A.B. v Minister for Justice

• Jurisdiction: Ireland
• Judgment Date: 30 January 2002
• Docket Number: [S.C. Nos. 107, 115 and 164 of
• Date: 30 January 2002
• Court: Supreme Court

Supreme Court

[S.C. Nos. 107, 115 and 164 of 2001]

A.B. v. Minister for Justice

In the matter of an intended judicial review A.B., Intended Applicant

and

Minister for Justice, Equality and Law Reform, Intended Respondent. S., Applicant, v.Minister for Justice, Equality and Law Reform, Interim Refugee Appeals Authority, Ireland and the Attorney General

Respondents

Cases mentioned in this report:-

Attorney General (Fahy) v. Bruen [1936] I.R. 750; (1936) 70 I.L.T.R. 247.

Attorney-General v. Murray (No. 2) [1926] I.R. 300; (1925) 59 I.L.T.R. 112.

Brady v. Donegal County Council [1989] I.L.R.M. 282.

Hanafin v. Minister for the Environment [1996] 2 I.R. 321; [1996] 2 I.L.R.M. 161.

The Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 I.R. 360.

Irish Asphalt Ltd. v. An Bord Pleanála [1996] 2 I.R. 179; [1997] 1 I.L.R.M. 81.

Irish Hardware Association v. South Dublin County Council [2001] 2 I.L.R.M. 291.

G.K. v. Minister for Justice [2002] 1 I.L.R.M. 401.

K.S.K. Enterprises Ltd. v. An Bord Pleanála [1994] 2 I.R. 128.

In bonis Morell;Vella v. Morelli [1968] I.R. 11.

Murphy v. Greene [1990] 2 I.R. 566; [1991] 1 I.L.R.M. 404.

O'Donnell v. Dun Laoghaire Corporation [1991] I.L.R.M. 301.

The People (A.G.) v. Conmey [1975] I.R. 341.

The People v. O'Shea [1982] I.R. 384; [1983] I.L.R.M. 549.

The State (Browne) v. Feran [1967] I.R. 147.

Sullivan v. Robinson [1954] I.R. 161.

Toth v. Austria (1991) 14 E.H.R.R. 551.

Warner v. Minister for Industry and Commerce [1929] I.R. 582.

Aliens - Judicial review - Procedure - Leave to apply - Time limit - Extension of time limit - Statutory interpretation - Access to courts - Appeal from High Court - Restrictions on appeal - Whether leave of High Court required before applicant can appeal refusal to grant extension of time - Whether refusal of extension of time"determination" of High Court - Rules of the Superior Courts, 1986 (S.I. No. 15), O.84, r. 21 - Illegal Immigrants (Trafficking) Act, 2000 (No. 29), s.5 - Constitution of Ireland, 1937, Article 34.4.3.

Words and phrases - "Determination" - Whether refusal of extension of time for making application a determination - Illegal Immigrants (Trafficking), Act, 2000 (No. 29), s. 5(3).

Appeal from the High Court.

The facts have been summarised in the headnote and are more fully set out in the judgments of Keane C.J. and Geoghegan JJ. infra.

The first applicant, B. was the subject of a deportation order which was made on the 27th July, 2000. On the 14th February, 2001, the applicant applied by notice of motion to the High Court for an order under s. 5(2)(a) of the Illegal Immigrants (Trafficking) Act, 2000 extending the time within which an application for leave to apply for judicial review could be made. The application was heard by the High Court (Finnegan J.) on the 26th March, 2001. He refused to extend the time. B. appealed to the Supreme Court against the refusal by notice of appeal dated the 24th April, 2001.

Applicant S. was refused refugee status on the 1st March, 2000. An appeal against that decision was also refused. On the 22nd December, 2000, the applicant applied to the High Court seeking an extension of time within which to apply for relief by way of judicial review. The application for an extension of time was rejected. The High Court (Finnegan J.) ruled that leave was required to appeal a decision refusing to extend the time under the Act of 2000 on the 10th May, 2001. S. appealed to the Supreme Court by notice of appeal dated the 15th June, 2001, against the decision of the High Court. The appeals were heard together by the Supreme Court (Keane C.J., Denham, McGuinness, Geoghegan and Fennelly JJ.) on the 18th December, 2001.

Section 5(2) of the Illegal Immigrants Trafficking Act, 2000 provides that, with respect to certain immigration matters, an application for leave to apply for judicial review to the High Court should be made within fourteen days of the notification of the relevant decision or determination to the applicant, unless the High Court considers there is good and sufficient reason for extending the period.

Section 5(3) provides that the determination of the High Court of an application for leave to apply for judicial review or of an application for judicial review shall be final and no appeal shall lie from the decision to the Supreme Court, unless the High Court certifies that its decision involves a point of law of exceptional public importance.

The applicant, B. was the subject of a deportation order and the applicant S. was refused refugee status in this country. An appeal against the latter decision was also refused. As the prescribed fourteen day time limit had expired in both cases, each of the applicants separately sought orders pursuant to s. 5(2)(a) of the Act of 2000, extending the time within which each seek relief by way of judicial review. In each case, the extension of time was refused. The applicants separately appealed to the Supreme Court. The second respondent contended that the applicants required the leave of the High Court before they could appeal. The applicants replied that an appeal could be brought without the need for the leave of the High Court.

Held by the Supreme Court (Keane C.J., Denham, McGuinness, Geoghegan and Fennelly JJ.), in allowing the appeals to be heard, 1, that the issues involved on the application for an extension of time might be substantially different from those involved in the application for leave and under the express terms of the Act of 2000, there was no ouster of the right of appeal from a refusal to extend time.

The State (Browne) v. Feran [1967] I.R. 147; The People (A.G.) v. Conmey[1975] I.R. 341; Hanafin v. Minister for the Environment[1996] 2 I.R. 321; Brady v. Donegal County Council[1989] I.L.R.M. 282 and G.K. v. Minister for Justice[2002] 1 I.L.R.M. 401 followed. Irish Asphalt Ltd. v. An Bord Pleanála[1996] 2 I.R. 179 and Irish Hardware Association v. South Dublin County Council[2001] 2 I.L.R.M. 291distinguished.

2. That the refusal of an extension of time by the High Court was not a "determination" of an application for leave within the meaning of s. 5(3)(a) of the Act of 2000.

Per Keane C.J.: An argument could be made that the application for leave to apply for judicial review was not made until after the court had extended the time and that the refusal could not be regarded as determinative of the application for leave.

Cur. adv. vult

Keane C.J. 30th January, 2002

This appeal raises a net but important point on the construction of subss. (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.

The text of both subsections is set out at a later point in this judgment. At this stage, it is sufficient to note that subs. (2) requires that an application for leave to apply for judicial review in respect of certain specified matters be made within the period of fourteen 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 second respondent and any other person specified by the High Court.

Subsection (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 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.

The applicant in the first case is a citizen of Nigeria. He came to Ireland on the 15th March, 1999 and was granted permission to work on the 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 the 30th June, 2000, the applicant's solicitor furnished reasons in writing to the second respondent 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 second respondent and the Attorney General seekinginter alia:-

"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."

This application came on for hearing before Finnegan J. and on 2nd April, 2001, in a written judgment, he refused to make the order 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 second respondent arising from the fact that the applicant's partner was at that stage expecting the applicant's child in June, 2002. The applicant has appealed to this court from the refusal by the High Court Judge to extend the time.

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...