EMS v Minister for Justice

 
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[2004] IESC 36

THE SUPREME COURT

Denham J.

Murray J.

McGuinness J.

Hardiman J.

Fennelly J.

390/03
S v. MINISTER FOR JUSTICE

Between:

S.
Applicant/Respondent

and

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM
Respondent/Appellant

Citations:

REFUGEE ACT 1996 S17(1)

REFUGEE ACT 1996 S17(7)

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

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000S5(2)

BENNION STATUTORY INTERPRETATION S285

OXFORD ENGLISH DICTIONARY "REFUSAL"

LIVERSIDGE V ANDERSON 1942 AC 206

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000S5(1)

REFUGEE ACT 1996 S17

ZAMBRA V MCNULTY & DPP 2002 2 IR 351 2002 ILRM 506

HANAFIN V MIN ENVIRONMENT 1996 2 IR 321

Synopsis:

- [2004] 1 IR 536 - [2005] 1 ILRM 73

Facts: The applicant was refused asylum and the Minister refused the applicant’s application to make a fresh application for a declaration that she was a refugee. The issue in the appeal was whether the Minister’s decision was a ‘refusal’ within the meaning of s. 5(1) of the Illegal Immigrants (Trafficking) Act 2000.

Held by the Supreme Court (Denham, Murray, McGuinness, Hardiman and Fennelly JJ) in allowing the appeal and finding that the Minister’s decision was a ‘refusal’ within the meaning of s. 5 that no basis had been advanced for giving the word anything other than its ordinary and natural meaning.

Per Curiam Effort should be made by the parties to confine Books of Authorities to the points at issue and to reach agreement, wherever possible, with the other party as to which authorities are to be cited.

Reporter: R. W

1

JUDGMENT of Mr. Justice Hardiman delivered the 10th day of June, 2004.

2

This appeal raises a net point of statutory construction, which was dealt with by the learned trial judge (Finlay-Geoghegan J.) as a preliminary issue. Despite the very circumscribed nature of the argument possible on this net point, two enormous Books of Authorities were prepared, most of which were not referred to. All of the appellant's authorities are also to be found in the respondent's book: despite this, it did not prove possible to agree a single Book of Authorities. Preparing Books of unnecessary authorities is pointless. Duplicating, in a separate book, material which the other side has already placed before the Court is both wasteful and pointless. I mention these matters in the hope that, in future, some effort will be made to confine Books of Authorities to the points at issue and to reach agreement, wherever possible, with the other party as to which authorities are to be cited.

Factual background.
3

The factual background of this case is that the applicant is a South African who sought asylum in this State. Her application for asylum was refused: in statutory terms, the Minister, having considered the recommendation of the statutory tribunal, refused to give the applicant a declaration that she was a refugee. This occurred pursuant to s. 17(1) of the Refugee Act, 1996.

4

The applicant subsequently decided that she wished to make a fresh application for a declaration that she was a refugee. In order to do this she required the consent of the Minister under s. 17(7) of the same Act which provides as follows:-

"A person to whom the Minister has refused to give a declaration may not make a further application for a declaration under this Act without the consent of the Minister".

5

The applicant sought the consent of the Minister in a series of letters of February, 2003. By letter dated the 2 nd April, 2003, the Minister referred to this correspondence at some length and concluded "I have therefore decided to refuse the application under s. 17(7) of the Refugee Act, 1996 as amended".

6

On the 27 th May, 2000 counsel on behalf of the applicant applied exparte for leave to seek judicial review, in the form of declarations and injunctions, attacking the Minister's refusal of his consent to the applicant's making a further application for a declaration that she was a refugee.

7

In view of the point now taken, the terms of the statement grounding the application for judicial review are of interest. The applicant, at paragraph 4(A) of her statement of grounds sought:-

"A declaration that the respondent has erred in law and acted ultra vires the Refugee Act, 1996in refusing consent to the applicant to make a further application for a declaration of refugee status pursuant to s. 17(7) Refugee Act, 1996".

8

The three following reliefs claimed also used the term "refusal" to describe the decision of the Minister which it is desired to impugn. Furthermore, in the statement of grounds at paragraph (e) the applicant recited that:-

"By letter of the 2 nd April, 2003 the applicant was informed by the respondent that he had refused the said application pursuant to s. 17(7) Refugee Act, 1996."

Significance of a "refusal".
9

Section 5(1)(k) of the Illegal Immigrants (Trafficking) Act, 2000provides:-

"A person shall not question the validity of"

10

(k) A refusal under s. 17(as amended by s. 11 (1)(L) of the Immigration Act, 1999) of the Refugee Act, 1996,

11

otherwise than by way of an application for judicial review under order 84 of the Rules of the Superior Courts…".

12

Section 5(2) of the same Act lays down a number of requirements in relation to an application for judicial review to which the previous subsection refers. Relevantly, it is provided that such an application must be made within fourteen days commencing on the date on which the person was notified of the "decision, determination, recommendation, refusal or making of the order concerned" unless the Court dispenses from this requirement. There is also provision in the following subsection restricting the right of appeal of the losing party to a relevant judicial review application to the Supreme Court, again unless the High Court permits such appeal to be taken in the circumstances set out in the subsection.

13

It will be observed that the applicant's application for judicial review has been made outside a fourteen day period

Net point.
14

The foregoing recitals were necessary in order to make comprehensible the single net point in this appeal. It is this:-

15

Is the Minister's decision communicated by letter of the 2 ndApril, 2003 a “refusal” within the meaning of s.5(l) of the Act of 2000, and in particular subparagraph (k) of that subsection?

16

The subsection refers to "a refusal under s. 17… of the Refugee Act, 1996". However, counsel for the applicant says that this form of words captures only a refusal...

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