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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> I. (F.) v. Minister for Justice & Ors [2001] IEHC 232 (30 January 2001) URL: http://www.bailii.org/ie/cases/IEHC/2001/232.html Cite as: [2001] IEHC 232 |
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THE HIGH COURT
K D Motion 1GR7/00
Judicial Review
Record No. 226JR2000
BETWEEN
F. I.
Applicant
And
The Minister for Justice, Ireland
And the Attorney General
Respondent
Judgment of Mr. Justice Frederick Morris Delivered on the 30th January 2001
This matter comes before the Court on foot of the Respondent's Notice of Motion dated the 4th August 2000 seeking:
1. An Order discharging the Order that this Honourable Court made on the 5th May 2000 whereby the Applicant was given leave to apply for Judicial Review in respect of the reliefs and on the grounds set out in the Order.
2. Further or in the alternative an Order pursuant to Order 19 Rule 27 of the Rules of the Superior Courts or in the alternative pursuant to the inherent Jurisdiction of this Honourable Court striking out or in the alternative dismissing the Applicant's proceedings herein on the grounds that:
(i) The said proceedings disclose new reasonable calls of action Against the Respondents or any of them;
(ii) The said proceedings are frivolous and/or vexatious;
(iii) The said proceedings amount to an abuse of the process of this Honourable Court and/or
(iv) The said proceedings are doomed to fail.
3. Such further or other relief as to this Honourable Court it may seem fit to grant.
4. The cost of the proceedings to date (including the costs of this Application).
PROCEEDINGS TO DATE
By Order of the 5th May 2000 (Laffoy J.) The Applicant was given leave to apply by way of an application for Judicial Review for the following reliefs:
(b) An Order of Certiorari quashing any deportation order made by the first Respondent as the grounds upon which any such order was made in breach of Section 3 of the Immigration Act 1999 and Article 29(3) (4), Article 40.3 of the Constitution in disregard of the provisions of the European Convention on Human Rights 1951 and in breach of natural and constitutional justice.
(c) An Order of Mandamus directing the Respondents to consider the Applicant's claim for asylum, humanitarian leave to remain in Ireland or refugee status having regard to the European Convention on Human Rights 1951 and the current status of Romania vis a viz the said Convention.
(d) An Order of Mandamus compelling the second and third named Respondent to institute proceedings against Romania under the provisions of the aforementioned constitution.
(e) An Order for damages.
(f) An Order for costs of this action.
The Respondents bring the present application on the basis that the Applicant's claim is without merit and is doomed to fail.
The Jurisdiction of the Court to entertain this Application
The first issue that arises in this case is whether or not the Court should entertain an application under Order 19 Rule 27 of the Rules of the Superior Courts or exercise its inherent jurisdiction to strike out or dismiss proceedings on the grounds that they disclose no reasonable cause of action where the matter has already been considered and adjudicated upon before a Judge of the High Court on the occasion when the Applicant sought and was granted liberty to seek relief by way of Judicial Review.
Mr. McMurrough B.L. on behalf of the Applicant has submitted that since the proceedings were instituted by virtue of leave granted by a member of the Superior Court it follows that the Applicant has overcome the threshold of establishing to the satisfaction of the court that he has a statable or arguable case. He submitted that if he had not done so then leave would not have been granted. He submits that in these circumstances any finding in favour of the Respondent's on foot of their present Motion would constitute effectively a reversal by a member of the High Court of the decision of another member of that court and is accordingly improper. He stresses that since the learned High Court Judge before whom this original application came declined to make one order sought (namely to grant relief in relation to paragraph 4(a)) that it is clear that the matter was comprehensively considered by the court and adjudicated upon and he lays stress upon the experience and ability of the particular Judge that made the Order granting leave.
In reply Mr. Maurice Collins B.L. on behalf of the Respondents has referred to the unreported decision of O'Donovan J. in Toma Adams and Others v Minister for Justice, Equality and Law Reform (16th November 2000) and the authorities referred to therein. While O'Donovan J. Considered the very point which arises in this case, Mr. Collins has informed me that the decision of O'Donovan J. is under appeal to the Supreme Court and that being so I have considered the issue anew in the light of the authorities which were cited to Mr. Justice O'Donovan and which were open to me at this hearing.
I believe that a consideration of the first issue should commence at Voluntary Purchasing v Insurco Limited 1992 2 I.L.R.M. (a Judgment of McCracken J.).
That was a case where an Order was made ex parte by Flood J. pursuant to Section 1 of the Foreign Tribunal's Evidence Act of 1856 directed that K.P.M.G. Stokes Kennedy Crowley should be represented before an Examiner to give evidence in aid of the execution of a default Judgment granted by a court in the United States in a civil matter. The procedure is dealt with in the rules of the Superior Courts but no provision is made for the setting aside of such an Order. K.P.M.G. Stokes Kennedy Crowley applied to have the Order set aside on the grounds that the default Judgment in the U.S. was under appeal at the time when the application under the 1856 Act was made. The argument similar to that made before me was made namely that the court had no jurisdiction to set aside the Order.
In the course of his Judgment (at page 147) McCracken J. Said "In my view, however, quite apart from the provisions of any rule, or statute there is an inherent jurisdiction in the court in the absence of an express statutory provision to the contrary, to set aside an Order made ex parte on the application of any Party affected by that Order. The ex parte Order is made by a Judge who has only heard one Party to the proceedings. He may not have had the full facts before him or he may have been misled, although I should make it clear that there is no suggestion of that in the present case. However, in the interests of justice it is essential that an ex parte Order may be reviewed and an opportunity given to the Party affected by it to present its side of the case or to correct errors in the original evidence or submissions before the court. It would be quite unjust that an Order could be made against a Party in its absence and without notice to it which could not be reviewed on the application of the Party affected."
That decision was referred to in Adams v D.P.P by Kelly J. in a Judgment delivered on the 12th April 2000. Having referred to the above passage he said "I have no hesitation in following that line of reasoning. It is in my view both good law and good sense. It would be most unjust to deny a party against whom an ex parte Order had been made the opportunity of applying to the court to set it aside and instead to insist that the only remedy was one of appeal to the Supreme Court."
In Toma v Adams & Others v The Minister for Justice O'Donovan J. commenting on McCracken J.'s Judgment in Voluntary Purchasing Insurco Limited said "I think that it would be quite unjust if an Order could be made against a party in his absence and without notice to it which could not be reviewed on the application of the party affected. Moreover I am not aware of any authority for the proposition that different considerations should apply with regard to the inherent jurisdiction of the court on the hearing of an application for Judicial Review than those which would apply in any other civil proceedings."
For the reasons stated by McCracken J. And Kelly J., I am in no doubt whatever that the fact that a case has been considered on an ex parte basis by a Judge of the High Court and he or she has formed a view thereon should not be a bar to an application such as the Respondents now make before me seeking to have the original order reviewed and set aside.
Accordingly I reject the Applicant's submission and will proceed to consider the Respondent's application.
THE FIRST RELIEF CLAIMED
In support of this relief the Applicant relies upon the Affidavit of his solicitor, Mr. Pendred and upon his own Supplemental Affidavit. The basis upon which he seeks the Order are firstly that there was a breach of Section 3 of the Immigration Act 1999 and of natural and constitutional justice. No specific allegation of a departure from the provisions of the Act is alleged nor is there any suggestion of an irregularity in the manner in which the procedures were carried out. The complaint is based upon the assertion that there was an obligation upon the Respondents to have regard to the current position of Romania under the European Convention on Human Rights and by the making of the Deportation Order the Respondents failed to have regard to their obligations under the Convention.
Insofar as the complaint is made that the State failed to have regard to its obligations under the European Convention on Human Rights the Supreme Court decision in Doyle v Commissioner of An Garda Siochana 1999 11.R. 246 is relevant. In the course of delivering the Judgment of the Court, Barrington J. said "The Convention is not part of Irish domestic law and the Irish courts have no part in its enforcement."
Neither in written submission nor in submission made during the course of the hearing has it been urged on the court that the position is different to that which existed in 1999 when Barrington J., delivered this Judgment. That being so the argument that an alleged failure on the part of the State to comply with the terms of the Convention must fail.
With regard to the assertion that the Minister "relied upon matters extraneous to those factors properly to be taken into consideration" apart from making the assertion no detail whatever is given nor has any argument been advanced in support of the allegation.
THE SECOND RELIEF CLAIMED
What is alleged on behalf of the Applicant is that the Minister is obliged to determine the Applicant's application in the light of the status of Romania and its alleged failure to protect the rights guaranteed under the Convention. Again this relief is claimed on the assumption that the European Convention on Human Rights is part of our domestic law. It is not. However even if it were Section 5 of the Refugee Act 1996 which precludes deportation where the effect of same would be to threaten the life or freedom of the person concerned thereby enshrines in Irish law the principles of non refoulment contained in Article 33 of the Convention and Section 3 of the Immigration Act 1999 prescribes a number of matters to which the Minister must have regard before making an Order. In the replying Affidavit sworn by Mr. Noel Waters on behalf of the Respondents it is stated that the Deportation Order was made in conformity with the provisions of Section 3 of the 1999 Act and that before making the Order the Minister invited the Applicant to make representations to him and such representations were made and the Minister considered these representations as well as the other matters specified in Section 3 before taking the decision to make the Order in respect of the Applicant.
Neither in written submission nor in the Grounding Affidavits nor at the court hearing was any argument advanced to contradict this statement nor was any criticism made of this statement. Accordingly taking this statement as correct it follows that the matters to which it is alleged the Minister should have regard, namely the circumstances in Romania, were in fact considered by him in the making of the Order. Accordingly there is no case made out on behalf of the Applicant.
I am satisfied that further consideration of this issue would in fact constitute no more than a re-opening by way of quasi appeal procedure the issues which were correctly dealt with and of which no criticism has been made in the making of the Order. Accordingly in my view this ground fails.
THE THIRD RELIEF CLAIMED
In this relief the Applicant claims an Order of Mandamus compelling the State to bring proceedings against Romania under the Convention. I am in no doubt that the making of such an Order would constitute an improper interference by the Court with a function of the Government entrusted to the Government by the Constitutional provisions of Article 29.4.1. This Article entrusts the exclusive power of the State in connection with external relations to the Government and I have no doubt that this claim is doomed to fail.
Accordingly I am satisfied that the Applicant's claim herein discloses no reasonable cause of action against the Respondents or any of them and that the proceedings are frivolous and vexatious. I accordingly discharge the Order of the Court made on the 5th May 2000.
In the event of the Applicant appealing this matter to the Supreme Court it is my view that this case should be heard at the same time as the case of Toma Adams and Others v Minister for Justice, Equality and Law Reform now awaiting a hearing.