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Cite as: [2001] IEHC 177

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N. (G.P.) v. Minister for Justice, Equality and Law Reform [2001] IEHC 177 (13th December, 2001)

THE HIGH COURT

(JUDICIAL REVIEW)

2001/370 J.R.

IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT, 2000

AND

IN THE MATTER OF THE IMMIGRATION ACT 1999

BETWEEN

G. P. N.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

JUDGMENT of Mr. Justice T.C. Smyth delivered the 13th day of December, 2001

1. This case gives rise to a net question of statutory interpretation referable to Section 3(3)(b)(i) of the above entitled Act of 1999.

THE FACTS:-

2. The Applicant’s application for refugee status was unsuccessful both at first instance and on appeal. The Applicant subsequently made application to the Respondent for ‘leave to remain on humanitarian grounds’ under Section 3 of the Act of 1999 and by letter of her solicitor dated 15th December, 2000 set out the representations considered to be appropriate. The relevant section of the letter states -

“Furthermore G. P. is currently receiving medical attention here in Ireland that she would be unable to obtain in Nigeria. She has multiple fibroids in her womb and ovaries and has been receiving gynaecological treatment here in Ireland for the same. Indeed she has required blood transfusions to counteract loss of blood and she is adamant that if she had been in Nigeria at the time she would surely have died. We are endeavouring to obtain medical reports in respect of the same and we will furnish these to you as soon as they are to hand. She is due to attend Hospital on the 22nd day of January, 2001 and we will revert to you further after this date. We contend that any attempted repatriation of our client to Nigeria would clearly place Ireland in breach of her obligations under Article 3 of the European Convention of Human Rights.

This letter was acknowledged by a letter dated 11th January, 2001 from the Respondent which (inter alia) stated -

“The contents have been noted [i.e. The contents of the letter of the 15th December, 2000] and we will revert to you at the earliest opportunity when we have reached a decision on your client’s case .”

3. As the Applicant’s solicitors did not as promised revert to the Respondent within two weeks of the 22nd January, 2001, the Respondent wrote a letter dated 8th February, 2001 (inter alia) the following terms:-

“The grounds upon which you submit your client’s request for leave to remain in the State include the medical condition of your client is suffering from. In order for the Department to take this into consideration it is requested that you forward medical evidence of your client’s condition to the Repatriation Unit, at the earliest possible opportunity. Please include a doctor’s report which indicates the treatment your client is receiving.

These details must be sent to this office within seven working days of this letter to be included in your client’s file to the Minister.”

(emphasis added)

4. No response was made to that letter by the Applicant or his solicitors within the time stated or at all. Eventually 3 months from the date of the Respondent’s letter (i.e. 8th May, 2001) a Deportation Order was signed by the Respondent and by letter dated 18th May, 2001 the Applicant was notified of the making of the Deportation Order and requested to attend at a Garda Station on 25th May, 2001 so that arrangements could be made for deportation not later than 22nd June, 2001. A Notice of Motion dated 5th June with a stated return date of 2nd July was lodged (with the appropriate papers) in the Central Office of the High Court.

5. A medical report dated 20th June, 2001 was apparently received by a firm of solicitors, other than that which had been in communication with the Respondent and which had lodged the papers in Court.

THE LAW

6. S. 3(3) to the extent that is applicable in this case provides:-

A person who has been notified of a proposal under paragraph (a) may, within fifteen working days of the sending of this notification, make representations in writing to the Minister and the Minister shall -
Before deciding the matter, take into consideration any representations duly made to him or her under this paragraph in relation to the proposal.”

THE APPLICANT’S SUBMISSIONS :-

1. The Respondent having accepted the representations in the letter of the 15th

7. December, 2000 ought not to have proceeded to the point of decision until the representations were completed by the Applicant.

The letter of 8th February, 2001 was not sufficient to discharge the duty imposed by Section 3(3)(b)(i) of the Act of 1999.
The principles and policy of the legislation is expressed in the Acts and regulations are not so restrictive as applied by the Respondent, they are ad hoc and permit of an entitlement to have the proposal to make a Deportation Order deferred until the Applicant’s representations are complete.

THE RESPONDENTS SUBMISSIONS :-

The letter of Notice of the making of the Deportation Order dated 18th May, 2001 clearly states that a Respondent had considered “the representations received on” behalf of the Applicant, and if such were incomplete it was not through any act, omission or default of the Respondent.
The onus was on the Applicant to furnish all such representations as she wished the Respondent to consider. If there was an omission, the Applicant was the author of her own misfortune.
No report seems to have existed between 22nd January and 20th June, 2001, furthermore no medical report (not even that of 20th June, 2001) was ever submitted to the Respondent to consider as a representation under Section 3 of the Act of 1999.

DECISION:-

8. I accept the submissions of the Respondent and reject those of the Applicant for the following reasons:-

The power and discretion conferred by the legislation on the Minister so long as it is shown to have been properly exercised cannot be fettered by the Court. In the instant case I find as a fact and as a matter of law that the power and discretion were properly exercised.
An Applicant cannot unilaterally by neglecting or failing deliberately or by omission to complete the representations he or she asserts and requests to be taken into consideration seek to defer the decision making power of the Respondent, so as in effect to defeat the power and discretion of the Respondent.
The decision of the Supreme Court in the Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 IR 360 at p. 395 states-

“ ....it must be observed that a person seeking asylum or refugee status is the Applicant for that status. There is an administrative procedure in place to carry out and assist him or her in the processing of that application. He or she is not a passive participant in that process”.

9. I am satisfied and find as a fact that if the Applicant wished a medical report to substantiate, elaborate or to give weight to the representations in the letter of the 15th December, 2000 she was given more than ample time in which to submit it for consideration. I would be satisfied that the letter of the 8th of February, 2001 was quite sufficient warning that the proposal to proceed to decide to make a Deportation Order would be pursued. In the events the Applicant had months rather than days within which she could have amplified her representation by submission of a medical report.

10. The other elements of the case are governed by the P.B. & L case and in the results the application fails as not being grounded on good and substantial grounds and is accordingly dismissed.