High Court of Ireland Decisions

 


HC 165/04

THE HIGH COURT JUDICIAL REVIEW

2003/136 JR

BETWEEN/

M J L

APPLICANT

AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

Judgment of Miss Justice Laffoy delivered on 30^th April, 2004.

By order of this Court (O'Sullivan J.) made on 11^th November, 2003 the applicant was granted leave to apply by way of judicial review for an order of certiorari quashing the decision of the respondent to deport the applicant, which decision was dated 20^th January, 2003 and was communicated to the applicant on 3^rd February, 2003. The only ground on which such leave was given was that set out in paragraph (e)(7) in the applicant's statement grounding the application, which was dated 26^th February, 2003, which ground was allowed, as the order stated, only "insofar as this paragraph comprises an allegation that the respondent's decision to deport the applicant is in breach of the provisions of s. 4 of the Criminal Justice (United Nations Convention Against Torture) Act, 2000". The applicant's time for making the application had been extended up to and including 26^th February, 2003 in the order.

The grounds on which the applicant claimed relief in the statement of grounds dated 26^th February, 2003 which are relevant for present purposes are the following:

(a) the ground set out in para. (e)(2) in the following terms

"Further the deportation order breaches the Applicant's Rights to life as guaranteed under the Human Rights Act, in that the applicant will be killed if returned to South Africa"; and

(b) the ground set out in para (e)(7) in the following terms:

"The Respondent's decision to deport the Applicant is an infringement on the Applicant's Human Rights and Fundamental Freedom as well as her Rights to life and existence as well as her rights under Section 5 of the Immigration Act, 1996 and Section 3(6) of the Immigration Act, 1999."

There was before the court on the hearing of the application for leave, which was heard on 31^st October, 2003, a proposed amended statement of grounds dated 29^th October, 2003. In his judgment delivered on 12^th November, 2003 O'Sullivan J. dealt with an application to extend the time to file the amended statement of grounds. Having recorded that there was no evidence before the court as to why the time should be extended, other than that counsel had shortly before 29^th October, 2003 advised the applicant to amend by expanding her original statement, O'Sullivan J. stated as follows:

"Having regard to the observations of Ms. Justice Finlay Geoghegan in her judgment of 8^th October, 2003 in Muresan v. Minister for Justice Equality and Law Reform and Ors. to the effect that the mere change of Counsel would not of itself provide good and sufficient reason for extending this period, with which conclusion I concur, and also to the fact that no other reason was advanced as to why the period should be extended and also to the fact that the period is some eight months or more out of time I refuse to extend the period for the later Statement of Grounds."

O'Sullivan J. went on to record that he had ruled that the phraseology in the statement of 26^th February, 2003 was sufficiently wide at para. (e)7 thereof to include a challenge based on the submission that, in reaching a decision to make the deportation order, the respondent had failed to give any consideration to the provisions of s. 4 of the Criminal Justice (United Nations Convention Against Torture) Act, 2000, which prohibits refoulement where he is of the opinion that there are substantial grounds for believing that the deportee would be in danger of being subjected to torture.

The application currently before this Court was brought by notice of motion dated 28^th January, 2004 in which the applicant seeks an order pursuant to O. 84, r. 23 (2) of the Rules of Superior Courts permitting the applicant to amend the statement of grounds in these proceedings. There was exhibited in the grounding affidavit of Matthew Ezeani, the applicant's solicitor, a proposed amended statement of grounds dated 26^th January, 2004, which followed the format of the proposed amended statement of 29^th October, 2003 rather than the format of the statement of 26^th February, 2003. The grounds upon which the applicant now wishes to pursue her application as set out in the proposed amended statement of 26^th January, 2004, as clarified by her counsel at the hearing, are set out as follows in para. 5 of the proposed amended notice of 26^th January, 2004:

"(1) The deportation order issued by the respondent in respect of the applicant, dated 20^th January, 2003, and the decision to issue the said order, is in breach of:

(i) the Criminal Justice (UN Convention on Torture) Act, 2000;

(ii) Articles 2 and 3 of the European Convention on Human Rights.

(2) . . .

(3) . . . in particular, the respondent his servants or agents failed to take account of s. 4 of the Criminal Justice (UN Convention Against Torture) Act, 2000 and the obligations arising therefrom; and/or failed to take into account the applicant's rights to life and to protection from cruel, inhuman and degrading treatment, and the correct criteria relating thereto.

(4) The enforcement of the deportation order in respect of the applicant by the respondent would be in breach of Articles 2 and 3 of the European Convention on Human Rights and, as such, would be unlawful and contrary to the law of this State and in breach of the European Convention on Human Rights."

The only element of the grounds so set out in the proposed amended statement of 26^th January, 2004 which was not included in the proposed amended statement of 29^th October, 2003, which was before the court on the application for leave, is para. (4). In particular, the underlined portion of para. (1) and the underlined portion of para. (3) were included in the earlier proposed amended statement.

In his judgment O'Sullivan J. identified the four bases on which the applicant sought to challenge the deportation order: that it was in breach of –

(a) s. 5.(2) of the Refugee Act, 1996,

(b) s.3(6) of the Immigration Act, 1999,

(c) the European Convention on Human Rights (the Convention), Articles 2 and 3, and

(d) s. 4 of the Criminal Justice (United Nations Convention Against Torture) Act, 2000.

As I have stated, he granted leave on one ground only, that it was in breach of the Criminal Justice (United Nations Convention Against Torture) Act, 2000, rejecting the other grounds.

In outlining the applicant's submission based on articles 2 and 3 of the Convention, O'Sullivan J. stated as follows:

"A second submission made on behalf of the applicant was that the respondent in deciding to make a Deportation Order weighed in the balance against her rights protected under articles 2 and 3 . . . the public policy and common good of maintaining the integrity of the asylum and immigration system, and took the view that the latter outweighed such features of her case as might tend to support her being granted leave to remain in the State. . . . The applicant submitted that the Minister in striking such a balance offended the applicant's right under article 3 of the Convention.

In response counsel for the respondent submitted that the article has not yet been brought into Irish domestic law and therefore the Minister in making such a balancing judgment was in breach of no right of the applicant."

In setting out his conclusions on the foregoing submissions, O'Sullivan J. stated as follows:

"It may well be that from the 1^st January, 2004 when the European Convention on Human Rights becomes domestic law in this country that the Minister in such a case as this will not be able to balance against the applicant's rights under article 3 thereof not to be exposed to degrading or inhuman treatment the public interest in preserving the integrity of the asylum system in this country, as he has done in this case in his letter of 31^st January, 2003. That does not mean, however, that he was not entitled to engage in such an assessment at the time when he did. On the contrary the Supreme Court in [FP v Minister for Justice [2002] 1 I.R. 165 and AO and DL v. Minister for Justice [2003] 1 I.R. 1] held that the Minister in making such a decision is entitled to take into account the policy of the State in relation to the control or admission of non-nationals. In light of this it is not in my submission arguable that in balancing the integrity of the asylum system of this country against such features of the applicant's case as might tend to support her application to be granted leave to remain in the State, [the Minister] acted ultra vires."

The position, accordingly, is that, not only did O'Sullivan J. refuse to grant an extension of time to enable the applicant to base her application on the grounds set out in the proposed amended notice of 29^th October, 2003, but he expressly rejected the applicant's submission that the decision of the respondent to make the deportation order was ultra vires on the ground that it was in contravention of articles 2 and 3 of the Convention.

In support of the applicant's application for leave to amend the statement of grounds, counsel relied on the statement of the legal principles applicable to amendment of pleadings in judicial review proceedings set out in Civil Proceedings and the State, Collins & O'Reilly (2^nd Edition, 2004) at paras. 5 – 77 to 5 – 80. A number of different scenarios are identified there and the relevant principles applicable are stated as follows:

(1) The principles applicable to an ordinary application governed by O. 84, r. 23 are those stated by Costello P. in McCormack v. Garda Síochána Complaints Board [1997] 2 IR 489 at 503-504 in the following terms

"It seems to me that only in exceptional circumstances would liberty to amend a grounding statement be made because the court's jurisdiction to entertain the application is based on and limited by the order granting leave. But when facts come to light which could not be known at the time leave was obtained and when the amendment would not prejudice the respondents, then it seems a proper exercise of the court's power of amendment to permit the amendment rather than require that the new 'grounds' be litigated in fresh proceedings."

(2) Where an applicant must demonstrate the existence of "substantial grounds" and make his application within a specified period of time, a stricter approach is adopted towards amendment. As authority for this proposition Ní Eilí v. Environmental Protection Agency [1997] 2 ILRM 458 is cited. In Muresan v. Minister for Justice, Equality and Law Reform and Ors., which was referred to in the judgment of O'Sullivan J. on the application for leave in the instant case, the decision in the Ní Eilí case was followed in circumstances in which, as in the instant case, the application for leave was governed by s. 5 of the Illegal Immigrants (Trafficking) Act, 2000. In that case, in her judgment delivered on 8^th October, 2003, Finlay Geoghegan J. stated that, if an applicant seeks to amend so as to introduce an entirely new ground of challenge, the intention of s. 5(2) of the Act of 2000 appears to be that he or she must satisfy the High Court that there is good and sufficient reason for extending the period within which such new challenge may be made.

(3) The principles applicable where an applicant for judicial review seeks to reintroduce grounds already canvassed before the Court are stated as follows in para. 5 – 79:

"As regards applications to reintroduce grounds that were either expressly or impliedly refused at the leave stage, there is some authority for the proposition that rule 23(2) permits the High Court to allow an applicant to amend his statement by adding a ground that had been rejected at the application for leave. But the better view must surely be that a refusal to grant leave on certain grounds binds every other judge of the High Court who is therefore deprived of jurisdiction to act in such a manner as to effectively set that refusal aside. The appropriate remedy available to a dissatisfied applicant is by way of appeal to the Supreme Court against that part of the High Court Order refusing to grant leave."

As authority for the last proposition the decision of this Court (McKechnie J.) in L.R. v. Minister for Justice [2002] 1 I.R. 260 is cited. That case concerned the refusal to grant the applicants refugee status within the State. The applicants were granted leave to seek an order of certiorari on some of the grounds relied on in the statement of grounds which was before the court on the leave application. A substantial number of reliefs and grounds were not reflected in the order of the court granting leave. At the substantive hearing the applicants sought an amendment reinstating those grounds. In his judgment, rejecting the application to reinstate, McKechnie J. stated as follows at p. 267:

"However, having heard the application and based on the resulting order, it is clear, in the affirmative sense, that leave was granted only to seek the order sought at paras. D(1) to D(4) and then only on the grounds contained in para. E(vii)(a) and (b) and none other. By not granting leave on these other grounds one must conclude that the application made on behalf of the applicants was therefore refused by the High Court judge who granted the leave order. This being the situation, it seems to me that in the same proceedings and on identical grounds, another judge of the High Court does not have jurisdiction to effectively overrule an earlier order of the same court. Such authority or power does not in my view exist. The only court which could, but was not invited to do so, would be the Supreme Court. It is not now I feel possible for this Court to insert or reinstate grounds which previously a judge of this Court refused to grant leave on."

In my view, the relevant principles applicable to each scenario are correctly set out in Collins and O'Reilly. In particular, in my view, the correct position where it is sought to reintroduce grounds which have been expressly or by implication refused is as set out in the judgment of McKechnie J. in the L.R. case.

It was contended on behalf of the applicant that her application comes within the principles enunciated by Costello P. in the McCormack case, the "exceptional circumstance" contended for being the coming into force of the European Convention on Human Rights Act, 2003 (the Act of 2003) on 31^st December, 2003, after the making of the order granting leave. The provision of the Act of 2003 on which the applicant principally relies is s. 3(1) thereof which provides as follows:

"Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State's obligations under the Convention provisions."

It was submitted on behalf of the applicant that she now has a legal right which is enforceable in this jurisdiction that any deportation effected in respect of her will not be in breach of the Convention, a situation which did not pertain at the time leave was granted. No prejudice will be suffered by the respondent by the amendment sought because the respondent has been on notice of the arguments advanced by the applicant in respect of articles 2 and 3 of the Convention because they were advanced at the hearing on 31^st October, 2003. To accede to the application to amend would avoid the applicant having to advance the ground she now seeks to rely on in fresh proceedings.

It was submitted on behalf of the respondent that there are no new facts in this case. All that has happened since leave was granted is that there has been a change in the legal structure. It is not correct to say that the Convention has been incorporated into domestic law. What the Act of 2003 has done is to give effect to rights recognised in the Convention in Irish law This is done in a number of ways in the Act of 2003, for example, by providing that it is a breach of Irish law for an organ of the State not to perform its functions in a manner compatible with the State's obligations under the Convention provisions (s. 3(1)) and by giving a person who has suffered injury, loss or damage as a result of a contravention of s. 3(1) a remedy in damages in the Irish courts (s. 3(2)).

To illustrate her argument, counsel for the respondent referred to the recent decision of the House of Lords in In Re McKerr (AP) (Respondent) (Northern Ireland) in which the opinions of the Lords of Appeal, as yet unreported, were delivered on 11^th March, 2004. That case arose out of the killing of Gervaise McKerr in 1982 by a member or members of the Royal Ulster Constabulary. The European Court of Human Rights decided on 4^th May, 2001 that the United Kingdom had not complied with its obligation under article 2 of the Convention, which the Strasbourg Court had previously held is implicit in article 2, that the State must provide some form of effective official investigation when individuals had been killed as a result of the use of force by, inter alios, agents of the State (McKerr v. United Kingdom [2002] 34 EHRR 20). In January, 2002 Mr. McKerr's son commenced judicial proceedings against the Secretary of State for Northern Ireland, seeking a declaration that "in breach of s. 6 of the Human Rights Act, 1998 and article 2 of the European Convention", the Secretary of State had failed to provide an "article 2 compliant" investigation into his father's death and an order of mandamus to compel such investigation. The Human Rights Act, 1998 had come into force in the United Kingdom on 2^nd October, 2000. Section 6(1) thereof provides that it shall be unlawful for a public authority to act in a way which is incompatible with a Convention right, the expression "Convention rights" being defined as "rights and fundamental freedoms set out in" certain articles of the Convention, including article 2. Lord Hoffman analysed the position of the applicant in the following paragraphs of his opinion:

"63. So Mr. McKerr says (1) the Convention gives him the right to an effective investigation, (2) the Strasbourg court has decided that the United Kingdom has not provided him with one, (3) he therefore has a continuing right to such an investigation and (4) the Secretary of State, in refusing to provide one, is acting in breach of his Convention rights.

. . . The Court of Appeal, in a judgment given by Carswell L.J., accepted all four stages of the reasoning and made a declaration that the Government had 'failed to carry out an investigation which complies with the requirements of article 2'.

64. In my opinion the reasoning which the Court of Appeal accepted does not sufficiently distinguish between the obligation under international law which the United Kingdom (as a State) accepted by accession to the Convention and the duties under domestic law which were imposed upon public authorities in the United Kingdom by s. 6 of the 1998 Act. These obligations belong to two different legal systems; they have different sources, are owed by different parties, have different contents and different mechanisms for enforcement.

65. It should no longer be necessary to cite authority for the proposition that the Convention, as an international treaty, is not part of English domestic law . . . That proposition has been in no way altered or amended by the 1998 Act. Although people sometimes speak of the Convention having been incorporated into domestic law, that is a misleading metaphor. What the Act has done is to create domestic rights expressed in the same terms as those contained in the Convention but they are domestic rights, not international rights. Their source is the statute, not the Convention. They are available against specific public authorities, not the United Kingdom as a state and their meaning and application is a matter for domestic courts, not the court in Strasbourg.

66. . . .

67. If one keeps the distinction between international and domestic obligations firmly in mind, the fallacy in the respondent's reasoning becomes apparent. . . . "

Lord Hoffman then went on to consider whether, in the case of a death before 2^nd October, 2002, a remedy could be claimed under s. 6(1) of the 1998 Act for the continuing breach of articles 2 and 3 of the Convention since 2^nd October, 2000. Referring to a previous case in which the High Court had held that such a claim could lie, Lord Hoffman went on to state as follows in para. 68 of his opinion:

"But the fallacy of the reasoning lies in the notion of a 'continuing breach' of articles 2 and 3. The judge was concerned with the rights of the claimants in domestic law. Before 2^nd October, 2000, there could not have been any breach of a human rights provision in domestic law because the Act had not come into force. There could be no continuing breach. There may have been a breach of article 2 as a matter of international law and this may have 'continued' after 1^st October, 2000, although . . . I think it unlikely. But that is irrelevant to whether the claimant had rights in domestic law, for which there can be no force other than the 1998 Act. The Act did not transmute international law obligations into domestic ones. It created new domestic human rights . . . ."

In my view, Lord Hoffman's reasoning can be adopted in considering the effect of the coming into operation of s. 3(1) of the Act of 2003, which is the analogue in this jurisdiction of s. 6(1) of the 1998 Act in the United Kingdom. Section 3(1) has created new obligations and correlative rights and s. 3(2) has created a new remedy in Irish law.

Insofar as the applicant in challenging the deportation order seeks to rely on the ground set out in para. 5(1) of the proposed amended statement of grounds of 26^th January, 2004, that is to say, insofar as she is seeking to rely on articles 2 and 3 of the Convention, she is seeking to enforce the State's obligations under international law. The coming into force of the Act of 2003 has not altered those obligations or the rights and remedies which flow from them. In seeking to include a challenge to the deportation order based on an alleged breach of articles 2 and 3 of the Convention now, the applicant is seeking to reintroduce a ground that was expressly rejected by O'Sullivan J. on the leave application. I consider that I am bound by the decision of O'Sullivan J. If the applicant was dissatisfied with that decision, her remedy was to seek a certificate under s. 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000 for leave to appeal to the Supreme Court.

Moreover, insofar as the applicant seeks to challenge on a quia timet basis the entitlement to enforce the deportation order in para. 5(4) on the ground of an assumed threatened breach of articles 2 and 3, she has not established any basis for being allowed to advance this ground at this stage. Neither the factual nor the legal situation has changed in relation to her rights derived from the Convention since she sought, or since she was granted, leave.

Under para. 5(4) the applicant also seeks to amend the statement of grounds to include a ground that the enforcement of the deportation order would be unlawful and contrary to the law of the State. The law of the State has changed since the applicant was granted leave because the provision on which the applicant principally relies,

s. 3(1), has come into operation. In relation to this element of the application, in addition to submitting that s. 3 of the Act of 2003 does not have retrospective effect, which proposition was accepted by counsel for the applicant as being correct, it was submitted on behalf of the respondent that –

(a) enforcement of the deportation order is purely an administrative act to be carried out by the Garda National Immigration Bureau who only have a discretion as to the manner and time of enforcement,

(b) insofar as it is argued that, in enforcing the order, the Garda National Immigration Bureau must perform its functions in a manner compatible with the State's obligations under articles 2 and 3 of the Convention, such argument reverts to the original decision of the respondent to sign the deportation order, and

(c) in any event the mandatory consideration by the respondent of the issue of non-refoulement pursuant to s. 5 of the Act of 1996 is sufficient consideration for the State to act in a manner "compatible with the State's obligation under the Convention".

Counsel for the applicant having, properly in my view, conceded the non-retrospectivity of the Act of 2003, the issue which remains is whether the enforcement of the deportation order, which, if it takes place, will take place after the coming into operation of the Act of 2003, could constitute a breach of s. 3(1), if the deportation order was lawfully made. In my view, it could not. Such authority as any organ of State has to enforce the deportation order derives solely from the deportation order. The enforcement process cannot be severed from, and has no basis in law distinct from, the order itself. The decision to make the deportation order and the order itself both predate the coming into operation of s. 3(1). They are immune from challenge under the Act of 2003. Therefore, in terms of the application of the Act of 2003, it must be assumed that the deportation order is valid. If it is, its enforcement could not constitute a breach of s. 3(1). Of course, for the purpose of this analysis, the fact that the deportation order is being challenged for alleged non-compliance with the Criminal Justice (United Nations Convention Against Torture) Act, 2000 is deliberately ignored.

As regards the amendment sought to enable the applicant to challenge the enforcement of the deportation order under as contravening the Act of 2003, I am not satisfied that the applicant has established that there are arguable grounds, let alone substantial grounds, as required by s. 5(2)(b) of the Illegal Immigrants (Trafficking) Act, 2000, for such challenge. Therefore, no useful purpose would be served by considering whether there is good and sufficient reason for extending time under s. 5(2)(a) of that Act.

The plaintiff's application is refused.