High Court of Ireland Decisions

THE HIGH COURT

RECORD NUMBER 2000 14696P

BETWEEN

MARGARET MONI JONATHAN

PLAINTIFF

AND

IRELAND AND THE ATTORNEY GENERAL

DEFENDANT

Judgment of Mr. Justice Murphy delivered the 31 day of May 2002.

1. ISSUE:

The Plaintiff is an Applicant under the Refugee Act, 1996. Judicial Review proceedings in respect of a refusal under the said Act is pending the determination of these proceedings in which she seeks a Declaration that Section 19 of the Refugee Act, 1996 is invalid having regard to the provisions of Articles 40.3, 40.6.1 and Article 34.1 of the Constitution. She also seeks an Order directing that her Judicial Review proceedings may be publicised freely and that she may be identified as an Applicant under the Refugee Act, 1996. Section 19 came into force on the 28th of November, 2000 and is appended hereto.

2. PLAINTIFF’S CLAIM

The Plaintiff arrived in Ireland from Nigeria in June, 1998. She applied for refugee status on the ground of a fear of persecution by reason of her political opinion and her involuntary association with the Ogboni Fraternity and/or her religious beliefs.

2.2 The Plaintiff’s application for refugee status was refused by the Minister for Justice, Equality and Law Reform (“the Minister”) on the 6th of October, 1999. The Refugee Appeals Authority rejected her appeal and made a recommendation to the Minister that her Application be refused. Her appeal was heard on the 25th of May, 2000 and the decision to deport her was communicated to her by letter dated the 16th November, 2000.

2.3 On the 30th November, 2000 the Plaintiff instituted Judicial Review proceedings pursuant to the provisions of Section 5 of the Illegal Immigrants (Trafficking) Act, 2000 challenging both decisions of the Minister and of the Refugee Appeals Authority (Judicial Review 708 of 2001).

2.4 In the present proceedings, commenced 15th of December, 2000 the Plaintiff pleads that Section 19 of the Refugee Act, 1996 prohibits the reporting or publishing of the aforesaid Judicial Review proceedings. The Plaintiff pleads that she wishes to attract the maximum publicity for her case and the manner in which it was dealt with by the Minister, his servants or agents and the Refugee Appeals Authority. She objects to the requirement in Section 19 that she obtain the consent of the Minister before any matter which is likely to lead members of the public to identify her as an Applicant under the Act may be published.

2.5 The Plaintiff seeks declarations that Section 19 is invalid having regard to Articles 40.3 and 40.6.1 of the Constitution and having regard to Article 34.1 of the Constitution.

Her claim for an order directing that her judicial review proceedings may be published freely and that she may be identified as an applicant under the Refugee Act, 1996 is now moot given the consent of the Minister for Justice on 2nd of July, 2001 some six months after the commencement of her action.

3. DEFENCE

The State says that the Plaintiff is not a refugee within the meaning of Section 2 and that that issue has been determined by the Minister.

Moreover the State denies that the Plaintiff has locus standi to challenge Section 19 on the grounds that they are invalid as Section 19(2) is addressed solely to persons publishing or broadcasting material likely to lead members of the public to identify the Plaintiff. Moreover she has no standing to challenge the provisions of the Section in circumstances where she has not sought the consent of the Minister. Indeed by letter of the 2nd of July, 2001 (the same day as the filing of the Defence) the Minister consented to the publication of any matter likely to lead members of the public to identify the Plaintiff as an Applicant for refugee status. In such circumstances the proceedings are now moot. Without prejudice it is denied that Section 19 is invalid. It is specifically denied that it infringes the Plaintiff’s right to express her convictions and opinions fully. It does not interfere with her personal right of freedom of expression or of communication.

3.2 If the Section requires proceedings such as those instituted by the Plaintiff by way of Judicial Review to be heard otherwise then in public, then such a restriction on Article 34.1 of the Constitution is prescribed by law and is justified.

3.3 The State denies that the Section infringes Article 40.3 or Article 40.6.1 (i) or Article 34.1 of the Constitution in that it disportionately or without lawful justification interferes with the Plaintiff’s rights to freedom of expression or the personal rights of the Plaintiff or the rights of the public administration of justice. In so far as it does so such restriction is proportionate and lawful.

3.4 The Plaintiff denies that the mere fact that the Minister consented to publicity renders the case moot. The Plaintiff, it is submitted, is entitled to have her case heard in public as a matter of right and not by reason of special grace or favour or concession or permission.

4. THE PLAINTIFF’S EVIDENCE

Ms. Jonathan gave evidence in relation to the grounds for seeking asylum and the determination of her application and appeal.

She said that in 1998 she demonstrated with a placard for a right to work. In December of 1999 she got a work permit and worked in Bloomfield Hospital, worked as a security officer and went to a nursing school where she is in her second year. A photograph of her placard was published in the Irish Independent in 1999. Previously she had been photographed by the Irish Times on the 17th of October, 1998 in relation to the opening of a centre for asylum seekers by Commissioner Padraic Flynn.

4.2 The Plaintiff said she objected to Section 19 because it was not legal and prevented the right of freedom of speech and of people to hear “our story”. The effect of this, she said, is to frustrate asylum seekers which frustration leads to crime. In her evidence she said that: “the law says you are not allowed to tell your story” . She said she wanted her story to be known to the media as she had been treated unjustly. If she is deported she will be treated unjustly.

4.3 On cross-examination she said that since the 28th November, 2000 no journalist has interviewed her. She has not approached any journalist “because its against the law - the law says that we can’t, prior to the Minister allowing it”. She said that she read about the law in the paper but could not remember when. She had been allowed to picket for work when the law did not prevent it. She said that she cannot approach a journalist as it is against the law unless the Minister agrees. She did not seek the Minister’s consent. She said would prefer to come to Court.

4.4 In relation to the listing in the Judicial Review proceedings she was asked whether she instructed her lawyers to mention her full name in Court. She said: “if it was lawful, I said yes”. She agreed that there was now nothing to prevent her from going to the press.

5. EVIDENCE OF JOURNALISTS

5.1 Mr. Paul Cullen, an Irish Times Journalist, gave evidence of his work in relation to refugee and asylum seekers in Ireland. He was the author of a book of that title published by the Cork University Press in 2000. This dealt with his work as development correspondent from 1996 onwards. Applicants for refugee status are, in his experience, reluctant to come forward. They are living in a twilight world of secrecy and fear. They have cultural and linguistic difficulties.

There is a grey area of humanitarian considerations which the Minister may consider. The Minister’s flexibility, Mr. Cullen added, is influenced by the media. He referred to certain refugee cases where questions were raised in the Dail. There is a difference between nameless and faceless asylum seekers whom the public regard with hostility and those with a name, face and family who have public support. It may be that it is a case of them being known that allows them to get the ear of politicians. Their case thrives on the oxygen of publicity.

Journalists have to meet tight deadlines and need information today for tomorrow’s story. There are mixed reactions to resourcing information, refugee information is difficult to get.

Mr. Cullen said that he never attempted to get information from the Minister as, by November, 2000 when the Act came into force, he was not involved in such work. He understood that the process to gain such information was by way of letter to the Secretary of the Department together with a letter from the asylum seeker. Practically it would take some time. There was a difficulty in getting the letter from asylum seekers particularly where English was not their language and where they were in detention. He did not know the Plaintiff nor her individual circumstances.

He said that he would not go to Court nor use official channels to get information. He would go directly to the community of asylum seekers. In the case of Court proceedings he became aware of the identity of the refugees through legal papers and could interview them but would not name them or publish their photograph.

Under cross-examination he said that he realised that Section 19 did not apply to those who were granted a refugee status but was unclear whether it applied to those who had been refused.

He said that neither he, nor, to his knowledge, his newspaper had reported on the Plaintiff. He did not know her, nor her individual circumstances. He had no example of being refused. He believed the Department did fetter his right to report because of the delay. Now, he understands, the Department has greater resources which were given after negative press coverage - “a barrage of critical coverage and political opposition” in his words.

In his view asylum seekers are relatively voiceless.

Mr. Cullen agreed that the operation of the section had not inhibited him in any respect as he was not “at the coal face”.

5.2 Ms. Nuala Haughey, also a journalist with the Irish Times, had made one application in Spring 2001 to the press office of the Department of Justice who informed her of requisite procedure. Consent was given within two days and was delivered verbally through the press office. She had given herself some time.

She was conscious of the rigmarole when talking to asylum seekers. She tried to find an individual to get the individual persons’ consent.

She did not know the Plaintiff until she had read about her in the report of the first day of the hearing in this case. She was unaware of the Minister’s consent.

There was a memo circulated in her newspaper advising journalists of the effect of Section 19. She was aware of some Nigerian asylum seekers going on hunger strike who were identified by name.

Under cross-examination she said she was aware that Section 19 did not apply to refugees. She had gone to a centre for asylum seekers to interview but not name persons. Those who alleged they were tortured would not give their names.

6. DEPARTMENT’S EVIDENCE

6.1 Mr. George Trimble is an Assistant Principal with the Department of Justice. For the last two and half years he has been in the asylum policy division.

He said that in no case has an application to the Minister been refused. Ten applications were made, the last in August, 2001. The procedures were a request in writing and depended on the consent which would normally come in with the application. The Minister’s consent would then be forthcoming. Applications were made to the press office and may be made by fax. No complaints about delay were made by the media.

The role of the Minister was to ensure that the Applicant had given consent as all information regarding asylum seekers was confidential.

On cross-examination, Mr. Trimble said he did not know why the Minister had given consent in the present case on the 2nd of July, 2001. He did not know whether there was an application from the Applicant. He agreed it was a cumbersome procedure and that is why, he believed, that it was due to be amended.

6.2 Mr. John Lohan was Principal Officer in the Repatriation Unit from May, 2001 and dealt with humanitarian grounds. The Minister must give advanced notice of fifteen days of deportation where an asylum seeker has been refused refugee status. Written representations can then be made.

The criteria by which the Minister deals with applications are dealt with in Section 3(6) of the 1999 Refugee Act. These criteria include age, family, work, security and representations made.

Under Section 3(6)(h) the Minister may consider, among other matters, humanitarian aspects.

In the present case no such application had been made.

He did not agree when cross-examined, that publicity affected humanitarian grounds. He was unaware of the position of the cases referred to by Mr. Cullen. It was put to him that it was the publicity in one of those cases that had contributed to the fifteen day notice of deportation. He said that he was not aware of publicity before May, 2001.

7. PLAINTIFF’S SUBMISSIONS

7.1 The Plaintiff submitted that there were three broad questions for determination by this Court:

1. Whether Section 19 of the Refugee Act, 1996 is invalid having regard to the provisions of Articles 40.3 and 40.6.1.(i) of the Constitution;

2. Whether Section 19 of the Refugee Act, 1996 is invalid having regard to the provisions of Article 34.1 of the Constitution;

3. Whether the Plaintiff has locus standi to challenge the constitutionality of the said section in circumstances where the Defendants have purported to consent to the publication of the details of her case, including her identity at a date subsequent to he issue of these proceedings.

7.2 The Courts have held that the right to communicate exists as an unspecified personal right protected by Article 40.3 of the Constitution. Reference was made to A.G. -v- Paperlink (1984) ILRM 343, Murphy -v- IRC (1997) 2 ILRM 467, 475-5 and Handyside -v- UK ECHR.

It was submitted that Section 19 restricts the right of the media to report on or discuss individual asylum cases by preventing the identification of individual asylum seekers. There was no issue of public order or morality which could rationally justify the enactment of such law.

7.3 Moreover, the administration of justice requires administration of justice to be in public. The listing of the Plaintiff’s proceedings by way of initials and the calling of the case by the Registrar was otherwise than in public. Reference was made to A.G. -v- Leveller Magazine Limited (1979) AC 440 cited by Morris J. in Irish Times -v- Ireland (1997) 2 ILRM; to Roe -v- Blood Transfusion Service Board (1996) 3 IR 67, 71 and to matter of Ansbacher (Cayman) unreported decision of McCracken J. of 24th of April, 2002.

7.4 While the right to communicate and express opinions and views may not be absolute, restrictions must be proportionate and for a legitimate purpose in the common good.

7.5 The Plaintiff has locus standi to challenge the restriction despite the consent of the Minister. Reference was made to Condon -v- Minister for Labour (1981) IR 62 , 70.

8. DEFENDANT’S SUBMISSIONS

Counsel for the State submitted that the Plaintiff has no locus standi to bring these proceedings for the following reasons:-

(a) Section 19.2 is addressed to organs of the media - it is they who are required to obtain the consent of the Minister to the publication of information likely to lead to the identification of an applicant for refugee status;

(b) The Plaintiff cannot point to any manner in which her interests have been adversely affected;

(c) She has failed to exhaust her remedies;

(d) The Minister has consented already to the publication of information likely to lead to the identification of the Plaintiff;

(e) The Plaintiff is not prevented by Section 19.2 from communicating or expressing her opinions;

(f) The Plaintiff’s Judicial Review proceedings will be heard in public;

(g) Insofar as any rights of the Plaintiff are infringed, any such infringement is proportionate to the legitimate aim of the legislation i.e., the protection of asylum seekers.

9. DECISION

9.1 The first issue that the Court must consider is that of mootness. It does seem that on the day the defence was delivered, a letter of consent issued to the Plaintiff’s Solicitor. The only aspect of the possible prejudice that could be suffered after that date is the so called “chilling effect” of the legislation which could have had the effect of restricting the media from dealing with the Plaintiff’s case because of a perceived delay in getting the Minister’s consent. However no journalist attempted to get the Plaintiff’s consent to which, it seems to this Court, to be an essential prerequisite for the Minister’s consent. Neither journalist attempted to contact the Plaintiff and indeed, where unaware of her position. Significantly, the Plaintiff did not seek to contact any journalist: she was clearly under misapprehension, despite being legally advised, that she could not do so up until the 2nd of July, 2001 when the Minister’s consent issued. She did not apply to the Minister for consent.

It seems clear to me that after that date there was no evidence of any “chilling effect” on the journalists who gave evidence or on any other journalists. It seems to me to be too remote to say that there might have been some journalist who could have contacted the Plaintiff. There was, in reality, no issue since the determination of her involvement in the right to work which, as she said in evidence, was granted to her in November, 1999. No evidence was given of any participation in any campaign since that date. Her evidence in relation to the present application, for which she says she wanted publicity, is not an issue. It has been reported with her name. She has not applied to have the judicial review proceedings challenging the decision to deport listed in her full name.

Is Ms. Jonathan’s claim entirely moot?

There is now - since July, 2001 - no restriction whatsoever on the reporting in the Judicial Review proceedings which have been adjourned pending the outcome of these proceedings.

Those proceedings had been listed in the High Court on the return date of the 11th of December, 2000 and adjourned on three occasions (February, 2001; 15th of December and 19th of December, 2001) and adjourned generally. Her Counsel says that on the return date he informed the Judge dealing with the list that he had instructions to apply for declarations that Section 19 was invalid. This does not seem to me to be evidence at a hearing but rather a procedural reason given why the hearing should be adjourned. It does not seem that the exchange in relation to the adjournment was a matter that, had the media been interested in covering the hearing, would have prejudiced the Plaintiff in any way. There was no evidence the listing of that case by the Plaintiff’s initials prejudiced any organ of the media. There is no evidence that the operation of Section 19(2), which had come into effect on the 28th of November - two weeks previously, had any effect, chilling or otherwise, on the media. The Plaintiff suffered no prejudice nor injury.

The Plaintiff has not established in evidence that her interests have been affected adversely or otherwise.

Accordingly the matter would seem to be moot.

If so, it is not appropriate for the Court to consider a claim for declarations in the absence of primary relief.

The Court must assume that Acts of the Oireachtas are constitutional. It does not need to determine constitutional issues when it is possible to dispose of a case otherwise.

Moreover, the Court cannot determine the declaratory issue where its decision would be only an academic issue.

If I am not correct on the issue of mootness I should then consider whether the Plaintiff can otherwise pursue the reliefs sought.

9.2 The second issue, is accordingly that of the Plaintiff's locus standi. Section 19 is addressed to and concerns the media. It does not affect the Plaintiff's right to freely express herself in her own name in private or in public. She can do so to the media. It is the media who must obtain her consent and that of the Minister before publishing.

No such application was made by any organ of the media nor requested by the Plaintiff prior to the Minister’s consent. After that consent was given no issue arises which affects her interests.

9.3 Counsel has urged that the challenge to the section should not fail notwithstanding. The decision of the Supreme Court in Condon -v- Minister for Labour (1981) IR 62, it is submitted, enables the Court to deal with the issue.

That case dealt with the validity of an Order prohibiting increases in remuneration of bank employees which was temporary legislation which had expired before the question of its validity could be examined by way of judicial review proceedings.

The High Court had allowed an amendment to the Defence that the claim disclosed no cause of action in view of the expiry of the order. This was then argued as a preliminary issue. The Court held that the claim still disclosed a cause of action. Despite the objections of the Plaintiff the Court adjourned the hearing to enable the Defendants to appeal.

The Supreme Court disallowed the appeal holding that, where at the commencement of an action a Plaintiff has a cause of action based upon the invalidity of a statute, the expiry of the statute before the hearing of the action does not affect the exercise by the High Court of its constitutional power to examine the statute. (See judgment of O’Higgins C.J. at 70).

The Plaintiffs in Condon had locus standi: increases in their remuneration had been prohibited. In the present case there is no loss. There is no evidence of prejudice nor limitation of freedom of speech personalised by the use of one's name. No evidence of the media being prejudiced was shown. The “chilling effect” contended for was not shown in either the Plaintiff's evidence nor in the evidence of the journalists.

10. In view of the above it is not necessary to proceed further or to determine whether the section applies to the Plaintiff once her application for refugee status has been determined.

In the circumstances the Court declines to make the Orders sought.


 
Refugee Act, 1996

19 -

(1) The Commissioner, the Appeal Board, the Minister, the Minister for Foreign Affairs and their respective officers shall take all practicable steps to ensure that the identity of applicants is kept confidential.

(2) Subject to Sections 9 (15) and 26, no matter likely to lead members of the public to identify a person as an applicant under this Act shall be published in a written publication available to the public or be broadcast without the consent of that person and the consent of the Minister (which shall not be unreasonably withheld).

(3) If any matter is published or broadcast in contravention of S. 19 subsection (2), the following persons, namely -

(a) in the case of a publication in a newspaper or periodical, any proprietor, an editor and any publisher of the newspaper or periodical,

(b) in the case of any other publication, the person who publishes it, and

(c) in the case of matter broadcast, any person who transmits or provides the programme in which the broadcast is made and any person having functions in relation to the programme corresponding to those of the editor of a newspaper, shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months or to both.

(4) Where a person is charged with an offence under subsection (3) it shall be a defence to prove that at the time of the alleged offence he or she was not aware, and neither suspected nor had reason to suspect, that the publication or broadcast in question was of such matter as is mentioned in subsection (2).

(5) In this section -

“a broadcast” means the transmission, relaying or distribution by wireless telegraphy of communications, sounds, signs, visual images or signals intended for direct reception by the general public whether such communications, sounds, signs, visual images or signals are actually received or not; “written publication” includes a film, a sound track and any other record in permanent form (including a record that is not in a legible form but which is capable of being reproduced in a legible form) but does not include an indictment or other document prepared for use in particular legal proceedings.