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Cite as: [2001] IEHC 235

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THE HIGH COURT

JUDICIAL REVIEW

2000/112JR

BETWEEN

M. S,

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 20th dav of December 2001.

On the 6th March, 2000 the Applicant obtained leave from this Court to apply by way of an application for Judicial Review for the reliefs set forth at paragraph D(i),(v) and (vi) of the Statement grounding the application and did so on the grounds set forth at paragraph E thereof. In essence, the single relief permitted was the seeking of an Order of Certiorari quashing a Deportation Order made on the 14th February. 2000 by the Respondent in relation to the said Applicant. The grounds supporting this challenge can be summarised as follows:-

(a) That the Respondent failed to consider and weigh appropriately the representations made to him under Section 3 (3)(b) of the Immigration Act, 1999, this in this context of the Applicant's duration within the State, his present and future employment record, the attachments formed by him during his stay and his good character and conduct.

(b) That the Respondent in making the Deportation Order, failed to indicate what weight he was giving, to the individual criteria specified at Section 3(6) of the aforesaid Act,

(c) That the Respondent failed to indicate, with particularity, the manner in which and the reasons for which, considerations of public policy and the common good in maintaining the integrity of the asylum and immigration systems, required the Applicant's deportation from this State,

(d) That the ground last mentioned could not be relied upon as a reason for making the said Deportation Order as both systems, procedurally and substantively, in themselves were manifestly inadequate,

(e) That no sufficient reasons were given or stated for the making of the said Order and in particular, in that regard, the letter of notification was defective and inadequate, and finally,

(f) That the said Minister took into account irrelevant considerations when making the said Order, in that, he did but was not entitled, to consider the route and method by which the Applicant reached Ireland or the fact that prior to his arrival he lived elsewhere; and, in that, he did but was not entitled, to consider the question of maintaining the integrity of the asylum and immigration systems, either in the context of the common good and public policy or at all.

The facts, matters and circumstances constituting the background to this application are as follows:-

(a) On the 31st March, 1999 Mr. S was informed that his application for refugee status within the State had been refused. This, on the basis, that he had failed to demonstrate a well founded fear of persecution for a Convention reason. He was advised of his right to appeal.

(b) Having so appealed, Mr. Peter Finlay SC, as the Appeals Authority, concluded on the 21st October, 1999 and recommended that his appeal should not be allowed.

(c) On the 29th November, the Applicant was written to by the asylum division of the Department of Justice and informed by the author, that "as the officer authorised by the Minister", she had considered the recommendation of the Appeals Authority and had decided to uphold the original decision and refuse the appeal. She continued in the letter by saying that:-

"As a result of this refusal, the Minister for Justice, Equality and Law Reform proposes to make a Deportation Order in respect of you under the power given to him by Section 3 of the Immigration Act, 1999".

In addition the rights conferred on a person, whose application has been rejected on appeal, were then set forth in acceptable detail, which rights included an entitlement to make written representations to the Minister within a certain period as to why such a person should be allowed to remain in this State.

(d) By letter dated the 15th December, which was within the specified period, the Refugee Legal Service wrote to the Minister by way of an application for leave, that the Applicant should be allowed to remain in the State on humanitarian grounds.

(e) On the 20th December of that year the Respondent wrote to the Applicant informing him that he could work within the State. This letter was sent in error, as at that time, Mr. S was a person whose appeal for refuge status had been refused and accordingly, the Government's policy of permitting asylum seekers to work, being those whose applications were then pending, could not and did not apply to the Applicant. Nothing of significance turns on this letter.

(f) On the 14th February, 2000 the Minister made a Deportation Order in respect of the Applicant, which order, by its last paragraph reads as follows:-

"Noxv, I, John O'Donoghue, Minister for Justice, Equality and Law Reform, in exercise of the powers conferred on me by the said subsection (1) of Section 3, hereby require you the said M, S. to leave the State within the period ending on the date specified in the notice served on or given to you under subsection (3)(b)(ii) of the said Section 3, pursuant to subsection (9) (a) of the said Section 3, and to remain thereafter out of the State "

and finally,

(g) By letter dated the 29th February 2000, Mr. S was given Notice of the making of this Deportation Order with the relevant part or section of the said notice being as follows:-

"/ am directed by the Minister for Justice, Equality and Law Reform, to refer to your current position in the State and to inform you that the Minister has decided to make a Deportation Order in respect of you. A copy of this order is enclosed with this letter. In reaching this decision the Minister has satisfied himself that the provisions of Section 5 (prohibition of refoulement) of the Refugee Act are complied with in your case.

The reasons for the Minister's decision are that you are a person to whom refugee status has been refused and, having had regard to the factors set out in Section 3(6) of the Immigration Act, 1999, including the representations received on your behalf, the Minister is satisfied that the interests of public policy and the common good in maintaining the integrity of the asylum and immigration systems outweigh such features of your case as might tend to support you been granted leave to remain."

The leave application in these proceedings then followed the receipt of this said Notice.

There is no challenge in this case, either procedurally or substantively, to any of the steps taken, reasons given and decisions made on Mr. S's application for refugee status. Accordingly, the issues in the case, in the context of time or sequence, all emerge following the application made on behalf of Mr. S which, as stated above, was to the effect that he be allowed to remain in the State on humanitarian grounds.

The Statutory regime dealing with the live issues in this application is that as set out in the Immigration Act, 1999 and in particular in Section 3 thereof. Having conferred on the Minister the general power to make an order, described as "a deportation order", requiring any non-national specified in that order to leave and remain out of the State, subsection (2) of Section 3, identifies particular persons in respect of whom such an order may be made. A person, whose application for asylum has been refused is included amongst such persons. Section 3 (2)(f).

Section 3(3) of the Act reads as follows:-

"3 (3) (a) Subject to subsection (5), where the Minister proposes to make a Deportation Order, he or she shall notify the person concerned in writing of his or her proposal and of the reasons for it and, where necessary and possible, the person shall be given a copy of the notification in a language that he or she understands.

(b) A person who has been notified of a proposal under paragraph (a) may, within 15 working days of the sending of the notification, make representations in writing to the Minister and the Minister shall

(i) before deciding the matter, take into consideration any representations duly made to him or her under this paragraph in relation to the proposal, and

(ii) Notify the person in writing of his or her decision and of the reasons for it, and, where necessary and possible, the person shall be given a copy of the notification in a language that the person understands."

Subsection (6) of the same section is in the following terms:-

"3 (6) In determining whether to make a deportation order in relation to a person, the Minister shall have regard to -

(a) the age of the person:

(b) the duration of residence in the State of the person:

(c) the family and domestic circumstances of the person:

(d) the nature of the persons connection with the State, if any:

(e) the employment (including self employment) record of the person:

(f) the employment (including self employment) prospects of the person:

(g) the character and conduct of the person both within and (where relevant and ascertainable) outside the State (including any criminal convictions):

(h) humanitarian considerations:

(i) any representations duly made by or on behalf of the person:

(j) the common good: and

(k) considerations of national security and public policy, so far as they appear or are known to the Minister."

And finally, under subsection (7) a deportation order must be in the form prescribed "or in a form in the like effect". In this case the order made is in a form expressly provided for in Statutory Instrument No. 319 of 1999 being entitled the "Immigration Act, 1999 (Deportation) Regulations, 1999".

Three cases, all heard together, and collectively referred to as P.L.B. -v- The Minister for Justice. Equality and Law Reform, have resulted in a judgment from Mr. Justice Smyth of this Court (02/01/2001) and on appeal from the Supreme Court (14/07/2001), wherein the matters and issues dealt with, are almost identical to those which give rise for consideration in this case. In the cases of P. and L., the letters to each of them indicating that their respective applications for refugee status had been refused, the subsequent deportation orders and the letter or notification of the making of such orders, were, in both form and content, identical to the corresponding letter, order and letter/notice as exist in this case. Moreover, the arguments advanced in both the High Court and the Supreme Court parallel and mirror image those which were advanced at this hearing. From such judgments given in both Courts, with the Trial Judge's views being endorsed unanimously by the Supreme Court, the following principles, relevant to this case, can be extracted and thus in the following way so reproduced:-

(a) Being an application for Judicial Review, the High Court when dealing with such proceedings should remain conscious of the fact that it is not a Court exercising appellate jurisdiction and that it should not usurp the function of the Minister as conferred on him by the 1999 Act. Accordingly, except perhaps for an irrationality argument, it should refrain from enquiring into the personal circumstances and other matters relevant to an Applicant and should neither evaluate such material or substitute it's own views for those of the decision maker,

(b) The constitutional status of non-nationals, which is not an issue in this case, is now well established and has been comprehensively considered by the Supreme Court in, In the matter of Article 26 of the Constitution and Section 5 and Section 10 of the Illegal Immigrants (Trafficking) Bill 1999, (2000) 2 IR 360,

(c) That the Minister, when notifying the person concerned of his intention to make a deportation order, does not have to use the express words as contained in Section 3(3)(a) of the 1999 Act, provided that the words so used, make it clear to the recipient what the Minister proposes to do,

(d) That the wording of a letter notifying a proposal to make a deportation order in the same terms as the letter referred to at paragraph 2(c) above, is adequate as a compliance with subsection (3)(a), in that it contains and identifies the reasons for the Minister's said proposal,

(e) That the Minister has power to make a deportation order in respect of a person whose application for asylum has been refused on that ground and for that reason alone, without there being any legal requirement or necessity for the existence of any additional ground or reason: accordingly, if there should exist but a single reason for the making of such an Order then the communication of that reason is a sufficient compliance by the Minister with the requirement of notification as specified under the said Section 3(3)(a) of the 1999 Act,

(f) That once made within the time specified, the Minister in determining whether or not to make a deportation order is obliged to consider all such representations as are received from or on behalf of an Applicant. In addition he must have regard to the matters specified at subsection (6), which matters are set forth at paragraph 4 above. Once there is evidence however that such matters have been taken into account there is no requirement on the Minister to adopt a system, either mathematical, formalistic or otherwise, in his consideration of such matters, which, via some weighting process, would enable an Applicant to know how well or poorly he did under each of these headings and in this way to identify the shortcomings of his application: at p. 20 of his judgment Mr. Justice Smyth, in P.L.B., said:

"There is no such statutory requirement upon the Minister and the Court must not seek to legislate to obligate him so to do",

(g) In his assessment of the aforesaid matters, the Minister is entitled to take into account the reason for his proposal to make a Deportation Order, which in this case, was the failed application for refugee status,

(h) In his consideration of the common good and public policy requirements of subsection (6), he is entitled to identify and have regard "as an aspect of these things, to the maintenance of the integrity of the asylum and immigration systems". See Mr. Justice Hardiman at p. 15 of his judgment, where in addition he states:-

"In my view, having regard to the nature of the matters set out at subparagraphs (a) to (h) of that subsection (subsection (6)) the decision could be aptly described as relating to whether there are personal or other factors which, notwithstanding the ineligibility for asylum, would render it unduly harsh or inhumane to proceed to deportation. This must be judged on assessment of the relevant factors as, having considered the representations of the person in question, they appear to the Minister. These factors must be considered in the context of the requirements of common good, public policy and where it arises, national security."

(i) The letter or notice communicating the making of a deportation order, in the form and content identical to the letter of the 29th February, 2000, is an adequate and satisfactory compliance with the notification requirements contained in subsection (3)(b)(ii) of the 1999 Act. Indeed, in so concluding, both Courts in P.L.B. rejected a submission that such a letter did not contain reasons or adequate reasons, was not readily understandable and was devoid of reason, was deficient in failing to explain public policy and the common good and was unlawful in that it contained a reflection on the good name and character of the Applicant, this by it's reference to his deportation being required in the interest of public policy and the common good; and lastly, (j) In that said letter or notice, the Minister's reference to the maintenance of the integrity of both the asylum and immigration systems, is not in any way extraneous to the exercise of his statutory function under the aforesaid Act of 1999.

Applying those principles to the case, it appears to me that having been refused refugee status, there is no doubt but that the Applicant was a person in respect of whom the Minister could lawfully make a deportation order. Equally so, there is no doubt but that the representations made on his behalf by the Refugee Legal Service, being these contained in a letter dated the 15th December, 1999 were, as were each and every one of the individual factors specified in subsection (6), taken into account by the Respondent in his determination as to whether or not a deportation order should be made. See the Affidavit of Noel Waters, the Principal Officer who swore the replying documentation on behalf of the Respondent in this case. That being the situation and following as I do, both

Judgments in P.L.B., it seems to me that on the grounds advanced it is quite impossible to legally challenge, the Minister's consideration of these representations and of the listed matters specified in subsection (6). Once such matters have been considered the relevant statutory requirements have been met, there being no further obligation on the Minister to indicate what weight he gave to each matter. Equally so, in my view on what has been urged, it is impossible to mount any argument that the deportation order in itself, or in conjunction with the notification dated the 29th February, 2000 is in any way unlawful, either as being in breach of any statutory provision or as offending any concept of natural or constitutional justice. In addition, and as is now abundantly clear from P.L.B., I am quite satisfied that the Respondent was entitled to take into account the common good and matters of public policy and as part thereof his expressed interest in maintaining the integrity of both the asylum and immigration systems. Moreover, I do not believe that in the submission sent to him, the reference to certain circumstances which were also material to the asylum application, could in any way be said to be irrelevant matters the consideration of which could attract any relief from this Court.

Finally, I must also reject the generalised ground, which in fairness it should be said was not seriously argued, that the system under which the asylum application had been processed was flawed either in the manner suggested or otherwise, as such a system, based on the procedures set forth in both the Von Arnim letter of the 13th December, 1985 and the Hope Hanlon letter of the 10th December, 1997 as subsequently amended, was put in place following in depth consultations with the UNHCR, and which procedures in several cases in the past decade have been upheld by the Courts in this jurisdiction.

Accordingly I refuse the relief sought.