Agbonlahor v Minister for Justice, Equality and Law Reform

• Jurisdiction: Ireland
• Judge: Mr. Justice Herbert
• Judgment Date: 03 March 2006
• Neutral Citation: [2006] IEHC 56
• Court: High Court
• Date: 03 March 2006

[2006] IEHC 56

THE HIGH COURT

[No. 147 JR/2006]

AGBONLAHOR v MIN FOR JUSTICE & AG

BETWEEN

OLIVIA AGBONLAHOR, GREAT AGBONLAHOR (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND, OLIVIA AGBONLAHOR) AND MELISSA AGBONLAHOR (A MINOR SUING BY HER MOTHER AND NEXT FRIEND OLIVIA AGBONLAHOR)

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND THE ATTORNEY GENERAL

RESPONDENTS

IMMIGRATION

Deportation

Decision not to revoke order - Judicial review - Leave - Test to be applied - Child suffering from attention deficit hyperactivity disorder - Planned removal to third country -Claimant asserting unavailability of necessary psychiatric treatment in third country - Right to private life - Whether exceptional circumstances category - Whether insufficient regard to right to private life under European Convention on Human Rights - Whether decision to proceed with deportation proportionate - Immigration Act1999 (No 22), s 3(11) - European Convention on Human Rights Act 2003 (No 20), sch 1,article 8 - Leave to seek judicial review granted (2006/147JR - Herbert J - 3/3/2006)[2006] IEHC 56, [2007] 1 ILRM 58

A(O) v Minister for Justice, Equality and Law Reform

Deportation orders were made against the applicant, Nigerian nationals, which they sought to challenge as unreasonable, in violation of constitutional and natural justice and in breach of the European Convention on Human Rights. The applicants contended that the provisions of s.5(1)(c) of the Illegal Immigrants (Trafficking) Act 2000 did not apply to their application for leave. A deferral of the deportation had been successfully obtained in order for the second named applicant to be assessed for autism, where he was diagnosed with ADHD. Evidence was adduced to demonstrate that inadequate facilities for those with ADHD existed in Nigeria.

Held by Herbert J. in granting leave to the applicants to challenge the deportation orders as a violation of their rights under Article 8(1) of the First Schedule of the European Convention on Human Rights Act, 2003, that the appropriate test to adopt for leave in this application was one of an arguable case. The applicants could not establish “exceptional circumstances” on the facts to ground a successful application for leave pursuant to Article 3 of the Convention.

Reporter: E.F.

1 JUDGMENT of Mr. Justice Herbert delivered the 3rd day of March, 2006

ISSUES

2 At paragraphs d(1) and d(2) of the Statement required to ground their application for Judicial Review, the Applicants seek the following reliefs:-

3 1. A Declaration that the decision of the First Named Respondent dated 21st January, 2006, to enforce the deportation orders made by him on 15th September, 2005, in respect of the Applicants was ultra vires, arbitrary and unreasonable, disproportionate contrary to natural and constitutional justice and was contrary to the Respondent's obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms and the protocols thereto.

4 2. An Order of Certiorari to quash the decision of the First Named Respondent to enforce the said Deportation Orders.

5 It is submitted on behalf of the Applicants that the provisions of s. 5(1)(c) of the Illegal Immigrants (Trafficking) Act, 2000, do not apply to their application for leave to seek Judicial Review. Their application, they say, relates to a decision of the First Named Respondent, made pursuant to the powers vested in his by s. 3(11) of the Immigration Act, 1999, not to revoke the deportation orders made by him in respect of the Applicants on 15th September, 2005, and that, 5(1)(c) of the Act of 2000 makes no reference to s. 3(11) of the Act of 1999.

6 By s. 5(1) of the Act of 2000, it is provided that a person shall not question the validity of fifteen indicated steps in the asylum process, which are very clearly identified in that subsection, otherwise than by way of judicial review. Section 5(2)(b) of the Act of 2000 provides that an application for leave to apply for Judicial Review, "in respect of any of the matters referred to in subs. (1)", shall:-

"Be made by motion on notice…to the Minister…and said 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."

7 The Respondents contend that the reliefs sought by the Applicants at d(1) and d(2) of their Statement of Grounds questions the validity of the deportation orders made by the First Named Respondent in respect of the Applicants on 15th September, 2005. Therefore, the Respondents say, the application comes within the ambit of s. 5(1)(c) of the Act of 2000.

STANDARD OF PROOF

8 Section 5(1)(c) of the Illegal Immigrants (Trafficking) Act, 2000 refers specifically to "a deportation order made under s. 3(1) of the Immigration Act, 1999".

9 Section 3(1) of the Act of 1999 is in the following terms:-

"Subject to the provisions of s. 5 (prohibition of refoulement), of the Refugee Act, 1996, and the subsequent provisions of this section, the Minister may by order, (in the Act referred to as a “deportation order”), require any non-national specified in the order to leave the State within such period as may be specified in the order and to remain thereafter out of the State."

10 Section 3(11) of the same Act of 1999 provides that:-

"The Minister may by order amend or revoke an order made under this section including an order under this subsection."

11 It was accepted on all sides at the hearing of this application, that the ordinary onus on Applicants seeking leave to apply for judicial review under Order 84 rule 20 of the Rules of the Superior Courts is to show that they have an arguable case to be granted the relief sought on the facts averred on affidavit, ("G" v. The Director of Public Prosecutions and Another [1994] 1 I.R. 374, - Supreme Court). However, senior counsel for the Respondents argued, relying on the reasoning of the Court of Appeal for England and Wales in Mass Energy Limited v. Birmingham City Council [1993] Env. L.R. 298 at 307 per Glidewell L.J., and at 311 per Scott L.J., that even if the provisions of s. 5 of the Act of 2000 do not apply to this application, the Applicants should be required to establish that their case is not just arguable but that it is a good one and likely to succeed.

12 In my judgment unless the provisions of s. 5 of the Illegal Immigrants (Trafficking) Act, 2000, apply to this application I am bound to follow the decision of the Supreme Court in "G" v. The Director of Public Prosecutions and Another (above cited), despite the fact that the three considerations which moved the Court of Appeal in Mass Energy Limited v. Birmingham City Council, (above cited), to adopt the more stringent test of, "not merely arguable but strong, that is to say is likely to succeed", are present also in the instant case.

13 Senior counsel for the Respondents referred to the decision of this Court in Lelimo v. The Minister for Justice, Equality and Law Reform [2004] 2 I.R. 178 as supporting his argument. At pages 189 and 190 of her judgment, Laffoy J., held as follows:-

"Counsel for the Applicant having, properly in my view, conceded the non-retrospectivity of the Act of 2003, the issue which remains is whether the enforcement of the deportation order, which, if it takes place, will take place after the coming into operation of the Act of 2003, could constitute a breach of s. 3(1), if the deportation order was lawfully made. In my view, it could not. Such authority as any organ of State has to enforce the deportation order derives solely from the deportation order. The enforcement process cannot be severed from, and has no basis in law distinct from, the order itself. The decision to make the deportation order and the order itself both predate the coming into operation of s. 3(1). They are immune from challenge under the Act of 2003. Therefore, in terms of the application of the Act of 2003, it must be assumed that the deportation order is valid. If it is, its enforcement could not constitute a breach of s. 3(1). Of course, for the purpose of this analysis, the fact that the deportation order is being challenged for alleged non-compliance with the Criminal Justice (United Nations Convention Against Torture) Act, 2000 is deliberately ignored."

14 In my judgment, this decision of the High Court has really no relevance to the matter at issue on this application. In this application I find that the Applicant's challenge is undoubtedly to the manner in which the First Named Respondent exercised the power vested in him by s. 3(11) of the Immigration Act, 1999, to revoke or to amend the deportation orders made by him in respect of the Applicants on 15th September, 2005. They do not challenge the making of those deportation orders or the form of those deportation orders. They argue that the decision of the First Named Respondent, to refuse to revoke these deportation orders was wholly or, alternatively, "indefensible for being in the teeth of plain reason and common sense" and disproportionate having regard to the evidence then available to him and in violation of s. 3(1) of the European Convention on Human Rights Act, 2003, and the provisions of Article 3 and of Article 8 of the First Schedule of that Act.

15 Though neither side in this application made reference to them, the court is aware of the ex-tempore judgment of Finlay Geoghegan, J., in Malsheva and Clare v. The Minister for Justice Equality and Law Reform, Ireland and The Attorney General, (Unreported, High Court, July 25th, 2003); Parolya and O'Sullivan v. The Minister for Justice Equality and Law Reform, (Unreported, High Court, June 17th, 2004, Butler, J.,) and the ex-tempore...