, not acted unreasonably in refusing the Applicant leave to land.

14. That was not, however, the end of the matter

15. Two notices dated 13th January, 1999 were issued by Detective Garda McKevelley refusing the Applicant leave to land. The first stated that he was satisfied that, although wishing to take up employment in the State, the Applicant was not in possession of a valid permit for such employment issued to the prospective employer by the Minister for Labour. The second notice stated that he was satisfied that the Applicant was not in the position to support himself and that the Applicant would be detained in Glengarriff Parade until such time, being as soon as practicable, he was to be removed from the State. Both of these notices were headed “Aliens Act, 1935”.

16. A Detention Order dated 13th January, 1999 then issued, also under the Aliens Act, 1935 and in exercise of powers conferred upon the immigration officer by Article 5(4) of the Aliens Order, 1946 (inserted by Article 3 of the Aliens (Amendment) Order, 1975). That Order directed that, pending the making of arrangements for his removal from the State, the Applicant be detained in the Training Unit, Glengarriff Parade, Dublin in the custody of such officer of the Minister for Justice as is for the time being in charge of that place.

17. The Applicant eventually applied to the High Court for Judicial Review of the immigration officer’s decisions on Monday, 18th January, five days after his arrival at Dublin Airport. Mr. Justice McCracken gave leave to apply by way of Judicial Review for the reliefs claimed, ordered that the Applicant be released forthwith from detention and reserved the costs of the application and Order.

18. The Applicant claims reliefs by way of Order of Certiorari quashing the Orders of the immigration officer contained in the two notices of 13th January, 1999; an injunction restraining the Respondent from deporting the Applicant from the State; an Order of Mandamus requiring the Respondent to release the Applicant from detention and damages for wrongful detention of the Applicant.

19. The grounds upon which such relief was sought were excessive jurisdiction, error of law and unreasonableness.

20. On 30th June, 1999 Mr. Justice Kelly allowed an amendment of the reliefs sought to include:

21. The grounds for such reliefs were that the Respondent Minister had failed to make any direction as to what information a person landing or embarking in the State should furnish to an immigration officer or as to the manner in which such information should be furnished; that the Applicant was prejudiced by the failure to make such directions and to determine what information may be required and that, accordingly, the Applicant is prejudiced by reason of being deprived of natural and constitutional justice and by reason of being denied fair procedures.

22. In addition, it is claimed that the nature of the discretionary powers granted or conferred on the immigration officer are so wide and unfettered as to be ultra vires the power of the Minister as conferred by the Aliens Act, 1935; that the powers conferred by reason of the provisions of Article 5 of the Aliens Order 1946 (as amended by the Aliens (Amendment) Order, 1975) was such as was prohibited by Article 15.2 of Bunreacht na hEireann and that any purported delegation of power to the immigration officer under that article is null, void and of no effect as such purported delegation of an unfettered discretion was in the circumstances ultra vires the power of the Minister.

23. An amended Statement of Opposition was filed on the 6th December, 1999 containing denials of acting in excess of jurisdiction of erning in law and a denial of the evidence before the Respondent in relation to the course of studies and in relation to the adequate financial resources. It was alleged that the opinion formed by the Respondent’s servant or agent was justified on the basis of the facts and evidence before him.

24. The Statement of Opposition admitted that Article 5 of the Aliens Order, 1945 is invalid as having been made under Section 5(1)(a) of the Aliens Act, 1935 and thereby comprises an unconstitutional delegation of legislative power.

25. The Statement of Opposition further denies that the Aliens Order, 1946 is invalid for any other reason alleged by the Applicant. The Respondent Minister denies that he is under any obligation to give directions as to the information which a person landing in the State shall furnish to an immigration officer or the manner in which such information shall be furnished as alleged. The Respondent denied any breaches of natural justice or of fair procedures.

26. The last ground of opposition, that the Respondent would rely on the provisions of Section 2(1) of the Immigration Act, 1999 insofar as it is necessary to rely upon any of the other grounds was not relied on.

27. The Aliens Act, 1935 at Section 5(1)(a) provides that the Minister may, if and whenever he thinks proper, do by order (and this Act referred to is an Aliens Order) all or any of the following things in respect either of all aliens or of aliens of a particular nationality or otherwise a particular class or of particular aliens, that is to say:-

28. The Aliens Order, 1946 (as amended by the Aliens (Amendment) Order, 1975) provides as follows:-

29. No directions as to the information to be produced to an immigration officer have been made by the Minister at any time. Consequently no directions as to the manner of presentation of such information have been made. Mr. D.P. Kelly S.C. argues that, accordingly, a person landing in the State is not in a position to know what information he should produce nor the manner in which such information should be presented or furnished to an immigration officer. There is consequently a denial of natural justice and the depravation of fair procedures as no indication is given as to how an alien may satisfy the officer.

30. It is argued that the delegation to the officer is so wide as to be ultra vires and in breach of Article 15.2.1 of Bunreacht na hEireann which vests the sole and exclusive power of making laws for the State in the Oireachtas and provides that no other legislative authority has power to make laws for the State. It is argued that the immigration officer is giving effect to his own views and not to any direction by the Government.

31. The criteria for determining whether the delegation of powers is permissible, is, he argues, set out in the judgment of O’Higgins C.J. in Citiview Press and Anor -v- An Comhairle Oiliuna and Ors [1980] IR381 at 399:-

32. Mr. Kelly submits that the terms of the Aliens Act are very similar to those of the imposition of Duties Act, 1957 which was the subject of the High Court decision in McDaid -v- Sheehy and Ors [1991] 1 IR 1 per Blayney J. The decision was referred to with approval by Keane J. (as he then was) in Laurentiu -v- Minister for Justice and Ors , Unreported Supreme Court, 20th May, 1999 at pp 24 to 25;

33. Blayney J. pointed out that the Government were left entirely free to determine what imported goods were to have a duty imposed on them and to determine the amount of the duty: there were no principles or policies contained in the act itself. Clearly, Blayney J. did not regard the conferring by the Oireachtas on the Government of an unrestricted power to determine what goods were to be subject to duty and the amounts of the duty as of itself constituting a “ policy”: it was rather the delegation of the relevant policy decisions to another agency, in that instance the Government.

34. Mr. Kelly submits that in the present case Section 5(1) of the Aliens Act, 1935 does not contain any principles or policies in respect of the exclusion of aliens from the State. Such principles and policies are left entirely to the Minister to establish by regulation when they should clearly have been determined in the legislation. The Minister, in allowing each individual immigration officer to determine what shall constitute “being in a position to support himself and his dependants” is delegating to the immigration officer such powers as are properly within the realms of the Minister.

35. Mr. Kelly submits that the central issue in the Applicant’s case is whether the Minister is acting ultra vires in making regulations under Section 5(1) of the Aliens Act, 1935. The principles and policies, if any, which are to be given effect to by the Orders made by the Minister in exercising his powers under the provision are not set out in the statute itself.

36. The objective of Section 5(1)(e) was to enable the Minister to exercise, at his absolute and uncontrolled discretion, the power of deporting individual aliens or category of aliens or, if he considered it a preferable course, to spell out himself in the form of regulations, restrictions and qualifications which should be imposed on the exercise of the power. The Minister made the 1946 Order and his exercise of the power was found by the Supreme Court in Tang to be intra vires the powers conferred by Section 11 (which provides that the Minister may by Order make regulations in relation to any matter or thing referred to in the Act as prescribed or to be prescribed).

37. Miss Nuala Butler, Barrister at Law, contends that the judgment in Laurentiu presents a particular difficulty for the Respondent in the context of these proceedings. However she contends that the statement of grounds as amended after the Laurentiu judgment does not seek to make the case that Section 5(1)(a) of the Aliens Act, 1935 was unconstitutional for reasons set out in Laurentiu - i.e. an unconstitutional delegation of legislative powers to a member of the executive. Section 5(1)(a) allowed the Minister to make Orders prohibiting the alien to whom it related from landing into or entering into the State. This is the provision under which Article 5 of the Aliens Order, 1946 as amended was made.

38. The case being made by the Applicant is that the delegated power by the Respondent to the immigration officer is unconstitutional.

39. While the Respondent has no difficulty in principle in standing over the validity of the actions of the immigration officer, the Respondent concedes that the provision of the Aliens Order made pursuant to Section 5(1)(a) suffered from the same constitutional infirmity as that identified in Laurentiu. It was in these circumstances that the Respondent wrote the Applicant’s Solicitor conceding the invalidity of those provisions and consenting the making of an Order of Certiorari in the Applicant’s favour and such costs as would be associated with that Order.

40. It was also pointed out that the Applicant wished to enter the state for three months course of study. That period had long since elapsed. The Applicant would, accordingly, be required to leave the State or apply under the Immigration Act, 1999. However, the Applicant refused to leave on this basis and has insisted on the prosecution of these proceedings. The unreality of the continuance of these proceedings, the Respondent submits, is highlighted by the fact that the Applicant’s original application for Judicial Review was based largely on his claim that he was bona fide a student entering this country for a three month course of study. The Applicant has now been in this country for a period of thirteen months. While an asylum seeker may choose to continue to litigate claims for Judicial Review, this Applicant never claimed an entitlement to remain in the State and only sought entry for a temporary period.

41. Counsel for the Respondent, Miss Butler submits that there was little or no evidence put forward to support the contention that the decision to refuse the Applicant leave to land was unreasonable or to support an error in law or in fact. The Applicant has exhibited material much of which came into existence after the decision refusing leave was made. There was a clear conflict of evidence regarding the Applicant’s previous stays in the country, the evidence relating to the intended course of study in the Applicant’s luggage and a letter from the Applicant’s father regarding an allowance.

42. Counsel for the Respondent referred to a clear line of authority regarding reasonableness which has been followed by the court in the State ( Keegan -v- Stardust Compensation Tribunal [1986] IR642: the test of flying in the face of fundamental reason and common sense) and O’Keefe -v- An Bord Pleanala [1993] 1 IR 39

43. It is clear that the Court cannot interfere with the decision of an administrative decision/making authority merely on the grounds that it is satisfied that, on the facts as found, it would have raised different inferences and conclusions, or that it is satisfied that the case against the decision made by the authority was much stronger than the case for it.

44. The Respondent referred to Carltona Limited -v- Commissioners of Works [1943] 2 All ER560 where Lord Greene M.R. referred to the duties imposed on Ministers and the power given to Ministers which are normally exercised on the authority of the Minister by responsible officials.

45. The whole system of departmental organisation and administration is based on the view that Ministers, being responsible to parliament, will see that important duties are committed to experienced officials. If they do not do that then parliament is the place where the complaint must be made against them. (per Lord Greene M.R. at 563).

46. This statement was echoed and expressly recognised by Hamilton C.J. as an accurate statement of the law regarding the power of the minister in relation to the granting or refusal of permission to aliens to remain in the State in Tang -v- The Minister for Justice [1996] 2IRLM 46 at 60. The former Chief Justice stated:-

47. In relation to the submission that the Respondent failed to make directions under Article 14(2) of the Aliens Order, 1946 the Respondent says that that Article confers the discretionary power on the Respondent to make directions. There is no obligation imposed on the Respondent. There is nothing in that article or Article 5 which could reasonably lead to the conclusion that the making of a direction by the Respondent is a necessary precondition to the immigration officer forming in a view under Article 5. Moreover Article 14 cannot be read in isolation. It must be read in conjunction with Article 5 which clearly sets out the matters of which the immigration officer must be satisfied in order to allow an alien leave to land.

48. With regard to the allegation of wrongful detention and the claim for damages the Respondent submits that the Applicant does not have any right, whether constitutional or otherwise, to be at liberty in the jurisdiction because he does not have any right to be in the jurisdiction until leave to land is granted. The Applicant can only claim to have been wrongfully deprived of his liberty in this State if he can first establish a right or entitlement to be here. Moreover, the detention of the Applicant was effected purely for the purpose of his removal from the State in circumstances where he had never legally entered the State.

49. Much of the argument of the Applicant in this case relates to submissions made after, and on the basis of, the decision in Laurentiu.

50. It was stressed by Keane J. (as he then was) in Laurentiu at p. 31 that:-

51. The decision of the immigration officer was made before the date of the decision in that case. Moreover, the Applicant has not shown that the decision was unreasonable.

52. Accordingly, the Applicant is not entitled to the reliefs sought.