Meta and anor v Minister for Justice

• Jurisdiction: Ireland
• Judge: MR. JUSTICE T.C. SMYTH
• Judgment Date: 08 March 2002
• Neutral Citation: [2002] IEHC 150
• Judgment citation (vLex): [2002] 3 JIC 0801
• Court: High Court
• Date: 08 March 2002

[2002] IEHC 150

THE HIGH COURT

120JR/2002

META & HENNESSY v. MIN FOR JUSTICE

(JUDICIAL REVIEW)

BETWEEN

ILIR META NEE MUCA, EMILY HENNESSY

Applicants

-AND-

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

Respondent

Citations:

IMMIGRATION ACT 1999 S3(6)

P & L & B V MIN FOR JUSTICE 2002 1 ILRM 38

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

RSC O.84 r18(2)

ART 26 OF THE CONSTITUTION & S5 & S10 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999 2000 2 IR 360

DPP V DISTRICT JUSTICE MCDONNELL UNREP HIGH 1.10.1990 1990/9/2594

DPP V JOHNSON 1988 ILRM 747

FAJUJONU V MIN FOR JUSTICE 1990 ILRM 234

NORTH WESTERN HEALTH BOARD V W(H) & W(C) 2001 3 IR 635

EIRE CONTINENTAL TRADING CO LTD V CLONMEL FOODS LTD 1955 IR 170

K(G) & ORS V MIN FOR JUSTICEN 2002 1 ILRM 401

POK SUN SHUN V IRELAND 1986 ILRM 593

OSHEKU V IRELAND 1987 ILRM 330

FAMILY LAW ACT 1995 S32(1)(a)(ii)

MASS ENERGY LTD V BIRMINGHAM CITY COUNCIL 1994 ENV L REP 298

Synopsis:

IMMIGRATION

Deportation

Judicial review - Certiorari - Asylum - Marriage to Irish citizen - Time limits - Delay - Mistake of identity - Whether statutory procedures complied with - Whether delay would act as bar to granting of relief - Immigration Act, 1999 - Illegal Immigrants (Trafficking) Act, 2000 (2002/120JR - Smyth J - 08/03/2002)

Meta v Minister for Justice, Equality and Law Reform

Facts: The applicant had applied for refugee status in the State. In the letter of application it was stated that the applicant was from Kosovo. The application was refused and a deportation order was made. Subsequently a doubt was raised as to the nationality of the applicant and it was contended that the applicant was in fact Albanian. The applicant subsequently married an Irish citizen and sought to judicially review the decision of the respondent.

Held by Smyth J in refusing the application. The delay in bringing the proceedings was neither satisfactorily explained nor excused.

1 APPROVED JUDGMENT OF MR. JUSTICE T.C. SMYTH DELIVERED THE 8TH DAY OF MARCH 2002

2 I hereby certify the following to be a true an accurate transcript of my shorthand notes of the evidence in the above-named action.

APPEARANCES

FOR THE APPLICANT

Mr. Hogan SC

Instructed by:

James Watters Watters & Co., Templeogue, Dublin 6

FOR THE RESPONDENT

Mr. O'Higgins SC

Mr. McGrath BL

Instructed by:

Mr. Boyle Chief State Solicitors Dublin

3 COPYRIGHT: Transcripts are the work of Gwen Malone Stenography Services and they must not be photocopied or reproduced in any manner or supplied or loaned by an appellant to a respondent or to any other party without written permission of Gwen Malone Stenography Services.

JUDGMENT OF MR. JUSTICE T.C. SMYTH DELIVERED THE 8TH DAY OF MARCH 2002:

MR. JUSTICE SMYTH: To the extent that the facts in this case can be

4 established it appears that the first-named Applicant entered this State in or about February 1999 and sought refugee status. He was not successful in that regard. His then solicitors made an application on his behalf for leave to remain in the State on humanitarian grounds under the provisions of Section 3(6) of the Immigration Act 1999. To the extent pertinent to the present purposes the letter of application dated 12th June 2001 (inter alia) states as follows:

5 2 "1. The Applicant is a young ethnic Albanian from Kosovo who came to Ireland in May 1999 to escape the Albanian Serb conflict.

6 3. … Mr. Meta has lost all contact with his family and relatives in Kosovo.

7 5. Mr. Meta is engaged to an Irish woman. Her name is Emily Hennessey of Flat 4, 130 Tritonville Road, Sandymount Dublin 4 and she is anxious that Mr. Meta be allowed to remain in this country. Her testimonial is enclosed. They are committed to each other.

8 7. The Applicant left school when he was 18 and worked in construction and played football in Kosovo.

9 8. The Applicant previously was forced to leave his home and family in Kosovo".

10 From the foregoing it would seem reasonable to deduce that in the event of deportation he should expect to be returned to Kosovo. Indeed a further letter of 15th June 2001, following the letter of 12th June 2001 draws attention to "Council of Europe, Parliamentary Assembly recommendation 1509 (2001) dated 25th April 2001 which noted that the security of persons and property is still not guaranteed in Kosovo." Furthermore Miss Hennessey states in her testimonial that his home town is Peja where he "would like to return to sometime in the near further". This in brief is the factual background before the making of any Deportation Order.

11 A Deportation Order was dated 20th August 2001 and a letter of Notice of making thereof and the reasons thereof are set out in a letter dated 24th August 2001. The letter expressly states:

"The reasons for the Minister's decision are that you are a person whose refugee status has been refused and, having had regard to the factors set out in Section 3(6) of the Immigration Act 1999, including the representations received on your behalf, the Minister is satisfied that the interests of public policy and the common good in maintaining the integrity of the asylum and immigration systems outweigh such features of your case as might tend to support your being granted leave to remain in this State."

12 The letter required the first-named Applicant to present himself on 31st August 2001 at 2.30 pm to the Garda National Immigration Bureau to make arrangements for his deportation from the State.

13 On 31st August 2001 the solicitors now on record in these proceedings were instructed to act for the first-named Applicant. The correspondence makes it clear that both client and solicitor had both Deportation Order and Letter of Notice of 24th August 2001 and when writing on 31st August 2001 to the Repatriation Unit of the Respondent the first-named Applicant is referred to as Kosovo national. Letters of 31st August and 3rd and 4th September 2001 were written by the solicitor to seek to put together a file that would give a composite or comprehensive history to date in written form of all steps taken from the date of arrival in the State to August 2001. The urgency of the matter was appreciated and the possibility of a judicial review application adverted to. Copies of the Section 3(6) representations were sent to the solicitors on 3rd September 2001. The balance of the relevant papers became available on 5th and 7th September 2001 respectively.

14 It is averred in the second affidavit of the solicitors sworn on 5th March 2002, paragraph 7 as follows:

"On or about the 8th September I was appraised of the Supreme Court decision in the P. B&L matter which lead me to believe that the pursuit of a judicial review application in the facts of this case, as I had at that stage understood them to be, would prove fruitless".

15 The Supreme Court decision of 30th July 2001 was widely publicised in the national newspapers on 31st July 2001 and the solicitor was a solicitor on record in those proceedings (see [2002] ILRM 16, 38 in particular page 48).

16 The first-named Applicant did on the 14th November 2001 marry the second-named Applicant who is an Irish citizen.

17 On 4th December 2001 the second-named Applicant attended the solicitor's office and informed him of the marriage. She, it is averred "indicated" to the solicitor that the first-named Applicant was Albanian not Kosovar. At this stage over some three months after an appreciation of the urgency of a judicial review application - no application is indicated, or apparently instructed - rather an enquiry as to the identify of the first-named Applicant's origins is undertaken.

18 In terms of communicating with the Respondent as to (a) the marriage and (b) the possible mistaken identity of origin of the first-named Applicant nothing was done until Friday, 1st March 2002 (a full six months after the first-named Applicant was due to have attended to make arrangements for deportation) when the second named Applicant attended at the office of the solicitor and informed him that the first-named Applicant was...