M A K -v- Minister for Justice and Equality : Judgments & Determinations : Courts Service of Ireland

Determination

Title:	M A K -v- Minister for Justice and Equality
Neutral Citation:	[2017] IESCDET 132
Supreme Court Record Number:	S:AP:IE:2017:000113
High Court Record Number:	2017 No. 123 JR
Date of Determination:	12/04/2017
Composition of Court:	Clarke C.J., MacMenamin J., Dunne J.
Status:	Approved

___________________________________________________________________________

Supporting Documents:

THE SUPREME COURT

DETERMINATION

IN THE MATTER OF SECTION 5 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 (AS AMENDED BY SECTION 34 OF THE EMPLOYMENT PERMITS (AMENDMENT) ACT 2014)

BETWEEN

M A K

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.4° OF THE CONSTITUTION APPLIES

RESULT: The Court grants leave to appeal to this Court under Article 34.5.4 of the Constitution, from the order of the High Court made herein on the 22^nd May, 2017.
REASONS GIVEN:

Jurisdiction
1. This determination relates to an application of the applicant in the underlying proceedings, M A K, to appeal under Article 34.5.4 of the Constitution from a judgment of the High Court, (O’Regan J.), delivered on the 8^th May, 2017.
2. As is clear from the terms of the Constitution, and many determinations made by this Court since the enactment of the 33rd Amendment, it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed either involves a matter of general public importance or that it is otherwise in the interest of justice necessary that there should be an appeal to this Court.
3. The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.
The Application
4. The application and responses are placed in the Courts Website. The applicant in the above matter sought leave from the High Court (O’Regan J.) to certify a point of law of exceptional public importance, pursuant to the provisions of s.5(3)(a) of the Illegal Immigrants (Trafficking) Act, 2000. The application concerned the issue: “Is a deportation order valid when it fails to specify on its face the date by which the subject must leave the State, and remain thereafter out of the State”. The issue arose out of a judgment delivered by O’Regan J. on the 30^th March, 2017, when the applicant unsuccessfully sought leave to apply for judicial review in respect of deportation orders made against him, by reason of the fact that the date by which the applicant was to leave the State was not mentioned on the face of the deportation order itself, but rather in an accompanying notice.
5. In her ruling, the High Court judge set out the circumstances in which the court might certify a point of exceptional public importance for an appeal on a point of law, as identified in Glancre v. An Bord Pleanala [2006] IEHC 250. (See also I.R. v. Minister for Justice, Equality & Law Reform [2009] IEHC 510, where Cooke J. identified the principles in asylum issues).
6. In the course of the hearing to certify before the High Court, the question arose as to whether the decisions of the High Court were consistent on the issue (see Parvaiz v. An Garda Commissioner [2016] IEHC 772; Lin Qing v. Governor of Cloverhill Prison [2016] IEHC 710; and, apparently, per contra, Kumar v. Minister for Justice, Equality & Law Reform [2016] IEHC 677; SAAE v. Minister for Justice, Equality & Law Reform [2016] IEHC 573).
7. In the High Court, O’Regan J. distinguishing the Parvaiz and Lin Qing decisions, held that no there was no inconsistency in the jurisprudence on the facts of the case before her. In so finding, she relied on two High Court authorities, viz. OGAAF Limited v. An Bord Pleanala [2015] IEHC 205; Ahearne & Others v. An Bord Pleanala [2016] IEHC 536; and IR, cited earlier. These were to the effect that it is unnecessary to grant a certificate when there is no uncertainty in the law.
8. The applicant’s case is that the putative order in his case failed to comply with the provisions of s.3(1) of the Immigration Act, 1999, in that it failed to require the applicant, being the non-national named in the order, to leave the State within such a period as may be specified “in the order”, and to remain thereafter outside the State. The applicant’s case is that, as such, the order failed to contain a necessary and indispensible feature, and therefore did not amount in law to a valid deportation order. It is said that by failing to specify a time in the order, by which the applicant must leave the State and remain outside it, the respondent acted ultra vires and unlawfully. Thus, it is said, the order contained a facial error which could not be cured by the specification of such a date on some other document, or some other specification of the date by some other person. The applicant’s case is that, insofar as the date by which the applicant was directed to leave the State was specified on a letter accompanying the putative deportation order, there is no lawful basis for such a direction.
9. The applicant’s case is that, by a determination pursuant to Article 35.4.4, this Court granted leave to appeal on the issue raised herein from a decision of Humpheys J. (See SE v. Minister for Justice [2017] IESC DET 02). The applicant apparently accepts that the issue in his case may be determined by the outcome of the SE appeal. It is submitted that the judgment of this Court in PL and B v. Minister for Justice, Equality & Law Reform [2002] 1 ILRM 16, did not directly address the issue arising, but that it nonetheless is accepted as authority on the point, and, as such, applied by the High Court. It is submitted that this authority ought to be “revised” to ensure it was correctly decided. A number of observations are made concerning the respondent’s counsel in the Notice of Application. These are entirely irrelevant to the application for leave. Counsel are reminded that applications for leave are not to be seen as an opportunity for irrelevant “point scoring” on peripheral issues which have no relevance whatever to the matter before this Court.
The Response
10. The respondent states that the decision in question does not involve a matter of general public importance, nor is it in the interests of justice that there should be an appeal to this Court. The respondent contests the proposition that this Court granted leave to appeal in SE v. Minister for Justice [2017] IESCDET 62, on the legal issues sought to be agitated by this appellant, namely, whether or not the date by which the recipient of a deportation order must leave the State, may be incorporated in the order by reference to the date specified in the notice accompanying the order, under s.3(3)(b)(ii) of the Immigration Act, 1999.
11. The respondent seeks to distinguish the SE case on its facts, specifically, on the grounds that it is said SE never gave an address to the Refugee Applications Commissioner, and having left his accommodation went to live elsewhere without notifying the Commissioner, or the Department of Justice. It is said that it was in those different circumstances the Minister proposed to make a deportation order against him thereafter; the proposed letter was placed on file and was apparently not served on the applicant. Thereafter, the Minister made a deportation order against him, which was accompanied by a notice under s.3 of the Immigration Act, 1999. The point was made that, in those circumstances, SE had been denied rights of access to the courts. The respondent says such an issue did not arise in the instant case. Further detail of the SE case is set out in the response, wherein the respondent seeks further to distinguish the case from the instant application. Detailed submissions are also made regarding the binding status of FP v. Minister for Justice [2002] 1 I.R. 164.
12. In summary, the respondent’s case is, first, that the point of law which the appellant wishes to raise was not the subject matter of the grant of leave to appeal in SE; second, the facts of this case diverge fundamentally for those of SE; third, that the linked issues, and potential prejudice, regarding access to the courts, that were alleged to have been caused to the applicant in SE, are not present here; fourth, that in FP this Court had the benefit of comprehensive arguments on the legality of incorporating notice of the date by which the recipient of a deportation order had to leave the State, by reference to the s.3(3)(b)(ii), and, finally, that in FP, this Court had rejected the claim that the incorporation by reference to another document was invalid.
Discussion
13. It is not the function of this Court to finally determine the many issues which are raised in the application and response, but rather to determine whether, at this stage, an issue of general public importance arises, or whether an appeal is in the interests of justice. Even accepting for the purposes of argument, that the facts of this case are distinct from SE, both cases, nonetheless, raise the issue regarding whether or not it is necessary to stipulate, on the face of the order, the requisite date by which the person named therein should leave the State. In the circumstances, as in SE, the issue has an importance which resonates beyond the circumstances of the case, and the Court will grant leave.
14. The Court will make an order at case management stage regarding whether this case will run with SE, or whether, rather, it will be adjourned to abide by the outcome of SE. Accordingly, the Court will grant leave.
And it is hereby so ordered accordingly.