M (P) v Minister for Justice and Others

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Hogan
Judgment Date28 October 2011
Neutral Citation[2011] IEHC 409
Date28 October 2011

[2011] IEHC 409

THE HIGH COURT

[No. 147 J.R./2011]
M (P) v Minister For Justice & Ors
BETWEEN/
PM
APPLICANT

AND

MINISTER FOR JUSTICE AND LAW REFORM, ATTORNEY GENERAL AND IRELAND
RESPONDENTS

REFUGEE ACT 1996 S17

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

RSC O.84

EEC DIR 2005/85 ART 39(1)

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 267

D (H I)(A MINOR) v REFUGEE APPLICATIONS COMMISSIONER & ORS UNREP COOKE 9.2.2011 2011 IEHC 33

D (T)(A MINOR) & ORS v MIN FOR JUSTICE & ORS UNREP HOGAN 25.1.2011 2011 IEHC 37

RSC O.84 r21(1)

EEC DIR 2005/85 ART 2

REFUGEE ACT 1996 S17(1)

REFUGEE ACT 1996 S17(1)(B)

S (O) & S (F O)(A MINOR) v MIN FOR JUSTICE UNREP HOGAN 7.4.2011 2011 IEHC 291

REFUGEE ACT 1996 S17(1)(A)

EEC DIR 2005/85 ART 39(1)(A)

B (J)(A MINOR) & ORS v MIN FOR JUSTICE UNREP COOKE 14.7.2010 2010/3/736 2010 IEHC 296

F (I S O) & ORS v MIN FOR JUSTICE UNREP COOKE 17.12.2010 2010/19/4624 2010 IEHC 457

LOFINMAKIN (AN INFANT) & ORS v MIN FOR JUSTICE UNREP COOKE 1.2.2011 2011 IEHC 38

ALBION PROPERTIES LTD v MOONBLAST LTD & KILLALEA UNREP HOGAN 16.3.2011 2011 IEHC 107

EFE & ORS v MIN FOR JUSTICE & ORS UNREP HOGAN 7.6.2011 2011 2 ILRM 411 2011 IEHC 214

EEC DIR 2005/85 ART 39.1

IMMIGRATION LAW

Asylum

Remedy - Judicial review - Effectiveness of remedy - Applicable time limit t - Status of decision to grant refugee status - Whether judicial review effective remedy against decision regarding asylum - Whether substantial grounds to grant leave -HID v Refugee Applications Commissioner (Case C-175/11), (Unrep, Advocate General, 6/9/2012); D(T) v Minister for Justice, Equality and Law Reform [2011] IEHC 37, (Unrep, Hogan J, 25/1/2011) approved; S(O) v Minister for Justice, Equality and Law Reform [2011] IEHC 291, (Unrep, Hogan J, 7/4/2011); B(J) v Minister for Justice, Equality and Law Reform [2010] IEHC 296, (Unrep, Cooke J, 14/7/2010); F(ISO) v Minister for Justice, Equality and Law Reform [2010] IEHC 457, (Unrep, Cooke J, 17/12/2010); Lofinmakin v Minister for Justice, Equality and Law Reform [2011] IEHC 38, (Unrep, Cooke J, 1/2/2011); Albion Properties v Moonblast [2011] IEHC 107, [2012] 1 ILRM 439 and Efe v Minister for Justice [2011] IEHC 214, [2011] 2 IR 798 approved - The Rules of the Superior Courts 1986 (SI 15/1986), O 84 - Refugee Act 1996 (No 17), s 17 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - European Convention on Human Rights 1950 - Council Directive 2005/85/EC, arts 2, 39, ch 5, recital 27 - Treaty on the Functioning of the European Union 30th March 2010 C83/49, art 267 - Constitution of Ireland 1937 - Leave refused in part; balance of application adjourned (2011/147JR - Hogan J - 28/10/2011) [2011] IEHC 409

M(P) v Minister for Justice and Law Reform

Facts: The applicant asylum seekers was a national of Botswana and sought leave for judicial review on the basis that she had not effective remedy against the decision of the Minister to grant the applicant a declaration of refugee status, pursuant to s. 17 Refugee Act 1996 and whether she was precluded from challenging a refusal to grant her refugee status pursuant to s. 5 Illegal Immigrants (Trafficking) Act 2000 and Order 84 Rules of the Superior Courts. The applicant alleged that the Refugee Act 1996 was ultra vires Article 39(1) Procedures Directive 2005/85/EC on the basis that no effective remedy was provided against a refusal to grant refugee status. The Court had delivered judgment in D v. Minister for Justice [2011] IEHC 37 disapplying the time limits in the Act of 2000 where the proceedings challenged the Procedures Directive. Relevant proceedings were pending before the Court of Justice by way of preliminary reference from the Irish High Court. The question arose as to the applicability of the general time limits for judicial review and whether they were revived by reason of the incompatbility of the specialised time limits under the Act of 2000 being rendered inapplicable pursuant to the impugned directive.

Held by Hogan J. that the Irish law of judicial review guaranteed the applicant an effective remedy. The applicant had not in any event specified how Irish law failed to afford an effective remedy. The application for leave for review would be refused. In so far as the applicant sought to rely on issues referred to the Court of Justice, the balance of the applicant would be adjourned pending the outcome of the application.

Reporter: E.F.

1

1. This application for leave to apply for judicial review raises two fundamental issues. The first question is whether the applicant has available to her an effective remedy before the decision of the Minister to refuse to grant the applicant a declaration of refugee status under s. 17 of the Refugee Act 1996 ("the 1996 Act"). The second question is whether, in any event, the applicant is precluded by either (i) the provisions of s. 5 of the Illegal Immigrants (Trafficking) Act 2000 ("the 2000 Act") and (ii) Order 84 from challenging the decision of the Minister to refuse to grant her refugee status.

2

2. The applicant is a Botswanan national who arrived in the State on 30 th January, 2009, whereupon she sought asylum. She contended that because of her pygmy status she would not be in a position to resist the instruction of her villagers that she take up a position as a fetish priestess which would be inconsistent with her own personal religious beliefs.

3

3. On 27 th March, 2009, the Office of the Refugee Applications Commissioner recommended that she be refused refugee status. This was affirmed by the Refugee Appeal Tribunal by decision of 6 th December, 2009. On 22 nd January, 2010, the Minister refused a grant of refugee status to the applicant. An application for subsidiary protection was refused on 17 th January, 2011. The process culminated in the making of a deportation order by the Minister for Justice, Equality and Law Reform on 26 th January, 2011.

4

4. The present proceedings were commenced on 16 th February, 2011. In these proceedings the applicant seeks to quash not only the deportation order, but also the decision refusing the application for subsidiary protection and, critically, the decision of the Minister refusing to grant the application a declaration under s. 17 of the 1996 Act that she was a refugee. Significantly, perhaps, neither the decision of the Commissioner or that of the Refugee Appeal Tribunal has been challenged in these proceedings.

5

5. At the heart of the applicant's case is the contention that the Refugee Act 1996, is ultra vires the provisions of Article 39(1) of the Procedures Directive 2005/85/EC (which is contained in Chapter V of the Directive) on the basis...

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