M(S) v The Minister for Justice, Equality and Law Reform

• Jurisdiction: Ireland
• Judge: Mr Justice McCracken
• Judgment Date: 03 May 2005
• Neutral Citation: [2005] IESC 27
• Date: 03 May 2005
• Court: Supreme Court
• Docket Number: 376/03

[2005] IESC 27

THE SUPREME COURT

Murray CJ

Hardiman J

McCracken J

376/03

M (S) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL & ORS

Between:

S. M.

Applicant/ Appellant AND

The Minister for Justice, Equality and Law Reform The Refugee Appeals Tribunal The Refugee Applications Commissioner Ireland and the Attorney General

Respondents

REFUGEE ACT 1996 S17(7)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

RSC O.84 r20

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

RSC O.84 r20(3)

NI EILI v ENVIRONMENTAL PREOTECTION AGENCY & ORS 1997 2 ILRM 458

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S88(5)

IMMIGRATION

judicial review

Extension of time - Amendment of grounds - Asylum -Whether amendments subject to statutory time limits - Whether change of counsel good and sufficient reason - NíÉilí v Environmental Protection Agency [1997] 2 I.L.R.M. 458 followed - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5(2) - Rules of the Superior Courts 1986 (SI 15/1986), O. 84 - Appeal dismissed; leave to amend refused (376/2003 - Supreme - 3/5/2005) [2005] IESC 27

M (S) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL & ORS

The applicant sought leave to apply for judicial review of the decision refusing to grant her refugee status and the deportation order made in relation to her by the Minister. However, at the hearing of the motion the applicant filed an amended notice of motion and an amended statement of grounds, which sought an extension of time for the bringing of the application and claimed reliefs, two of which the trial judge deemed to constitute new causes of action.

Held by Supreme Court (Murray, Hardiman, McCracken JJ) in dismissing the appeal:

1. That the trial judge was correct in finding that two of the reliefs sought in the amended notice of motion constituted new causes of action. Furthermore, the grounds set out in the amendment sought were quite different from those sought in the original notice of motion and constituted new grounds. Accordingly, as the applicant was essentially making a new case or new cases her claim was prima facie out of time under s.5 of the 2000 Act.

2. That there were ample grounds upon which the learned High Court Judge could rely in the exercise of her discretion to refuse the extension of time and there was no reason to interfere with that decision.

Reporter: L.O’S.

Judgment of

Mr Justice McCracken

1 On 12th January 2000 the Appellant applied for asylum in the State. On 24th January 2001 her application was rejected by the Refugee Application's Commissioner, which decision she duly appealed. On 7th August 2001 the Refugee Appeals Tribunal dismissed her appeal. On 30th October 2001 the Appellant was notified by the Minister of his decision to refuse her a declaration of refugee status, and was further informed that the Minister proposed to make a deportation order in respect of her. In that letter she was notified of her entitlement to make representations to the Minister as to why she should be entitled to remain in the State.

2 Representations were made on the Appellant's behalf on three occasions, but notwithstanding these representations the Minister made a deportation order which was sent to the Appellant and to her solicitors on 20th September 2002. While this letter was sent to the wrong address for the Appellant, it was undoubtedly received by her solicitor. As a result, on 15th October 2002 the Appellant sought leave to apply for judicial review seeking four orders, namely:-

3 a "A. An order of certiorari quashing the decision to refuse the applicant refugee status.

4 b B. An order of certiorari quashing the deportation order made in respect of the applicant.

5 c C. A declaration that the provisions of section 12(3) and 12(4)(a), (c) and (j) and/ or each of them are invalid with respect to the provisions of the Constitution of Ireland 1937.

6 d D. An order if necessary extending the time for the making of this application."

7 This notice of motion was grounded on two affidavits, one sworn by the Appellant and the other by her solicitor.

8 On 9th October 2002 the Appellant's solicitor submitted a request pursuant to s.17(7) of the Refugee Act1996to re-admit the Appellant to the asylum process, which request was rejected by letter dated 27th November 2002. On the same date, a replying affidavit of Sandra Smith on behalf of the Respondents was filed.

9 On 3rd December 2002 the motion appeared in a list to fix dates, on which occasion it was indicated on behalf of the Appellant that she intended to bring a motion to amend the existing application. The Court directed that such motion must be issued and served by 20th December 2002 and the motion was listed for hearing on 31st January 2003. It appears that on 13th December 2002 an affidavit was sworn by the Appellant's solicitor exhibiting a proposed amended notice of motion and statement of grounds. It is not clear whether this affidavit was ever filed, but in any event it was not ultimately relied upon.

10 At the hearing on 31st January 2003 an amended notice of motion and amended statement of grounds dated 30th January 2003 were filed in Court. This sought, as far as was necessary, an extension of time for bringing the application and claimed, inter alia, the following reliefs:-

"D1. An order of certiorari removing for the purpose of being quashed, the purported decision of the third named respondent refusing the applicant's asylum application dated the 24th January 2001.

D2. Without prejudice as whether the decision of the third named respondent herein was valid an order of certiorari removing for the purpose of being quashed, the purported decision refusing the appeal of the applicant against the first mentioned decision purportedly made on behalf of the second named respondent on the 7th August 2001.

F1. An order of certiorari removing for the purpose of being quashed, the purported notification under section 3(3)(b)(ii) of the Immigration Act1999purportedly made on behalf of the first named respondent on Friday 20th...