B & S v Minister for Justice, Equality and Law Reform

• Jurisdiction: Ireland
• Judgment Date: 30 January 2002
• Date: 30 January 2002
• Docket Number: 107&115/01 164/01
• Court: Supreme Court

THE SUPREME COURT

Keane C.J.

Denham J.

McGuinness J.

Geoghegan J.

Fennelly J.

107&115/01

164/01

IN THE MATTER OF AN INTENDED JUDICIAL REVIEW

BETWEEN

B

APPLICANT

AND

THE GOVERNOR OF THE TRAINING UNIT GLENGARRIF PARADE DUBLIN

RESPONDENT

AND

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

NOTICE PARTY/RESPONDENT

BETWEEN

S

APPLICANT/APPELLANT

AND

THE MINISTER FOR JUSTICE,EQUALITY,LAW REFORM,INTERIM REFUGEE APPEALS AUTHORITY,IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Abstract:

Judicial review - Practice and procedure - Preliminary issue - Statutory interpretation - Leave to appeal - Jurisdiction of Supreme Court - Whether leave of High Court required in order to bring appeal - Illegal Immigrants (Trafficking) Act, 2000 (No 29) section 5 - Refugee Act, 1996 (No 17) - Local Government (Planning and Development) Act, 1963 (No 28) section 82(3B)(a) - Local Government (Planning and Development) Act, 1992 (No 14) section 19 - Bunreacht na hÉireann, 1937 Article 34.4.3°.

Facts: The applicants had sought leave to apply for judicial review pursuant to the Illegal Immigrants (Trafficking) Act, 2000. The application was out of time and the applicant first sought an extension of time, which was refused. The applicant wished to appeal the refusal to extend time. Mr. Justice Finnegan held that leave of the High Court was required in order to appeal a decision of the High Court refusing to extend time pursuant to the provisions of the Illegal Immigrants (Trafficking) Act, 2000 (the 2000 Act). The applicants appealed against the judgment.

Held by the Supreme Court in allowing the appeals. Chief Justice Keane expressed doubts as to whether an application for leave to apply for judicial review only came into existence at the stage when the court held there was good and sufficient reason for bringing it outside the limitation period. If that was not how the section should be read, it was difficult to see how the court’s refusal to extend the time could be other than determinative of the application for leave. However as the other judgments of the court indicated an argument could be made that a determination was not made until after the court had extended the time. Mrs. Justice McGuinness (Mrs. Justice Denham agreeing) held that there was a general right of appeal to the Supreme Court which was an inherent part of the right of access to the Courts. Mr. Justice Geoghegan (agreeing) held there was nothing in the 2000 Act which restricted the right of appeal to the Supreme Court from the refusal to extend time. Mr. Justice Fennelly agreed with the judgment of Mr. Justice Geoghegan and held that the appeals should be entertained.

1 JUDGMENT delivered the 30th day of January 2002 by Keane C.J.

2 This appeal raises a net but important point on the construction of s.s.(2) and (3) of s.5 of the Illegal Immigrants (Trafficking) Act 2000. That section contains provisions dealing with the right of access to the courts of persons affected by the operation of the Refugee Act 1996 and the Immigration Act 1999 who wish to challenge the operation of those statutes.

3 The text of both subsections is set out at a later point in this judgment. At this stage, it is sufficient to note that s.s(2) requires that an application for leave to apply for judicial review in respect of certain specified matters be made within the period of 14 days commencing on the date on which the person was notified of the act in question, unless the High Court considers that there is good and sufficient reason for extending that time. It also requires that the application be made by motion on notice to the Minister for Justice, Equality and Law Reform (hereafter “The Minister”) and any other person specified by the High Court.

4 S.S.(3) then provides that the determination of the High Court of an application for leave to apply for judicial review or of the application itself is to be final and that no appeal is to lie from the decision of the High Court to the Supreme Court in either case, except with the leave of the High Court. That leave is only to be granted where the High Court certifies that its decision

5 involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.

6 The applicant in the first case is a citizen of Nigeria. He came to Ireland on 15th March 1999 and was granted permission to work on 6th June 2000, while his application for refugee status, which he had made on arrival, was pending. That application was refused, as was his appeal against the refusal and on 30th June 2000 the applicant’s solicitor furnished reasons in writing to the Minister as to why his client should not be deported. A deportation order was made in respect of him on the 27th July 2000 and, on the 4th December 2000, notice of this having been made was sent to an address in Dublin at which the applicant had formerly been residing. On the 14th February 2001, a notice of motion was served on his behalf on the Minister and the Attorney General seeking inter alia

7 “An order extending pursuant to s.5(2) (a) of the illegal Immigrants (Trafficking) Act 2000 the time within which the applicant may issue and serve a notice of motion seeking relief by way of judicial review.”

8 This application came on for hearing before Finnegan J., as he then was, and on 2nd April 2001, in a written judgment, he refused to make the order

9 sought extending the time, but placed a 28 day stay upon the enforcement of the deportation order so as to enable representations to be made to the Minister, arising from the fact that the applicant’s partner was at that stage expecting the applicant’s child in June of this year. The applicant has appealed to this court from the refusal by the learned High Court judge to extend the time.

10 The applicant in the second case came to Ireland from Somalia on the 19th January 1997. He was refused refugee status on the 1st March 2000 and an appeal against that refusal was rejected on the 31st July 2000. On the 22nd December 2000, a notice of motion was issued and served on the respondents seeking an extension of the time within which to apply for relief by way of judicial review in respect of both the decision of the Minister refusing him refugee status and the decision on appeal. In respect of the former decision, the application was also refused by Finnegan J in a written judgment on April 2nd 2001. In the same judgment, he extended the time in respect of the decision on appeal pursuant to Order 84 Rule 21 of the Rules of the Superior Courts.

11 In the second case, arguments were then advanced to the learned High Court judge as to whether the leave of the High Court was required to the bringing of an appeal from his refusal to extend the time and, if so, whether such leave should be granted. In a written judgment delivered on the 10th May,

12 he concluded that such leave was required and that it should not be granted in that case, since he was not satisfied that his refusal involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken from that decision to this court. He was, however, satisfied that his decision that such leave was required in the case of a refusal to extend the time did raise a point of law of exceptional public importance and gave leave to appeal that decision. As an appeal to this court was brought in each of these cases from the decision by the learned High Court judge refusing to extend the time, it is clearly convenient to determine at the outset the point common to both cases, i.e., as to whether such an appeal lay without the leave of the High Court.

13 At this point, the relevant statutory provisions should be set out in full. Section 5(2) and (3) of the 2000 Act provides that

14 “(2) An application for leave to apply for judicial review under the Order [Order 84 of the Rules of the Superior Courts] in respect of any of the matters referred to in s.s. (1) shall

15 (a) be made within the period of 14 days commencing on the date on which the person was not fled of the decision, determination, recommendation, refusal or making of the

16 order concerned unless the High Court considers that it has good and sufficient reason for extending the period within which the application shall be made, and

17 (b) be made by motion on notice (grounded in the manner specified in the order in respect of an ex parte motion for leave) to the Minister and any other person spec fled for that purpose by order of the High Court, and such leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision, determination, recommendation, refusal or order is invalid or ought to be quashed.

18 (3) (a) The determination of the High Court of an application for leave to apply for judicial review as aforesaid or of an application for such judicial review shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case except with the leave of the High Court which leave shall only be granted were the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.

19 (b) This subsection shall not apply to a determination of the High Court insofar as it involves a question as to the validity of any law, having regard to the provisions of the Constitution.”

20 It is not in dispute that the acts in respect of which the extension of time for the institution of judicial review proceedings was refused were among the matters referred to in s.5(1).

21 Article 34.4.3° of the Constitution provides that

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