Amendment No. 14, in the name of Deputy Howlin, was already discussed with amendment No. 12.
Illegal Immigrants (Trafficking) Bill, 1999: Report Stage (Resumed).
Amendment No. 14 not moved.
Amendment No. 15 arises out of committee proceedings and amendment Nos. 16 and 17 are alternatives. The amendments may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 15:
In page 7, lines 35 to 38, to delete all words from and including "be" in line 35, down to and including "and," in line 38.
We are still dealing with what is probably the most controversial section of the Bill, namely the new judicial review regime which will apply to this category of cases. Amendments Nos. 15 and 17 seek to amend section 5(2), particularly subsection (2)(b) which states:
An application for leave to apply for judicial review under the Order in respect of any of the matters referred to in subsection 1 shall 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.
Amendment No. 15 seeks to delete all the words from "be" in line 35 to "and" in line 38, inclusive. Normal judicial review is applied for ex parte. There is no reason a stricter rule should apply to judicial review of asylum cases, yet the Minister's requirement is that the normal ex parte rule would not apply and that leave would be required on notice. At present the notice requirement is confined to planning matters. The Minister argued the need for notice because of his need to prepare an answer. However, the State gets sufficient notice before any effective order is made. This amendment merely proposes that the need to give notice to the Minister before permission is granted to launch the case be deleted. Why is it necessary, in this confined area of the operation of the law, for judicial review to require notice to be given to the Minister? The answer clearly is that it is not necessary.
We have recently seen a very effective application for judicial review to quash an Executive decision of Government. Applications for judicial review come, as a matter of routine, before the courts every Monday. Normally they are briefly dealt with. A statement of the case is made by counsel seeking leave to apply for judicial review and a determination is made as to whether there are sufficient grounds for the court to hear an argued case.
The Minister is creating a corpus of law which deals exclusively with asylum seekers and is designed to be extemely narrow and confining. There is no reason for it and I ask the Minister to accept that there is no compelling reason notice should be given. If there is such a reason we have not heard it. In a previous debate the Minister referred to "selective presentation by the applicant lawyers of the facts". This is a serious slur on lawyers who practise in this area. The applicant is obliged to present all the relevant facts to the court.
Judicial review should be of general application and not subject to varying rules depending on the nature of the decision being reviewed. It is a statutory safeguard and an overview by the courts of the actions of the Executive or of anyone who is allowed to make Executive decisions. It is intended to ensure that procedures are correct and fair. Its principle of application is general. The Minister should not apply different criteria to applications for judicial review in the area of asylum.
This subsection underscores the Minister's attitude, which has been clear from the beginning, that asylum matters are so unique and so different from the general application of law and Executive decisions that an entirely different set of procedures should apply. This is why people are so concerned by the new regime which is envisaged in these legislative measures.
On the Order of Business today we spoke of the need to enact this legislation. I support what was said then. Legislation to deal with trafficking and with human misery must be enacted. However, the grafting on of these restrictive measures regarding the rule of law and the overview by the courts of Executive decisions and quasi-judicial decisions by the Minister or his officers is unnecessary. Judicial review is a fundamental safeguard which should have universal application.
The Minister must either justify the need for a set of rules which apply exclusively to asylum seekers and no others – they apply in the planning area but to no other rights issues – or, if the Minister is convinced that the procedures for judicial review in general need to be overhauled, he should make a general case. He must decide whether judicial review procedures require a general overhaul or put a cogent case as to why asylum seekers must have their rights with regard to judicial review uniquely curtailed.
Amendment No. 17 seeks to delete the words "are substantial grounds" and to substitute "is an arguable case". In entertaining an application for judicial review the court must be satisfied that there are substantial grounds for contending that the decision, determination, recommendation, refusal or order is invalid or ought to be quashed. Normal judicial review is based on an arguable case. Only planning law requires substantial grounds.
The argument I made for amendment No. 15 applies with equal measure of validity to amendment No. 17. We should keep the normal rules of law. We should not invent new and specific rules for the asylum area uniquely. The Minister may quibble with my use of the word unique. The rules will apply only to asylum and planning matters. Planning matters relate to development, asylum issues relate to human and fundamental rights. On Committee Stage, the Minister failed to give any acceptable, intelligent or cogent reason a different set of procedures should apply to judicial review in the area of asylum seekers from any other area of law, other than planning.
The Minister must either say the general application of judicial review procedures is faulty and he wishes to amend it or there is an overwhelming, cogent, clear and arguable reason the area of asylum seekers should have a virtually unique procedure for applying for judicial review.
Debate adjourned.