Vicovich v Minister for Justice
| Jurisdiction | Ireland |
| Judge | Justice Finlay Geoghegan |
| Judgment Date | 10 September 2002 |
| Neutral Citation | [2002] IEHC 95 |
| Date | 10 September 2002 |
| Court | High Court |
| Docket Number | No, 415 JR/2002 |
[2002] IEHC 95
THE HIGH COURT
BETWEEN
AND
Citations:
IMMIGRATION ACT 1999 S3(6)
EUROPEAN CONVENTION ON HUMAN RIGHTS ART 3
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(3)(a)
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(3)(b)
IMMIGRATION ACT 1999 S3(1)
B & S (BENSON & SAALIM) V GOVERNOR OF TRAINING UNIT GLENGARIFF PARADE & MIN FOR JUSTICE 2002 2 ILRM 161
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(a)
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(1)
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(b)
Synopsis:
IMMIGRATION
Asylum
Judicial review - Certiorari - Deportation - Practice and procedure - Appeal procedure -Fair procedures - Whether valid appeal initiated - Whether certificate required in order to appeal - Refugee Act, 1996 - Immigration Act 1999 - Illegal Immigrants (Trafficking) Act, 2000 2002/415JR - Finlay-Geoghegan J - 10/9/02)
Vicovich v Minister for Justice, Equality and Law Reform
Facts: The applicant initiated judicial review proceedings seeking to stay the execution of a deportation order. The applicant had previously issued judicial review proceedings seeking refugee status which had been refused. The applicant now sought to appeal that decision without a certificate obtained pursuant to subsection (3) (a) of Section 5 of the Illegal Immigrants (Trafficking), Act 2000 ("the 2000 Act"). The respondent contended that no appeal could lie from the previous order of Smyth J. in the absence of such a certificate. Counsel for the applicant submitted that no such certificate was required for the appeal as it involved an issue relating to the Constitution. Furthermore it was contended that the proposed appeal would deal with issues which fell outside the terms of subsection (3)(a) of section 5 of the 2000 Act and therefore a certificate was not required.
Held by Ms. Justice Geoghegan in dismissing the application. The original hearing in the High Court did not appear to involve any issue relating to the Constitution. The original application before Smyth J. was an application for leave to apply for judicial review. There was no separate application to the High Court upon which Smyth J. made a determination and from which the applicant now sought to appeal to the Supreme Court. As such the previous court order fell within subsection (3)(a) of section 5 of the 2000 Act and accordingly no appeal could lie from such decision of the High Court without the certificate referred to in the subsection.
Justice Finlay Geoghegandelivered on the10th day of September,2002.
By Notice of Motion dated 3 September 2002 the applicant seeks "an Order staying the respondent from executing a Deportation Order made in respect of the applicant until the appeal of refusal of leave to apply for judicial review is determined."
The history of these proceedings prior to this application was as follows. By Notice of Motion dated 15 July 2002 the applicant sought leave to apply by way of judicial review for the following reliefs
2 1.An Order of Certiorari quashing the Deportation Order directed to the Applicant
3 2.An Order of Certiorari quashing the recommendation to refuse the Applicant's appeal against the refusal of refugee status
4 3.A Declaration that the Applicant (with reference to the provisions of Section 3(6) of the Immigration Act 1999) is entitled to humanitarian leave to remain in the State
5 4.A Declaration that the proposed expulsion of the Applicant would offend the provisions of Article 3 of the European Convention on HumanRights
6 5.Such further and other Order as the Court deem meet andjust
7 6.An Order for costs
This motion was heard by Smyth J. on 26 July and on 31 July he delivered a judgment refusing the application for leave to apply by way of judicial review for the above reliefs.
The applicant has now issued a notice of appeal dated 3 September 2002 against the order of Smyth J. of 31 July. The applicant has not applied to Smyth J. for a certificate pursuant to subsection (3) (a) of Section 5 of the Illegal Immigrants (Trafficking) Act 2000("the 2000 Act") in respect of the proposed appeal to the Supreme Court.
The respondent opposes this application upon the ground that no appeal lies from the order of Smyth J. of 31 July in the absence of a certificate issued pursuant to subsection (3) (a) of Section 5 of the 2000 Act and hence in the absence of such certificate there is now no valid appeal and accordingly the stay sought should not be granted.
Counsel for the applicant submits that no such certificate is required for the appeal the subject matter of the notice of appeal of 3 September 2002 herein and accordingly there now exists a valid appeal to the Supreme Court and unless the stay is granted the appeal may becomemoot.
Subsection (3) (a) of Section 5 of the 2000 Act provides:
"(3)(a) The determination of the High Court of an application for leave to apply for judicial review as aforesaid or of an application for such judicial review...
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