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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> S. (M.) v. Minister for Justice, Equality and Law Reform [2002] IEHC 174 (28 February 2002) URL: http://www.bailii.org/ie/cases/IEHC/2002/174.html Cite as: [2002] IEHC 174 |
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THE HIGH COURT
DUBLIN
JUDICIAL REVIEW
NO. 2002/92JR
M, S
Applicant
-v-
THE MINISTER FOR JUSTICE, EQUALITY & LAW REFORM
Respondent
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 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.
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.
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, 1999 for leave to remain in the State on humanitarian grounds.
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.
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 Qmlgidl -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."
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 clearly did not revoke the Deportation Order. What can be reasonably inferred is what the information was available at a very much earlier time to the Respondent. The letter of 29th March, 2000 to Messrs. Brady from the Respondent's Department is unambiguous:
"Pursuant to a the making of a deportation order in respect of Mr. S, arrangements were put in place to remove him from the State today (29th March) at 5:00 a.m. He did not show up at the appointed time and place and consequently, he is in contravention of the provisions of the deportation order and is subject to arrest and detention by a member of An Garda Siochana without warrant in accordance with Section 5 of the Immigration Act, 1999."
The next the Respondent knew of the Applicant was on his arrest on 10th February, 2002 at the Dublin Road in Longford.
The evidence of the Applicant - put on affidavit by his current solicitors - was that having returned voluntarily to Pakistan (to which his case at first instance and on appeal he stated in the asylum application for refugee status he had a fear of being returned to) he obtained a work permit valid from 12th July, 2000 to 10th July, 2001, giving his name as in these proceedings with a date of birth of 25th December, 1972 and in an Application for a Visa indicates that he had been issued with a passport at Faisalabad on 28th September, 1999.
It was conceded that the Applicant did not inform either of the Ministries that issued the Work Permit or Visa that he had in fact applied for refugee status or the existence of the Deportation Order.
It was only in these proceedings that there was an acknowledgment of the true identify of the Applicant so far as the Respondent is concerned. Enquiries made by the Respondent and contained in the Applicant's passport reveal that he was given leave to enter the State between 3rd August, 2000 and 2nd November, 2000. Further, there is no Entry Stamp at Dublin Airport but there is an Exit Stamp from Lahore Airport on 22nd November, 2000.
The Applicant sought to raise an enquiry before the President of the High Court under Article 40 of the Constitution: on cause being shown by the Respondent no order was made and the Applicant now seeks leave to apply by way of leave to apply for judicial review.
A preliminary issue as to time arises under Section 5 of the Illegal Immigrants (Trafficking) Act, 2000. The contention of the Applicant is that time does not run until he has sight of the Deportation Order, which he says, through counsel, was on the occasion of the hearing before the President. Miss Moorhead for the Respondent contends that time runs from the deemed service in March, 2000 and relies on the decided case on this issue and the written acknowledgment in the letter of 20th March, 2000. I am satisfied and find as a fact and as a matter of law that the Respondent's contention is correct. Furthermore I am not satisfied that there has been a full and proper explanation such as would excuse the delay or any delay. The onus is upon the Applicant to explain and excuse any delay. See State (Cussen) -v- Brennan [1981] IR 18 and State (Furey) -v- Minister for Defence [1988] IRLM 89.
I permitted Mr. Maguire for the Applicant to explore the merits of his case lest I could be persuaded that there was good and substantial grounds which could permit of overlooking the deficiencies on the time point to allow leave to be given.
Concerning the submission of the Applicant that the issue as to time only applies to certiorari – I consider this an untenable proposition for the reasons advanced by the Respondent, viz. Order 84 Rule 18(1) not only refers to certiorari but also mandamus and Order 84 Rule 18(2) embraces both declarations and injunctions. The obligations set out in Order 84 Rule 21 have been the subject of decisions in (inter alia) DPP -v- District Justice McDonnell (High Court, unreported 1/10/99) and DPP -v- Johnson [1988] ILRM 747. These establish that he Court may decline to deal with an application in circumstances where it has not been brought promptly - even though it has been brought within the time period stipulated.'
It was submitted that the evidence was sufficient at this stage to get over the threshold set out in G -v- DPP [1994] 1IR 374. Both the questions of (a) the Court being satisfied that there are substantial grounds, and (b) and the correct standard of proof under Section 5(b of the Act of 2000 were considered and decided in the High Court Judgment in P L and B (unreported 2/1/2001) and I do not consider anything urged herein warrants a departure from that decision. I accordingly refuse the application.
MS. MOORHEAD: I am instructed to ask for my costs. The other matter is, my Lord, we have given and undertaking, this a gentleman who has been in Glengariff Parade and we have given an undertaken not to deport him until the determination of the judicial review proceedings. In those circumstances, my Lord, it would be the intention of the Respondents to deport the Applicant forthwith.
MR. MAGUIRE: In relation to costs, in effect given the fact that this was a deportation order made prior to the 2000 Act, this was an ex parte application. My Friend had no right of audience here and I didn't object to her being here. In those circumstances I say she is simply not entitled to her costs.
In relation to the stay on the deportation order I may wish to take this matter further and in those circumstances I would ask that the stay remain in place for a period of four days, my Lord.
MR. JUSTICE SMYTH: I will deal one matter after the other. The first is the question of the element of costs. This is an application which when comes before the Court comes against the historical background which has taken place. It seems to me that the mischief that has arisen in this case has arisen solely as a result of the activities of the Applicant and no one else. It would be a situation which if the matter had come before me by way of ex parte I would have insisted on having the Notice Party in front of me because it is quite clear that this is a case in which the full facts were not set out in the application and accordingly while not, in any way, impugning anything you have done, Mr. Maguire, it is not a matter that would pass muster on any investigation on an ex parte application as being a full disclosure to the Court.
It seems to me the appropriate order is that the Respondent should have their costs. I will not require them to give any undertaking to hold their hand further as regards the deportation order, which is in existence this two years past.
