Meadows v MJELR IESC 3.pdf - European Database of Asylum Law

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above. I therefore do not consider it apposite or useful to embark on a detailedreview of those English cases.Review of the Minister’s Decision in this CaseThe Minister’s decision was taken pursuant to s. 3 of the Act of 1999.That section empowers the Minister to make a deportation order requiring a nonnational to leave the State and to remain thereafter out of the State. The appellant isone of the persons specified in subsection (2) of that section in respect of whom adeportation order may be made namely “a person whose application for asylum hasbeen refused by the Minister”. There are two vital qualifications to the Minister’spower to make such a deportation order.The first is to be found in subsection 1 of s. 3 which makes the power to make adeportation order subject to the provisions of s. 5 of the Refugee Act 1996. Thatsection has been cited in full above and it provides a clear prohibition on any personbeing expelled from the State in any manner whatsoever where, in the opinion of theMinister, the life or freedom of that person would be threatened on account of thevarious matters referred to in that subsection. Subsection 2 of s. 5 goes on to specifythat a person’s freedom shall be regarded as being threatened, if, inter alia, in theopinion of the Minister the person is likely to be subjected to a serious assault(including a serious assault of a sexual nature).Accordingly the Minister would have no power to make a deportation order in respectof the appellant if he was of the opinion that she was likely to be subjected to aserious assault.Accordingly, before making a deportation order the Minister is required to consider inthe circumstances of each particular case whether there are grounds under s.5 whichprevent him making a deportation order. In cases where there is no claim or factualmaterial put forward to suggest that a deportation order would expose the deportee toany of the risks referred to in s. 5 then no issue as regards refoulement arises and thedecision of the Minister with regard to s. 5 considerations is a mere formality and therationale of the decision will be self evident.- 24 -
On the other hand if such material has been presented to him by or on behalf of theproposed deportee, as the case here, the Minister must specifically address that issueand form an opinion. Views or conclusions on such issues may have already beenarrived at by officers who considered a proposed deportee’s application for asylum, atthe initial or appeal stages, and their conclusions or views may be before the Ministerbut it remains at this stage for the Minister and the Minister alone in the light of all thematerial before him to form an opinion in accordance with s. 5 as to the nature orextent of the risk, if any, to which a proposed deportee might be exposed. Thisposition is underscored by the fact that s. 3 envisages that a proposed deportee begiven an opportunity to make submissions directly to the Minister on his proposal tomake a deportation order at that stage. The fact that certain decisions have been madeby officers at an earlier stage in the course of the application for refugee status doesnot absolve him from making that decision himself.The case of Baby O v. Minister for Justice Equality and Law Reform [2002] 2 I.R169, was one in which an applicant sought to resist deportation on the grounds thatshe was pregnant and that deportation would be a breach of the right to life of theunborn due to deficient pre-natal and post-natal medical services in her own country.According to the head note the learned trial Judge, who had refused the application,certified that his decision involved a point of law of exceptional public importance,namely whether the Minister had the legal right or entitlement to deport a person whohad failed to secure a declaration of refugee status from the State where she allegedshe was pregnant.Keane C.J., in his judgment concluded that the learned High Court Judge was correctin dismissing the application because it was out of time and certain other proceedingsby way of judicial review had been struck out by consent. However while he foundthat it was “not strictly necessary to consider whether, on the merits, the applicant hadin any event established an arguable case for the granting of leave in respect of thesereliefs”, it would be useful for the Court to decide the issues which had been debatedin the course of the appeal”.Another key finding of Keane C.J., (at 181) was that the learned High Court Judgewas correct in concluding that “this case has nothing to do with abortion or the rightto life of the unborn or what is sometimes referred to as a woman’s right to choose- 25 -
Page 1 and 2: UNAPPROVEDTHE SUPREME COURTMurray C
Page 3 and 4: to apply the standards set out in O
Page 5 and 6: female genital mutilation of the ap
Page 7 and 8: NGOs as abhorrent. The material bef
Page 10 and 11: person shall be given a copy of the
Page 13 and 14: eached by the Tribunal was open to
Page 15 and 16: decision making authority merely on
Page 17 and 18: As is patently evident from the dic
Page 19 and 20: all that was entailed for the livel
Page 21 and 22: “I agree with the opinion express
Page 23: QB 517, re (Mahmood) v. Secretary o
Page 27 and 28: Keane C.J., did not refer to any ma
Page 29 and 30: consideration. On the other hand it
Page 31 and 32: THE SUPREME COURTMurray C.J.Kearns
Page 33 and 34: 3challenged. It is a test more appr
Page 35 and 36: 5which would create uncertainty and
Page 37 and 38: 1. The High Court has certified a q
Page 39 and 40: 4c) A recognition that the burden o
Page 41 and 42: constitutional. It was held that th
Page 43 and 44: 8decision in light of fundamental c
Page 45 and 46: 10similarity may be seen in the req
Page 47 and 48: 12Thus a decision could be so dispr
Page 49 and 50: 14On her arrival in the State the a
Page 51 and 52: 16open to me to consider whether or
Page 53 and 54: 18All of the members of the Court a
Page 55 and 56: 20(i)The decision in this case is t
Page 57 and 58: 22protect constitutional rights. Wh
Page 59 and 60: - 2 -Overview.This is an appeal fro
Page 61 and 62: - 4 -in two separate and independen
Page 63 and 64: - 6 -In the present case, the appli
Page 65 and 66: - 8 -“Keegan v. Stardust” test
Page 67 and 68: - 10 -‘Judicial review is concern
Page 69 and 70: - 12 -Amongst the grounds of challe
Page 71 and 72: - 14 -The applicant made a written
Page 73 and 74: - 16 -the status of refugees as ame
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- 18 -The applicant’s solicitor s
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- 20 -By a further letter dated the
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- 22 -In similar vein the Irish Tim
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- 24 -Nigeria.” Female genital mu
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- 26 -In Sweden, this was proposed
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- 28 -herself said that he had gone
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- 30 -The application to the Minist
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- 32 -on your behalf the Minister i
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- 34 -vindicate the applicant’s c
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- 36 -Minister for Justice [2002] 1
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- 38 -In both of the earlier judgme
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- 40 -female genital mutilation wer
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- 42 -The concluding portion of the
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- 44 -It must be borne in mind that
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- 46 -dismissed from his employment
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- 48 -permission to remain in Irela
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- 51 -The criteria for judicial rev
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- 53 -consider a case where basic h
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- 57 -This point seems to me to lie
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- 59 -deals with constitutional rig
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- 61 -Thus, in English cases such a
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- 63 -from Chief Constable of North
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- 65 -Justice of Appeal, widely kno
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- 67 -At p.12 he considered the pas
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- 69 -which is firmly associated wi
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- 71 -Some of these cases have been
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- 73 -from our own Constitution, to
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- 75 -Nature of Judicial Review.I s
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- 77 -to deference as that word is
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- 79 -But with great regret I am fo
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- 81 -“What his views are regardi
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- 83 -some evidence capable of supp
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- 85 -believes or disbelieves the a
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- 87 -“I would myself consider th
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- 89 -I repeat that I cannot see in
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- 91 -The Court moreover held (page
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- 93 -In the case of Fajujonu v. Mi
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- 95 -This is a recent decision of
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- 97 -assert what is said in F.P. a
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- 99 -scrutiny must necessarily fal
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THE SUPREME COURTNo. 419/2003Murray
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9. Solicitors for the appellant, in
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• Although FGM is reputed to take
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23. The statutory standard thus req
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to the “necessarily implied const
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43. Most recently, Geoghegan J, wri
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52. Dealing, in Regina v Secretary
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provided by the English courts. Aft
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66. The Minister puts the matter we
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applied, permits the person challen
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they were not entitled to asylum, t
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84. I would grant an order to the a
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