B (A) v Governor of Training Unit Glengarriff Parade Dublin

JurisdictionIreland
CourtSupreme Court
JudgeFENNELLY J.
Judgment Date05 March 2002
Neutral Citation[2002] IESC 16
Date05 March 2002
Docket Number107/01 & 115/01

[2002] IESC 16

THE SUPREME COURT

McGuinness J.

Hardiman J.

Fennelly J.

107/01 & 115/01
B (A) v. GOVERNOR OF TRAINING UNIT GLENGARRIFF PARADE DUBLIN

BETWEEN

A B
Applicant

AND

THE GOVERNOR OF THE TRAINING UNIT, GLENGARRIFF PARADE, DUBLIN
Respondent

AND

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM
Notice Party/Respondent

Citations:

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

B & S (BENSON & SAALIM) V GOVERNOR OF TRAINING UNIT GLENGARIFF PARADE & MIN FOR JUSTICE 2002 2 ILRM 161

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(A)

IMMIGRATION ACT 1999 S3

IMMIGRATION ACT 1999 S6

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S10(C)

ALIENS ORDER 1946 SI 395/1946 ART 11

ALIENS ORDER 1946 SI 395/1946 ART 11(A)

ALIENS ORDER 1946 SI 395/1946 ART 11(C)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S10

GABREL V GOVERNOR OF MOUNTJOY PRISON UNREP SUPREME 8.2.2001

IMMIGRATION ACT 1999 S6(A)

IN THE MATTER OF ART 26 OF THE CONSTITUTION & S5 & S10 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999 2000 2 IR 360

K(G) & ORS V MIN FOR JUSTICE 2002 I ILRM 401

IMMIGRATION ACT 1999 S3(8)

Synopsis:

IMMIGRATION

Asylum

Judicial review - Delay - Refugee Appeals Authority - Whether leave to extend time should be granted - Whether applicant notified of Ministerial decision - Whether "good and sufficient" reason for extending period - Rules of the Superior Court Order 84, rule 21 - Immigration Act, 1999 - Illegal Immigrants (Trafficking) Act, 2000 section 5 (107 & 115/2001 - Supreme Court - 05/03/2002)

B (A) v Governor of the Training Unit

Facts: The applicant sought leave to extend time pursuant to the Illegal Immigrants (Trafficking) Act, 2000 to bring judicial review proceedings in respect of a decision of the Refugee Appeals Authority. A deportation order had been made in respect of the applicant and the period within which to bring proceedings had expired. Mr. Justice Finnegan was satisfied that the responsibility of not receiving the deportation letter rested with the applicant. Leave to extend time would be refused. However in view of certain circumstances a twenty-eight day stay would be placed on the order to enable representations to be made to the respondent. The applicant appealed against the decision.

Held by the Supreme Court (Fennelly J delivering judgment; McGuinness and Hardiman J) in dismissing the appeal. The statutory provisions required that persons be “notified” of a Ministerial decision concerning their application for refugee status. The provisions allowed for the notification of a decision by any means. The applicant had moved address without informing the authorities and had known about the existence of the deportation order. The statutory period for the taking of judicial review proceedings had not been complied with. There was not any good or sufficient reason to allow the extension of time sought.

FENNELLY J.
[nem diss]
1

Section 5 of the Illegal Immigrants (Trafficking) Act,2000governs challenges to the validity of administrative decisions affecting immigrants. Firstly, such challenges can only be brought by way of judicial review. Secondly, there is a fourteen day time limit, subject to the right to seek an extension, for making the application for leave to apply for judicial review. Thirdly, the High Court decision on such applications (including on leave) is final and can be appealed to this Court only with leave of the High Court. However, in its earlier judgment in B and S v. Minister for Justice, Equality and Law Reform, 30th January, 2002, Unreported, Supreme Court, this Court decided that a person who has been refused an extension of time for leave to apply for judicial review may bring an appeal without such leave. This is such an appeal. It is taken against the decision of Finnegan J, as he then was, refusing the appellant's application for an extension of time to apply for leave to challenge a deportation order.

2

The time limit applies"unless the High Court considers that there is good and sufficient reason for extending the period within which the application shall be made." (section 5(2)(a) of the act of 2000).

3

In the ordinary case, the question is whether there is"good and sufficient reason." However, the present case comes before the Court in a slightly different form. The appellant's principal point is that he does not need an extension. He asks for an extension of time as an alternative. At this point it becomes necessary to mention some of the relevant facts.

4

The appellant, a Nigerian citizen, came to Ireland in 1999 and was permitted to work pending determination of his application for refugee status. His application in that behalf failed and his appeal was disallowed on 19 June 2000. He was permitted to and did, in fact, make representations to the respondent ("the Minister") as to why he should not be deported. On 27 July 2000, the Minister made the relevant deportation order, that is"an order requiring [a] non-national … to leave the State within such period as may be specified in the order.."

5

The deportation order is the only remaining object the appellant's attempt to obtain judicial review, though the grounds as drafted would have covered the original refusal of refugee status and the adverse appeal finding. It is necessary to consider both the grounds advanced in support of the proposition that there is no need for an extension of time, the alternative argument for an extension and, as it is relevant to the exercise of the court's discretion to allow an extension of time, the ground advanced to challenge the validity of the deportation order.

6

The appellant initially resided at 12 St. Patrick's Terrace, Russell Street, Dublin 1. That was the address notified to the Minister. He lived there until after the making of the deportation order. In August 2000, he moved to Dundalk. He did not notify the Minister.

7

Here, it is important to note certain provisions of the Immigration Act 1999, as the appellant relies on them. Section 3 of the act of 1999 obliges the Minister to "notify the person [affected by a deportation order] in writing of his or her decision and the reasons for it and, where necessary and possible, the person shall be given a copy of the notification in a language that the person understands."Section 6 of the act of 1999, before amendment, provided that:

8

2 "6.- Where a notice is required or authorised by or under this Act to be served on or given to a person, it shall be addressed to him or her and shall be served on or given to him or her in some one of the following ways:

9

(a) where it is addressed to him or her by name, by delivering it to him or her, or

10

(b) by sending it by post in a prepaid registered letter, or by any other form of recorded delivery service prescribed by the Minister, addressed to him or her at the address most recently furnished by him or her to the Minister or, in a case in which an address for service has been furnished at that address."

11

The address furnished by the appellant to the Minister was his Dublin address. This was the relevant statutory address up to 5th September 2000, when the act of 2000 came into force. Section 10(c) of the act of 2000 amended section 6 of the act of 1999"by the substitution in paragraph (b) for "to the Minister" of "to the Registration Officer pursuant to Article 11 of the Aliens Order, 1946 (S.R. & O., No. 395 of 1946), or to the Refugee Applications Commissioner pursuant to section 9(4A) of the Refugee Act,1996, as the case may be, …"

12

The appellant says he moved to a new address, after an initial temporary address, in Dundalk in early September 2000. The premises were let to another Nigerian, with whom the appellant and his girlfriend shared it. The appellant registered the new Dundalk address with the Gardai on 21st September 2000. Detective Garda Gerard Connor had been appointed in August 1999 as the Immigration Officer at Dundalk Garda Station with responsibility for the Dundalk district. The relevance of this is that Article 11 of the Aliens Order provides, in relevant part, as follows:

13

2 "11. (1) An alien shall comply with the following requirements as to registration:-

14

(a) he shall, as soon as may be, furnish to the registration officer of the registration district in which he is resident, particulars as to the matters set out in the Second Schedule to this Order, and, unless he gives a satisfactory explanation of the circumstances which prevent his doing so, produce to the registration officer, either a valid passport, or some other document satisfactorily establishing his nationality and identity.

15

(b) …

16

(c) he shall, if he is about to change his residence, furnish in the registration officer of the registration district in which he is then resident, particulars as to the date on which his residence is to be changed, as to his intended place of residence, and on effecting any change of residence from one registration district to another, within forty-eight hours of his arrival in the registration district into which he moves, report his arrival to the registration officer of that district."

17

The Minister gave notice of the making of the deportation order by a letter dated 4th December 2000 addressed to the appellant at his former Dublin address. This would have been correct but for the amendment of section 6 of the act of 1999. The appellant says that, in the new situation, the notice should have been given to him at the address he notified in September 2000 to the Immigration Officer at Dundalk Garda Station and that, without that, the deportation order was never notified to him. The Minister, of course, knew nothing about the Dundalk address. Detective Garda Connor swore an affidavit to the effect that, in every case, he advised applicants of the necessity to notify the Department of Justice, Equality and Law Reform of their change of...

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