C.S. v Minister for Justice

• Jurisdiction: Ireland
• Judge: McGuinness J.
• Judgment Date: 27 July 2004
• Neutral Citation: [2004] IESC 44
• Date: 27 July 2004
• Court: Supreme Court
• Docket Number: [S.C. No. 413 of 2003]

[2004] IESC 44

THE SUPREME COURT

Murray C. J.

McGuinness J.

Hardiman J.

Geoghegan J.

Fennelly J.

APPEAL NO. 413/2003

S (C) & ORS v. MINISTER FOR JUSTICE & AG

BETWEEN:

C.S., B.S. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND C.S.) AND N.K. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND C.S.)

APPLICANTS

.v.

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND THE ATTORNEY GENERAL

RESPONDENTS

Citations:

RSC O.84

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

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

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

IMMIGRATION ACT 1999 (DEPORTATION) REGS 1999 SI 319/1999

IMMIGRATION ACT 1999 S3(3)(B)(II)

REFUGEE ACT 1996 S5

IMMIGRATION ACT 1999 S3(1)

IMMIGRATION ACT 1999 S3(1)(F)

CRIMINAL JUSTICE (UNITED NATIONS CONVENTION AGAINST TORTURE) ACT 2000 S4

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(3)(A)

SCOTT V AN BORD PLEANALA 1995 ILRM 424

LOCAL GOVT (PLANNING & DEVELOPMENT) 1992 S39

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(3)

AG V GILES 1974 IR 422

IMMIGRATION ACT 1999 S3

CIVIL LEGAL AID ACT 1995 S28

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

K (G) V MIN JUSTICE 2002 1 ILRM 81

K (G) V MIN JUSTICE 2002 1 ILRM 401

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(1)(B)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(1)(C)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

BRADY V DONEGAL CO COUNCIL 1989 ILRM 282

R V STRATFORD-UPON-AVON DISTRICT COUNCIL EX-PARTE JACKSON 1985 1 WLR 1319

RAINSFORD V LIMERICK CORPORATION 1995 2 ILRM 561

S V MIN JUSTICE 2002 2 IR 163

MURESAN V MIN JUSTICE 2004 2 ILRM 364

IMMIGRATION ACT 1999 S5

MCNAMARA V BORD PLEANALA 1995 2 ILRM 125

GORDON V DPP & MCGUINNESS 2002 2 IR 369 2003 1 ILRM 81 2002/12/2907

ADAM V MIN JUSTICE 2001 2 ILRM 452

R V SECRETARY OF STATE EX PARTE CHINOY 1991 COD 381

REFUGEE ACT 1996 S17(1)(B)

Synopsis:

- [2005] 1 ILRM 81

Facts: the applicants were granted leave to apply for judicial review by the High Court (O'Sullivan J) challenging, inter alia, their deportation. In granting leave, the High Court also extended the fourteen day time limit provided for in the Illegal Immigrants (Trafficking) Act 2000 for making judicial review leave applications.

Held by the Supreme Court in dismissing the appeal in relation to the extension of time and granting the order of that when considering whether there was good and sufficient reason to extend time the court should consider the merits of the substantive case and not simply the merits of the application to extend time. The conclusions of the High Court had been reached by a proper exercise of its discretion. That the jurisdiction to set aside leave once granted should be exercised sparingly and only in plain cases.

Reporter: P.W.

1 Judgment of McGuinness J. delivered the 27th day of July 2004

2 The applicants in these proceedings on 28 ^th October 2003 sought leave to bring judicial review proceedings seeking a number of reliefs pursuant both to Order 84 of the Rules of the Superior Courts and to section 5 of the Illegal Immigrants (Trafficking) Act 2000( "the Act of 2000"). In accordance with the terms of section 5 subsection (2)(b) the applicants" application was made by motion on notice to the respondent Minister and, since the application was made outside the fourteen day period specified in section 5(2)(a) of the Act, among the reliefs sought by the applicants was an order extending the time for the bringing of the application.

3 The application for leave came on for hearing before O'Sullivan J. in the High Court. Following a fall hearing the learned judge reserved his decision overnight. On 7 ^th November 2003 O'Sullivan J. delivered an ex-tempore judgment and on 10 ^th November 2003 he made an order extending the applicants" time for making their application for leave to apply for judicial review up to and including 6 ^th November 2003. In addition O'Sullivan J. granted leave to apply for the following reliefs:

4 1. A declaration that the Immigration Act 1999(Deportation) Regulations 2002 are ultra vires and void.

5 2. An order of certiorari removing for the purpose of being quashed the purported notification under section 3(3)(b)(ii) of the Immigration Act 1999purportedly made on behalf of the first named respondent on the 25 ^th day of September 2003 and notified to the applicants not earlier than the 28 ^th day of September 2003 including a purported decision that section 5 of the Refugee Act 1996is satisfied in a case of the applicants.

6 3. An order of certiorari removing for the purpose of being quashed the purported deportation orders under section 3(1) of the Immigration Act 1999purportedly made by the first named respondent on the 7 ^th day of August 2003 and notified to the applicants not earlier than the 28 ^th day of September 2003.

7 The grounds on which leave was granted were set out in the statement of grounds as follows:

8 1. The second and third named applicants were not persons who have been refused a declaration that they are entitled to asylum and consequently were not persons who were liable to be deported by virtue of section 3(1)(f) of the Immigration Act 1999 as stated in the deportation orders or at all.

9 2. The respondents misdirected themselves and/or on the evidence in relation to the question of internal relocation.

10 3. Subject to full discovery, the first named respondent failed to apply his mind to section 4 of the Criminal Justice (United Nations Convention Against Torture) Act 2000and failed to afford the applicants fair procedures in that regard.

11 7. The first named applicant was not a person to whom refugee status had been validly refused and consequently was not liable to deportation in accordance with the said notice or at all.

12 9. The deportation order does not indicate to where the applicants are to be deported. Insofar as the form of the order is determined by the Immigration Act 1999(Deportation) Regulations 2002 those regulations are ultra vires and void.

13 Leave was refused in respect of the other reliefs sought by the applicants. The order of the High Court also placed a stay on the implementation by the respondent of the deportation orders made in respect of the applicants pending the final outcome of the judicial review proceedings.

14 Subsequent to the delivery of the judgment of the learned High Court judge application was made on behalf of the respondent pursuant to section 5(3)(a) of the Act of 2000 for leave to appeal against the determination of the court. O'Sullivan J. granted leave to appeal and in his composite order of 10 ^th November provided as follows:

"IT IS ORDERED pursuant to section 5 (3)(a) of the Illegal Immigrants (Trafficking) Act the court doth grant leave to appeal and doth certify that its decision herein involves points of law of exceptional public importance and it is desirable in the public interest that an appeal should be taken to the Supreme Court the points of law being"

(1) The deportation order does not indicate to where the applicants are to be deported. Insofar as the form of the order is determined by the Immigration Act 1999(Deportation) Regulations 2002 those regulations are ultra vires and void."

15 In the course of argument before this court it transpired that it was common case between the parties, and was agreed by the judge, that this appeal was governed by the decision of this court in Scott v An Bord Pleanála [1995] I.L.R.M. 424 where it was held that in a comparable situation under the planning code the provisions of section 39 of the Local Government (Planning and Development) Act 1992did not restrict any appeal to a consideration of a point of law which had been certified.

16 There has been no argument before this court, nor was there any argument in the High Court, as to whether appeals pursuant to section 5(3) of the Illegal Immigrants (Trafficking) Act 2000are governed by the same principles as those applied to planning appeals under Scott v An Bord Pleanála, or indeed by the principles applied by this court to a certificate under section 29 of the Courts of Justice Act 1924in the case of the People (Attorney General) v Giles [1974] I.R. 422. This court therefore cannot and does not make any decision in principle on this question. However, for the purposes of the present case, since all parties accepted that the position was as set out in Scott v An Bord Pleanála and the leave to appeal was granted by the learned High Court judge specifically on that basis this court will treat the position as being that as set out as common case by counsel.

17 As matters unfolded during the hearing before this court, however, the main and practically the only question fully dealt with was the preliminary but crucial issue of the extension of time.

The Background

18 The applicants are a mother and her two children; they are of South African origin and belong to the Zulu ethnic group. They allege persecution by the Xhosa ethnic group. Mrs S and her two children arrived in this country on 15th November 2001. They applied for asylum and were admitted to the country for that purpose. They were served with the requisite notices and forms. Mrs S. completed asylum application forms on the 21 ^st November 2001 on behalf of herself and her children. On or about the 25 ^th March 2002 she attended at the Refugee Legal Service and arranged for legal representation through that Service. It appears that at all material times she and her children were residing in a mobile home in asylum seekers" accommodation in Athlone. Her children attended the local school.

19 On 10 ^th April 2002 Mrs S. was interviewed by an officer of the Refugee Applications Commission. The relevant reports were prepared and on the 22 ^nd May 2002 a recommendation was made to refuse her and her...