K.A. v Minister for Justice
| Jurisdiction | Ireland |
| Judge | Mr. Justice Colm Mac Eochaidh |
| Judgment Date | 21 December 2012 |
| Neutral Citation | [2012] IEHC 577 |
| Docket Number | [No. 1110 J.R./2010] |
| Court | High Court |
| Date | 21 December 2012 |
[2012] IEHC 577
THE HIGH COURT
BETWEEN
AND
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)
RSC O.84 r20(3)
M (S) v MIN FOR JUSTICE & ORS UNREP SUPREME 3.5.2005 2005/37/7640 2005 IESC 27
NI EILI v ENVIRONMENTAL PROTECTION AGENCY 1997 2 ILRM 458 1998/9/2656
EEC DIR 2005/85
IMMIGRATION ACT 1999 S3(1)
REFUGEE ACT 1996 S5
IMMIGRATION ACT 1999 S3
FAMILY LAW
Judicial separation
Application for review of financial adjustment order - Lump sum payment order - Jurisdiction of High Court to hear motion - Whether motion to review or vary order to be brought before court of first instance - Necessity to ensure maintenance of right of appeal - DT v CT [2002] 3 IR 334 considered - Family Law (Divorce) Act 1996 (No 33), ss 8 and 18 - Rules of the Superior Courts 1986 (SI 15/1986), O 61, r 20 - Finding that motion to be brought to Circuit Court (2011/134CAF - White J - 20/4/2012) [2012] IEHC 580
D(M) v D(EH)
IMMIGRATION
Asylum
Application for judicial review - Deportation order - Ahmadi faith - Non refoulement - Leave granted on one ground - Additional ground - Requirement of extension of time where new ground - Mistake - Rationality - Whether new ground - Whether extension of time required - Whether mistake of fact - Whether rational - M(S) v Minister for Justice, Equality and Law Reform [2005] IESC 27, (Unrep, SC, 3/5/2005) and Ni Éilí v The Environmental Protection Agency [1997] 2 ILRM 458 considered - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Rules of the Superior Courts 1986, O 84, r 20(3) - Certiorari granted (2010/1110JR - Mac Eochaidh J - 21/12/2012) [2012] IEHC 577
A(K) v Minister for Justice and Law Reform
Facts The applicant brought judicial review proceedings in respect of a deportation order made against him. On behalf of the respondents it was contended that the “leave ground” was a new ground and consequently required an extension of time pursuant to section 5(2) of the Illegal Immigrants (Trafficking) Act 2000. On behalf of the applicant it was contended that the decision of the first named respondent to make a deportation order against the applicant was unreasonable in that it was based on a mistaken recommendation made by the Refugee Appeals Tribunal to the Minister regarding the applicant”s religion. In his application for asylum the applicant had contended that members of the Ahmadi faith suffer disadvantages in Pakistan and that he himself was a preacher of the faith. It was also submitted that he converted two persons to the Ahmadi Muslim faith, that he had been arrested and charged with blasphemy and that the death penalty was a potential outcome of a blasphemy charge.
Held by Mac Eochaidh J in quashing the deportation order: Applying S.M. v The Minister for Justice, Equality and Law Reform it would appear that one of the original grounds was broad enough to encompass the present relief sought. It was clear that the Minister”s officials had erroneously concluded and had so represented to the Minister that the Tribunal had disbelieved the applicant as to his membership of the Ahmadi community and faith. It could be said that the Minister was persuaded to make a deportation order because of the finding that the applicant was not a member of the Ahmadi community and would therefore not suffer any of the disadvantages members of that community suffer in Pakistan. No such finding had been made by the Tribunal and accordingly the deportation order would be quashed.
This is an application for judicial review of a deportation order. The notice of motion for leave to seek judicial review issued on 4th August 2010, seeking a variety of reliefs relative to the deportation order, a decision refusing subsidiary protection and a decision refusing the applicant refugee status. Leave was granted by Clark J. on 19th January 2012, in the following terms:
"The decision of the first named respondent to make a deportation order against the applicant was unreasonable in that it was based on the mistaken recommendation to the Minister that the Refugee Appeals Tribunal had found that the applicant was not of the Ahmadi faith."
The reliefs relative to subsidiary protection and refugee status were not pursued. It would appear that leave was not granted to do so.
The first issue to be decided is whether the ground in respect of which leave to seek judicial review was granted is comprised in the grounds as originally formulated on 8th August 2010. The respondents argue that the 'leave ground' is a new ground and consequently the applicant will require an extension of time to seek relief because s. 5 of the Illegal Immigrants (Trafficking) Act 2000, requires challenges to deportation orders (inter alia) to be brought within fourteen days of the date of the notification of the order. Section 5(2) of the Illegal Immigrants (Trafficking) Act 2000 provides:
2 "(2) An application for leave to apply for judicial review under the Order in respect of any of the matters referred to in subsection (1) shall-
(a) be made within the period of 14 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 High Court considers that there is good and sufficient reason for extending the period within which the application shall be made, and
(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 specified 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."
2. The version of O. 84. r. 20(3) of the Rules of the Superior Courts applicable when leave was granted was as follows:
"The Court hearing an application for leave may allow the applicant's statement to be amended, whether by specifying different or additional grounds of relief or otherwise, on such terms, if any, as it thinks fit."
3. The only formal record of the leave application is the perfected order of the court dated 6th March 2012. In written submissions to this Court, signed by counsel for the respondent the following account of the leave application is set out:
"After a brief hearing, Clark J. indicated that leave would be granted on grounds to be formulated by the court. This was done on the explicit basis that the respondents were entitled to raise the issue of delay in raising the ground upon which leave was to be granted, at the hearing of the substantive action."
Counsel for the applicant did not question the accuracy of this account. On this version of events, it appears that the court, in accordance with O. 84, r. 20(3) (as then formulated), allowed an amendment of the applicant's proposed statement grounding application for judicial review, either by specifying a different ground or an additional ground or otherwise subject to the entitlement of the respondents to raise the question of delay at the hearing of the action.
4. It seems to me that the issue of delay in raising the ground in respect of which leave was granted only arises if it is a new ground, or in the words of O. 84, r. 20(3), an "additional ground".
5. In S.M. v. The Minister for Justice, Equality and Law Reform (Unreported, Supreme Court, 3rd May 2005), McCracken J. considered how far s. 5 of the Illegal Immigrants (Trafficking) Act 2000 applies in respect of an application to amend grounds in judicial review. The learned Supreme Court judge referred to the decision of Kelly J. in NíÉilí v. The Environmental Protection Agency & Ors. [1997] 2 ILRM 458, which involved an application to extend grounds beyond those identified in a grant of leave where the impugned decision was one protected by statutory provisions requiring any challenge to be brought within a fixed period. At p. 464, Kelly J. said the following:
"It cannot be denied but that the amendments sought by the applicant amounts to an additional and entirely new case. The new grounds are very different to those already advanced. They raise, in effect, a new cause of action. Can the applicant be permitted to do this by way of an amendment to her existing proceedings? In my view, she cannot. To allow such a course would in my opinion, run counter to the will of Parliament as expressed in s. 85(8) of the Act. All statutory construction has as its object the discernment of the intention of the legislature. What is the object of s. 85(8)? It seems to me that it is (a) to require that proceedings which question the validity of a decision of the respondent be instituted at an early date to ensure that uncertainty about the decision may be disposed of one way or the other in a timeous fashion; and (b) to make the beneficiary of such decision and the respondent aware that the validity of such a decision is being...
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