S.J. v Minister for Justice and Equality

JurisdictionIreland
JudgeMr Justice David Keane
Judgment Date13 December 2017
Neutral Citation[2017] IEHC 747
Docket Number[2015 No. 644 JR]
CourtHigh Court
Date13 December 2017

[2017] IEHC 747

THE HIGH COURT

JUDICIAL REVIEW

Keane J.

[2015 No. 644 JR]

BETWEEN
S.J.
APPLICANT
AND
THE MINISTER FOR JUSTICE AND EQUALITY
ATTORNEY GENERAL
IRELAND
RESPONDENTS

Asylum, Immigration & Nationality – S. 5(6)(a) of the Illegal Immigrants (Trafficking) Act, 2000 – Leave to appeal to the Court of Appeal – Point of law of exceptional public importance – Assessment of evidence – S. 34 of the Employment Permits (Amendment) Act 2014 – Subsidiary protection

Facts: The applicant applied for leave to appeal to the Court of Appeal in relation to certain questions arising out of public interest. The applicant raised four separate points, which the applicant had contended were of exceptional public importance. The questions formulated by the applicant were in relation to subsidiary protection of the refugee under the Refugee Status Act 1996.

Mr. Justice David Keane refused to grant leave to the applicant to file an appeal to the Court of Appeal. The Court held that the questions raised by the applicant were in appeal before the Court of Appeal, though in a different case, therefore, it would not be prudent to certify the questions for the second time. The Court stated that the information and material provided by the applicant were insufficient concerning the subsidiary protection application. The Court was satisfied that the point concerned did not arise out of judgment, since it had been based on a factual premise that was never established in evidence.

RULING of Mr Justice David Keane delivered on the 13th December 2017.
Introduction
1

The unsuccessful applicant in these proceedings seeks a certificate that the Court's judgment of 10 October 2017 involves a number of points of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Court of Appeal on those points. That application is made pursuant to the terms of s. 5(6)(a) of the Illegal Immigrants (Trafficking) Act 2000, as amended by s. 34 of the Employment Permits (Amendment) Act 2014 and the Court of Appeal Act 2014 ("the 2000 Act").

Preliminary issue
2

The applicant seeks a preliminary ruling on whether a s. 5 certificate is required. The applicant submits that it is not.

3

The decision unsuccessfully challenged in this case is that of the Minister for Justice and Equality ("the Minister"), dated 30 September 2015, to uphold on review a decision to refuse the consent necessary under s. 17 of the Refugee Act 1996, as amended ("the Refugee Act"), to permit the applicant to make a second application for subsidiary protection.

4

Under s. 5(1)(i) of the 2000 Act, a s. 5 certificate is required for an appeal against a decision rejecting a challenge to the validity of a refusal under s. 17 of the Refugee Act.

5

The applicant submits that a challenge to a decision upholding a refusal under s. 17 is not a challenge to a refusal under s. 17 and, hence, is not one captured by the strict terms of s. 5(1)(i) of the 2000 Act.

6

In doing so, the applicant relies on the decision of Kelly J in O'Connor v Dublin Corporation [2000] 3 IR 420. That was a decision on the proper construction of s. 19 of the Local Government (Planning and Development) Act 1992, which applied certain restrictions to judicial review proceedings that seek to challenge the validity of "a decision of a planning authority on an application for permission or approval under Part IV of [the Local Government (Planning and Development) Act 1963, as amended]". At issue were two decisions of the respondent local authority to agree to certain proposals by the recipient of an earlier decision of that authority to grant a planning permission. The agreement of the local authority to such proposals was necessary under certain conditions attached to that earlier decision. Calling in aid (at 426-8) the nature of the decisions at issue (to agree proposals rather than to grant or refuse an application for permission or approval); the overall scheme of the relevant parts of the Planning Acts; the public policy underpinning the relevant provisions; and a relevant authority on what constitute "a decision" for the purposes of those provisions, Kelly J concluded (at 429), that the words at issue there were not broad enough to capture the local authority orders sought to be impugned in those proceedings.

7

The applicant points out that the Oireachtas has since substituted a broader description of the decisions captured by the relevant restrictions, in enacting, under s. 13 of the Planning and Development (Strategic Infrastructure) Act 2006, a new s. 50 of the Planning and Development Act 2000, whereby those restrictions now apply to "any decision made or other act done by [a relevant authority] in the performance or purported performance of a function under [that Act]".

8

Of course, the question I must answer is not whether the restriction under s. 5(1)(i) might have been more expansively drafted, whether along the lines of the amended s. 50 of the Planning and Development Act 200 or otherwise, but rather whether that restriction as it stands captures the decision at issue here.

9

As the applicant acknowledges, in KRA v Minister for Justice and Equality [2016] IEHC 289, Humphreys J addressed the question whether the Minister's refusal to make an order under s. 3(11) of the Immigration Act 1999 ("the 1999 Act") revoking a deportation order was captured by the terms of s. 5(1)(m) of the 2000 Act, which applies to a challenge to the validity of an order made under that section. This involved considering the correct application of s. 5 of the Interpretation Act 2005 to s. 5(1)(m) of the 2000 Act. Humphreys J accepted (at paras. 31-33) that, on a literal interpretation, s. 5(1)(m) would only apply to the making of a s. 3(11) order and not to a refusal to make one. However, Humphreys J went on to consider (at paras. 34-42), what was "the plain intention of the Oireachtas" in that context, concluding that s. 5(1)(m) could only have been intended to apply to an adverse decision of the kind where a challenge to it would have the effect of holding up the removal of a non-national, the subject of a deportation order, from the State. This, Humphreys J reasoned, meant that a literal interpretation of s. 5(1)(m) would fail to reflect that plain intention (paras. 43-45), and that it was possible for the court to carry out an exercise in the construction or interpretation, rather than any rewriting, of that provision (at paras. 46-52) by construing the word "order" as meaning "decision". Having performed that exercise, Humphreys J concluded that a challenge to a refusal to make an order under s. 3(11) was a challenge to an order (in the sense of "decision") under s. 3(11) and thus one captured by s. 5(1)(m) of the 2000 Act.

10

That decision was recently upheld by the Court of Appeal ( per Ryan P) in KRA and BMA (A Minor) v Minister for Justice and Equality 2017 IECA 284 (at paras. 43-53).

11

The applicant argues that the decision in KRA has no application to this case because there is a material difference between the terms of s. 5(1)(m) and those of s. 5(1)(i) of the 2000 Act. As Humphreys J pointed out (at para. 43), s. 3(11) of the 1999 Act permits the Minister to "amend or revoke" an existing order under that section and, since an order revoking a deportation order is innately unlikely to be the subject of any challenge, a literal interpretation of that provision would have the consequence that the only circumstance in which s. 5(1)(m) would apply in practice would be if the Minister made an order amending a deportation order that the person who was the subject of that order considered unlawful. Thus, Humphreys J concluded (at para. 44) that to afford that sub-section a literal interpretation would serve no useful purpose, as it would capture in practice only the almost unheard of situation of a challenge to the validity of an amendment to a deportation order, while leaving a decision to refuse to revoke a deportation order subject to the usual three-month leave period (for bringing an application for judicial review) with an unfettered right of appeal, thus depriving it of any real purpose or effect.

12

The applicant submits that, if s. 5(1)(i) is given a literal interpretation whereby a challenge to the validity of a refusal under s. 17 of the Refugee Act is captured by it but a challenge to a decision upholding a refusal under s. 17 is not, no such absurdity or failure to reflect the plain intention of the Oireachtas would result. I disagree. The absurdity might arguably be less pronounced but it remains an absurdity nonetheless. As Humphreys J pointed out in KRA (at para. 41), the one thing that the measures included in s. 5 of the 2000 Act have in common is that they are all negative decisions involving non-nationals. The section falls within the well-established public policy objective that issues regarding the validity of administrative decisions should be determined promptly; Re Article 26 and the Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 I.R. 360 at 392 ( per Keane CJ, for the court). The categories of decision concerned do not generally apply to non-nationals whose applications have been granted; ibid (at 401). The decisions covered by s. 5 are those "taken for the purpose of controlling the State's borders"; TD v Minister for Justice, Equality and Law Reform [2014] 4 IR 277 (per Murray J at 321). Read in that light, the intention of s. 5(1)(i) is plainly the same as that of s. 5(1)(m), i.e. to place lawful restrictions on the circumstances in which challenges can be brought to asylum and immigration law decisions that entail, in practice, the concomitant suspension of actions taken for the purpose of controlling the State's borders.

13

In that context, I am satisfied that the literal interpretation of s. 5(1)(i) contended for on...

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