M M (Georgia) v Minister for Justice

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Hogan
• Judgment Date: 19 September 2011
• Neutral Citation: [2011] IEHC 529
• Date: 19 September 2011

[2011] IEHC 529

THE HIGH COURT

[No. 1508JR/2010]

M (M) [Georgia] v Min for Justice

BETWEEN

MM (GEORGIA)

APPLICANT

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

IMMIGRATION ACT 1999 S3(3)

IMMIGRATION ACT 1999 S3(6)

INTERPRETATION ACT 2005 S25

IMMIGRATION ACT 1999 S3(6)(A)

IMMIGRATION ACT 1999 S3(6)(B)

IMMIGRATION ACT 1999 S3(3)(A)

MONAGHAN URBAN DISTRICT COUNCIL v ALF-A-BET PROMOTIONS LTD 1980 ILRM 64 1980/7/1341

FITZWILTON LTD & ORS v JUDGE MAHON & ORS 2008 1 IR 712 2007/24/4835 2007 IESC 27

WALSH & ORS v GARDA SIOCHANA COMPLAINTS BOARD 2010 1 IR 400 2010/52/13168 2010 IESC 2

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

IMMIGRATION LAW

Deportation

Proposal to deport - Service - Statutory requirement - Whether applicant properly served with proposal to deport - Whether proposal served personally on applicant in prison - Whether proposal served on last place of address furnished by applicant - Whether proof of service integral feature of deportation system - Whether court could permit deportation order to stand - Whether special circumstances - Whether failure trivial or insubstantial - Judicial review - Leave - Substantial grounds - Extension of time - Whether applicant moved as quickly as possible in circumstances - Whether applicant formed intention to challenge deportation within 14 day period - Monaghan UDC v Alf-A-Bet Promotions Ltd [1980] ILRM 64 applied - Fitzwilton Ltd v Mahon [2007] IESC 27, [2008] 1 IR 712 and Walsh v Garda Síochána Complaints Board [2010] IESC 2, [2010] 1 IR 400 considered - Immigration Act 1999 (No 22), s 3(6) - Interpretation Act 2005 (No 23), s 25 - Leave granted (2010/1508JR - Hogan J - 19/9/2011) [2011] IEHC 529

MM (Georgia) v Minister for Justice, Equality and Law Reform

1 1. In this application for leave to apply for judicial review, the applicant, a Georgian national, seeks to challenge the validity of a deportation order made on 27 ^th July 2010. There is but a single ground of challenge, namely, that there is no evidence that the applicant was ever properly served with any proposal to deport him pursuant to s. 3(3) of the Immigration Act 1999 ("the 1999 Act")

2 2. The applicant arrived in the State towards the end of 1999. He then made an application for asylum in January, 2000. This application was ultimately refused by a decision of the Refugee Appeals Tribunal in July, 2003. At the end of October, 2003 the applicant received notice from the Minister for Justice, Equality and Law Reform of a proposal to deport him. For some reason there was a hiatus between the notification of this proposal and the ultimate making of the initial deportation order in July, 2007. This order was the subject of a challenge in judicial review proceedings, but these proceedings were ultimately settled. In the wake of this the applicant was given permission to remain in the State, but this permission expired in April 2010.

3 3. In the meantime the applicant was convicted of a theft offence by the Roscommon District Court in December, 2009 and he was sentenced to nine months' imprisonment. The net issue now is whether the applicant was properly served with a fresh proposal to deport dated the 12 ^th May, 2010, while he was serving this prison sentence at Cloverhill Prison in May, 2010. If he was never properly served with the proposal to deport, then, in principle at least, the deportation order which was ultimately made on 27 ^th July, 2010, cannot stand, not least since a statutory perquisite to the valid making of a deportation order has not been complied with.

Section 3(6) of the 1999 Act

4 4. The rules regarding the services of notices under the 1999 Act is contained in s. 3(6) of that Act. This provides:-

"Where a notice is required or authorised by or under this Act to be served on or given to a person, it shall be addressed to him or her and shall be served on or given to him or her in some one of the following ways:"

(a) where it is addressed to him or her by name, by delivering it to him or her, or

(b) by sending it by post in a prepaid registered letter, or by any other form of recorded delivery service prescribed by the Minister, addressed to him or her at the address most recently furnished by him or her to the Minister or, in a case in which an address for service has been furnished, at that address."

5 5. Section 25 of the Interpretation Act 2005 ("the 2005 Act") is also of potential relevance:-

"Where an enactment authorises or requires a document to be served by post, by using the word "serve", "give", "deliver", "send" or any other word or expression, the service of the document may be effected by properly addressing, prepaying (where required) and posting a letter containing the document, and in that case the service of the document is deemed, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."

6 6. It is for the Minister to establish on the balance of probabilities that the notice proposing to deport him was served in the manner prescribed by law. It is not in dispute but that the applicant was serving a custodial sentence in Cloverhill Prison at the time. Accordingly, the question is whether the evidence establishes that one or other of the statutory modes of service was complied with.

7 7. It is clear that the Minister sent the letter of 12 ^th May, 2010, to two separate addresses, namely, Cloverhill Prison and Refugee Legal Services, as they were the last known legal advisers of the applicant. The Refugee Legal Service returned the correspondence immediately, saying that they were no longer authorised to act for the respondent.

8 8. So far as the letter to Cloverhill Prison is concerned, it is agreed that the letter was not delivered personally to him. The applicant maintains that he never received the letter, whereas the evidence from the Prison Service is to the contrary effect. Mr. John Tobin, who is the Chief Officer at Cloverhill Prison, has sworn an affidavit in which he exhibits the delivery docket for the letter at the prison. He also pointed to the fact that the letter is on the applicant's own prison file and he continued by saying:-

"I am personally familiar with the procedures for dealing with post for prisoners at Cloverhill Prison. I believe that a...