Supreme Court allows appeal on judicial review leave time extension under Illegal Immigrants (Trafficking) Act 2000.

THE SUPREME COURT

Keane C.J.

Denham J.

McGuinness J.

Geoghegan J.

Fennelly J.

IN THE MATTER OF AN INTENDED JUDICIAL REVIEW

BETWEEN

ANTHONY BENSON

107 & 115/01

APPLICANT

AND

THE GOVERNOR OF THE TRAINING UNIT GLENGARRIF PARADE DUBLIN

RESPONDENT

AND

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

NOTICE PARTY/RESPONDENT

BETWEEN

MOHAMMED AHMED SAALIM

164/01

APPLICANT/APPELLANT

AND

THE MINISTER FOR JUSTICE, EQUALITY, LAW REFORM, INTERIM REFUGEE APPEALS AUTHORITY, IRELAND AND THE ATTORNEY

GENERAL

RESPONDENTS

JUDGMENT delivered the 30th day of January, 2002 by Keane C.J.

This appeal raises a net but important point on the construction of s.s.(2) and (3) of s.5 of the Illegal Immigrants (Trafficking)

Act 2000. That section contains provisions dealing with the right of access to the courts of persons affected by the operation

of the Refugee Act 1996 and the Immigration Act 1999 who wish to challenge the operation of those statutes.

The text of both subsections is set out at a later point in this judgment. At this stage, it is sufficient to note that s.s(2)

requires that an application for leave to apply for judicial review in respect of certain specified matters be made within the

period of 14 days commencing on the date on which the person was notified of the act in question, unless the High Court

considers that there is good and sufficient reason for extending that time. It also requires that the application be made by

motion on notice to the Minister for Justice, Equality and Law Reform (hereafter “The Minister”) and any other person specified

by the High Court.

S.S.(3) then provides that the determination of the High Court of an application for leave to apply for judicial review or of the

application itself is to be final and that no appeal is to lie from the decision of the High Court to the Supreme Court in either

case, except with the leave of the High Court. That leave is only to be granted where the High Court certifies that its decision

involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be

taken to the Supreme Court.

The applicant in the first case is a citizen of Nigeria. He came to Ireland on 15th March 1999 and was granted permission to

work on 6th June 2000, while his application for refugee status, which he had made on arrival, was pending. That application

was refused, as was his appeal against the refusal and on 30th June 2000 the applicant’s solicitor furnished reasons in writing to

the Minister as to why his client should not be deported. A deportation order was made in respect of him on the 27th July 2000

and, on the 4th December 2000, notice of this having been made was sent to an address in Dublin at which the applicant had

formerly been residing. On the 14th February 2001, a notice of motion was served on his behalf on the Minister and the

Attorney General seeking inter alia

“An order extending pursuant to s.5(2)(a) of the Illegal Immigrants (Trafficking) Act 2000 the time within which the

applicant may issue and serve a notice of motion seeking relief by way of judicial review.”

This application came on for hearing before Finnegan J., as he then was, and on 2nd April 2001, in a written judgment, he

refused to make the order sought extending the time, but placed a 28 day stay upon the enforcement of the deportation order

so as to enable representations to be made to the Minister, arising from the fact that the applicant’s partner was at that stage

expecting the applicant’s child in June of this year. The applicant has appealed to this court from the refusal by the learned

High Court judge to extend the time.

The applicant in the second case came to Ireland from Somalia on the 19th January 1997. He was refused refugee status on

the 1st March 2000 and an appeal against that refusal was rejected on the 31st July 2000. On the 22nd December 2000, a

notice of motion was issued and served on the respondents seeking an extension of the time within which to apply for relief by

way of judicial review in respect of both the decision of the Minister refusing him refugee status and the decision on appeal. In

respect of the former decision, the application was also refused by Finnegan J in a written judgment on April 2nd 2001. In the

same judgment, he extended the time in respect of the decision on appeal pursuant to Order 84 Rule 21 of the Rules of the

Superior Courts.

In the second case, arguments were then advanced to the learned High Court judge as to whether the leave of the High Court

was required to the bringing of an appeal from his refusal to extend the time and, if so, whether such leave should be granted.

In a written judgment delivered on the 10th May, he concluded that such leave was required and that it should not be granted

in that case, since he was not satisfied that his refusal involved a point of law of exceptional public importance and that it was

desirable in the public interest that an appeal should be taken from that decision to this court. He was, however, satisfied that

his decision that such leave was required in the case of a refusal to extend the time did raise a point of law of exceptional

public importance and gave leave to appeal that decision. As an appeal to this court was brought in each of these cases from

the decision by the learned High Court judge refusing to extend the time, it is clearly convenient to determine at the outset the

point common to both cases, i.e., as to whether such an appeal lay without the leave of the High Court.

At this point, the relevant statutory provisions should be set out in full.

Section 5(2) and (3) of the 2000 Act provides that

“(2) An application for leave to apply for judicial review under the Order [Order 84 of the Rules of the Superior Courts] in

respect of any of the matters referred to in s.s.(1) shall

(a) 1be made within the period of 14 days commencing on the date on which the person was notified of the

decision, determination, recommendation, refusal or making of the order concerned unless the High Court

considers that it has good and sufficient reason for extending the period within which the application shall be

made, and

(b) be made by motion on notice (grounded in the manner specified in the order in respect of an ex parte motion

for leave) to the Minister and any other person specified for that purpose by order of the High Court, and such

leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that

the decision, determination, recommendation, refusal or order is invalid or ought to be quashed.

(3) (a) The determination of the High Court of an application for leave to apply for judicial review as aforesaid or of an

application for such judicial review shall be final and no appeal shall lie from the decision of the High Court to the

Supreme Court in either case except with the leave of the High Court which leave shall only be granted were the High

Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the

public interest that an appeal should be taken to the Supreme Court.

(b) This subsection shall not apply to a determination of the High Court insofar as it involves a question as to the

validity of any law, having regard to the provisions of the Constitution.”

It is not in dispute that the acts in respect of which the extension of time for the institution of judicial review proceedings was

refused were among the matters referred to in s.5(1).

Article 34.4.3º of the Constitution provides that

“The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have

appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of

other courts as may be prescribed by law”.

The syntax of s.s.2(a) leaves something to be desired. The use of “shall” in the last clause of subparagraph (a) was appropriate

only if the imperative mood was being employed again. If the indicative mood was being employed, “will” would have been

appropriate rather than “shall”. Presumably the subjunctive mood was intended and the closing words should read “should be

made”.

The critical provision is, however, that contained in s.s(3)(a). I do not think that I do any injustice to the argument advanced

on behalf of the applicants in saying that it rests essentially on the proposition that the “determination” referred to in that

subparagraph is a final judicial conclusion, after an examination of the merits, of either an application for leave to apply for

judicial review or the application for judicial review itself. An application for an order extending the period within which the

application is to be made, on the other hand, does not necessarily involve any examination of the merits of the application and,

accordingly, cannot be regarded as a “determination” of the application. Where the court decides that there is good and

sufficient reason for extending the time, it must necessarily proceed to a second and, as was urged, separate or discrete

application, i.e., as to whether leave should be granted and it was only the second such adjudication which could be said to be

the determination of the application for leave within the meaning of s. 5(3)(a).

The policy considerations underlying these provisions were explained as follows in the decision of this court in In Re: Article 26

of the Constitution and s.s. 5 and 10 of the Illegal Immigrants (Trafficking) Bill 1999 [2000] IR 360 at p.392:

“..... the court is satisfied that the objectives of the Bill as regards the 14 day limitation period can be reasonably

inferred from the provisions of the Bill. There is a well established public policy objective that administrative decisions,

particularly those taken pursuant to detailed procedures laid down by law, should be capable of being applied or

implemented with certainty at as early a date as possible and that any issue as to their validity should accordingly be

determined as soon as possible. (Brady -v- Donegal County Council [1989] ILRM 282, Irish Asphalt Limited -v- An Bord

Pleanala [1996] 2 IR 179 and KSK Enterprises Limited -v- An Bord Pleanala [1994] 2 IR 128 at p.135). Furthermore, it may

be inferred from the Bill and the surrounding circumstances that the early establishment of the certainty of the

decisions in question is necessary in the interests of the proper management and treatment of persons seeking asylum

or refugee status in this country. The early implementation of decisions duly and properly taken would facilitate the

better and proper administration of the system governing seekers of asylum for both those who are ultimately

successful and ultimately unsuccessful.”

It would be remarkable if the Oireachtas, in seeking to attain those objectives, had severely circumscribed the right to appeal

to this court from decisions by the High Court on the merits of applications for judicial review, but had allowed an unrestricted

right of appeal where an applicant was, by definition, already out of time. It is all the more surprising when one has regard to

the obvious fact that, given the momentous consequences for the persons concerned, decisions to refuse asylum or refugee

status are decisions quintessentially of a nature calculated to give rise to judicial review proceedings and to an appeal to this

court, almost as a matter of routine, where they are refused by the High Court on the ground that they are out of time. It is

difficult to discern any rational basis for such a legislative choice by the Oireachtas and none was suggested in the course of

argument in this court, other than the unquestionable importance of the conferring of a jurisdiction to extend time, in the

context of the severe limitation on the right of appeal generally.

The latter is, no doubt, an important consideration. However, it must also be remembered that the order in respect of which it

is suggested an unrestricted right of appeal was now to be given is an order of a discretionary nature in respect of which, prior

to the decision of this court in Morelli, Vella -v- Morelli [1968] IR 11, the right of appeal to this court was regarded as in any

event severely inhibited. The decision of this court that, having regard to the provisions of Article 34.4.3º, those restrictions

must be regarded as having been swept away, left unaffected the general principle that different considerations were still

applicable to appeals of that nature: see, in particular the observations of Budd J at p.29.

However, it is to the words used by the legislature that we must have regard in ascertaining its intention and if, as so

construed, these provisions mean that the right of appeal is indeed unrestricted in such cases, it is not the function of the

courts to remedy such a casus omissus, if that is what it is. That would be a weighty consideration in every case: in this case,

there is the additional factor that the right of appeal to this court provided for in Article 34.4.3º may only be removed or

abridged by a statutory provision which is clear and unambiguous. (See The People (Director of Public Prosecutions) -v- O’Shea

[1982] IR 384 and Hanafin -v- Minister for the Environment [1996] 2 IR 321.)

As already noted, in both of the cases under appeal, the applicant served a notice of motion seeking an order extending the

time within which he might issue and serve a notice of motion seeking relief by way of judicial review. In the first case, the

notice of motion was headed “in the matter of an intended judicial review...”. In his judgment dealing with the issue as to

whether the leave of the High Court was required for an appeal, the learned High Court judge said:

“An application for an extension of time can be taken separately from the application for leave by a notice of motion

seeking only that relief or can be sought as one of the reliefs in the notice of motion seeking leave. The procedure

adopted should not be in any way determinative of the nature of the application and should not influence me in

construing the Act”.

If it be the case that such an application can be made either separately in a notice of motion claiming that relief only or can be

sought as one of the reliefs in the notice of motion seeking leave, I have no doubt that the learned High Court judge was

correct in his view that the procedure adopted in any particular case cannot be determinative of the proper construction of the

sections under consideration and, in particular, the issue that has arisen on this appeal.

The question as to whether such an application can be made separately was not the subject, it would seem, of any arguments

in the High Court. Having regard to the course the proceedings have taken, it would clearly not be right for this court to decide

the matter on the basis that no such application could be made as a separate application before any proceedings were in being,

as was done here. I would, however, have serious doubts as to whether it could be so made. Section 5(3)(a) refers to two

applications only, an application for leave to apply for judicial review and an application for judicial review itself. Similarly, s.5(2)

refers to one application alone, an application for leave to apply for judicial review. There is nothing whatever in the section to

indicate that an applicant, where he is out of time, may - still less must -make a preliminary application for an extension of time

before any proceedings are in being.

No rules of court have been made prescribing the procedure to be adopted where the application for leave is out of time. There

is, so far as I am aware, only one instance in which the Rules of the Superior Courts expressly authorise the making of an

application where there are no proceedings in being i.e., where liberty is sought to issue and serve proceedings out of the

jurisdiction. That rule simply reflects the circumspection with which, in the light of the well established principles of private

international law, the courts will allow their processes to be used against the citizens of other jurisdictions. It is also the case

that, in urgent ex-parte applications for interim injunctions, chancery judges have on occasions, when the central office is

closed and the extreme urgency of the position requires it to be done, accepted an undertaking on behalf of the plaintiff to

issue a plenary summons as soon as the office is open. I find it difficult to suppose that the entire framework of the statutory

scheme under consideration must be read as permitting an application to be made even where no proceedings are in being. I

would expressly reserve for consideration in a case where it is fully argued the question as to whether any such preliminary

application can, in the absence of express statutory authorisation, be made where no proceedings are in being.

For the purposes of the present case, however, it is sufficient to say that it is not in any way a necessary part of the statutory

scheme put in place by s.15 that the application for an order extending the time must be made at a stage when there is no

application for leave in being and I see no reason to attribute any such intention to the legislature. Such a construction of the

relevant provision would, indeed, only serve to frustrate the policy underlying these provisions to which I have already referred,

i.e., to ensure the early implementation of decisions as to asylum or refugee status duly and properly taken. If, for example, the

failure of the applicant to bring the application within the 14 day period was principally attributable to some error in

administration on the part of the Minister and the latter was not raising any objection to the extension of time, it would be

remarkable to impose on the applicant an obligation to bring a preliminary application to the court for an order extending the

time involving wholly unnecessary further delay. I have no doubt that, where a notice of motion seeking relief by way of judicial

review has not been issued within the 14 day period, the applicant may then issue and serve a notice of motion claiming the

relief by way of judicial review together with an order extending the period within which the application may be brought. One

would, of course, expect that part of the application to be dealt with before the court embarks on an adjudication of the issue

as to whether leave to apply for judicial review should, in any event, be granted since the court’s decision on the extension of

time issue may be - and I use the word advisedly - determinative of the issue as to whether leave should be granted to apply

for judicial review.

This conclusion is unaffected by the particular language used in s.5(2), i.e.,

“An application for leave to apply for judicial review... shall.... be made within the period of 14 days...”

That does not in any way preclude the making of such an application after the period has expired incorporating a claim for an

order extending the time. Such language is commonplace in limitation provisions, such as the Statute of Limitations 1957, where

the language used is

“No action shall be brought.... after the expiration of .... years...”

It has never been suggested that the use of such language necessitates an application being made to the court before any

such proceedings are issued. It is, of course, the case that, since such provisions are concerned with adversarial litigation, the

action will not be dismissed as being out of time unless the statute is expressly pleaded. But that is not a distinction of any

significance: we are also concerned here with adversarial litigation in which the Minister is in the posture of the defendant and

it would be unlikely in the extreme that the court would decline to extend the time of its own motion where the Minister

accepted that there was good and sufficient reason for the delay.

It is clear beyond argument that if the order extending the time can be included as one of the reliefs sought in a notice of

motion seeking leave to being an application for judicial review and the decision to refuse such an order is properly regarded as

determinative of the application for leave within the meaning of s.5(3)(a), the same consequences would have to follow,

whatever the form in which the application was brought. One could not possibly attribute to the legislature an intention

drastically to circumscribe the right of appeal from a refusal to extend the time in the case of one procedure but not in the case

of the other.

The issue, accordingly, resolves itself into one as to whether, in a case where an applicant issues and serves a notice of motion

after the expiration of the 14 day period seeking leave to apply for judicial review and an order extending the time for making

the application, a decision of the High Court to refuse to grant an extension constitutes the “determination” by that court of

the application for leave.

It is relevant to note, in this context, that the application for leave is not made at the stage when it is moved in court: it is

made when the notice of motion is filed in the central office and served on the relevant respondents. That was so held by this

court in KSK Enterprises Limited -v- An Bord Pleanala [1994] 2 IR 128, construing the somewhat analogous provisions of s.82 of

the Local Government (Planning and Development) Act 1963 as amended by s.19(3) of the Local Government (Planning and

Development) Act 1992. Under that legislation, an application for leave to apply for judicial review in respect of certain planning

decisions had to be made within the period of two months commencing on the date on which the decision was given. This court

rejected an argument that the application for leave was not made until such time as it was actually moved in court or, at the

least, appeared in a court list and was accordingly out of time if not “made” in that sense within the two month period. If the

applicants in this case had filed and served a notice of motion seeking relief by way of judicial review and an order extending

the time within which it could be made, that application would then have been “made” within the meaning of s.5(2)(a), although

the actual hearing of the application in court would not have taken place in the ordinary way until some time later. If, however,

the application for leave is “made” within the meaning of s.5(2)(a) at that point in time, it follows inevitably that it must at

some stage thereafter be the subject of a “determination” within the meaning of s.5(3)(a). It seems difficult to resist the

conclusion that where the High Court is not satisfied that there is good and sufficient reason for extending the period within

which the application should be made, the application for leave to apply for judicial review is thereby necessarily determined

and, in the language of the section, finally determined.

The applicants relied on a statement in the judgment of this court In Re: Article 26 of the Constitution and In Re: s.s. 5 and 10

Illegal Immigrants (Trafficking) Bill 1999 that:

“There is nothing in the section which would prohibit the person concerned from applying for an extension of the 14 day

period before that actual 14 day period had elapsed.”

That dictum did not form part of the ratio of that decision and, to the extent that it lends support to the proposition that the

putative plaintiff/applicant in any proceedings can make an application to the court before the proceedings are instituted

without any express statutory authorisation, might require reconsideration. It is, however, relevant to point out that what was

under consideration at that point in the judgment was the relatively lengthy time frame within which, in the normal course of

events, applications for asylum are generally under consideration. In addressing the argument that the limitation period was

unduly short, the court emphasised that a person would have initiated the entire procedure at least 5 weeks prior to the making

of the deportation order and that this was indeed the statutory minimum: in practice, as was made clear in the judgment, the

period is usually significantly longer. So much so, indeed, that a putative applicant for judicial review would, in the typical case,

be well aware of the matters which he/she would wish to place before the court in an application for judicial review. Such a

person might well issue the application in a relatively bald form, including a claim for an order extending the time, before the

expiration of the 14 day period but defer serving it until such time as he/she had assembled the materials which it was thought

necessary to place before the court. I am satisfied that no greater significance than that can be attached to that particular

observation.

It was argued that, where such an application was made before the expiration of the 14 day period and refused by the High

Court, an appeal would inevitably lie to this court, since it could not be said that the decision of the High Court constituted a

determination of the application for leave. In the event of the High Court refusing to extend the period, it would still be possible

for the applicant to apply for leave before the expiration of the 14 day period and hence the decision of the High Court was not

in any sense determinative of that application.

The fact, however, that the decision by the High Court of an application brought within the 14 day period to extend the time is

not determinative of the application for judicial review is of no assistance to the applicants in the present case. It is not

determinative in such a case, precisely because it is, in theory at least, still possible for the applicant to apply for judicial

review before the expiration of the 14 day period. That is not the case, where, as here, the application for leave is not brought

until after the expiration of the 14 day period. In such a case, the decision by the court that there is not good and sufficient

reason for extending the time would appear, on one view, to be determinative of the application for leave itself.

The suggestion that the Minister has an untrammelled right to appeal from an extension of the time and that to deny the

applicant a corresponding right of appeal from a refusal to extend the time would be to construe the provisions in an invidious

and discriminatory fashion does not withstand close scrutiny. Where an order extending the time is one of the reliefs sought in

the application for leave, the granting by the High Court of such an order will be followed by an adjudication on the merits of

the application. If the application for leave is then granted, that is determinative of the application and the Minister may only

appeal with the leave of the High Court. If the application for leave is not granted, any appeal by the Minister from that part of

the High Court order which extended the time would be moot and could not be entertained by this court. The supposed anomaly

can, accordingly, only arise where the applicant has made his application by way of a distinct preliminary application to the

court before any proceedings are even issued. Assuming that such a procedure is permissible - and I reiterate my doubts as to

whether it is - there is nothing invidious or discriminatory in permitting the Minister to appeal from the decision of the High Court

to grant the extension: the applicant can avoid any such invidious or discriminatory result by simply incorporating his claim for

an order extending the time in his application for leave. I know of no reason why he should not bring his proceedings in that

form and none has been suggested.

The applicants also sought to rely on the recent decision of this court in G.K. & M.M. and Z.M. & P.K. -v- The Minister for

Justice, Equality and Law Reform and Others (Unreported; judgment delivered 17th December 2001). In that case, an

application to the High Court for leave to extend the time to apply for judicial review was granted in the High Court but leave

was given to the respondents to bring an appeal to this court. The application related to two decisions, in respect of the first

of which this court held that no basis for extending the time had been established. In relation to the second, a question arose

as to whether, assuming the delay in making the application was excusable, the court, in considering whether the extension of

time should be granted, should have regard to the merits of the application for leave itself. It was held by this court that, in

circumstances where the court is called upon to exercise a jurisdiction of this nature, the merits of the substantive application

may be relevant: thus, in the case of a clearly unarguable claim, there could normally be no good and sufficient reason for

extending the time.

The applicants rely in particular on two passages in the judgment of Hardiman J, with whom Denham J and Geoghegan J agreed.

In the first, speaking of the power of the High Court to extend the time, he said:

“This is a special statutory jurisdiction and it is in my view sui generis. Elucidation of the principles governing its exercise

may be drawn from the jurisprudence which has developed in relation to other powers of a cognate nature, but none

are directly analogous. Examples include the jurisdiction to extend time for appealing, or for the taking of a particular

step in litigation and the jurisdiction to strike out a claim in the exercise of the court’s inherent jurisdiction. These

various powers are not directly analogous to each other.”

That passage does not seem to me to be of any assistance to the applicants in the present case. The fact that the jurisdiction

conferred on the court to extend the time is special in its nature and sui generis has no relevance to the question as to

whether, where the court declines to exercise it in favour of an applicant, its decision can be said to be determinative of the

application for leave itself.

The applicants also relied on the following passage in the judgment of Hardiman J:

“On the hearing of an application such as this it is of course impossible to address the merits in the detail [in] which they

would be addressed at a full hearing, if that takes place. But it is not an excessive burden to require the demonstration

of an arguable case. In addition, of course, the question of the extent of the delay beyond the 14 day period and the

reasons if any for it must be addressed.”

It would appear that in that case the application to extend the time had been made in advance of the application for leave

itself. However, it is obvious that no issue of any sort arose in that case as to whether an order extending the time could also

be claimed in the notice of motion seeking leave to apply for judicial review and the court was not concerned with the issue

that has arisen in this case. This passage lends no support to the arguments on behalf of the applicants in the present case.

I would, accordingly, have considerable doubts as to whether an application for leave to apply for judicial review only comes

into existence at the stage at which the court holds that there was good and sufficient reason for bringing it outside the

limitation period. If that is not how the section should be read, it is difficult to see how the court’s refusal to extend the time

can be other than determinative of the application for leave. However, as the judgments of other members of the court

demonstrate, an argument can undoubtedly be advanced with some plausibility that it cannot be said to have been made until

after the court has extended the time and that, accordingly, the refusal to extend the time cannot be regarded as

determinative of the application for leave. In these circunstances, it follows inevitably that the provisions in question cannot be

regarded as having clearly and unambiguously excluded the constitutional right of appeal to this court.

I would, accordingly, allow the appeals and proceed to consider whether there were good and sufficient reasons in either or

both cases for extending the time.