S.A.A.E. v Min for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 19 October 2016
• Neutral Citation: [2016] IEHC 573
• Docket Number: [2016 No. 777 J.R.]
• Court: High Court
• Date: 19 October 2016

[2016] IEHC 573

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2016 No. 777 J.R.]

BETWEEN

S.A.A.E.

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

Asylum, Immigration & Nationality – The Immigration Act 1999 – Order of deportation – Failure to furnish the address – Absence of service – Waiver of rights – Discretion of Court in judicial review

Facts: Following the order of deportation made by the respondent against the applicant, the applicant now sought leave to apply for judicial review against that deportation order. The key issue in the present case was whether the respondent was precluded from making an order of deportation against the applicant wherein the applicant failed to furnish an address at which he could be served. The applicant submitted that the failure to furnish an address could not be subject to the machinery for a deportation order because the Immigration Act of 1999 contained no provision where notice would be deemed served in case of lack of address.

Mr. Justice Richard Humphreys refused to grant the relief sought by the applicant. The Court held that the applicant was not entitled to challenge the impugned decision on judicial review as the applicant failed to raise substantial ground of failure to engage with the system. The Court found that applicant failed to comply with the fundamental procedural requirements prescribed by the 1999 Act by furnishing the address due to which there was an absence of service. The Court found that the applicant abused the immigration process of the State and frustrated its examination by failing to furnish an address and thus, waived his rights. The Court held that judicial review being a discretionary remedy, the Court was required to take into account the applicant's own conduct in deciding against the applicant. The Court held that in cases where no address had been furnished, the notice would be deemed served by simply recording the fact of lack of address.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 19th day of October, 2016

1 Where an applicant fails to furnish an address at which he can be served, is the Minister thereby precluded from proceeding to make a deportation order against him? The primary issue raised in this judicial review leave application is whether substantial grounds have been made out in favour of the theory that the Minister is so precluded.

Facts

2 The applicant arrived in the State from Egypt on 28th September, 2015, and claimed asylum at the airport. He says he was brought to the Refugee Applications Commissioner's Office. He did not furnish an address. He says he was then put in a taxi to accommodation. He did not notify the Commissioner of his address at any time thereafter. He then left the accommodation, claims he became lost, and went to live elsewhere. He did not make contact thereafter with either the Commissioner or the Department of Justice and Equality.

3 This course of conduct, which is obviously a repudiation of the legal basis on which he was admitted into the State, had the predicable result that his asylum application failed and the Department then proceeded to consider his deportation.

4 The Minister prepared a proposal to deport on 14th January, 2016, followed by a deportation order dated 8th April 2016, and an accompanying notice dated 4th May, 2016.

5 The applicant in the meantime applied for a residence permission on an atypical working scheme which was granted on 5th August, 2016, but when he presented himself to Gardaí with a view to registering this permission, he was informed for the first time of the deportation order. His permission was revoked on 27th September, 2016, and his passport was confiscated.

Whether lack of an address precludes the operation of the deportation provisions of the Immigration Act 1999

6 Mr. James Buckley B.L. in a very able argument on behalf of the applicant submits that the various decisions of the Minister are defective because they were not served as required by the Act. He accepts that if an applicant gave an initial address and then moved without notifying a change of address, the Minister could proceed in the absence of actual notice because service on the last-known address would be deemed good. But he submits that an applicant that commits the more significant breach of failing to give an address in the first place cannot be subject to the machinery for a deportation order because the Act contains no deeming provision in that case. Thus, on a literal interpretation, a more significant breach of the Act has...