Lovejoy v. Attorney General [2008] IEHC 225 (8 July 2008)


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High Court of Ireland Decisions
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URL: http://www.bailii.org/ie/cases/IEHC/2008/2008_IEHC_225.html
Cite as: [2008] IEHC 225

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Neutral Citation: [2008] IEHC 225

    THE HIGH COURT
    2008 No. 232 J.R.
    BETWEEN
    GRACE LOVEJOY
    APPLICANT
    AND
    THE ATTORNEY GENERAL
    RESPONDENT
    EX TEMPORE JUDGMENT of Mr. Justice Birmingham delivered on the 8th day of July, 2008
  1. In this case, the applicant seeks a declaration by way of judicial review that certain statutory provisions are inconsistent with the Constitution. In particular, the applicant seeks a declaration to that effect in respect of s. 5 of the Illegal Immigrants (Trafficking) Act 2000, and declarations to like effect in respect of first and second Schedules of the Refugee Act 1996, as amended, and also in respect of part of s.1 of the Refugee Act 1996.

    2. Background
  2. This case comes before the Court against a lengthy and a complex background and it is probably worthwhile just referring to that briefly before coming to the substance of the challenge. Essentially, what seems to have happened is that the applicant applied for asylum in this State and was unsuccessful at first instance before the Refugee Applications Commissioner ("RAC"). She then appealed to the Refugee Appeals Tribunal ("RAT"), which dismissed the appeal and affirmed the recommendation of the RAC.

  3. At that stage, the applicant commenced judicial review proceedings. It appears that those judicial review proceedings (Record No. 2004/1157 JR) were compromised. Part of the compromise - though it appears that the applicant may be having second thoughts about this - provided that the matter would go back to the RAT to be heard anew before a Member other than the Member who heard the case the first time round.

  4. The matter was remitted to the RAT and a further decision emerged from that body that once more affirmed the recommendation of the RAC. That decision, too, was challenged by the applicant. The matter came on before Butler J., who delivered judgment on 28th July, 2006, refusing the applicant leave to apply for judicial review.

  5. From that decision, the applicant purported to appeal, but she did so without a certificate pursuant to s. 5 that the matter was an appropriate one for an appeal. Thus, when the matter came before the Supreme Court, the Supreme Court declined to hear the appeal, explaining that they had no jurisdiction to do so. I understand that subsequently the applicant went back before Butler J. and sought a certificate, but that that application was refused by Butler J. in the course of the last few weeks, on 27th May, 2008.

  6. Against that background, I turn now to the relief sought today.

    7. I. Challenge to s. 5, Illegal Immigrants Trafficking Act 2000
  7. The first challenge, as I have said, is to the constitutionality of s. 5 of the Illegal Immigrants Trafficking Act 2000. That aspect can be disposed of very shortly, because that section has been found to be constitutional by the Supreme Court in the course of In re Article 26 and the Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360. That was a situation where the President had referred the Bill to the Supreme Court when it was presented to her for signature. The matter, having been the subject of Supreme Court consideration, is now immune from further Constitutional challenge because Article 34.3.3° of the Constitution provides:

    8. "No Court whatever shall have jurisdiction to question the validity of a law or any provision after of a law, the bill for which shall have been referred to the Supreme Court by the President under Article 26 of this Constitution or to question the validity of a provision of a law where the corresponding provision in the bill for such law shall have been referred to the Supreme Court by the President under the said Article 26."
  8. That simply puts the matter absolutely beyond doubt, but even without that provision of the Constitution, I would find myself in a situation where the Supreme Court has ruled definitively on the matter and clearly it would not be open to me to seek to ignore the decision of the Supreme Court or in any sense to overturn it, or anything of that nature. Thus, insofar as the s. 5 challenge is concerned, the matter just does not get off the ground.

    9. II. Challenge to the Refugee Act 1996, as amended
  9. I turn, now, to the challenge to the various provisions of the Refugee Act 1996, as amended. Ms Farrell, counsel on behalf of the respondent, raises a question in relation to locus standi. She says that the applicant has insufficient interest in the outcome to be permitted to bring these proceedings. That, I suppose, raises for consideration the question of what would happen if she were to be successful, what advantage would it be to her if I, or for that matter some other judge in the future, were to find that the sections which she impugns were unconstitutional. It seems to me that it cannot be said with complete certainty that there would be no advantage to the applicant. That being so, rather than speculating on what might be a very hypothetical situation, it seems to me preferable to try and decide the case other than by reference to the question of locus standi, and as it happens, I believe I am in a position to do so anyway.

  10. I come, therefore, to the substantive challenges to the Refugee Act. The first challenge is to the portion of s. 1 of the Act, which states that references to "the Minister" are references to the Minister for Justice. As counsel for the respondent points out, this is really only the interpretation section, and is designed with a view to clarifying the use of language. So interpreted, it is hard to see that any constitutional issue could ever arise.

  11. However, that is perhaps a somewhat narrow interpretation. It seems to me that what the applicant is seeking to do is to focus attention on that section to raise the role of the Minister and to advance the arguments that she wishes to raise, by reference to that section. The argument that she wishes to advance is that the Minister is an inappropriate person to have a role or responsibility in the area of refugees, given that he has also roles in relation to the control of immigration and other functions of that nature.

  12. It seems to me that that argument is without substance. It has long been recognised that the question of controlling the entry into the State of non-nationals is a matter of fundamental importance and that the right to do so is, in fact, one of the inherent indices of statehood. Going back to really the earliest immigration cases back in the 80s and 90s, such as the decision of Costello J. in Pok Sun Shun v. The Minister for Justice, Equality and Law Reform [1986] I.L.R.M. 593, and the decision of Gannon J. in the case of Osheku v. Ireland [1986] I.R. 377; these cases all speak of how fundamental is the control of entry into the State by non-nationals, or, to use the language that they were using at the time, of "aliens".

  13. The Refugee Act 1996, seeks to achieve a number of objectives. First of all, it seeks to ensure that Ireland complies with its international obligations by providing international protection to persons who are at risk of persecution for Convention reasons. Secondly, it seeks to address the situation of those who have sought to enter the State by advancing a claim, when that claim is unsuccessful and subjecting such persons to control. The question of an asylum system is, therefore, an integral part of the immigration policy of this State or any other state. In those circumstances, the international experience is that it is not at all unusual for Ministers for Justice or Ministers for the Interior or Home Secretaries - however they are described - to be the member of government charged with responsibility in this area. Even as we speak, the newspapers report today that the Ministers for Justice of the European Union are gathering to discuss these issues in Cannes.

  14. A further point is that the entitlement to assign responsibilities to individual ministers and to assign responsibilities between departments is a matter for legislation, by virtue of Article 28.12 of the Constitution. That legislation is provided for by the Ministers and Secretaries Act of 1924. Thus, that the Minister for Justice should have a role does not, in my view, raise constitutional issues. Because I believe that is the issue that was really sought to be canvassed by referring to s. 1 of the Refugee Act, I therefore find that the s. 1 is not, in any sense, inconsistent with the Constitution.

  15. I come then to the challenge to Schedule 1 and Schedule 2 of the Refugee Act 1996, which deal respectively with ORAC and the RAT. As I understand the applicant - and she has confirmed this to me in response to a specific question - she is essentially advancing two arguments in respect of ORAC and the RAT; first of all, that the bodies lack independence, and secondly, that the bodies are defective because of the absence of any requirement, or any emphasis, or any addressing of the question of the necessity for appropriate training, something that she says is mandated by the UNHCR Handbook.

  16. So far as the question of independence from the Executive is concerned, the position is that the statute itself, in respect of both bodies, states in terms that the bodies will be independent in the exercise of their functions. Sections 5(2) and 15(2) respectively put this matter beyond doubt. It is quite clear that the Minister and the Executive are not in a position to determine how individual applications are processed and dealt with and what conclusions are reached in relation to them.

  17. So far as the question of training is concerned, it does not seem to me to be necessary to provide by statute that training will take place, or that person employed in ORAC, or serving as members of the RAT, or on the staff of the RAT should receive appropriate training. As it happens, the experience of these Courts is that persons involved at both stages of the procedure do, in fact, undergo training. Only in the last few days, I had a case here where there was reference made to lectures given on the situation in the Democratic Republic of the Congo by the UNHCR officers in Kinshasa. Again, it is frequently the case, when dealing with unaccompanied minors, that there will be reference to the fact that the Presenting Officers and the Tribunal Members will all be selected from persons who have undergone specific training and have specific expertise in that area. It seems to me, therefore, that the fact that it is not stated by statute to be a requirement does not give rise to any constitutional difficulties.

  18. I should say that I didn't understand the applicant to object in principle to the existence of bodies such as the RAC and the RAT. Rather, it seems that she objects to the way in which these bodies are structured and the provisions that are made for them. I should say that even if I had understood the position to be otherwise, I would have been of the view that international experience is that specialised bodies of that nature are necessary to deal with this area, because this area obviously involves the combination of an investigative function and an adjudication element at different stages of the process, and it seems that only a body such as these would be capable of doing so.

  19. All in all, I am quite satisfied that the applicant's challenge to the sections of the Refugee Act 1996, have not been successful. The Statute, of course, enjoys a presumption of constitutionality and I take account of that. In all the circumstances, I must reject the challenge.

    20. Approved: Birmingham J.

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