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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> A. (O.B.) v. Minister for Justice, Equality and Law Reform & Ors [2002] IEHC 179 (3 October 2002) URL: http://www.bailii.org/ie/cases/IEHC/2002/179.html Cite as: [2002] IEHC 179 |
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THE HIGH COURT
(JUDICIAL REVIEW)
Record No. 488JR/2000
Between:
O. B. A.
Applicant
-and-
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE INTERIM REFUGEE AUTHORITY, IRELAND AND THE ATTORNEY GENERAL
Respondents
JUDGMENT OF MR. JUSTICE T.C. SMYTH DELIVERED ON THURSDAY, THE 3RD DAY OF OCTOBER 2002
This application for judicial review is brought pursuant to an order granted in that behalf by McKechnie J, granting leave on 9th October 2000.
The Applicant, an unsuccessful applicant for asylum in the State, was first refused his refugee declaration in September 1999, but appealed that decision to the Appeals Authority. He was unsuccessful in his appeal and the notification thereof was given to the Applicant on 20th January 2000, and thereafter on 1st February 2000 the Deciding Officer of the Respondent Minister's Department wrote to the Applicant informing him that the recommendation of the Appeals Authority had been accepted and that his application for refugee status was being refused.
In these proceedings, the Applicant seeks (i) certiorari of the Minister's decision to refuse refugee status to him; (ii) a declaration that the Minister was, in considering the Applicant's appeal required to consider and have reference to the provisions of the European Convention on Human Rights; and (iii) an extension of time for making the application for judicial review, on the ground set out in the Applicant's Statement of Grounds. The order extending the time for the making of the application for leave to apply for judicial review was made by McKechnie J when granting leave. However, the Applicant's delay in bringing these proceedings is an issue in the application.
Having regard to the Statement of Grounds and Statement of Opposition, the following issues arise:-
(I) Whether Applicant's delay in bringing these proceedings ought to preclude him from obtaining the relief sought.
(II) Whether the decision to refuse the Applicant's application was vitiated by the alleged failure of the Minister to commence the Refugee Act 1996 (hereinafter referred to as 'the Act of 1996'), either in its entirety or as to its "main" provisions.
(III) Whether the decision to refuse the Applicant's application was, as alleged, "perverse" or flew "in the face of reason".
(IV) Whether the decision to refuse the Applicant's application was vitiated by the alleged failure of the Minister to consider the application of the European Convention on Human Rights and/or the Protocols to that Convention.
The First Issue - (I) Delay
The Applicant in these proceedings seeks to quash a decision communicated to him by letter dated 1st February 2000. Notwithstanding that the Applicant appears to have sworn an affidavit for the purposes of seeking judicial review on 6th April 2000, the ex parte application for leave to seek judicial review was not moved before the court until 9th October 2000, that is some seven months after the decision in question.
Order 84, Rule 21 of the Rules of the Superior Courts imposes on applicants for leave to apply for judicial review a requirement to make the relevant application "promptly" and "in any event within three months from the date when grounds for the application first arose, or six months when the relief sought is certiorari". Provision is made for the extension of these periods by the court where it considers that there is good reason for doing so.
Having regard to the lapse of time which occurred before the Applicant applied for leave for judicial review, it is clear that the Applicant did not make his application for leave within the relevant six- month period specified by Order f«J, Rule 21. In any event, the Applicant's application for leave was not made "promptly", which is the overriding requirement of Rule 21.
An extension of time was granted by McKechnie J ex parte. However, that does not preclude this court from examining the matter again inter partes
(eg, Solan -v- The Director of Public Prosecutions [1989] ILRM 491; O'Flynn -v- Midwestern Health Board [1991] 2 IR 23; Bane -v- Garda Representative Association [1997] 2 IR 449).
Both the Oireachtas and the courts have acknowledged that the public interest requires that challenges to decisions of the kind impugned in these proceedings should be made without delay (Section 5 of the Illegal Immigrants (Trafficking) Act 2000, considered by the Supreme Court in In Re The Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360, at pages 392-394). The Respondents have accepted, in the course of these proceedings, that Section 5 did not apply to the particular decision made in this case. However, it was submitted on their behalf by Mr. Maurice Collins that the provisions of that section, and the views of the Supreme Court as to its constitutional validity, are relevant and helpful indicators of how the court should approach proceedings of this nature and the applicable public policy in this regard.
Having failed to comply with the requirements of Order 84, Rule 21, it was, and is, incumbent on the Applicant to demonstrate that there are "good reasons" for extending the time. No such "good reasons" are identified in the affidavits filed on behalf of the Applicant. In the circumstances, it was submitted on behalf of the Respondent that the application for judicial review should be refused in limine on grounds of delay.
It was submitted on behalf of the Applicant that in granting the ex parte order McKechnie J accepted certain of the Applicant's submissions and that because the matter occurred at a period of flux between the Hope Hanlan Procedures and the coming into effect of Section 5 of the Illegal Immigrants (Trafficking) Act 2000, that leave should be granted. There is no written judgment of the judge who dealt with this matter ex parte, nor would Iexpect one to exist. Even if there were some matters of delay, such as the inability of the original counsel briefed to make the application, no explanation has been attempted in the proceedings to deal with the elements of time in whole or in part.
While I am of opinion that these proceedings could very well be struck out on the basis of the question of delay and my declining to extend time, nonetheless I am not disposed to making a decision based on such grounds so that the full case of the Applicant may be considered and dealt with.
The Second Issue - (II) Whether the decision to refuse the Applicant's application was vitiated by the alleged failure of the Minister to commence the Refugee Act 1996 ('the Act of 1996'), either in its entirety or as to its main provisions
This ground is not addressed in the affidavits on behalf of the Applicant. It is, however, addressed in the affidavit sworn on behalf of the Respondents by Ms. Bridgeena Nolan.
The facts are that the Act of 1996 was signed by the President on 26th June 1996. It did not, however, come into effect on that date. Rather, as is now commonplace, it was provided for in one of its sections, ie, Section 30(2), that:-
"This Act shall come into operation on such day or days as, by order or orders made by the Minister under this section, may be fixed therefor either generally or with reference to any particular purpose or provision and different days may be so fixed for different purposes and different provisions."
Judgments of the court have concerned themselves with the provisions in the Act, but so far as the instant case is concerned, the significan provisions of the Act are Section 2 (the definition of 'refugee') and Section 5 (the principles of non-refoulement) — and these were brought into force in August 1997 by SI 359 of 1997. Certain further provisions were brought into force in the course of the year 2000, with the balance of the provisions commenced with effect from 20th November 2000, by virtue of the provisions of SI 365 of 2000.
It was submitted on behalf of the Applicant that there was no statutory authority to decide the Applicant's refugee status and the decision to refuse him refugee status is therefore void ab initio, and in particular that the First Respondent had only statutory authority; which was to form an opinion as to whether a threat to the Applicant's life or liberty existed if he were expelled from the State, and that this was not done.
In the context of the complaint being advanced by the Applicant, it is of importance to consider the provisions of the Act of 1996. The Act was unusual in that it was the subject of very extensive amendment by the Oireachtas before the bulk of its provisions came into force. The Immigration Act 1999 substantially altered the procedures provided for in the Act of 1996, and further, though less significant, amendments were also effected by the Illegal Immigrants (Trafficking) Act 2000.
While mindful of the frailty of reference to matters referred to in the Dail, I think in this instance it is nonetheless important to refer to the necessity for the amendments, as explained by the Minister for Justice, Equality and Law Reform, in the course of the second stage debate in the Dail on what was then the Immigration Bill 1999, as follows:-
"I have consistently stated that it is not possible for me to implement the Refugee Act as it stands, no more than it was for the previous Government, because it envisages at most a couple of hundred applications per annum.
There are now several thousand applications per annum and it is not administratively possible for one commissioner or one appeals authority to deal with the current number of applications. There are arrears to address. Substantial amendments are required to the Refugee Act if we are to give effect to it in the context of the immigration problem we now face." (501 Bail Debates, col.33)
Even if the view of the Minister for Justice is disregarded, the position regarding the increase in immigration to this country has been considered by the Supreme Court — in the context of the transitional provisions in the Act — by Murphy J delivering the judgment of the Supreme Court in The Minister for Justice, Equality and Law Reform -v- U (unreported 28th February 2002).
It was submitted on behalf of the Respondent that the Minister was under no duty to commence the Act of 1996, within any particular time period or at all. The decision of the Supreme Court in The State (Sheehan) -v- Ireland [1987] IR 50 is in point in this regard. There the prosecutor sought an order of mandamus directing the Government to bring Section 60 of the Civil Liability Act 1961 (which abolished the distinction between misfeasance and non-feasance) into operation. The relevant commencement provision was materially identical to Section 30(2) of the Act of 1996. I observe parenthetically that there are some differences, but they are not material for the purposes of the instant proceedings (eg, Section 60(7) of the Act of 1961 specified a date before which the section could not effect, the provision having no equivalent in Section 30(2) of the 1996 Act, and also Section 60(7) vested the commencement power in the Government rather than an individual Minister). In the Sheehan case, Costello J, in the High Court, construed the provision as requiring the Government to bring the section into operation within a reasonable time.
On appeal, the Supreme Court (McCarthy J dissenting) reversed the High Coourt decision, the principal judgment being delivered by Henchy J, who stated a follows:-
"The essence of the prosecutor's case is that the discretion given to the Government by Section 60(7) requires to be exercised reasonably, that is to say within a reasonable time after 1st April 1967, and that the default on the part of the Government leaves them open to mandamus. On the other hand, the case for the Government is that Section 60(7) merely allows them to bring the section into operation whenever they choose, so long as it is after 1st April 1967."
Henchy J, went on to consider the aspect of the legislation as enabling, continued as follows:-
"In my opinion, however, Section 60(7), by vesting the power of bringing the section into operation, by the Government rather than a particular Minister, and the wording used, connoting an enabling rather than a mandatory power or discretion, would seem to point to the parliamentary recognition of the fact that the important law reform to be effected by the section was not to take effect unless and until the Government became satisfied that, in the light of factors such as the necessary deployment of financial and other resources, the postulated reform could be carried into effect. The discretion vested in the Government to bring the section into operation on a date after 1st April 1967, was not limited in any way, as to time or otherwise."
This topic was also considered in the case of Rooney -v- The Minister for Agriculture and Food [1991] 2 IR 539, where the plaintiff complained [inter alia) of the Minister's failure to implement the statutory scheme for compensation for animals with bovine tuberculosis provided for by the Diseases of Animals Act 1966, the Minister having instead (subsequent to the enactment of that Act) introduced an extra-statutory scheme. 0'Flaherty J, in the Supreme Court, addressing the decision of the Minister not to implement the statutory scheme and to introduce the extra-statutory scheme, stated as follows:-
"The court would only be entitled to review such a decision and course of action (embodied in the scheme) if it were satisfied that the decision and course of conduct was mala fides — or, at the least, that it involved an abuse of power: see Pine Valley Developments -v- Minister for the Environment 11987J IR 23. It may be that the court has no power to enjoin the Minister to make orders under Section 20 (cf. The State (Sheehan) -v- The Government of Ireland [1987] IR550) in any circumstances, but it certainly has no power to do so in the absence of proof of mala fides or abuse of power.
In the course of his submissions, the plaintiff found no fault with the Act of 1966. In fact, he said it was an ideal Act. His complaint is that it has not been operated. I hold that the Minister is not obliged to operate it since he has in place a reasonable scheme for providing a measure of assistance to herdowners of diseased cattle. That it is not the ideal scheme that the plaintiff would wish to see in place is neither here nor there."
These decisions make clear that the Minister in the instant case is under no duty of the type contended for by the Applicant. Section 30(2) vests in him a discretion as to whether and when to bring the 1996 Act into operation. While the decision in Rooney leaves open the question of whether the exercise of this discretion could be reviewed where mala fides or abuse of power was established, no such allegation could made or is made in the instant case. Accordingly, the manner in which the Minister has exercised his powers under Section 30(2) of the Act of 1996 is not reviewable in these proceedings.
Furthermore, there are clear distinctions between the Sheehan and Rooney cases in that in this case the Minister has not failed to implement the Act of 1996 in a timely manner or at all. The entirety of the Act (as amended) was in force some four years after its enactment which, in the circumstances, was not unreasonable. Furthermore, the Act's substantive provisions — Sections 2 and 5 — were brought into force as early as 1997 and the Applicant had the benefit of those provisions when applying for refugee status.
The Applicant sought to advance a case that the Minister was obligated to give effect to the Act of 1996 by reason of the Convention of 1951 and the Protocol of 1967. The Respondent contested this on the basis that neither Convention nor Protocol required Subscribing States to give effect to their provisions in any particular form and' that/ in any event, the State had, in effect, given effect to the Convention and Protocol before the 1996 Act (in the terms of effectively the Von Armin and the Hope Hanlan Procedures) was enacted and/or commenced. More importantly, it was argued by Mr. Collins that neither Convention nor the Protocol is part of Irish domestic law, so any obligation they imposed on the State to give effect to their provisions in the form of primary legislation could not be enforced by the Applicant in the court. (I return to this matter later in the judgment in the context of the reliance placed on the European Convention on Human Rights by the Applicant)
The Third Issue - (III) Whether the decision to refuse the Applicant's application was "perverse" or flew "in the face of reason"
The applicable principles in this regard are set out in the decided cases of The State (Keegan) -v- The Stardust Victims Compensation Tribunal [1986] IR 642, and O'Keeffe -v- An Bord Pleanala [1993] 1 IR 39. In commenting upon these cases in the most recent Supreme Court decision, delivered by Keane J in the case of Baby O & Ors -v- The Minister for Justice, Equality and Law Reform (unreported 6th June 2002), it was held:-
"Unless it can be shown that there was some breach of fair procedures in the manner in which the interview was conducted and the assessment arrived at by the officer concerned or that, in accordance with the well-established principles laid down in The State (Keegan) -v- The Stardust Victims Compensation Tribunal [19B6J IR 642, and O'Keeffe -v- An Bord Pleanala [1993J l IR 63, there was no evidence on which he could reasonably have arrived at the decision, there would be no ground for an order of certiorari in respect of the decision. In this case, it was entirely a matter for Mr. Leahy ' to assess the weight that should be given to the various matters to which I have referred and it could not be said there were no grounds on which he could not have reasonably arrived at the decision that her application for refugee status is manifestly unfounded.
The same considerations are applicable to the further assessment of her case by Mr. Edward Hughes and the recommendation of the Appeals Authority."
In the context of the decisions in issue in these proceedings, I am satisfied that that passage is equally applicable to the instant case. I am satisfied that the evidence falls well short of satisfying the requirements of establishing to the satisfaction of the court "that the decision making authority had before it no relevant material which could support its decision". On the contrary, in my judgment, there was ample material before the Minister in the first instance and on appeal which supported the views taken
.
The Fourth Issue - (IV) Whether the decision to refuse the Applicant's application was vitiated by the alleged failure of the Minister to consider the application of the European Convention on Human Rights and/or the Protocols to that Convention
Mr. McMurrow, on behalf of the Applicant, urged that the laws of the European Union enjoy supremacy in Irish law and that the Constitution has established this, and furthermore that Article 6 of the European Treaty states that the fundamental rights as found in the European Convention on Human Rights will be respected in the Member States. From this, he argued that Ireland is obliged to give effect to the European Union Treaty and that this application before the court concerns the alleged violation of many human rights which can be categorised as direct breaches of the Convention. For this proposition, he relied on the passage of the judgment of the Supreme Court in Campus Oil Limited & Ors -v- The Minister for Energy £1983] IR 88, at p.100, wherein
Keane J (as he then was) stated as follows:-
"I accept entirely the obligation of the court to enforce not merely the Constitution of Ireland and the laws of this State, but also the provisions of the Treaty, being also part of the law of the State. However, that does not preclude the court from continuing to exercise its traditional jurisdiction in relation to the granting of interlocutory injunctions where the applicant raises a fair question as to whether a particular right he asserts is being violated and where both the balance of convenience between the parties and the desirability of preserving the status quo are in favour of granting such relief. To depart from that principle would be not merely contrary to well-settled authority, but might also hinder the objects of the Treaty itself and institutions established thereunder since it would seem proper that, in an appropriate case, the status quo should be preserved by interlocutory order so far as is consistent with the rights of the parties, pending the determination of the issue in question by the Court of Justice of the European Communities.
Support for this view of the law is to be found in the decision of the Court of Justice in Hoffman La-Roche -v- Centrafarm."
However, it should be carefully noted that what was being referred to in that passage is the Treaty of Rome.
The Statement of Grounds alleges that the Minister failed and omitted to consider the application of the European Convention on Human Rights and the Protocols thereto in dealing with the Applicant's application and that such is in breach of Article 6 of the Treaty of European Union. The Statement of Grounds does not particularise the particular provisions of the Convention and/or Protocols contended for that the Minister is supposed to have considered or how his alleged failure to do so affected the decision made by him on the Applicant's application for refugee status. In this context, I note parenthetically that no Deportation Order has yet been made by the Minister in relation to the Applicant.
In the case of Adam -v- The Minister for Justice, Equality and Law Reform and Iordache -v- The Minister for Justice, Equality and Law Reform [2001] 2 ILRM 452, the Supreme Court upheld orders made by the High Court striking out the applications for judicial review on the grounds that they were doomed to fail, in very similar circumstances as advanced by the Applicant in this case. In the Adam case, Hardiman J (Murray J agreeing) held that the Convention was not part of domestic law and therefore the Minister could not be obligated to consider its provisions when dealing with an application for asylum (see p.477 of the report, following and applying the decision in Doyle -v- The Commissioner of An Garda Siochana [1999] I IR 249). He also held that the Applicant's pleadings failed to disclose any substantive complaint against the Respondents.
I am satisfied that the instant case is within the terms of the decision in Adam and the outcome thereof must be the same. In the case of the Adam the Applicant sought to rely on Article 6 of the Treaty on European Union (as amended). However, that provision does not purport to make the Convention part of the domestic law of the Member States and does not have that effect. The language of Article 6, and in particular Article 6.2 which specifically refers to the Convention, it is directed at the European Union qua institution, not at individual Member States.
I refuse the application.
END OF JUDGMENT