Supreme Court allows appeal where applicant's failure to provide an address precludes service by registered post.

THE SUPREME COURT

Supreme Court record no: S:AP:IE:2017 :000072

O’Donnell J

McKechnie J

MacMenamin J

O’Malley J

Finlay Geoghegan J

BETWEEN/

SE

APPELLANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

Judgment of O’Donnell J delivered the 13th of March 2018

1 The applicant in this case, SE, came to Ireland from Egypt on the 28th of September 2015, and on arrival at Dublin Airport made a

claim for asylum. It is perhaps important to observe that the applicant arrived illegally, and his only entitlement to remain in Ireland

was because he had claimed to be a refugee. Under s.9 of the Refugee Act 1996 a person who arrives at the frontier of the State

seeking asylum shall be given leave to enter the State and pursuant to s.9(2) of the same Act is entitled to remain in the State until

the determination of the application.

2 The applicant was brought to the Office of the Refugee Appeals Commissioner. He was then placed in a taxi for the accommodation

centre at Balseskin Reception Centre. In the normal course there is quite an elaborate process for the assessment of asylum

applications. However, in this case the process was short circuited by the fact that the applicant himself never attempted to further

process his application for asylum. Instead he left the centre saying that he was looking for telephone credit, claimed that he then

became lost, asked directions to a mosque, met a fellow Egyptian, who then he says accommodated him for a number of months. As

far as the authorities were concerned he did not reappear until he surfaced almost a year after first arriving in Ireland when he

obtained a permit for an atypical working scheme, in this case involving fishing. For that purpose he had to attend at the gardaí in

Wexford where his past fleeting engagement with the immigration system emerged. It transpired that in the intervening period a

deportation order had been made against him. Accordingly his work permit was revoked and steps were taken to enforce the

deportation order giving rise to these proceedings.

3 The failure of the applicant to pursue his application for asylum in any way, had the inevitable consequence that it would be

refused. In the event a report under s.13 of the Refugee Act recommended refusal of the application on the grounds that he had not

notified the Commissioner of his change of address, indeed in truth, no address had ever been provided. Accordingly, his application

was deemed to have been withdrawn under s.9(4A) of the Refugee Act 1996 (as amended). This in turn led inevitably to

consideration of the making of a deportation order under s.3 of the Immigration Act 1999 (“the 1999 Act”), since one of the classes

of persons who can be made the subject of a deportation order is a person “whose application for asylum has been refused by the

Minister”, (Section 3(2)(f) of the 1999 Act ). It is at this point that the procedure under the 1999 Act becomes relevant.

4 Section 3(3)(a) of the 1999 Act provides as follows:

“Subject to subsection (5), where the Minister proposes to make a deportation order, he or she shall notify the person concerned in

writing of his or her proposal and of the reasons for it and, where necessary and possible, the person shall be given a copy of the

notification in a language that he or she understands.

(b) A person who has been notified of a proposal under paragraph (a) may, within 15 working days of the sending of the notification,

make representations in writing to the Minister and the Minister shall—

(i) before deciding the matter, take into consideration any representations duly made to him or her under this paragraph in

relation to the proposal, and

(ii) notify the person in writing of his or her decision and of the reasons for it and, where necessary and possible, the

person shall be given a copy of the notification in a language that the person understands.”

5 Subsection 4 provides that the notification of a proposal of the Minister under subsection (3) shall include a statement that the

person may make representations within 15 working days or may leave the State before the Minister makes any decision, or consent

to the making of the deportation order within 15 days.

6 Subsection 3(7) provides that a deportation order shall be in the form prescribed or in a form in the like effect. S.3(9)(a)(i) as

inserted by s.10(a)(2) of the Trafficking Act 2000, provides that a notice under subsection (3)(b)(ii), that is notification of the

Minister’s decision and reason for it may also require a person to do any one or more thing for the purpose of ensuring his or her

deportation from the State. It is noteworthy that the Act does not provide for service of the deportation order itself, although that

will normally be the case. Instead it is contemplated that a proposal to make a deportation order under s.3(3)(a) shall be notified in

writing to the person concerned. When the Minister has made a decision, (whether to deport or not), that too must be notified to the

person concerned in writing.

7 Section 6 of the Act as amended by the Trafficking Act 2000 deals with service and provides that:

“6 (1) Where a notice is required or authorised by or under this Act to be served on or given to a person, it shall be

addressed to him or her and shall be served on or given to him or her in some one of the following ways:

(a) where it is addressed to him or her by name, by delivering it to him or her, or

(b) by sending it by post in a prepaid registered letter, or by any other form of recorded delivery service

prescribed by the Minister, addressed to him or her at the address most recently furnished by him or her to the

Registration Officer pursuant to Article 11 of the Aliens Order 1946 (S.R.& O., No. 395 of 1946) or to the Refugee

Applications Commissioner pursuant to s.9(4A) of the Refugee Act 1996, as the case may be, or in a case in which

an address for service has been furnished, at that address.”

(2) Where a notice under this Act has been sent to a person in accordance with (b) of the foregoing section, the notice

shall be deemed to have been duly served on or given to the person on the third day after the day on which it was so

sent.”

8 In this case a letter of the 3rd of November 2015 addressed to the applicant recorded the Minster’s decision to refuse the asylum

request. Accordingly the applicant was a person within s.3(2)(f) of the 1999 Act, that is a person whose application for asylum has

been refused by the Minister and accordingly a person who may be ordered to leave the State pursuant to s.3(1). The letter of the

3rd of November 2015 also recorded the Minister’s decision to consider deportation. This letter did not contain any address for the

applicant (the applicant never having provided one) and the letter was simply placed on the departmental file.

9 On the 14th of January 2016 a further letter was added to the file. Again, it was not addressed to the applicant at any known

address, but was marked “registered post”. This is a letter which is in standard form. It is the letter provided for under s.3(3)(a) of

the 1999 Act informing him or her of a proposal to deport. Such a letter gives the applicant 15 days to make a submission. Obviously

in this case no such submission was made, and on the 8th of April 2015, a deportation order was made in respect of the applicant.

The order which was again in standard form, indeed in the form prescribed by the 2005 Regulations and required the applicant to

leave the State “on the date specified on the notice served”. There was a further letter of the 4th of May 2016, notifying the

applicant of the making of the order and requiring him to present himself to the garda or immigration officer serving the notice. This

was the notification required under s.3(3)(b)(ii). All of this occurred between the time the applicant left the centre at Balseskin and

when he reappeared, at least as far as the authorities were concerned, at the garda station in Wexford. Again the s.3(3)(b)(ii)

notification was placed on the file and noted with the heading “registered post”. In due course, during his interaction with the gardaí

in Wexford he was given the notice and the deportation order. He was also given a letter requiring him to present himself to GNIB on

the 8th of December 2016 for the purposes of ensuring deportation from the State.

10 The applicant sought leave to challenge the deportation order in this case on the grounds that the statutory procedure had not

been complied with. The specific argument was that the s.3(3)(a) proposal to make the deportation order and the notification of the

making of the order pursuant to s.3(3)(b)(ii) were not lawfully served upon the applicant and were thereby unlawful. The applicant

also raised the contention that the deportation order was invalid by reason of the fact that the date upon which he was to leave the

State was incorporated by reference. For the purposes of this judgment it is only necessary to deal with the first issue.

11 The application for leave to seek judicial review was refused by the High Court (Humphreys J), in a judgment delivered on the 19th

of October 2016. He pointed out that failure to provide an address is itself an offence, and that if an initial address was given and an

applicant moved without notifying a change of address, the Minister could proceed in the absence of actual notice because service

on the last known address would be deemed good. However if the applicant’s contention was correct, a more significant breach by

failing to give an address in the first place could result in the applicant being able to evade the machinery for deportation. On a literal

interpretation therefore a more significant breach of the Act had beneficial consequences for the applicant. The learned High Court

Judge was prepared to hold however that on a literal interpretation there had been compliance with s.6 in that the relevant

notifications had been sent by post in a prepaid registered letter addressed to the address most recently furnished by him or by her,

being in this case, none. In the alternative, and perhaps more forcefully, the learned High Court Judge considered that the

consequences that would flow from acceptance of the applicant’s argument was the sort of absurdity contemplated by s.5 of the

Interpretation Act. Accordingly, even if such an interpretation was not within a literal reading, it was one which would avoid the

absurdity identified and provide for the orderly implementation of immigration law. He concluded that: “Substantial grounds to argue

that a total failure to engage with the system entitles an applicant to challenge the resultant decision on judicial review had not been

made out”. An application for leave to appeal to the Court of Appeal was refused.

12 Subsequently an application for leave to appeal to this Court was lodged on the 4th of May 2017. In the event, the deportation

order in question had been withdrawn, and it was accepted that the case was in that regard moot, but nevertheless raised issues of

general importance which ought to be addressed. The case was listed for hearing on the 1st of February 2018. However, in advance

of that hearing the respondent indicated that it no longer wished to offer any opposition to the appellant’s contention that the notice

of intention to deport dated the 14th of January 2016 was not lawfully served upon the applicant/appellant, and the Minister could

not logically therefore place reliance on any steps taken following on from that point. Accordingly, in the view of the respondent, this

disposed of the first issue upon which the court granted leave in favour of the appellant and obviated the necessity to hear the

particular appeal. Accordingly, it was suggested that the order and judgment of the High Court of the 17th of October 2016 perfected

on the 7th of April 2017 be set aside and the appellant awarded his costs of the Supreme Court appeal and the unsuccessful

applications in the High Court. In the circumstances where the deportation order had been revoked in unrelated factual

circumstances, it appeared unnecessary to grant the appellant leave to apply by way of judicial review to have the issues raised

therein tried. The appellant agreed with this approach.

13 In the circumstances it is not necessary to consider in detail any of the issues arising here. However, it is desirable to clarify the

legal position.

14 There seems little doubt that the appellant’s behaviour in this case was reprehensible. An application for refugee status was made

in order to gain entry to the State, but was not pursued in even a rudimentary fashion thereafter. Instead the appellant absented

himself from the system entirely, and now seeks to rely on this conduct as frustrating the proper functioning of the immigration

system in relation to him. It is not surprising that the High Court Judge took a poor view of this behaviour.

15 Nevertheless I cannot, with respect, agree that either a literal or purposive interpretation pursuant to s.5 could lead to a

conclusion that there had been effective service here in accordance with the statutory requirements. While service of the s.3 notices

are important matters in themselves, it is also important to recall that the date of such service fixes the commencement point of the

short time period permitted for judicial review in immigration matters. Thus under s.5 of the Illegal Immigrants (Trafficking) Act 2000

(as amended by the Employment Permits (Amendment) Act 2014), there are significant restrictions on the capacity to seek judicial

review not just of the deportation order itself made under s.3(1) of the 1999 Act, but also the notifications under either s.3(3)(a) or

s.3(3)(b)(ii). Section 5(2) of the 2000 Act (as amended) provides that an application for leave to apply for judicial review in respect

of any such matter shall be made ““within the period of 28 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 there is

good and sufficient reason for extending the period for which the application shall be made …”. (Emphasis added)

16 On its face, s.6 permits two methods of service, either personal service or by prepaid registered post. If prepaid registered post is

not available then personal service may still be effected. There is therefore nothing intrinsically absurd or creating impossibility in an

interpretation of the section which finds that placing a letter on a file is not service by registered post at the last known address. It

is perhaps true that rather than an absurdity there is a lacuna in the Act, in that the Oireachtas did not contemplate the possibility of

a person not providing an address at all and thus frustrating the capacity to effect service by registered post. On the other hand,

even this conclusion is not beyond doubt. It may be that the Oireachtas considered that since service of the s.3 notices is an

important matter, that it should be effected by one or other of the two specified routes.

17 In my view, there is no absurdity in the interpretation of the Act. It may well be a matter for comment that the Oireachtas did not

anticipate all possible circumstances and make provision for them, but that does not amount in itself to absurdity. Even if it did, I do

not think it is possible to determine the clear purpose of the Act in this regard so as to offer an interpretation of s.6 to achieve any

such purpose. In truth, the Court would I think be obliged to construct an entirely new provision governing the situation such as that

which arose in this case where no address was provided at all, and in doing so to offer a solution which the Oireachtas may or may

not have adopted. In my view, this goes further than s.5 of the Interpretation Act 2005 permits. Accordingly, I am satisfied that the

approach taken by the parties in this case is correct. Accordingly, I would allow the appeal and make the costs orders agreed

between the parties. In the circumstances of this case it is not necessary to make any further order in respect of the proceedings.

The additional point raised by the applicant upon which leave to appeal was granted relating to the form of the order, is addressed in

the companion case of K v The Minister for Justice which was argued on the same day, and in which judgment is delivered today.