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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> O. (J.) v. Minister for Justice, Equality & Law Reform & Ors [2006] IEHC 225 (27 July 2006) URL: http://www.bailii.org/ie/cases/IEHC/2006/H225.html Cite as: [2006] IEHC 225 |
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Neutral Citation Number: Neutral Citation Number: [2006] IEHC 225
BETWEEN
APPLICANT
RESPONDENTS
JUDGMENT of Mr. Justice Paul Butler delivered on the 27th day of July, 2006
The applicant is a Nigerian National who says that he arrived in Ireland in March, 2004. He further says that he remained illegally in this State until September, 2004 when, while attempting to travel to the United Kingdom in possession of a false international student card, he was apprehended at Dublin Airport. He alleges that he became ill, was taken to Beaumont Hospital was later taken back to the airport where he was interviewed by a member of the Garda National Immigration Bureau. It was at that stage that he made an application for refugee status.
The immigration officer, Detective Garda Noone, avers that, despite being asked, the applicant refused to give him (Detective Garda Noone) his address or details of any addresses at which he had resided during the period in which he had been in the State. The applicant alleges that that refusal to furnish an address was due to his fear that the friends with whom he was staying would get into trouble.
Further the applicant originally swore that when making out his application for refugee status he was not given any notification of documentation advising him of his obligations. It did, however, later emerge (affidavit of John Cunnane) that the applicant actually signed a receipt of notice of his obligations under s. 9(4A) dated 4th September, 2004.
It is common case that the applicant failed to supply the second named respondent, the Office of the Refugee Applications Commissioner (ORAC) with his address within the prescribed time. As a result thereof Mr. Cunningham, an official of the ORAC made a recommendation to the first named respondent that the applicant not be declared a refugee and that his application for asylum was deemed withdrawn by virtue of the provisions of s. 9 (4A)(b) of the Refugee Act, 1996 as amended, the said section, as amended, provides that an applicant shall inform the Commissioner of his or her address and any change of address as soon as possible and where five working days have elapsed since the making of an application for a declaration and the applicant has not informed the Commissioner of his or her address, the application shall be deemed to be withdrawn.
Section 13(2) of the Act provides that where an application for a declaration is withdrawn or deemed to be withdrawn pursuant to s. 9 or s. 11, then –
"(a) Any investigation under section 11 shall be terminated.
(b) The report referred to in subsection (1) shall state that the application is being withdrawn or deemed to be withdrawn, as the case may be, and shall include a recommendation that the applicant concerned should not be declared to be a refugee, and
(c) No appeal under section 19 shall lie against a recommendation under paragraph (b)."
Section 17(1A)
"(1A) where an application is withdrawn or (other than pursuant to section 22) is deemed to be withdrawn, or an appeal under section 16 is withdrawn or deemed to be withdrawn, the Minister shall refuse to give the applicant a declaration."
Subsection (7) of that section provides:-
"A person to whom the Minister has refused to give a declaration may not make a further application for a declaration under this Act without the consent of the Minister."
In these proceedings the applicant seeks:-
A. A Declaration that section 9 (4A)(b) of the Refugee Act, 1996 (as amended) and/or that provision in combination with section 13(2)(c) Refugee Act 1996 (as amended) are repugnant to the provisions of the Constitution and Article 40.3 thereof.
B. An order of certiorari quashing the decision of the second named respondent of 21st September, 2004 and the recommendation of 21st September, 2004 pursuant to section 13(1) refusing the applicant a declaration of refugee status.
C. An order remitting the application of the applicant made pursuant to section 8 of the Refugee Act 1996 (as amended) to the second named respondent in order that same may be considered in accordance with law and the State's obligations pursuant to the 1951 Convention on the Status of Refugees.
The legislation attacked was enacted after the adoption of Bunreacht na hÉireann and enjoys a presumption of constitutionality. It is well established that where there is more than one construction of a statute reasonably open to the court and on at least one of those constructions it is constitutional then the court must uphold the construction of the statute based on its constitutional construction. It is argued on behalf of the respondents that the impugned provisions cannot be looked at in isolation. Instead they must be read in context and, in particular, the context of the surrounding legislative provisions and the statutory scheme of which they form part. In particular, it is argued that the ameliorating provisions of s. 17(7) cannot be ignored when looking at the operative effect of s. 9(4A) and (B) and 13(2)(c). Under s. 17(7) a person who has been refused a declaration may seek the consent to the Minister to the making of a further application. In my view this provision would give an applicant every opportunity of explaining why he or she did not act within the time limits referred to.
In this case the applicant countered this argument by making the case that he did not come within this subsection as the Minister had not refused his application in that the application lapsed automatically. The respondents took issue with this and have now clarified that position in an affidavit of Padraig Devine sworn on 17th May, 2006 wherein he said, inter alia:-
"I say and confirm that the first named respondent made a decision under section 17(1A) of the Refugee Act 1996, refusing to give the applicant a declaration of refugee status. The fact that this decision had been made together with the background to it, were set out in a letter dated 30th September, 2004 and addressed to the applicant. The said letter could not be forwarded to the applicant as the applicant had not furnished a contact address."
He exhibited the Decision.
I am satisfied that the Decision to refuse the application was made and that it is, therefore, open to the applicant to seek the consent of the Minister to make a further application.
I therefore, refuse the applicant's application.
Approved: Butler J.