S (M) v Minister for Justice

• Jurisdiction: Ireland
• Judge: MR. JUSTICE T.C. SMYTH
• Judgment Date: 28 February 2002
• Neutral Citation: [2002] IEHC 174
• Court: High Court
• Date: 28 February 2002

[2002] IEHC 174

THE HIGH COURT

NO. 92JR/2002

S (M) v. MINISTER FOR JUSTICE

DUBLIN

JUDICIAL REVIEW

M. S.

Applicant

-v-

THE MINISTER FOR JUSTICE, EQUALITY & LAW REFORM

Respondent

Citations:

IMMIGRATION ACT 1999 S3(6)

OMIGIDI (ORSE O) V MIN FOR JUSTICE UNREP SMYTH 22.11.2001

IMMIGRATION ACT 1999 S5

CUSSEN, STATE V BRENNAN 1981 IR 18

FUREY, STATE V MIN FOR DEFENCE 1988 ILRM 89

RSC O.84 r18(1)

RSC O.84 r18(2)

RSC O.84 r21

DPP V MCDONNELL 1991 ILT 128

DPP V JOHNSON 1988 ILRM 747

G V DPP 1994 1 IR 374

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(b)

P & L & B V MIN FOR JUSTICE 2002 1 ILRM 16

Synopsis:

IMMIGRATION

Asylum

Delay -Judicial review -Time limits - Whether leave should be granted - Whether applicant had demonstrated substantial grounds - Whether time for bringing of application ran from service of deportation order - Illegal Immigrants (Trafficking) Act, 2000 section 5 (2002/92JR - Smyth J - 28/2/2002)

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

Facts: A deportation order had been made in respect of the applicant and the applicant now sought leave to bring judicial review proceedings in respect of same. The applicant claimed that he had not seen the deportation order and had no notice of it.

Held by Mr. Justice Smyth in refusing the relief sought. The documents in question had been served by registered post on the last known address of the applicant. The time period for the making of the present application ran from the service of the deportation order. There had not been a full and proper explanation by the applicant of the delay that had occurred. Substantial grounds for the granting of leave to seek judicial review had not been established.

APPROVED JUDGMENT OF

1 MR. JUSTICE T.C. SMYTH DELIVERED THE 28TH DAY OF FEBRUARY, 2002

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

APPEARANCES

For THE Applicant

MR. MAGUIRE BL

For THE RESPONDENT

MS. MOORHEAD BL

Instructed by:

Chief State Solicitors Office

Little Ship Strett

Dublin 2

APPEARANCES

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

4 MR. JUSTICE T.C. SMYTH DELIVERED HIS JUDGMENT, AS FOLLOWS, ON THURSDAY 28TH FEBRUARY, 2002

MR. JUSTICE SMYTH:	The Applicant is a
	national of Pakistan and

5 arrived in the State in early November 1997, whereupon he applied for asylum and sought refugee status in the name of A.S. (which is now acknowledged by the Applicant to be a false name) and on a false basis giving as his date of birth 1st April, 1973. In due course the Applicant was interviewed on 16th December, 1997 at which stage he had legal representation. The application at first instance was not successful and matters proceeded to the Appeals Authority without success to the Applicant who was notified to that effect by letter dated 26th November, 1999.

6 The Affidavit in these proceedings, sworn by the Applicant's current solicitors, avers that Mr. Christie was instructed that before the decision on the appeal was handed down the Applicant "decided" to leave the State, and that the Applicant had by October, 1999 returned to Pakistan. I am satisfied and find as a fact on the evidence adduced before me that the Respondent had no knowledge of any such stated departure.

7 In the events the solicitors acting for the Applicant in November, 1999 acknowledged receipt of the letter of 26th November, 1999 as aforesaid and in effect by letter (on its face dated 2722nd November, 1999) made representation on the Applicant's behalf pursuant to Section 3(6) of the Immigration Act, 1999for leave to remain in the State on humanitarian grounds.

8 On 14th February, 2000 a Deportation Order was made requiring the Applicant to leave the State and to remain thereafter out of the State. This order and a letter of notice thereof obliged the Applicant to present himself on 29th March, 2000 at 5:00 a.m. to the Member in Charge, Immigration Registration Office, Harcourt Square, Dublin 2. I am satisfied and find as a fact on the evidence before me that these documents were served by registered post on the last known an address of the Applicant as averred to in paragraph 8 of the affidavit of Terry Lonergan sworn on 14th February, 2002.

9 The case is made for the Applicant that he did not see the Deportation Order and had no notice of it; this is nihil ad rem. The deemed service procedures under the Act of 1999 have already been considered and decided in Omigidi -v- Minister for justice, Equality and Law Reform & Ors. (unreported 22/11/2001). In any event it is clear that the Applicant's solicitor did receive the letter of 9th March, 2000, for they so acknowledged by their letter of 16th March, 2000 in which they also refer to the Deportation Order. The solicitors expressed surprise that they had not received a reply to their letter of 22nd November, 1999 and enclosed a copy to the Repatriation Unit of the Respondent's Department. This was followed up by a further letter of 20th March, 2000 written directly to the Respondent in which there is an express acknowledgment in open correspondence to the following effect:

"Our client has recently received a deportation order from the repatriation of the Department of Justice."

10 The correspondence thereafter from the Repatriation Unit refers to the letter dated 22nd November, 1999. What is clear is that the Respondent had available to him the letter dated 22nd November, 1999 at least not later than its express acknowledgment in the letter of 22nd March, 2000 - one week before 29th March, 2000 and...