Lelimo v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 30 November 2004
• Neutral Citation: [2004] IEHC 390
• Docket Number: [2004] IEHC 390
• Court: High Court
• Date: 30 November 2004

[2004] IEHC 390

THE HIGH COURT

[2004] IEHC 390

[2003 136 JR]

LELIMO v. MINISTER FOR JUSTICE

JUDICIAL REVIEW

BETWEEN

MOSEBATHO JUSTINA LELIMO

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

Citations:

IMMIGRATION ACT 1999 S3

CRIMINAL JUSTICE (UNITED NATIONS AGAINST TORTURE) ACT 2000 S4

REFUGEE ACT 1996 S2

O'KEEFFE V AN BORD PLEANALA 1993 1 IR 39

CRIMINAL JUSTICE (UNITED NATIONS AGAINST TORTURE) ACT 2000 S1(1)

CRIMINAL JUSTICE (UNITED NATIONS AGAINST TORTURE) ACT 2000 S2

CRIMINAL JUSTICE (UNITED NATIONS AGAINST TORTURE) ACT 2000 S3

CRIMINAL JUSTICE (UNITED NATIONS AGAINST TORTURE) ACT 2000 S7

EXTRADITION ACT 1965

UN CONVENTION AGAINST TORTURE & OTHER CRUEL INHUMAN & DEGRADING TREATMENT (1989) ART 1

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS

MCKERR, RE UNREP 11.3.2004 HL (UK)

HUMAN RIGHTS ACT 1998 (UK) S6(1)

Abstract:

Judicial review - Certiorari - Refugee law - Immigration and asylum - Definition of torture - Deportation - Statutory interpretation - Practice and procedure - Whether all relevant issues considered by Minister - Immigration Act, 1999 - Criminal Justice (United Nations Convention Against Torture) Act, 2000 - European Convention on Human Rights Act, 2003.

The applicant instituted judicial review proceedings seeking to challenge a deportation order made against him. The applicant contended that the deportation order was in breach of section 4 of the Criminal Justice (United Nations Convention Against Torture) Act, 2000 (the "2000 Act"). It was submitted that the Minister (the respondent) had failed to have proper regard to the legislative provisions set out in the 2000 Act in making the deportation order. One of the central issues of the cases was whether the definition of torture was restricted to pain or suffering instigated by public officials only as section 4 of the 2000 Act made no reference to public officials although other legislative provisions did.

Held by Mr. Justice Clarke in making the following order. It was clear from the documentation available that the respondent had not considered the provisions of the 2000 Act in making the deportation order. It was clear that section 4 of the 2000 Act made no reference to torture being confined to acts of public officials only. Given the importance of this issue with regard to matters of immigration and refugee law the court would direct that counsel make written submissions regarding the interpretation of section 4 of the 2000 Act and also on the possible impact of the provisions of the European Convention on Human Rights Act, 2003 on section 4 of the 2000 Act.

Reporter: R.F.

1 Mr. Justice Clarke delivered on 30th of November, 2004 .

The Judgment

2 For reasons which will be clear later in the course of this judgment I have decided that it is necessary to hear further argument on certain limited aspects of this case. This judgment must, therefore, be treated as being preliminary. However the issues on which I have decided that I require further argument are limited and specific so that in all other respects this judgment should be treated as final.

The facts and Issues

3 In the course of these proceedings the applicant was granted leave to challenge a Deportation order made by the Respondent under s. 3 of the Immigration Act, 1999and communicated to the Applicant on 3 ^rd February, 2003. The leave application came before O'Sullivan J. who delivered a written judgment on 12 ^th November, 2003. The applicant's history is fully set out at pages 4 and 5 of that judgment and the circumstances surrounding the asylum process are set out between pages 5 and 7 thereof. While a variety of grounds were canvassed in the application for leave the only basis upon which the applicant was permitted to challenge the Minister's decision was the ground set out at paragraph (e)(7) to the extent that that paragraph comprises, as O'Sullivan J. held it did, an allegation that the Respondent's decision to deport is in breach of the provisions of s. 4 of the Criminal Justice (United Nations Convention Against Torture) Act, 2000("the 2000 Act"). For completeness I should add that the Applicant sought an order permitting the amendment of the statement of grounds in these proceedings which application was refused by the Court (Laffoy J.) for the reasons set out in a written judgment delivered on 30 ^th April, 2004 . The only issue for me, therefore, is as to whether the Respondent's deportation order should be quashed on the grounds that it is in breach of s. 4 of the 2000 Act.

4 From the facts outlined by O'Sullivan J. it is clear that there are significant grounds for believing that the applicant may suffer harm if she returns to South Africa. Unfortunately she did not qualify for refugee status because, in the words of the Refugee Appeals Tribunal, "unfortunately, the assault carried out on the applicant does not amount to persecution for any reason contemplated by s. 2 of the Refugee Act, 1996(as amended)". The undoubtedly correct reasoning behind that decision was that the motivation for the treatment of the applicant was unconnected with a reason contemplated in s. 2 of the Refugee Act. The question which arises in these proceedings concerns the different question of whether it may be said that the Minister in making a deportation order failed to have proper regard to a separate legislative regime being the 2000 Act.

The making of the Deportation Order

5 In the course of argument in this case Counsel for the Respondent pointed to the undoubted fact that the onus of establishing the basis upon which any administrative decision has been taken lies upon which any administrative decision has been taken lies upon the person challenging that decision. See for example O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39. However as pointed out by McCarthy J. in that case (at page 79) a person mounting such a challenge has available to them various procedural entitlements to enable them to ascertain and establish the basis upon which the decision was taken. In this case the applicant has been able to put before the court the report of Executive Officer in the Repatriation Unit of the Department for Justice, Equality and Law Reform which went to the Minister. That document is marked with a recommendation in favour of the Minister signing the deportation order made by Mr. Cassidy who is an Assistant Principal Officer in the Immigration and Citizenship Division of the Department and dated 17 ^th of January, 2003. The document is also noted as having been approved by the Minister on 20 ^th January. I am therefore satisfied that the applicant has discharged the onus of proof as to the reasons which were taken into account by the Minister in coming to his conclusions. In the absence of any additional evidence to the contrary I therefore find that the reasons taken into account by the Minister were those set out in the aforementioned report. It is clear from that document that there was no mention of the question of whether the making of a deportation order might amount to a breach of the 2000 Act.

The Legal Consequences

6 Against this Counsel for the Respondent argues that if the interpretation urged on me on behalf of the Respondent as to the proper interpretation of s. 4 of the 2000 Act is correct then there was no evidence from which the Minister ought to have had or could have had any concerns relating to s. 4 and that the absence of any reference to a consideration by the Minister of s. 4 would not, in those circumstances, be fatal. Counsel conceded that that argument was, to a large extent, dependent upon the court being persuaded that the section ought to be construed in the way which he contended for.

7 It is equally clear that if the section is to be construed in the way in which Counsel for the Applicant urges there was ample evidence before the Minister which should have at least led the Minister to consider whether it was legally proper to make the deportation order having regard to s. 4 of the 2000 Act. I am therefore satisfied that the question as to whether it has been shown that the Minister failed to take into account a proper factor is wholly dependent upon the true construction of the section. If it means what the Applicant contends then I am satisfied that the Minister failed to take into account an appropriate factor which could materially have effected his judgment and in those circumstances it would be necessary to quash the deportation order. I am equally satisfied that if the section means what is urged on behalf of the Respondent there was no factual basis that could have led the Minister to a situation where he was required to give any significant attention to the section and there would, therefore be no basis for quashing the deportation order.

The...