 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
High Court of Ireland Decisions |
||
|
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> S. (C.) & Ors v. Minister for Justice, Equality and Law Reform & Ors [2004] IEHC 610 (7 November 2003) URL: http://www.bailii.org/ie/cases/IEHC/2003/610.html Cite as: [2004] IEHC 610 |
||
[New search] [Printable RTF version] [Help]
[2004] IEHC 610
HC 25/04
THE HIGH COURT
DUBLIN
771/03 JR
C. S., B. S.
(A MINOR SUING BY HIS MOTHER AND
NEXT FRIEND C. S.) AND
N. N. (A MINOR SUING BY HER
MOTHER AND NEXT FRIEND C. S.)
Applicants
-V-
THE MINISTER FOR JUSTICE, EQUALITY
AND LAW REFORM, IRELAND AND THE
ATTORNEY GENERAL
Respondents
MR. JUSTICE O'SULLIVAN DELIVERED HIS JUDGMENT ON FRIDAY, 7TH NOVEMBER 2003, AS FOLLOWS
I would, first, like to express my thanks to the parties and, in particular, the stenographer for making themselves available at this early hour.
Introduction:
This is an application inter alia to challenge by way of judicial review: (1) The notification of a decision by the first Respondent that the provisions of Section 5 of the Refugee Act 1996 on refoulement are satisfied in the case of all the Applicants in relation to that decision (this notification was communicated on 25th September 2003); and to challenge (2) the Deportation Orders made under Section 3 of the Immigration Act 1999 communicated on the same date. The proceedings were initiated on 28th October 2003. Because the foregoing two decisions are decisions to which the provisions of Section 5 of the Illegal Immigrants Trafficking Act 2000 apply limiting time for the bringing of such challenge to 14 days from the date of notification, and the proceedings were initiated some 16 days outside that time limit, accordingly, this application must be preceded by an application under Section 5 for an extension of that time limit so that these proceedings can be brought. Pursuant to statutory provision, the date, 25th September, is extended by three days to 28th September, which, because it was a Sunday, for practical reasons means Monday, the 29th September.
The sequence of events:
The decision was notified on 25th September and, as I have just indicated, the practical date which I am prepared to accept as the commencement date for the running of the 14 day time limitation is Monday, 29th September. On the 2nd of October, the Applicant herself consulted, she says, with her solicitor and on that date she says indicated an intention to communicate with John Rochford through the solicitors firm of Brian Chesser & Co. in Waterford. She also contacted the Refugee Legal Service who, having identified a solicitor to inform her, told her that the Legal Service could not be of any more help to her.
That contact was on 26th September. At 5:00p.m. on the same evening she says in her affidavit that she contacted a friend who was a refugee in Athlone, who told her to contact Mr. John Rochford in Waterford. It subsequently turned out that Mr. Rochford was not a solicitor, but he did when contacted ask her to send him the papers in her case, which she did. It seems then that, according to her, she made the contact already referred to with her current solicitors on 2nd October and that, he under the misapprehension that John Rochford had a connection with a firm of solicitors, undertook to and did contact him through that firm. Mr. Pender himself has sworn an affidavit to say that he got instructions on 6th October and there is some conflict between those two affidavits on that point. He says that the Applicant next day attended him, discussed the contacting of the Refugee Legal Aid Service and that he then proceeded to contact the solicitors in the manner I have indicated above. He also contacted, he says in his affidavit, the Respondent Minister's Department, but that has proved inaccurate; whereas, in fact, he actually contact the Immigration Authorities.
It is stated by Mr. Pender that on 7th October Mr. Rochford, apparently, raised a question of fees. This, I think, was a misunderstanding flowing from his erroneous perception that Mr. Rochford was, in fact, or had connection with a solicitor. Then during the following period of approximately two weeks, he made further phone calls to the solicitors, Mesrs. Chesser & Co. on the 11th and 13th October and said that Mr. Rochford delayed or failed to provide him with the papers requested. It is now accepted by the Applicant in her affidavit filed yesterday at the hearing of the case that Mr. Rochford delayed furnishing the papers without good reason. Ultimately, Mr. Pender received the papers from Mr. Rochford on 22nd October. They were, he said, incomplete. He immediately sent them to counsel, who received them on the next day at noon, i.e. the 24th, which was a Friday preceding the Bank Holiday weekend. Counsel worked strenuously over the next day, producing a draft at 5:30p.m. on Saturday, and a final version communicated by e-mail on the Sunday of the Bank Holiday weekend. Because the next day was a bank holiday Monday, the proceedings were filed in the Central Office on Tuesday, 28th October, and that is the date on which the proceedings commenced.
On the 30th, the Applicant Solicitor received a letter from the Respondents saying that despite the existence now of these proceedings, the deportation would continue and arrangements would be made to deport the Applicants and on Friday, 31st October, the matter was first mentioned to me in the Asylum List court, where I was requested to make an ex parte interim injunction, which I did, effective until the following Monday morning because I had been told that the Respondents had indicated that their plans were to deport the Applicants in the course of the following week, i.e. the week which is just now concluding. By consent, counsel for the Respondents agreed on Monday to have that time extended to Tuesday, when I then heard an application for an injunction, which I refused.
That matter was then, apparently, mentioned in the Supreme Court in a very hurried and brief mention and I have been told about that and have made arrangements yesterday following these events to hear an application for leave to bring the proceedings and this must be preceded, as already indicated, by an application to extend the time. The hearing yesterday continued all day and I was greatly assisted by the comprehensive submissions of counsel.
To this sequence must be added what I think will prove to be or has, in my mind, proved to be a crucial piece of evidence which was furnished yesterday in an affidavit sworn on behalf of the Respondents to the effect that the Respondents received a request from the Refugee Legal Service on the 6th October for production of the papers connected with the reasoning underlying the challenged decisions, and it is sworn that on the 27th those papers were furnished by the Respondent to the Refugee Legal Service. Accordingly, one can assume that these papers were received by the Refugee Legal Service on the 8th of October and this is a matter which has significantly influenced my decision on this part of the application.
From the foregoing recital of events, it appears that a considerable amount of the four weeks plus period between 29th September when the fourteen day time period commenced and the date of issue of the proceedings, the 28th October, was taken up because Mr. Rochford, who turned out not to be a solicitor, himself without good reason detained and retained, rather, the papers sent to him by the Applicant at his request. It was only on a later date, 22nd October, that the Applicant's present solicitors received these papers back from Mr. Rochford, despite a number of phone calls, including contacts misguidedly made with a firm of solicitors with whom the Applicant's present solicitors were led by the Applicant to believe that Mr. Rochford had some connection. Once the papers were received by her present solicitors, it is equally apparent that they and counsel acted promptly, resulting in the filing of these proceedings in the Central Office on Tuesday, 28th October. Despite the near Herculean efforts by the Applicant's present lawyers, the fact remains that much of the delay arose as a consequence of the Applicant's own decision because having been informed by the Refugee Legal Service and a solicitor that they could do no more for her, she took it upon herself to speak to a friend, who is a refugee in Athlone, who advised her to contact this Mr. Rochford. Neither this friend, nor Mr. Rochford, is a solicitor. Nor, as things turned out, has Mr. Rochford any connection with a solicitor. He, nonetheless, took the papers from the Applicant and neglected, despite requests to return them to her solicitor, to do so until 22nd October. Thereafter, her present lawyers acted with the utmost promptness to have the papers filed as soon as possible.
Counsel for the Respondent has submitted that during the period the 2nd of October to 22nd October, the Applicants' solicitors could have simply contacted the Respondent, who would have furnished a copy of the papers, as they were at all times ready to do so, and as exemplified by the single occasion in this case when they were requested, that is by the Refugee Legal Service, for the file in relation to the reasons why a Deportation Order was made, that request being made on 6th October. This file was forwarded on the following day. Counsel for the Applicant has cast some doubt on the effectiveness of this channel, referring to another case where a delay of several months occurred, being the responsibility of the Minister's Department.
To the foregoing must now be added the fact that on 6th October 2003 the Refugee Legal Service, apparently, on behalf of the Applicant sought the file. These papers were, apparently, sent, but a copy was only produced by the Respondents at my request at the hearing of this application on yesterday, 6th November. For whatever reason, the Refugee Legal Service appear not to have furnished them to the Applicant's legal team. Her solicitor states in one of his two affidavits that on 6th October, following instructions by the Applicant, he made enquiries with, inter alia, the Refugee Legal Service and the Department of Justice, Equality and Law Reform. The latter statement, as I have indicated, has proved inaccurate because, in fact, he contacted the Immigration Authorities. It is not refuted, however, that enquiries were made by the Refugee Legal Services and the evidence is that the file was forwarded by the Department of Justice to them by letter dated 7th October.
The law:
The Chief Justice in the Supreme Court reference case on the Illegal Immigrants Trafficking Act Section 5(2) said with reference to the case of R –V- Stratford-on-Avon District Council ex parte Jackson ([1985] Volume 1 WLR 1319), as follows:
"Counsel assigned to the court have argued that the complexity of the issues, or the deficiencies or inefficiencies in the Legal Aid Service may prevent the Applicant from being in a position to proceed with his application for leave within the period of 14 days."
He then refers to the citation from the Stratford-on-Avon case, as follows:
"It is a perfectly legitimate excuse for delay to be able to say that the delay is entirely due to the fact that it takes a certain time for a certificate to be obtained form the Legal Aid Authorities..."
And the Chief Justice proceeds:
"...That was where despite proper endeavours upon the part of the Applicant and her legal advisors a difficulty arose."
Secondly, Finnegan J, as he then was, in GK –V- The Minister for Justice ([2002] ILRM:1:81) said at page 86:
"It may be appropriate to distinguish between the Refugee Legal Service and a solicitor in private practice. In effect, the Respondent provides the Refugee Legal Service for the Applicant and if delay occurs due to deficiency or inefficiency in that service, it would be unjust to regard the Applicant independently of any personal blameworthiness as responsible for the same. The situation where a solicitor in private practice is retained by an applicant is quite different and the deficiencies and inefficiencies of such a solicitor may weigh more heavily on an applicant than would be the case with the Refugee Legal Service."
Thirdly, Finnegan J. further in the context of determining personal blameworthiness distinguished the situation where a delay on the part of a private solicitor occurs and where he can be sued and damages procured, which would eliminate the loss to the applicant form the situation where his delay might be a remote cause of her being deported to a state in which her fundamental human rights would not be vindicated and which loss would not be remedied.
Fourthly, he emphasised in the same case that the Court should first consider the litigant's personal blameworthiness.
Fifthly, I would point out that Hardiman J. speaking for the Supreme Court in the appeal in the same case, in GK case, held that some consideration of the merits of the arguments proposed to be put forward is appropriate to the Court's deliberations as to whether to extend the time. In that case, which is reported at Volume 2 [2002] IR 418, he said at page 423:
"On the hearing of an application such as this, it is, of course, impossible to address the merits in the detail in which they would be addressed at a full hearing if that takes place. But it is not an excessive burden to require the demonstration of an arguable case."
Finally, I would say that, apart from the foregoing, the following further matters appear in this case to be relevant: (a) the length of the period of delay; (b) the complexities of the legal issues; and (c) any language or other personal difficulties of the Applicant or, indeed, lack of them.
Applying these principles, it seems to me, firstly, that the Applicant can be said to be personally blameworthy for the delay incurred in giving away her papers to John Rochford and any ensuing delay due to his admitted default in furnishing those papers. Secondly, however, this first consideration is, to my mind, significantly offset and in large part eliminated by the fact that the Refugee Legal Services were, apparently, in receipt (on foot of a request from her current solicitors) of the same or equivalent papers from the 8th of October, but failed to make them available. If, in truth, they were not in receipt of these papers, nonetheless the responsibility for that situation rests between the Refugee Legal Service and the Department of Justice, Equality and Law Reform, and this delay and any connected delay cannot, in my view, in fairness, be laid at the door of the Applicant.
Thirdly, I am prepared in her favour to assume, as indicated, that her present solicitors contacted the Refugee Legal Service on 6th October and requested such papers as they had, but in the event to no avail in the circumstance not only that this matter was sworn to by Mr. Pendred, but also that it seems to be supported by the further sworn testimony of the affidavit filed on behalf of the Respondent.
Fourthly, the Applicant clearly made up her mind to take whatever legal action was available to her well within the 14 day period. Fifthly, her lawyers once briefed with even defective papers pulled out all the stops to ensure that no further delay occurred. In my view, it would not be fair to hold the Applicant responsible for any delay between, at the latest, the 8th of October and the 22nd of October because during this period responsibility for delay in furnishing the papers which were ultimately produced to this Court at my request yesterday by the Respondents must rest with the Refugee Legal Service, and for which the Government, in my opinion, must take responsibility in accordance with the principle with which I agree in the judgment of Finnegan J in the GK case. The fact that the Applicant in parallel, so to speak, went off on a tangent which proved fruitless and for which she must take whatever responsibility arises out of that in the context of delay, does not, in my opinion, detract form the validity of the proposition I have just made with regard to the responsibility of the Refugee Legal Service. The balance of the time, excluding the period between the 8th and the 22nd of October, which comprises, perhaps, something like two weeks of the overall delay between the 29th of September, i.e. the date on which the 14 day period in this case should be deemed to commence to run, is either excused by the exceptional efforts of the Applicant's lawyers working over the Bank Holiday weekend, or comprises only something of rather less than one week.
Subject to a consideration of the merits of the case, therefore and of the arguments intended to be advanced, I consider that there is good and sufficient reason to extend the 14 day period limited by the relevant statutory provision. I would emphasise at this point that it will be clear from the foregoing that the crucial difference between the information before this Court yesterday, compared with the information before it on Tuesday of last week when I refused to grant an interim injunction, was the testimony from the Respondent's witness that the file requested by the Refugee Legal Service on 6th October was forwarded on the 7th and that, accordingly, any delay following receipt of that file between the 8th and 22nd of October should not be held against the Applicant.
I would observe that in the foregoing I have related my considerations only to the two reliefs identified in the commencement of this judgment in respect of which a 14 day time limit applies. Other reliefs sought in this application and which were elaborated in submissions yesterday by counsel include, thirdly, a declaration that the Immigration Act 1999, Deportation Regulations 2002 are ultra vires on the basis it turns out they failed to require a deportation order to specify the country to which the deportee is to be sent and, fourthly, a stay and/or interim injunction restraining the respondent from taking any step on foot of the challenged deportation orders pending the determination of these proceedings.
The claim for asylum:
The Applicant's claim for asylum can be briefly summarised as follows: The Applicant, her husband, uncle-in-law, and children are members of the Zulu Tribe in the area of South Africa, Kwazulu-Natal, from which she comes. Her uncle-in-law was in love with a Xhosas woman and, as a consequence, a number of Xhosas men, said to be approximately twenty, threatened him over a period of several months during the year 2001. In that year, a number of Xhosas men killed her uncle-in-law. At his funeral, her husband was threatened by some five Xhosas men. He had not witnessed the murder and the Applicant did not know why her husband was threatened. He reported this to the police, but hey were ineffective against the Xhosas. On 21st October 2001, two Xhosas men shot her husband dead at the door of his house. She saw them. She made a statement about this to the police.
There was no arrest. The police, she says can be bribed. In any event, they are ineffective against the Xhosas Tribe. After her husband's death, she realised that the Xhosas were very serious about their attack on her family and she came to realise that she would be next to be killed. She fled shortly after his funeral and stayed first with a friend, and then fled to Ireland, arriving on 15th November 2001. In broad terms, this claim was rejected, for reasons which included, inter alia, that doubts were cast on the credibility of her story. The view was taken furthermore that her fear was not based on social class, race or any convention reason, but arising out of personal dispute and, thirdly, reference was made to the possibility of her relocating in safety in another part of south Africa.
The grounds of the application:
By way of preliminary point, I note with some relief that the judgment of Hardiman J. speaking for the Supreme Court in the GK case appears to contemplate no very elaborate consideration of the merits of such grounds at this stage of the case, but merely so as to enable it to identify for itself whether there is an arguable case. In particular, in the present case I have undertaken for logistical reasons to furnish this judgment overnight following a lengthy and comprehensive hearing and the making of extremely helpful submissions by counsel for both sides yesterday. Counsel will, I hope, forgive me if I take my understanding of the observations of Hardiman J's ruling in the GK case somewhat more to heart in this instance and be comforted, I hope, by my assurance that their careful submissions yesterday enabled me during the conduct of the hearing itself to reach conclusions with a lot more facility than I could otherwise have done.
(1) Mr. Humphreys argued that his client was entitled to have made available to her all the material which was before the decision-maker. He said that with one exception no such material was available between the date of the letter comprising his client's Notice of Appeal, the 11th of November 2002, and the notification of the decision to refuse the application for refugee status and of the making of Deportation Orders, dated 25th September 2003. The one exception was a letter of 15th January 2003 informing the Applicant that her appeal against the finding of the Refugee Appeal Tribunal was refused and that the Minister proposed to make a deportation order.
Mr. Humphreys in this connection relies, inter alia, on the following observations of Finlay Geoghegan J. in Ayaya –V- The Minister for Justice, Equality and Law Reform delivered on 2nd May 2003 at page 7 where she said in the first instance referring to the Chief Justice's judgment in the Article 26 reference case, quoting the Chief Justice:
"Difficulty in gaining access to relevant documents in the case of R –V- Stratford-on-Avon was also accepted in that case as a good explanation for part of the delay in applying for leave to seek judicial review. There is nothing in Section 5 restricting an applicant seeking to use the ordinary procedural mechanisms for discovery with or without the benefit of an extension of time. The Court does not consider that the arguments made afford grounds for calling in question the constitutionality of that section."
Continuing with the quotation from Finlay Geoghegan J, she says:
"It may be implicit in the above approach of the Supreme Court that an Applicant is entitled to obtain access to all the material which was before the decision-maker prior to the granting of leave, or even prior to the issue of an originating Notice of Motion. It may also be said on principles submitted by counsel the Applicant would be entitled to such material. However, that is not the type of material which is sought in the discovery application in this case. Any decision on that issue should, if necessary, be left over for an appropriate case. I think it fair to observe that there has developed a practice in relation to applications under Section 5 of the Act of 2000 whereby the authorities make available to potential applicants all the material which was before the relevant decision-maker."
Mr. Humphreys suggested that where there was a refusal on the part of the State Authorities to provide such material, the Court should either infer (1) that such material did not exist, or (2), if it did, it did not support the impugned decision. He made reference to the judgment of Barron J. in State (Daly) –V- The Minister for Agriculture [1987] IR 165.
The relevant information which was not available, he said, would have included the decision of the member of the Refugee Commission, the representations made that despite the Applicant's refusal on appeal, she should still be allowed to remain in the country, and the representations made to the Minister by the Authorised Officer reporting on the appeal and recommending a decision on refoulement and deportation.
Ms. Stack on behalf of the Respondents submitted, firstly, in this case there is no evidence to say that there was any request at all for this information at the relevant time and that the one instance where such a request was made on 6th October, it was responded to promptly by forwarding the information on the 7th. Secondly, she relies on the following citation from the judgment in the Baby O case ([2002]:2:IR 169) at page 183 where the Chief Justice said:
"I am satisfied that there is no obligation on the first Respondent to enter into correspondence with a person in the position of the second Applicant setting out detailed reasons as to why refoulement does not arise. The first Respondent's obligation was to consider the representations made on her behalf and notify her of his decision. That was done and, accordingly, this ground was not made out."
She further refers to the judgment of Finlay Geoghegan J. in the case of Muresan –V- the Minister for Justice, Equality and Law Reform (8th October 2003) at page 6, where she says:
"As a general proposition, it appears to me that the statutory scheme which has been established both for the asylum phase under the Act of 1996 and the subsequent immigration phase under the Act of 1999, that the Minister for the purpose of satisfying himself that the making of the Deportation Order would not breach the prohibition against refoulement in Section 5 of the Act of 1996 must be entitled to have regard to material which may be available to him through his officers relating to the human rights situation in the country to which it is proposed to deport the application, without putting that material to the applicant for his observations."
My learned colleague then proceeds to indicate that there would already have been an opportunity to make representations earlier in the asylum phase of the proceedings and then proceeds herself to conclude on page 15:
"If the principles of constitutional justice were to be construed as imposing on the Minister a general obligation in every case to put to an applicant material upon which he proposed relying for the purpose of forming a view as to whether or not the proposed deportation order would breach the prohibition against refoulement, this would result to a significant extent in a repeat of the asylum process to which the applicant has already been entitled, including an appeal procedure. As a matter of common sense, fair procedures do not seem to require this."
Secondly, Mr. Humphreys submitted that it was arguable that the three applicants in the present case, where the evidence is that each applied for refugee status through their mother, should have been dealt with individually and that this was arguably not done. Therefore, they were not persons whose applications has been refused and, accordingly, were not persons within the category identified as being persons capable of being deported under Section 3 of the Immigration Act 1999.
He relied in general on the judgment of Finlay Geoghegan J. in the Nwole case, judgment delivered on 31st October of this year. In this context, Mr. Humphreys made detailed submissions on the true meaning of several documents which were made available to me and which I have considered. These included the letter already referred to of 15th January 2003 and several others made available at my request yesterday by the Respondents, comprising the documents concerned in the asylum and deportation phases of the process, and Mr. Humphreys said further that the first Applicant here, unlike the applicant in the Nwole case, was submitting that she herself should benefit from the alleged failure of the Respondent to treat the Applicants, all three of them, on an individual basis.
Ms. Stack, in response, said that the meaning of the letter of 15th January 2003 is itself a question of legal interpretation and evidence was not, therefore, necessary to clarify what the writer meant by it and submitted that the plain and ordinary meaning of that letter was that it referred to all three Applicants and that when it used the word "you", where appropriate this included the plural. It really, she submitted, boiled down to a net point - - namely, did the documents, the letter of 15th January 2003 and the Department Order and other letters and, indeed, the entire file indicate that the applications were treated either as a single application or as three separate applications on an individual basis and, in particular, whether the applications of the second and third Applicants had been considered and refused.
She also pointed out that if, indeed, the documents referred to only one, then one implications might well be that the second and third Applicants had not, in fact, appealed the decision of the Commission. She also relied, of course, on the evidence contained in the affidavit sworn and filed yesterday of Mr. Terry Lonergan on behalf of the Respondents.
Thirdly, a submission was made in relation to the internal relocation point. Mr. Humphreys submitted in this connection that given that a question of internal relocation arose in this case, there must be an arguable case to make as to what the appropriate standard should be in relation to it, and said that such a question had already been certified for appeal to the Supreme Court in Iwuala case, and that a decision on this appeal is due later this month. Ms. Stack said that the certified question related only to the issue in the asylum context, that is in the context of who, in fact, is entitled to refugee status, but that since the decisions at the asylum phase in this case have not been challenged, therefore, no question or argument in relation to it can be made in this case.
Subsequently, Mr. Humphreys submitted that there was a reference to the internal relocation issue in the papers which were before the Minister and relied upon by him in reaching his decision in relation to deportation and refoulement, which are challenged.
Fourthly, there is a challenge in connection with the decision on refoulement. Mr. Humphreys submitted that because of the lack of any reason in the documentation referring to Section 4 or in the letter with reference to Section 5, other than the formulaic reason, he submitted that it was arguable that his clients' case and submissions in relation to the Section 5 decision on refoulement was not properly considered. He submitted that there are cases and that this is one where specific reasons are due as a matter of fair procedures. Referring to the judgment of the Chief Justice in the Baby O, where he says at page 184:
"Consideration by the first respondent of refoulement in this case necessarily involved the consideration by him of whether there were substantial grounds for believing that the second applicant would be in danger of being subjected to torture within the meaning of Section 4(1) of the Criminal Justice (United Nations Convention Against Torture) Act 2000",
Mr. Humphreys submitted that that reference did not mean that the Chief Justice was expressing a view that, as a matter of general principle, consideration of Section 5 of the 1996 Act necessarily involved also a consideration of Section 4 of the Act of 2000. Nonetheless, his main point was that this is a case where specific reasons were required and these were not given and, therefore, there was a breach of fair procedures.
He, in this connection, referred to three decisions:
(1) The Supreme Court decision in PLB –V- The Minister for Justice, Equality and Law Reform judgment delivered 30th July 2001; (2) Mishra –V- The Minister for Justice & Ors reported [1996] Volume 1 IR 189; and (3) Gabrel –V- The Minister for Justice, Equality and Law Reform, the judgment of Finnegan J. as he then was of 15th March 2001, but did acknowledge that no case went as far specifically as to say that that particular case was one where a specific and particularised reason was require; nor, indeed, was there any case which identified the category or class of the cases where such a reason would be required.
Ms. Stack submitted that this issue did not arise in the present case because there was no evidence that anyone asked the Minister or the Authorities for a reason. The citations already replied upon and referred to earlier in this judgment from the Muresan and Baby O cases, she submitted, showed that such reasons were not required, and also she submitted that the onus was on the Applicant to prove his case, and this he could have done by procuring documents which were not before the Courts.
Furthermore, there was no evidence or submission made as to why this case was in a different and specific category which required a particularised reason as a matter of fair procedures. She submitted that regarding the case made on Section 4 of the Act of 2000 it is clear that at all times, on request, full information was available and would have been made available and, in one specific instance, was made available.
Fifthly, Mr. Humphreys submitted that the Immigration Act Deportation Regulations of 2002 were ultra vires for the reason already identified, and he relied in this case on the decision in Gabrel –V- The Minister for Justice, Equality and Law Reform (Finnegan J. 15th March 2001) in the following terms:
"Leave was granted to make the case that the Deportation Order is defective and null and void by reason of the failure of the State therein..."
and then skipping a part of it
"...to identify the country to which she..."
that is Ms. Gabrel
"...is to be deported."
He said that if leave was given in respect of an order in Gabrel, then it is arguable that in the present case the order should also be specific and that the regulations challenged should ensure this.
Ms. Stack responded that the Gabrel case was merely the granting of leave and that the matter was not fully argued, but that the same judge, Finnegan J. as President of the High Court, in the case of D –V- P had held that the State had an election as to which country to send the proposed deportee.
Conclusions:
(1) I do not think that substantial grounds within the meaning of the jurisprudence which is well known and cited in several of the relevant judgments, referring in particular to the seminal judgment on this topic of Carroll J. in McNamara –V- an Bord Pleanala, have been made out to establish a breach of the applicant's right to have made available to her the material which was before the Minister in reaching the impugned decision. It may be that as my colleague, Finlay Geoghegan J, said in Ayaya that an applicant is entitled to such materials and, indeed, the Chief Justice in the Article 26 reference case observed that difficulty in procuring such materials could itself be a ground for extending the time for the bringing of a challenge. This does not, in my opinion, in and of itself establish a breach of any of the Applicant's rights. There is no evidence of a request, except on one occasion on 6th October, which was promptly complied with by forwarding on the 7th.
There is no, therefore, evidence of a refusal and the indications, indeed, are that there exists a practice to make such material available. The observations of my colleague in Muresan at page 6 suggest the opposite of an automatic right without such request.
In my judgment, no case is made out that there is an arguable proposition to be made under this head.
(2) I do consider grounds have been made out to establish an arguable case that the three Applicants' applications were not treated individually, or that appropriate consideration was not given as to how to conduct the assessment of the cases of two minor Applicants. It seems to me there is some confusion or, at least, arguably confusion and lack of consistency in the documentation which was made available by the Respondents in this connection at my request yesterday and that the Applicants have made out an arguable case in this regard.
(3) I am also of opinion that an arguable case has been made out in connection with the internal relocation point because I am satisfied that consideration of it did feature in the documentation available for consideration by the Minister in reaching his impugned decision.
(4) I am further satisfied that an arguable case has been made out to the effect that in this case the absence of any reference to Section 4 of the Criminal Justice (United Nations Conventions Against Torture) Act 2000 in the material before the Court indicates that in reaching his decision under Section 3 of the Immigration Act 1999 the Respondent was in breach of his statutory duty to the Applicants under Section 4.
I do not, however, consider that a ground has been made out to like effect in relation to the alleged failure of the Minister to express or give specific or particular reasons for his decision in relation to Section 5 of the Act of 1999.
(5) Finally, it appears to me that an arguable case has been made out that the Deportation Order should indicate to which country the Applicants are directed to be deported and that the decisions indicating that the Respondent has an election in this regard do not mean that he is thereby excused from reaching a decision under Section 5 of the Act of 1996 or Section 4 of the Act of 2000 with specific reference, as indeed it can only be, to that particular country, or that his obligation in this regard has in some way been modified by those decisions dealing with election.
Accordingly, I propose to extend the time to allow the bringing by the Applicants of judicial proceedings herein and grant leave to bring such proceedings for the reliefs at (a) (i); (b) (i) (with reference to the alleged failure on the part of the Respondent to treat the applications of the Applicants individually); and (b) (ii). I allow the relief claimed at (c), (a stay); at (d), (an extension of time) and now order such extension up to the time sufficient to justify the commencement of these proceedings on the day they were commenced; and (f) on the grounds set out at 1, 2, 5, 7, and 9.
The final order I make is that there will be now a stay on the implementation by the Respondent of the Deportation Order pending the final outcome of these proceedings. That concludes the judgments.
Approved: Judge O'Sullivan