P v Minister for Justice, Equality and Law Reform and L v Minister for Justice, Equality and Law Reform and B v Minister for Justice Equality and Law Reform

• Jurisdiction: Ireland
• Judge: Mr. T.C. Smyth
• Judgment Date: 02 January 2001
• Neutral Citation: [2001] IEHC 1
• Court: High Court
• Docket Number: 2000/596 JR
• Date: 02 January 2001

[2001] IEHC 1

THE HIGH COURT

Mr. T.C. Smyth

2000/596 JR

2000/758 JR

2000/597 JR

P & L & B v. MINISTER FOR JUSTICE

JUDICIAL REVIEW

P-v-THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

AND

L-v-THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

AND

B-v-THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND THE ATTORNEY GENERAL

Citations:

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, IN RE UNREP SUPREME 28.8.2000

IMMIGRATION ACT 1999 S3(1)

IMMIGRATION ACT 1999 S3(3)(b)(ii)

IMMIGRATION ACT 1999 S3(9)(a)

IMMIGRATION ACT 1999 (DEPORTATION) REGS 1999 SI 319/1999

REFUGEE ACT 1996 S5

IMMIGRATION ACT 1999 S3(6)

UN CONVENTION ON THE STATUS OF REFUGEES 1951

ABENGLEN PROPERTIES LTD, STATE V DUBLIN CORPORATION 1984 IR 381, 1982 ILRM 590

ANISIMOVA V MIN FOR JUSTICE 1998 1 ILRM 523

REFUGEE ACT 1996 S28

ILLEGAL IMMIGRANT (TRAFFICING) ACT 2000 S5

ILLEGAL IMMIGRANT (TRAFFICING) ACT 2000 S5(2)

IMMIGRATION ACT 1999 S3(3)

IMMIGRATION ACT 1999 S3(3)(a)

IMMIGRATION ACT 1999 S3(3)(b)

IMMIGRATION ACT 1999 S3(5)

IMMIGRATION ACT 1999 S3(7)

IMMIGRATION ACT 1999 S3(6)

IMMIGRATION ACT 1999 S7

IMMIGRATION ACT 1999 S3(2)(i)

IMMIGRATION ACT 1999 S3(6)(j)

GOLDING V LABOUR COURT & CAHILL MAY ROBERTS LTD 1994 ELR 153

O'KEEFFE V BORD PLEANALA 1993 1 IR 37

NI EILI V ENVIRONMENT PROTECTION AGENCY UNREP MURPHY 30.7.1999

O'DONOGHUE V BORD PLEANALA 1991 ILRM 750

MJT SECURITIES LTD V SECRETARY OF STATE FOR THE ENVIRONMENT 1989 JPL 138

ORANGE COMMUNICATIONS V DIRECTOR OF TELLECOMMUNICATIONS REGULATIONS UNREP SUPREME 18.5.2000

FLANNERY V HALIFAX AGENCIES 2000 1 AER 273

BAKER V CANADA 1999 2 RCS 817

R V SECRETARY OF STATE FOR THE HOME DEPARTMENT EX-PARTE CANBOLTA 1998 1 AER 161

HAVERTY, STATE V BORD PLEANALA 1987 IR 485

IMMIGRATION ACT 1999 S3(b)(J)

IMMIGRATION ACT 1999 S3(b)(k)

P & F SHARP LTD, STATE V DUBLIN CO COUNCIL 1989 IR 701, 1989 ILRM 565

CREEDON, STATE V CRIMINAL INJURIES (COMPENSATION) TRIBUNAL 1989 ILRM 104

OSHEKU V IRELAND 1986 IR 733

TANG V MIN FOR JUSTICE 1996 2 ILRM 46

LAURENTIU V MIN FOR JUSTICE 1999 4 IR 27

IMMIGRATION ACT 1999 S3(6)(c)

FAJUJONU V MIN FOR JUSTICE 1990 2 IR 151

IMMIGRATION ACT 1999 S3(5)(2)(b)

MCNAMARA V BORD PLEANALA 1995 2 ILRM 125

O'DOWD V NORTH WASTERN HEALTH BOARD 1983 ILRM 186

SCOTT V BORD PLEANALA 1995 1 ILRM 424

RICHARDSON V LONDON CO COUNCIL 1957 1 WLR 751

RGDATA LTD V BORD PLEANALA UNREP BARRON 30.4.1996 1996/14/4567

G V DPP 1994 1 IR 374

MASS ENERGIES LTD V BIRMINGHAM CITY COUNCIL 1994 ENV LR 298

R V COTSWOLD DISTRICT COUNSIL EX-PARTE BARRINGTON 75 P & CR 515

GORMAN V MIN FOR ENVIRONMENT UNREP KELLY 7.12.2000

IMMIGRATION ACT 1999 S3(a)

IMMIGRATION ACT 1999 S3(b)

Synopsis

Aliens

Immigration; refugees; judicial review; duty to give reasons; applicants seeking leave to apply for judicial review against respondent's decision to order their deportation; whether the decisions of the respondent were unreasonable; whether the respondent had acted ultra vires; whether the letters of notice received by the applicants fulfilled the duty to give reasons; whether there was an onus on the respondent to define the expression “common good” and “public policy”; whether the respondent should have indicated the weight given to each factor in making his decision; whether there was an error on the face of the record; whether, in the case of B., the failure to expressly give reasons, after the coming into effect of the Immigration Act, 1999, entitled the applicant to certiorari; s.3, Immigration Act, 1999.

Held: Leave granted to B.; leave sought by P. and L. refused.

P. v. The Minister for Justice, Equality and Law Reform - High Court: Smyth J. - 02/01/2001 - [2002] 1 ILRM 16

Three applicants, P, L. and B, who were randomly selected from a large number of similar cases, brought judicial review proceedings seeking to quash by certiorari deportation orders the respondent had made against them. An application for asylum in each has been refused as had their subsequent appeals. Held by Smyth J the applicants had not discharged the burden of proof that any of the decisions impugned were unreasonable. The respondent did not act ultra vires and there was no error on the face of the records that would entitle the applicants to certiorari. In the case of B there was a failure by the respondent to give him reasons for the making of the deportation order in the respondent’s letter of notice under section 3(a) of the Immigration Act 1999. B only was entitled to an order of certiorari. Mr. Justice Smyth also certified that the points raised in the case were of exceptional public importance and should be taken to the Supreme Court.

1 Mr. T.C. Smyth delivered the 2nd day of January, 2001.

2 These cases are a random sample of a large number of cases of which I believe and consider to be of a representative character. The hearings took place separately but consecutively, Judgment being reserved in all cases as there many common characteristics and arguments adduced, through a number of different Counsel. The applications came before the Court under the procedure provided for by Section 5 (2) of the Illegal Immigrants (Trafficing) Act, 2000.The Section was considered upon reference to it by the Supreme Court, under the title “In the Matter of Article 26 of the Constitution and Section 5 and Section 10 of the Illegal Immigrants (Trafficing Bill) 1999: the Judgment of the Court was delivered on the 28th August, 2000.

3 The facts of the individual cases may be very briefly summarised as follows:-

The case of P.

4 He is a Romanian National and was an asylum seeker in the State in November, 1999. His application for asylum was refused by the Minister under the Refugee Act, 1996, on the basis that it was manifestly unfounded and he was so informed by letter dated 31st March, 2000 which informed the Applicant that he had failed to adduce evidence of persecution. This decision was unsuccessfully appealed and the Applicant notified by letter dated 5th July, 2000 a letter enclosed the Appeals Authority's recommendation the deciding officer being Mr. Mick Quinn and the letter states (inter alia) as follows:-

"As a result of this refusal the Minister for Justice, Equality and Law Reform proposes to make a deportation Order in respect of you under the power given to him by Section 3 of the Immigration Act 1999."

5 Following upon this letter Mr. Watters the Applicant's Solicitor by letter 24th July, 2000 wrote to the Minister making representations that he be permitted to remain in the State on humanitarian grounds. This letter was followed up by another from Mr. Watter's enclosing references favourable to the Applicant. The Minister made a Deportation Order dated 4th September, 2000, the concluding paragraph of which reads:-

"Now, I, John O'Donoghue, Minister for Justice, Equality and Law Reform, in exercise of the powers conferred on me by the said subsection (1) of Section 3, hereby require you the said Felician Pop to leave the State within the period ending on the date specified in the notice served on or given to you under subsection (3)(b)(ii) of the said Section 3, pursuant to subsection 9(a) of the said Section 3, and to remain thereafter out of the State."

6 (The form of Deportation Order used in this and the other cases is identical, and is expressly provided for in S.I. No 319 of 1999 being the Immigration Act, 1999(Deportation) Regulations 1999.

7 A letter of notice of the making of the Order is dated 19th October, 2000. In the cases upon which the Minister decided to make a Deportation Order refusing leave to remain on humanitarian grounds, the letters of notice are in a uniform format, and although they are individually addressed and bear distinguishing file reference numbers they are similar in content and read:-

"I am directed by the Minister for Justice, Equality and Law Reform to refer to your current position in the State and to inform you that the Minister has decided to make a Deportation Order in respect of you under Section 3 of the Immigration Act, 1999.A copy of the Order is enclosed with this letter

In reaching this decision the Minister has satisfied himself that the provisions of Section 5 (prohibition of refoulement) of the Refugee Act, 1996are complied with in your case.

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 interest 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."

8 The letter proceeds to indicate a number of consequential requirements.

9 While there is no averment in the Applicant's Affidavit as to the date of receipt of the Order and Notice, no point has been taken by the Minister and it is conceded that the application was made within the time limited by Section 5 of the Act of 2000 as appears from exhibit FP1. The Applicant, perhaps through his Solicitors had secured copies of letters of notice and copies of Deportation Orders sent to Mr. Gheorghe Nica, Ms. Maria Pop and Mr. Constantin Barbu (the latter being one and the same person as is named in the title of the third case referred to herein).

The case of L.

10 He is a Romanian National, by trade a locksmith, and was an Applicant for asylum in the State. He applied on or about 10th August, 1999, having completed an application form he was called for interview which took place on 30th May, 2000. His application was refused and he was so notified by letter dated 22nd June, 2000 which informed the...