Lasout v Minister for Justice, Equality and Law Reform
| Jurisdiction | Ireland |
| Judgment Date | 19 March 2004 |
| Date | 19 March 2004 |
| Docket Number | Record Number 2003/501 J.R. |
| Court | High Court |
THE HIGH COURT
Record Number 2003/501 J.R.
Immigration - Asylum - Deportation - Judicial review - Leave - Extension of time - Whether notification served on applicant - Whether Minister failed to have regard to factors in determining whether to make deportation order - Illegal Immigrants (Trafficking) Act 2000, s. 5 - Immigration Act 1999, s. 3
Facts: The applicant applied for leave to apply for judicial review seeking to quash a deportation order. The application was made 44 days outside the time permitted to apply for leave under the Illegal Immigrants (Trafficking) Act 2000. The applicant alleged that the notification pursuant to s. 3(3)(a) of the Immigration Act 1999 was not served on the applicant. The applicant also alleged that the Minister did not have regard to the factors set out in s. 3(6) of the 1999 Act in determining whether to make the deportation order.
Held by Herbert J. in refusing the application for leave that no circumstances had been shown to excuse much of the delay and there was no basis upon which the court could properly consider whether there was any good and sufficient reason to extend the time within which to apply for leave. Even if the inhibition to extending the time did not exist, the first applicant had not shown that he had an arguable case on the merits of the substantive application.
Reporter: R.W.
Judgment of Mr. Justice Herbert delivered the 19th day of March, 2004
On 10th March, 2003, the Minister for Justice, Equality and Law Reform made a Deportation Order in respect of the first named applicant. A Notice complying with the requirements of s. 3 (3) (b) (ii) of the Immigration Act, 2000 dated 8th May, 2003, was sent by registered post to the first named applicant. At paragraph 8 of the Grounding Affidavit sworn by his Solicitor, Aileen Fleming, for the first named applicant on 4th July, 2003, it is accepted that this Notice was received by the first named applicant on 9th May, 2003. Section 5 (2) (a) of the Illegal Immigrants (Trafficking) Act, 2000, requires that an application for leave to apply for Judicial Review shall be made within 14 days, commencing on the date on which the first named applicant was notified by the s. 3 (3) (b) (ii) Notice of the making of the Deportation Order. The application for leave to seek Judicial Review is dated 7th July, 2003, so that it is made 44 days outside the permitted
period. By s. 5 (2) (a) of the Illegal Immigrants (Trafficking) Act, 2000, a discretion is vested in the High Court to extend the time for the making of the application for Judicial Review should it consider that there is good and sufficient reason for so doing.
, the Supreme Court, per Denham, J., held that in considering whether to exercise its power under s. 5 (2) (a) of the Act of 2000, the Court should have regard to the following matters:
1. Whether there was evidence that the applicant had formed the intention to seek Judicial Review within the allowed time.
2. The margin of delay involved.
3. Whether the State is prejudiced by the delay.
4. The explanation given for and the excuse offered for the delay.
5. Whether the applicant has an arguable case on the merits of the substantive application.
Denham, J., pointed out that in general delay by legal representatives will not prima facie provide a good and sufficient reason to extend the time. Such legal representatives have a duty to act with expedition in these cases. Circumstances must exist to excuse such delay on the part of the legal representatives. (See also
G.K v. The Minister for Justice, Equality and Law Reform and Others
[2002] 2 I.R. 418 , Supreme Court per., Hardiman, J.).
The first named applicant arrived in the State on 26th March, 2000. A delay from 9th May, 2003, to 7th July, 2003, might not, in such circumstances, seem unreasonable.
This however is not the test. The Oireachtas has stipulated a period of 14 days, including the date of notification, as the time within which leave to seek Judicial Review is to be sought. It is by reference to this period alone that the court must judge the margin of delay. In the present case, without taking any account of the 14 day period allowed by s. 5 (2) (a) of the Act of 2000, the period of the delay was over three times the period of 14 days allowed by the Statute. In my judgment, having regard to the foregoing, this was a material and significant delay.
Counsel for the respondent accepted that there would be no prejudice to the State as a consequence of this delay should the court exercise its discretion to extend the time.
At paragraphs 3 and 4 of an Affidavit sworn on 9th July, 2003, by the first named applicant, he avers as follows:
“3. I say that on receipt of the letter dated 8th May, 2003, from the respondent’s Repatriation Unit informing me that the respondent had made a Deportation Order against me dated 10th March, 2003, and further on the return of my application for a Certificate of Naturalisation from the respondent’s Citizenship Section by letter dated 6th May, 2003, I acted with all haste in attempting to gain an understanding of matters both by contacting the Refugee Legal Service and by retaining Aileen Fleming, Solicitor.
4. I say that I contacted the Refugee Legal Service and that a letter dated 15th May, 2003, was written on my behalf in response to the respondent’s Repatriation Unit of 8th May, 2003. Further I say that on 12th May, 2003, I retained Aileen Fleming, Solicitor with
Daniel Spring & Company who wrote letters dated 13th May, 2003, to both the respondent’s Repatriation Unit and Citizenship Section. Thereafter, I attended at consultations with my Solicitor and with Counsel.”
The facts sworn to in theses paragraphs are not challenged by any of the concerned parties. At paragraph 6 of the Grounding Affidavit of Aileen Fleming, (to which I have already made reference), the deponent states that she was initially contacted by the first named applicant by telephone on 12th May, 2003. The first named applicant was seeking an urgent appointment. This recollection is corroborated by letters exhibited in her Affidavit written by the deponent on behalf of the first named applicant on 13th May, 2003, to the Citizenship Section of the Department of Justice, Equality and Law Reform and to the Repatriation Unit, Immigration Division of that Department. Also exhibited in the Grounding Affidavit of Aileen Fleming is a letter dated 15th May, 2003, written on behalf of the first named applicant by the Refugee Legal Service, - who represented the first named applicant until 19th May, 2003, - to the Repatriation Unit, Immigration Division of the Department of Justice, Equality and Law Reform. One may infer therefore that the first named applicant contacted the Refugee Legal Service regarding the s. 3 (3) (b) (ii) Notification in or about the same date as he contacted Daniel Spring and Company, Solicitors. I am satisfied on this evidence that the first named applicant formed the intention to challenge the s. 3 (3) (b) (ii) Notification, well within the period of 14 days and that the delay in this application being made is the delay of his legal representatives.
The first named applicant sought a Certificate of Naturalisation on 6th May, 2003, on the basis of his marriage, after the expiry of the requisite statutory notice period, to an Irish Citizen on 20th February, 2003, at the office of the Registrar of Marriages at Dublin. This application was rejected on the same day by reason of a defect in the Statutory Declaration. The Application was re-submitted by Daniel Spring and Company, Solicitors on behalf of the first named applicant on 13th May, 2003. The Application was refused by a letter dated 21st May, 2003. The period of 14 days allowed to the first named applicant within which to seek Judicial Review of the s. 3 (3) (b) (ii) Notification expired on 23rd May, 2003. Accordingly, the claim made that it would have been premature to seek Judicial Review until after this application for a Certificate of Naturalisation had been determined, while it may explain and excuse why the application for leave to seek Judicial Review was not made within the period of 14 days allowed, it neither explains nor offers an objectively justifiable excuse as to why the application was not made for a further 44 days thereafter. (See:State (Furey) v. The Minister for Defence[1988] I.L.M.R. 89).
At paragraph 18 of the Grounding Affidavit of Aileen Fleming, sworn on behalf of the first named applicant on 4th July, 2003, it is sworn as follows:
“I forwarded papers to Counsel by letter dated 3rd day of June, 2003. Following a consultation on 12th day of June, 2003, it was deemed necessary to seek a copy of the applicant’s file from the Refugee Legal Service in order to confirm that the first named applicant and any of his legal representatives had not received any notification of a proposal by the respondent prior to his decision to deport the applicant. I sought a copy of the file from the Refugee Legal Service by letter
dated 19th May, 2000, and received the file 26th June, 2003, under cover of a letter dated 25th June, 2003. Having familiarised myself with the file and not having found any mention of any notification with regard to the Deportation Order, I furnished Counsel with the new set of papers and he replied by letter dated 1st July, 2003. In this regard I beg to refer to copies my of letter dated 19th May, 2003, and the reply of the Refugee Legal Service dated...
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