Afolabi v Min for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 17 May 2012
• Neutral Citation: [2012] IEHC 192
• Court: High Court
• Date: 17 May 2012

[2012] IEHC 192

THE HIGH COURT

[No. 1007 J.R./2011]

Afolabi v Min for Justice & Ors

MR JUSTICE COOKE

APPROVED TEXT

JUDICIAL REVIEW

BETWEEN

IYIKOREOLUWA IYINKE AFOLABI AND JOHN ADEDAPO AFOLABI (AN INFANT SUING BY HIS MOTHER AND NEXT FRIEND) AND ELIZABETH ADERINSOLA AFOLABI (AN INFANT SUING BY HER MOTHER AND NEXT FRIEND) AND SAMUEL ADEMIDUN AFOLABI (AN INFANT SUING BY HIS MOTHER AND NEXT FRIEND IYIKOREOLUWA IYINKE AFOLABI)

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

IMMIGRATION ACT 1999 S3

I (E P) v MIN FOR JUSTICE 2009 2 IR 254

IMMIGRATION ACT 1999 S3(1)

SIVSIVADZE & ORS v MIN FOR JUSTICE & ORS UNREP HOGAN 23.5.2012 2012 IEHC 137

IMMIGRATION ACT 1999 S3(1)IMMIGRATION ACT 1999 S3(11)

CONSTITUTION ART 41

POK SUN SHUM & ORS v IRELAND & ORS 1986 ILRM 593

LAURENTIU v MIN FOR JUSTICE 1994 4 IR 26

L (D) v MIN FOR JUSTICE 2003 1 IR 124

MEADOWS v MIN FOR JUSTICE 2010 2 IR 701

RADIO LIMERICK ONE LTD v INDEPENDENT RADIO & TELEVISION CMSN 1997 2 IR 291 1997 2 ILRM 1 1997/6/2117

IMMIGRATION ACT 1999 S3(2)

IMMIGRATION ACT 2004 S5

EEC DIR 2004/83 ART 4.1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 47

CONSTITUTION ART 34

CONSTITUTION ART 40.3

D (H I) v B (A) C-175/11 UNREP ECJ 13.4.2011

RSC O.84

GILLIGAN v IRELAND 2000 4 IR 579

MAGUIRE v SOUTH EASTERN HEALTH BOARD 2001 3 IR 26

AHMED v MIN FOR JUSTICE UNREP BIRMINGHAM 24.3.2011 (EX TEMPORE)

M (IM) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (LEVEY) UNREP COOKE 26.7.2011 2011/33/9272 2011 IEHC 309

A (BJS) [SIERRA LEONE] v MIN FOR JUSTICE & ORS UNREP COOKE 12.10.2011 2011 IEHC 381 2011/7/1573

M (M) v MIN FOR JUSTICE & ORS (NO.2) UNREP HOGAN 5.9.2011 2011/34/9374 2011 IEHC 346

EEC DIR 2004/83 ART 4.1

IMMIGRATION ACT 1999 S11

L (S) [NIGERIA] v MIN FOR JUSTICE & ORS UNREP COOKE 6.10.2011 2011/31/8496 2011 IEHC 370

C (C) & ORS v MIN FOR JUSTICE & ORS UNREP COOKE 19.4.2012 2012 IEHC 143

REFUGEE ACT 1996 S5

T (A L) & ORS v MIN FOR JUSTICE & ORS UNREP HOGAN 2.11.2011 2011/47/13240 2011 IEHC 404

MCNAMARA v AN BORD PLEANÁLA 1995 2 ILRM 125

IMMIGRATION ACT 1999 S3

IMMIGRATION ACT 1999 S5

EUROPEAN COMMUNITIES (ELIGIBLITY FOR PROTECTION) REGS SI 518/2006 REG 5(3)

1 1. The applicants in this matter are a mother and her three minor children, the youngest of whom, Samuel, the fourth named applicant, was born in the State shortly after the arrival here of his mother and siblings in 2007. They are all nationals of Nigeria whose applications for asylum in the State have been refused. In this proceeding they seek leave to apply for judicial review of decisions made by the first named respondent ('the Minister') refusing applications for subsidiary protection and making deportation orders in respect of them.

2 2. At the outset of the hearing, two preliminary applications were made to the Court, which the Court declined. Before indicating the reasons why the applications were declined it is useful to summarise the general context and family circumstances in which the proceedings are taken.

3 3. The first named applicant, the mother, was born in Lagos, Nigeria. In 1998 she married her husband who worked in the oil industry and they moved to Port Harcourt in the Niger Delta in December 2006. She was 39 years old when the contested decisions were made. The second named applicant, the eldest son, was born in March 1998, and his sister the third named applicant was born in 2001.

4 4. The claim for asylum and the applications for subsidiary protection were essentially based upon a series of incidents which the mother claims happened in March 2007. Four men whom she described as foreign oil workers who worked with her husband, called to the family house claiming that militants were pursuing them to kidnap them. The militants arrived looking for the four, but they did not find them because they had been hidden by her husband. They returned some days later claiming to have been told that her husband had been seen taking the four men out of the house. They demanded the amount of the ransom they had placed on the heads of the men in question and gave the husband one week to pay it. The matter was reported to the police. The militants later returned fully armed and the matter was again reported to the police. No action was taken by the police. She claimed that the militants kidnapped her husband and her first born son and that she has not heard of either of them since. She claims that the militants beat and raped her.

5 5. In an appeal decision of the 30 ^th August, 2010, the Refugee Appeals Tribunal rejected the application for asylum on behalf of the applicants essentially upon the ground that it was not believed 'that she ever had the difficulties she alleges in her country of origin or has any fear of returning there as she claims'. Discrepancies and inconsistencies were identified in her account of the happenings in question and her attempts to explain the discrepancies were considered unacceptable.

6 6. On 10 ^th October 2010 and supplemented by additional submissions on 3 ^rd May 2011, an application was made for subsidiary protection on behalf of the mother and the two older children and on the same dates representations and supplemental submissions by way of application for leave to remain under s. 3 of the Immigration Act 1999, were made on their behalf.

7 7. On the 7 ^th October, 2010, a separate application for subsidiary protection was made on behalf of Samuel together with representations by way of application for leave to remain under s. 3 of the Act of 1999. These representations were later supplemented by additional country of origin information submitted with letters dated the 4 ^th May, 2011.

8 8. The two applications for subsidiary protection were refused in separate determinations furnished to the applicants by letters dated 08/06/2011 to which a memorandum entitled 'Determination of Application' was attached in each case setting out the analysis made of the applications and the reasons for the refusal. Correspondingly, the deportation orders each dated the 27 ^th September, 2011, were made in respect of the applicants and communicated to the mother and older children by a letter of the 4 ^th October, 2011, and to Samuel by separate letter of the same date. Each letter was accompanied by the deportation orders in question, together with a memorandum entitled 'Examination of File under s. 3 of the Immigration Act 1999, as amended' setting out in each case the assessment made and the reasons for refusing leave to remain. These are the decisions which are the subject of the applications for judicial review.

9 9. As mentioned, at the outset of the hearing, two applications were made to the Court, the first of which was an application that the Court should decline to hear the case and that it be remitted to another judge. This application was based upon the fact that this Court had heard and refused an application for an interlocutory injunction restraining deportation of the applicants on the 12 ^th and 13 ^th December, 2011. Counsel for the applicants Mr. Paul O'Shea, submitted that it would be inappropriate in these circumstances for the Court to proceed to deal with the leave application and relied upon the judgment of Hedigan J. in E.P.I. v Minister for Justice [2009] 2 I.R. 254, in support of the proposition that there was a substantial basis for a reasonable perception that the grounds upon which the applicant brought their case had been the subject of an adjudication by the same judge in refusing interlocutory relief. Because Mr. O'Shea had made a similar application in analogous circumstances in another case a week earlier, the Court took the precaution of consulting its notes on the interlocutory hearing in the present case and was satisfied that this was not an instance in which the Court should recuse itself. In the earlier case the Court had acceded to Mr. O'Shea's request because it accepted that its refusal of the interlocutory injunction in that case had involved a ruling on the question as to whether there was a fair issue to be tried at the leave application. In the present case, on the other hand, the Court was satisfied that it had not expressed any definitive view, but had refused the injunction because it was not satisfied that there was before it evidence that the possible deportation of the applicants prior to the hearing carried any real risk of the applicants being exposed to a risk of serious harm or other irreversible change of circumstance which would justify the Court in intervening to interrupt the otherwise normal course of a statutory procedure which was prima facie lawful.

10 10. The principles which the Court should apply to an application to recuse in these circumstances are well summarised by Hedigan J. in the E .P.I. judgment and this Court gladly adopts the summary. Essentially, it is a matter of balancing in the circumstances of the particular proceedings a number of potentially divergent interests. On the one hand, it can be in the interest of efficiency in the administration of justice and saving time and expense for the parties that a judge who has dealt with an interlocutory application and is therefore familiar with the case and with the pleadings and documents involved, should proceed to deal with the substantive hearing. Where, however, the adjudication of the issues raised at the interlocutory application involved reaching conclusions, even provisional conclusions, the Court must bear in mind the risk of a reasonable apprehension or perception of bias arising if the same judge proceeds to hear the substantive litigation. In balancing these interests, the Court must also be careful not to acquiesce in applications which might be...