N. -v- MJELR & Ors, [2008] IEHC 8 (2008)

Docket Number:2005 1395 JR
Party Name:N., MJELR & Ors
Judge:McCarthy J.

THE HIGH COURT JUDICIAL REVIEW[2005 No. 1395 J.R.]BETWEEN/B.J.N.PLAINTIFFANDTHE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM,THE ATTORNEY GENERAL AND IRELANDRESPONDENTSANDTHE HUMAN RIGHTS COMMISSIONNOTICE PARTYJudgment of McCarthy J. delivered the 18th day of January, 2008.1. These proceedings were commenced by originating notice of motion dated 20th December, 2005. Subsequently, application was made by an undated notice of motion seeking to amend the statement of grounds upon which reliance was placed originally. Liberty to issue that notice of motion returnable for 28th February, 2007 was granted. I am not told whether or not any order was made on that application but I assume it was so made, since the matter was dealt with without objection at the hearing of the proceedings. The relief sought in the amended statement of grounds is, to a degree, repetitious and is, substantively, firstly, an application to quash a deportation order made by the Minister for Justice, Equality and Law Reform on a date which is unclear on the face of the order itself but appears to be 15th November, 2005: notification of the fact that this order was made was received by the applicant on or about 10th December, 2005. Secondly, by letter dated 13th November, 2006, the Minister was requested to revoke the order and it is sought to quash the refusal on his part to do so. The applicant did not abandon the first aspect at the hearing, though it seems fair to say that the primary focus of the application must now be the second ground, namely, that the refusal to revoke was unlawful and quashed accordingly.2. In summarising the relief sought and the grounds therefor I propose to attenuate them somewhat or to summarise. On this basis, firstly, the relief sought, as the pleadings have been amended, may be summarised as follows:-(a) Certiorari of the deportation order with a declaration that it was ultra vires;(b) A declaration that the Immigration Act, 1999 (Deportation Regulations, 2002) are ultra vires the Act.(c) Relief by way of injunction restraining deportation pending determination of these proceedings, something which is now irrelevant since the same will not take place before that time. I am not told whether or not an order was made to this effect or an undertaking given by the Minister.(d) A declaration that the Minister has acted in breach of the applicant's constitutional rights or the European Convention on Human Rights Act, 2003, by which latter I assume a breach of the Convention itself is alleged and, in particular, a breach of article 5(1) of the Convention, by virtue of the rule of law governing the grant of judicial review (which might be colloquially called the threshold for judicial review) as set out in O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39. In fact the provision which is engaged here is article 13 of the Convention.(e) An order of certiorari of the refusal of the Minister to revoke the Deportation Order with a declaration that it was made "without regard" to her rights under article 2 of the Convention.3. The amended statement of grounds may be summarised as follows:-(a) The decision of the respondent to make the impugned deportation order is ultra vires and unsustainable in law by reason of mistake of law.(b) The respondent erred in finding that the issue of refoulement does not arise on account of the designation of South Africa as a safe country of origin.(c) The respondent did not consider whether the provisions of s. 5 of the Refugee Act, 1996 (as amended) applied.(d) The respondent could not reasonably have come to the view which he did in the light of country of origin information.(e) The respondent failed to vindicate the right to life of the applicant guaranteed by Article 40.3.2 of the Constitution.(f) The respondent failed to consider the rights afforded to the applicant by the European Convention on Human Rights.(g) The respondent failed to properly or adequately consider the representations for leave to remain submitted by or on behalf of the applicant. In the alternative, the respondent could not reasonably have come to the conclusion arrived at.(h) The respondent failed to apply the provisions of the Criminal Justice (United Nations Convention Against Torture) Act, s. 5 of the 1996 Act, s. 3 of the Immigration Act, 1999, article 3 of the Convention Against Torture, and other cruel or inhuman or degrading treatment or punishment in the light of s. 2 of the Act of 2003.(i) The deportation order failed to state the place the applicant was to be deported to (a point which has already been decided against the applicant's contention) and the Deportation Regulations aforesaid were in excess of the powers under the Act and null and void.(j) The respondent failed to consider the harshness of returning the applicant to South Africa in the light of the child sex abuse, child rape and risk to life on account of her medical condition.(k) The respondent, his servants or agents have taken into account irrelevant considerations and failed to take into account those which are relevant.(l) It is disproportionate to make the deportation order.(m) Absence of constitutional justice.(n) Insofar as the threshold for judicial review is the so-called "O'Keeffe test" the same is inadequate and contrary to the rights guaranteed by the Convention with, if appropriate, a declaration of incompatibility of that test with the Act of 2003.(o) The reports made to the Minister and the recommendations to him were unreasoned and/or unreasonable, irrational and in the face of common sense in the light of all the circumstances of the case.(p) An error of law in finding that there was nothing contained in representations seeking revocation dated 15/11/2006.(q) That the respondent failed to consider the application for revocation in the context of her rights under Article 40.3.2 of the Constitution and article 2 of the Convention.4. I think that the first matter which I should address is the issue of the threshold or test to be applied to the grant of judicial review since this must inform my consideration of the matter. It is, of course, the case that leave should be granted only where there are substantial grounds for contending that the decision, determination, recommendation, refusal or order is invalid or ought to be quashed. In deciding whether or not substantial grounds exist, one considers the law applicable to all judicial review applications where the intervention of the court is sought in respect of the decisions of an administrative body and, as we know, the traditional test or threshold for grant of judicial review is stated by Finlay C.J. in O'Keeffe v. An Bord Pleanála, approving Henchy J. in The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642, as follows:-(a) It is fundamentally at variance with reason and common sense.(b) It is indefensible for being in the teeth of plain reason and common sense.(c) Because the court is satisfied that the decision maker has breached his obligation whereby he "must not flagrantly reject or disregard fundamental reason or common sense in reaching his decision".5. Mr. O'Halloran, however, seeks to advance the proposition that a different test applies and in particular what is described as that of "anxious scrutiny" or "careful scrutiny" or, in the further alternative, "heightened scrutiny". No doubt all courts exercise all of their power anxiously or carefully but these, of course, are used as terms of art here and they constitute a lower bar or threshold and, in particular, he submits the true test is that judicial review should be granted if the court is satisfied:-(a) that on the facts as found, it would have raised different inferences and conclusions, or(b) that the case against the decisions was stronger than the case for them.the decisions should be quashed.6. I am referred to a number of decisions in this respect by him; the proposition that he advances is that a distinction may (and I stress may) be drawn between a class of case where constitutional rights are at stake, such as the present one, and others. I am not at all sure that such a distinction can be validly drawn, or if it can be so drawn, I think it must be said that a great many applications for judicial review, in fact, raise issues of constitutional rights in one form or another, such as breach of the principles of constitutional justice, say, in relation to a planning decision or the grant or refusal of a licence or the dismissal of an office holder. Indeed, it might with justice be said that, if the new or lower threshold was applied, it would blur the distinction between an appeal and judicial review, as historically elaborated, because the test which he advances seems to import of the proposition that once primary facts are found and a number of alternative secondary facts (or inferences) may be drawn therefrom, the court might intervene or that, by analogy with civil procedure generally, the case against the decision was stronger than for it. Be that as it may, I am clearly bound by the principles set out by Finlay C.J. and those principles do not contemplate any exceptional or special test in a case of this kind. Nor can I accept, as submitted to me, that the application of the O'Keeffe test does not afford the applicant an effective remedy against a decision contrary to the provisions of article 13 of the European Convention on Human Rights and Fundamental Freedoms which is as follows:-"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."In this regard, I now turn to a number of authorities pertaining to this Article which were opened to me.7. I have been referred to a passage in Vilvarajah v. United Kingdom, [1992] E.H.R.R. 248. This is advanced as authority for the proposition that "the courts have stressed that...

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