Akinyemi v Minister for Justice
| Jurisdiction | Ireland |
| Judge | MR. JUSTICE T.C. SMYTH |
| Judgment Date | 02 October 2002 |
| Neutral Citation | 2002 WJSC-HC 110 |
| Court | High Court |
| Docket Number | Record No. 109JR/2001 |
| Date | 02 October 2002 |
2002 WJSC-HC 110
THE HIGH COURT
Immigration - Asylum Judicial review - Certiorari - Refugee law -- Deportation - Practice and procedure - Fair procedures - Whether decision to refuse asylum correct - Refugee Act, 1996 - Immigration Act, 1999 - Illegal Immigrants (Trafficking) Act, 2000.
Facts: The applicant had arrived in the State and had applied for refugee status. The applicant was from Nigeria and was a community health officer. It appeared that the applicant had received certain advice from a Nigerian regarding the lodging of a claim for refugee status. The applicant’s claim for asylum was rejected on the basis that it was manifestly unfounded. Thereafter the applicant sought leave to remain in the State on humanitarian grounds pursuant to section 3(6) of Immigration Act, 1999. The section 3(6) representations under the 1999 Act were unsuccessful and a deportation order was signed in respect of the applicant. The applicant initiated judicial review proceedings seeking to challenge the decision.
Held by Mr. Justice Smyth in dismissing the application. There was no evidence to suggest that the respondent had failed to consider the prima facie case for asylum status. The refusal by the respondent to hold an oral hearing was not in breach of natural justice. A copy of the judgment would issue to the Director of Public Prosecutions, the Garda Commissioner and the Immigration Bureau in light of the activities of a named immigration consultant.
MR. JUSTICE T.C. SMYTH DELIVERED ON WEDNESDAY, THE 2ND DAY OF OCTOBER 2002
I hereby certify the following to be a true and acurate transcript of my shorthand notes in the above-named judgment.
APPEARANCES
For the Applicant:
MR. M.O'HIGGINS SC
MS. GREENE BL
For the Respondent:
MR. BRADLEY SC
MR. JUSTICE SMYTH: The Applicant is a Nigerian national. She is married with four children, three of whom live with her in this State at present - - she says she does not know of her husband's whereabouts or that of her other child. She was married for sixteen years - - during the last six years of her life in Nigeria her husband was involved in some form of political activity which she says gave rise to her departure from her country of origin. She is a professionally qualified person, being a Community Health Officer, which profession at that level she had practised from 1989 to April 2000.
On arrival in the State (she stated at an interview on 20th September 2000), she just got through Immigration Control at Dublin Airport without being stopped. On seeking asylum in the State, the Applicant acknowledged receipt of a form entitled "Application for Refugee Status in Ireland", which provided that:-
"Your application for refugee status will be considered on the basis of the information supplied in this form during the subsequent interview and in any other submission you may make to us. It is important, therefore, that you answer all questions fully and truthfully."
Further, in the form of Report of Interview with Applicant for Refugee Status, signed by the Applicant, it is provided that:-
"I fully understand that credibility will be a key factor in determining if I will be recognised as a refugee and it is therefore in my own interest to give truthful answers to all the questions asked of me at this interview."
The Applicant signed a receipt of acknowledgment of the interview notes and of her satisfaction of the record.
On 25th September 2000, Mr. Terry McDonald (who had held the interview with the Applicant) prepared an assessment and made a recommendation on the claim for refugee status. He came to the conclusion that he could only deem the application to be manifestly unfounded under paragraph 14(a) and (c) of the Hope Hanlan Procedures which were then applicable. A Mr. Sean McNamara, in agreeing with Mr. McDonald, noted that even if what the Applicant had stated was accepted as truthful (and Mr. McDonald had doubts on one issue and considered another lacked credibility), what was relied upon was/were not grounds for/of persecution for a Convention reason.
To the extent that the papers lodged in this case can be relied upon, it would appear that the Applicant who spoke and was fluent in English (Q.12 of the Questionnaire signed by the Applicant on 18th August 2000, and who received her interview notes on 20th September 2000) sought or had advice from three different sources:-
1. A Mr. Oliatan Illori — who, if Exhibit MCORB is accepted, is a Nigerian who operates from “The Equity Office — Immigration Consultant in Parnell Street in Dublin and who owns a £250,000 house and drives a £20,000 plus Volvo to work. He is married to an Irish woman and has one child and has become a resident of this State. The document attributes (which he apparently denies) his advise that there are two specific loopholes to stay in this State:-
(a) get yourself a girlfriend and get her pregnant; and
(b) marry an EU resident and they will give you a visa.
For the purposes of determination of this case, it is not necessary for me to adjudicate on the veracity or otherwise of this document; suffice it to say that it is consistent with the facts of a very large number of cases which have come before the court in the past year and with the contents of numerous statements grounding applications for judicial review and the pleas advanced in court.
2. John P. Gaffney, who received instructions on 14th February 2001, and who lodged papers in the Central Office of the High Court on 1st March 2001, seeking judicial review on a number of grounds. That application was grounded on affidavits of (a) the Applicant herself and (b) Mr. Oliatan Illori.
In her affidavit sworn on 1st March 2001, it is averred (paragraph 4) that she was informed that her application for refugee status was considered as manifestly unfounded. This information was contained in a letter addressed to her dated 25th September 2000. That affidavit further proceeds as follows:-
"I say that I appealed that decision to the Appeals Authority. I received no response from this application. By letter dated 14th February 2001, I was advised the Respondent [sic] herein proposed to make a Deportation Order in respect of your deponent."
She avers that she was not allowed to give oral evidence in relation to the appeal (paragraph 9 of the affidavit). This would be consistent in respect of a “manifestly unfounded” decision.
In a subsequent affidavit filed in April 2002, when another solicitor came on record, there is no averment as to having appealed the first instance decision.
In the events, Mr. Gaffney brought a motion before the court on notice to the Applicant to come off record in the proceedings. He avers in an affidavit sworn on 7th November 2001 that he "was not aware of the lacunae which became apparent in these instructions nor of the extent to which certain informations were withheld." He went on to say that the Applicant's claim should be untainted by the disinformation which she received and that she be dissociated [sic] from it.
3. Hugh O'Donnell & Co. Solicitors were the solicitors who instructed counsel at the hearing of the judicial review proceedings in court.
To return to the narrative events of the application, it is clear that a decision was made to refuse the Applicant a Declaration for refugee status and that the Applicant was invited to apply (if she so wished) for leave to remain in the State on humanitarian grounds under Section 3(6) of the Immigration Act 1999(hereinafter referred to as the “Act of 1999”). It would appear that an application for leave to remain was made with the advice or assistance of Mr. Illori Oliatan, who, it would appear, advised the Applicant to withhold the truth about the health of two of her children. As a person who had medical knowledge and qualifications and who had received and signed documentation on at least two occasions concerning the obligation and necessity of being truthful, it is difficult to accept that her mind could be so overborne (if it was) by Mr. Illori Oliatan, as to withhold the truth from the Respondent Minister.
The Section 3 (6) representations were not successful and the Respondent Minister made Deportation Orders dated 14th February 2001, and notified the Applicant concerning same stating (inter alia) as follows:-
"The reasons for the Minister's decision are that you are persons whose refugee status has been refused and, having had regard to the factors set out in Section 3 (6) of the Immigration Act 1999, including the representations received on your behalf, the Minister is satisfied that the interests of public policy and the common good in maintaining the integrity of the asylum and immigration systems outweigh such features of your case as might tend to support your being granted leave to remain in this state."
and
"You and your children are required to present themselves to the Member in Charge, Garda National Immigration Bureau, Harcourt Street, Harcourt Square, Dublin 2, on 1st March at 2.30 pm to make arrangements for your deportation from the State."
It would appear that it was this letter of notice and the Deportation Orders that caused Mr. Gaffney to lodge the proceedings of 1st March 2001. The reliefs then sought were the quashing of the decision to make the Deportation Order as notified, an injunction restraining the deportation, a declaration that the Applicant was entitled to remain and work in the State, as well as:-
a "(f) An Order of Certiorari by way of judicial review quashing the decision of the Respondent, his...
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