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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Vicovich v. Minister for Justice, Equality and Law Reform [2002] IEHC 95 (10 September 2002) URL: http://www.bailii.org/ie/cases/IEHC/2002/95.html Cite as: [2002] IEHC 95

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THE HIGH COURT

JUDICIAL REVIEW

2002 No. 415 JR

BETWEEN

EMILIA VICOVICH

APPLICANT

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

JUDGMENT of Ms. Justice Finlay Geoghegan delivered on the 10^th day of September 2002.

1.      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.”

2.      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

1. An Order of Certiorari quashing the Deportation Order directed to the Applicant

2. An Order of Certiorari quashing the recommendation to refuse the Applicant’s appeal against the refusal of refugee status

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

4. A Declaration that the proposed expulsion of the Applicant would offend the provisions of Article 3 of the European Convention on Human Rights

5. Such further and other Order as the Court deem meet and just

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.

3.      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.

4.      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.

5.      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 become moot.

6.      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 shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case except with the leave of the High Court which leave shall only be granted where the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.”

7.      The leave to apply for judicial review referred to therein is a leave to apply made pursuant to subsection (2) of Section 5 of the 2000 Act which must be made on notice to the Minister for Justice, Equality and Law Reform. It is not in dispute that the leave to apply for judicial review brought by notice of motion of 15 July herein and in respect of which Smyth J. made the order on 31 July was an application for leave brought pursuant to subsection (2) of Section 5 of the 2000 Act. However, counsel for the applicant seeks to exclude the application of subsection (3) (a) upon two separate grounds.

8.      Firstly he seeks to rely upon subsection (3)(b) of Section 5 which provides:-

“(b) This subsection shall not apply to the determination of the High Court insofar as it involves a question as to the validity of any law having regard to the provisions of the Constitution.”

9.      The reliefs sought in the intended judicial review proceedings for which leave was sought by notice of motion dated 15 July 2002 do not appear to have included a declaration that Section 3 (1) of the Immigration Act 1999 was repugnant to the Constitution. In the course of the hearing of this application I was given a copy of the transcript of the hearing before Smyth J. on 26 July and invited to read that portion which related to these proceedings commencing at p. 104. The hearing on 26 July also related to 1999 proceedings between the same parties which it is agreed are not relevant to this application. It does not appear from that transcript that there was any substantive argument before Smyth J. in relation to the constitutionality of Section (3) (1) of the Immigration Act 1999. Further I was given during the hearing before me by counsel for the respondent, with the consent of counsel for the applicant, the State’s note of the judgment delivered on 31 July. It makes no reference to Section (3) (1) of the Immigration Act 1999. Accordingly it appears to me that neither the order or judgment of Smyth J. of 31 July can be considered to be a determination of the High Court which involved a question as to the validity of any law having regard to the provisions of the Constitution within the meaning of subsection (3)(b) of Section 5 of the 2000 Act.

10.      Secondly, counsel for the applicant sought to argue that the proposed appeal to the Supreme Court was from rulings made by Smyth J. in the course of the hearing as distinct from the determination of the application for leave to apply for judicial review and hence the appeal fell outside the terms of subsection (3)(a) of section 5 of the 2000 Act. In making this argument he sought to rely upon the judgments of the Supreme Court delivered on 30 January 2002 in the matter of intended judicial review proceedings between B -v- The Governor of the Training Unit Glengariff Parade Dublin and The Minister for Justice Equality and Law Reform and between S -v- The Minister for Justice Equality and Law Reform, Interim Refugee Appeals Authority, Ireland and The Attorney General (“the B and S judgments”). I am of the view that the applicant also fails on this ground. The B and S judgments concern the issue as to whether an appeal from a High Court order refusing an application to extend time within which to bring an application for leave for judicial review brought pursuant to subsection (2) (a) of section 5 of the 2000 Act is a determination of the High Court to which the certification procedure in subsection (3) (a) of Section 5 of the 2000 Act applies. The Supreme Court determined that an appeal from an order of the High Court refusing an extension of time did not require certification pursuant to subsection (3) (a) of section 5. The reasoning of the majority of the Court was that an application for leave to extend time pursuant to subsection (2)(a) of section 5 of the 2000 Act is a separate application to the High Court to the application for leave to apply for judicial review and until an extension is granted no application for leave to apply for judicial review comes into existence. Hence the decision of the High Court on an application to extend time is not a determination of the High Court of an application for leave to apply for judicial review within the meaning of subsection (3)(a) of section 5 of the 2000 Act and therefore an appeal therefrom is not subject to the certification procedure.

11.      The factual and procedural position in these proceedings is different to that which pertained in the B and S judgments. The application before Smyth J. was an application for leave to apply for judicial review. The primary relief to be sought in the intended judicial review proceedings were orders of certiorari in respect of decisions listed in subsection (1) of section 5 of the 2000 Act. The only order made by Smyth J. as recorded in the order of 31 July is an order refusing the applicant’s motion. The motion sought leave to apply for judicial review.

12.      It appears from the transcript of the hearing that counsel for the applicant sought to argue that in the absence of the service of a notice of opposition by the respondent that leave should be granted. He appears to have done so on two grounds namely that such notice of opposition was required by Order 84 or alternatively that a constitutional interpretation of subsection (2)(b) of section 5 of the 2000 Act required that as a matter of fair procedures the applicant be put on notice of the State’s grounds of opposition to its application for leave. Each of these arguments were made in support of the application for leave to apply for judicial review.

13.      The only application before Smyth J. on the 26^th of July was an application for leave to apply for judicial review. Insofar As Smyth J. made rulings he did so in the course of that application. There was no separate application to the High Court upon which Smyth J. made a determination and from which the applicant now seeks to appeal to the Supreme Court. The Order of Smyth J. of 31 July can only be construed as the determination by the High Court of the application made on behalf of the applicant for leave to apply for judicial review. As such it falls within subsection (3)(a) of section 5 of the 2000 Act and accordingly no appeal lies from such decision of the High Court without the certificate referred to in the subsection. Counsel for the applicant has indicated that there is no intention to apply to Mr. Justice Smyth for a certificate pursuant to the subsection in respect of his order of 31 July.

14.      Accordingly I refuse the present application.

Dated this the 10^th day of September, 2002.

Ms. Justice Mary Finlay Geoghegan