Abdi v Minister for Justice
| Jurisdiction | Ireland |
| Judge | MR. JUSTICE T.C. SMYTH |
| Judgment Date | 03 October 2002 |
| Neutral Citation | [2002] IEHC 179 |
| Court | High Court |
| Docket Number | Record No. 488JR/2000,[2000 No. 488 J.R.] |
| Date | 03 October 2002 |
[2002] IEHC 179
THE HIGH COURT
Citations:
EUROPEAN CONVENTION ON HUMAN RIGHTS
REFUGEE ACT 1996 S30(2)
RSC O.84 r21
SOLAN V DPP 1989 ILRM 491
O'FLYNN V MIDWESTERN HEALTH BOARD 1991 2 IR 23
BANE V GARDA REPRESENTATIVE ASSOCIATION 1997 2 IR 449
ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, RE 2000 2 IR 360
HOPE HANLON PROCEDURES
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5
REFUGEE ACT 1996 (SECTIONS 1, 2, 22 & 25) (C0MMENCEMENT) ORDER 1997 SI 359/1997
REFUGEE ACT 1996 (COMMENCEMENT) ORDER 2000 SI 365/2000
DAIL DEBATES 1999 VOL 501 COL 33
U (ULHAQ) V MIN JUSTICE 2002 2 IR 125
SHEEHAN, STATE V IRELAND 1987 IR 550
CIVIL LIABILITY ACT 1961 S60(7)
ROONEY V MIN AGRICULTURE 1991 2 IR 539
DISEASES OF ANIMALS ACT 1966
PINE VALLEY DEVELOPMENTS V MIN ENVIRONMENT 1987 IR 23
UNITED NATIONS CONVENTION ON THE STATUS OF REFUGEES 1951
PROTOCOL ON THE STATUS OF REFUGEES 1967
VON ARMIN PROCEDURES
KEEGAN, STATE V STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642
O V MIN FOR JUSTICE & ORS (BABY O CASE) 2002 2 IR 169 2003 1 ILRM 241 2002/3/501
TREATY ON EUROPEAN UNION ART 6
CAMPUS OIL LTD & ORS V MIN ENERGY 1983 IR 88
HOFFMAN-LA ROUCHE V COMMISSION 1979 3 CMLR 211
ADAM & IORDACHE V MIN JUSTICE 2001 3 IR 53 2001 2 ILRM 452 2001/1/7
DOYLE V CMSR OF AN GARDA SIOCHANA 1999 1 IR 249
TREATY ON EUROPEAN UNION ART 6.2
Synopsis:
IMMIGRATION
Judicial review
Certiorari - Practice and procedure - Delay - Refugee - Immigration and asylum - European law - Deportation - Fair procedures - Whether alleged failure by Minister to bring provisions of Refugee Act, 1996 into force vitiated decision - Refugee Act, 1996 - Immigration Act, 1999 - Illegal Immigrants (Trafficking) Act, 2000 (2000/488JR - Smyth J - 3/10/02)
Abdi v Minister for Justice, Equality and Law Reform - [2002] 4 IR 234
The applicant initiated judicial review proceedings in respect of the refusal by the respondents to grant him refugee status. The applicant submitted that there had been a failure by the respondents to have regard to the European Convention on Human Rights and that the refusal of the application for asylum was vitiated by an alleged failure by the Minister for Justice to bring the main/entire provisions of the Refugee Act, 1996 ("the 1996 Act") into force. The respondents rejected those arguments and contended that the applicant had not made the present application promptly in accordance with order 84 of the Rules of the Superior Courts.
Held by Mr Justice Smyth in dismissing the application. Although the proceedings could be struck out on the basis of the applicant's failure to move his application promptly the court would consider the other grounds. The manner in which the Minister for Justice brought the provisions of the 1996 Act into being was not reviewable by the courts. There was ample material before the Minister for Justice which would support the decision taken in this instance and the application would be dismissed.
JUDGMENT OF MR. JUSTICE T.C. SMYTH DELIVERED ON THURSDAY, THE 3rd DAY OF OCTOBER 2002
I hereby certify the following to be a true and accurate transcript of my shorthand notes in the above-named judgment.
APPEARANCES
For the Applicant:
MR. GOLDBERG SC
MR. McMORROW BL
For the Respondent:
MR. COLLINS BL
| MR. JUSTICE SMYTH: | This application for judicial review is brought |
pursuant to an order granted in that behalf by McKechnie J, granting leave on 9th October 2000.
The Applicant, an unsuccessful applicant for asylum in the State, was first refused his refugee declaration in September 1999, but appealed that decision to the Appeals Authority. He was unsuccessful in his appeal and the notification thereof was given to the Applicant on 20th January 2000, and thereafter on 1st February 2000 the Deciding Officer of the Respondent Minister's Department wrote to the Applicant informing him that the recommendation of the Appeals Authority had been accepted and that his application for refugee status was being refused.
In these proceedings, the Applicant seeks (i) certiorari of the Minister's decision to refuse refugee status to him; (ii) a declaration that the Minister was, in considering the Applicant's appeal required to consider and have reference to the provisions of the European Convention on Human Rights; and (iii) an extension of time for making the application for judicial review, on the grounds set out in the Applicant's Statement of Grounds. The order extending the time for the making of the application for leave to apply for judicial review was made by McKechnie J when granting leave. However, the Applicant's delay in bringing these proceedings is an issue in the application.
Having regard to the Statement of Grounds and Statement of Opposition, the following issues arise:-
(I) Whether Applicant's delay in bringing these proceedings ought to preclude him from obtaining the relief sought.
(II) Whether the decision to refuse the Applicant's application was vitiated by the alleged failure of the Minister to commence the Refugee Act 1996(hereinafter referred to as "the Act of 1996"), either in its entirety or as to its "main" provisions.
(III) Whether the decision to refuse the Applicant's application was, as alleged, "perverse" or flew "in the face of reason".
(IV) Whether the decision to refuse the Applicant's application was vitiated by the alleged failure of the Minister to consider the application of the European Convention on Human Rights and/or the Protocols to that Convention.
The Applicant in these proceedings seeks to quash a decision communicated to him by letter dated 1st February 2000. Notwithstanding that the Applicant appears to have sworn an affidavit for the purposes of seeking judicial review on 6th April 2000, the ex parte application for leave to seek judicial review was not moved before the court until 9th October 2000, that is some seven months after the decision in question.
Order 84, Rule 21 of the Rules of the Superior Courts imposes on applicants for leave to apply for judicial review a requirement to make the relevant application " promptly" and "in any event within three months from the date when grounds for the application first arose, or six months when the relief sought is certiorari". Provision is made for the extension of these periods by the court where it considers that there is good reason for doing so.
Having regard to the lapse of time which occurred before the Applicant applied for leave for judicial review, it is clear that the Applicant did not make his application for leave within the relevant six-month period specified by Order Rule 21. In any event, the Applicant's application for leave was not made "promptly", which is the overriding requirement of Rule 21.
An extension of time was granted by McKechnie J ex parte.However, that does not preclude this court from examining the matter again inter partes (eg, Solan -v- The Director of Public Prosecutions [1989] ILRM 491; O'Flynn -v- Midwestern Health Board [1991] 2 IR 23; Bane -v- Garda Representative Association [1997] 2 IR 449).
Both the Oireachtas and the courts have acknowledged that the public interest requires that challenges to decisions of the kind impugned in these proceedings should be made without delay (Section 5 of the Illegal Immigrants (Trafficking) Act 2000, considered by the Supreme Court in In Re The Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360, at pages 392–394). The Respondents have accepted, in the course of these proceedings, that Section 5 did not apply to the particular decision made in this case. However, it was submitted on their behalf by Mr. Maurice Collins that the provisions of that section, and the views of the Supreme Court as to its constitutional validity, are relevant and helpful indicators of how the court should approach proceedings of this nature and the applicable public policy in this regard.
Having failed to comply with the requirements to Order 84, Rule 21, it was, and is, incumbent on the Applicant to demonstrate that there are "good reasons" for extending the time. No such "good reasons" are identified in the affidavits filed on behalf of the Applicant. In the circumstances, it was submitted on behalf of the Respondent that the application for judicial review should be refused in limine on grounds of delay.
It was submitted on behalf of the Applicant that in granting the ex parte order McKechnie J accepted certain of the Applicant's submissions and that because the matter occurred at a period of flux between the Hope Hanlan Procedures and the coming into effect of Section 5 of the Illegal Immigrants (Trafficking) Act 2000, that leave should be granted. There is no written judgment of the judge who dealt with this matter ex parte, nor would I expect one to exist. Even if there were some matters of delay, such as the inability of the original counsel briefed to make the application, no explanation has been attempted in the proceedings to deal with the elements of time in whole or in part.
While I am of opinion that these proceedings could very well be struck out on the basis of the question of delay and my declining to extend time, nonetheless I am not disposed to making a decision based on such grounds so that the full case of the Applicant may be considered and dealt with.
The Second Issue - (II) Whether the decision to refuse the Applicant's application was vitiated by the alleged failure of...
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Political questions' and judicial review in ireland
...be impressed by my distinction! 62[1991] 2 I.R. 539. 63 [1991] 2 I.R. 539, at 546. See also Bakar Abdi v. The Minister for Justice [2002] I.E.H.C. 179; [2002] 4 I.R. 234, at 240-241. 64See Hogan and Morgan, Administrative Law in Ireland, 3rd ed. (1998), pp. 678-690. 65[1982] I.L.R.M. 385, a......