THE HIGH COURT
DUBLIN
JUDICIAL REVIEW
 RECORD NO. 2002/136JR
Between
A. (orse A.) S.
Applicant
-and-
THE MINISTER FOR JUSTICE, EQUALITY & LAW REFORM
Respondent

Stenographer   /
MR. JUSTICE T.C. SMYTH DELIVERS HIS JUDGMENT ONTHURSDAY, 9TH MAY 2002 AS FOLLOWS:

The Applicant is of Russian origin and at one time was a senior officer in the Russian Navy, who when discharged from that service went to live (in 1994) in Talinn City, Estonia on foot of a 5 year permit of residency and work issued by the Estonian Government.  Having arrived in this State on 3rd June, 2001 he claimed asylum and was formally interviewed for the purpose of Section 8(2) of the Refugee Act 1996, as amended, (hereinafter referred to as the Act of 1996).  Thereafter he completed the standard form of Questionnaire in respect of an application for Refugee status which was followed by a detailed interview which took place on 23rd January 2001.  It is acknowledged in the Affidavit of Michael Crowe, solicitor, sworn on behalf of the Applicant that the Refugee Applications Commissioner (hereinafter referred to as "the Commissioner") had a report from an Authorised Officer pursuant to Section 11(2) of the Act of 1996.  More importantly it is acknowledged and it is borne out by the documentation that a Report was prepared of the results of the investigation and a Recommendation of the Commissioner pursuant to Section (13)(1) of the Act of 1996.   That report signed by one Anthony McGinty on 7th February 2001, concluded thus:- 

"... I submit that the Applicant has not established a case such as to qualify him for refugee status as defined in Section 2 of the Refugee Act, 1996 as amended and that a recommendation to this effect be forwarded to the Minister."

That decision by way of recommendation confirmed on 12/2/2001 by Martin O'Mahony, HEO was notified to the Applicant who duly appealed to the Refugee Appeals Tribunal (hereinafter referred to as the 	Tribunal) which decision dated 2nd October 2001 concluded:-
"....I find that the Applicant is not a refugee within the meaning of Section 2 of the Refugee Act 1996.  This appeal fails and the recommendation of the Refugee Applications Commissioner is affirmed."
The Tribunal having notified the Applicant of its decision by letter dated 16th October, 2001, the Respondent then wrote to the Applicant by letter dated 19th November 2001 (inter alia) stating as follows:
"Dear Mr. A. S.,  
I am directed by the Minister for Justice Equality & Law Reform to refer to your application for a declaration as a refugee in accordance with Section of the Refugee Act, 1996 as amended by the Immigration Act 1999 and the Illegal Immigrants (Trafficking) Act 2000. 
The Refugee Applications Commissioner, following an investigation of your application, under Section 11 of the Refugee Act 1996 as amended, has recommended that you be refused declaration as a refugee under Section 13 of the Refugee Act 1996 as amended. 
The Refugee Appeals Tribunal has affirmed this recommendation in accordance with Section 16(2)(a) of the Refugee Act 1996 as amended.  The Minister, for the reasons set out in the recommendation of the Refugee Appeals Tribunal, which you have already received has decided in accordance with Section 17(1)(b) of the Refugee Act 1996 as amended, to refuse to give you a declaration as a refugee.
Please note that consequently your entitlement to remain temporarily in the State in accordance with Section 9(2) of the Refugee Act 1996 as amended, has now expired.
As a result of this refusal the Minister for Justice Equality & Law Reform proposes to make a deportation order in respect of you under the powers given to him by Section 3 of the Immigration Act 1999."
Eventually a Deportation Order was signed on 26th February 2002, and notice of its making and the steps required to be taken consequent to it were set out in a letter of 1st March 2002 addressed to the Applicant. 
Proceedings were brought within time seeking a declaration that the Deportation Order was ultra vires the power of the Respondent conferred by the provisions of the Immigration Act 1999 (hereinafter referred to as the Act of 1999) (Section 3) and invalidly made and also an order of certiorari of the Deportation Order.  The grounds relied upon by the Applicant were that the Deportation Order was invalidly made because it was ultra vires the powers conferred upon the Respondents by s.3(2)(f) of the Act of 1999 as there had not been a lawful and/or proper and/or valid refusal of the Applicant's application for a declaration that the Applicant was a refugee.  Furthermore that the refusal of a declaration of refugee status was ultra vires the powers conferred by the provisions of Section 17 of the Act of 1996 and was invalidly made.
In presenting the case for the Applicant Mr. Craven, with admirable brevity focused the case upon the interpretation of s.17{1) of the Act of 1996 which provides as follows:-
"Subject to the subsequent provisions of this Section, where a report under Section 13 is furnished to the Minister or where the Appeal Board sets aside a recommendation of the Commissioner under Section 16, the Minister - (a) shall, in case the report or, as the case may be, the decision of the Appeal Board includes a recommendation that the Applicant concerned should be declared to be a refugee, give to the Applicant a statement in writing (in this Act referred to as "a declaration") declaring that the Applicant is a refugee, and (b) may in any other case, refuse togive the Applicant a declaration." 
The submission on behalf of the Applicant is that it is only in the circumstances where the Tribunal sets aside the decision of the Commissioner that the Minister is entitled to proceed to make a Deportation Order.  Further the Minister is not empowered to make a Deportation Order when the Tribunal affirms the decision by way of recommendation of the Commissioner.  The case of DPP (Ivers) -v- Murphy, [199] 1 ILRM 46 at p.60:- 
"If the purpose of the legislature is clear and may be read in the section without rewriting the section then that is the appropriate interpretation for the court to take."
(per Denham J.) as adopted in Gooden -v- Waterford Regional Hospital & Anor, (unreported), Supreme Court, 21/2/2001 was relied on.
The argument advanced cogently by Ms. Stack for the Respondent was that Section 17 of the Act of 1996 cannot be read in isolation, but must be taken in the context of the Act of 1996 as a whole and also regard must be had to the facts of the case (and in particular) the letter of 19th November 2001 referred to earlier in this judgment).  Section 16(1) of the Act of 1996 entitles an Applicant to appeal to the Tribunal against a recommendation of the Commissioner.  In the events the Tribunal made a decision in the terms of s.16(2)(a) of the Act of 1996 to wit:-
"Affirms a recommendation of the Commissioner under Section 13." 
It did not frame its decision in terms of s.16(2)(b) to set aside a recommendation of the Commissioner under Section 13 and recommend that the Applicant should be declared to be a refugee.
Furthermore
Section 16 is further linked with the provisions of Section 17 invoked by the Applicant in that s.16(17)(b) provides that:- 
"A decision of the Tribunal under subsection (2) (other than a decision of the Tribunal under subsection (2)(d)) and that the reasons therefore shall be communicated by the Tribunal to the Minister together with a copy of the report of the Commissioner under Section 13."
(Per amendment to 1996 Act in s.ll(k)(vi) of the Act of 1999) . From the foregoing it is clear that Section 17 was conceived in relationship to Section 16 and that no
matter whether the Tribunal affirm or set aside the Commissioner's recommendation - the Tribunal is obliged to send to the Minister the Section 13 recommendation of the Commissioner and in the event of no appeal arising, in any event, that document is available to the Minister.  In cases where the Tribunal decision includes a recommendation that the Applicant be declared to be a refugee or the report makes such a recommendation then the Minister has, what was described as, "a positive discretion", and the Respondent said a duty to grant an Applicant such a declaration.  In any other case (and the instant case is such, see again the text of the letter of 19th November 2001) the Minister may as provided for in s.17(1)(b) "refuse to give the Applicant a declaration", which was referred to as "a negative discretion." 
In my judgment the provision of Section 17(1) of the Act of 1996 cannot be interpreted in the restrictive manner contended for by the Applicant.  Accordingly, I am satisfied and find as a fact and as a matter of law that the Respondent was entitled to make an order under the provisions of s.3(l) of the Act of 1999 on the basis that the Applicant was:-
"(f) a person whose application for asylum had been refused by the Minister." 
Accordingly I refuse the application.
END OF JUDGMENT