Akujobi and Another v Minister for Justice
 IEHC 19
THE HIGH COURT
2006/280JR - MacMenamin - High - 12/1/2007 - 2007 3 IR 602 2007 3 555 2007 IEHC 19
Refugee law - Judicial review - Injunction restraining deportation - Nigeria - Motion on Notice - Standard for leave - Interlocutory principles - Credibility - New Country of Origin Information and Medical evidence - Whether lower test for leave warranted where on notice in absence of statutory regime - s. 3(11) Immigration Act 1999
Judgment of Mr. Justice John MacMenamin delivered the 12th day of January, 2007.
1. The facts of this case give rise first, to a consideration of the procedure to be observed in an application for leave to seek judicial review and an injunction restraining deportation when the decision sought to be impugned is one under s. 3(11) of the Immigration Act 1999. A second issue arising is the evidential threshold in such applications where made on notice.
Prior to dealing with these issues however it is first necessary to deal with the factual background and its relationship to these procedural evidential and legal issues.
The applicants in these proceedings arrived in this State on 1 St February, 2005 seeking asylum. After leaving their state of birth, Nigeria, the applicants state they first resided for five months in the Republic of Indonesia. Thereafter they state that they were assisted by a family from Northern Ireland, to travel from Indonesia to Belfast. Thereafter it is asserted that the same family provided them with money in order to travel to Dublin. The applicants say they have since had no contact at all with this family, who, they say, travelled with them and were instrumental in their being able to arrive in Ireland. They have not provided the asylum authorities with the full names or address of the family who were of considerable assistance to them, other than to state their surname, one not uncommon in Ireland.
2. The applications were processed by the Refugee Applications Commissioner ("RAC"), and were afterwards the subject of an appeal to the Refugee Appeals Tribunal ("RAT"). The respondent refused them a declaration of refugee status and notified them of his intention to deport them by letter dated 24 th November, 2005.
3. The applicants were invited to make representations pursuant to s. 3 of the Immigration Act, 1999 ("the Act of 1999") which were submitted on their behalf by those then representing them, that is the Refugee Legal Service.
4. Having considered then the representations under s. 3(6) of the Act of 1999, the respondent decided to make deportation orders in respect of the applicants on 7 th February, 2006. These decisions were notified to the applicants (whose applications were at all times considered together) by letter dated 20 th February, 2006.
5. The applicants decided to retain other solicitors. By letter dated 28 th February, 2006 their current solicitors submitted an application to the respondent to revoke the said deportation orders pursuant to s. 3(11) of the Act of 1999. This application included certain further documents regarding country of origin information and medical reports which are now the focus of these proceedings.
6. By letter dated 1 st March, 2006 the respondent wrote to the applicants' solicitor indicating that the application had been refused.
While s. 9 of the Refugee Act, 1996 provides that a person who makes an application for asylum has a right to remain in the State pending that determination, once a claim has been refused such asylum seeker no longer has any legal entitlement to remain in the State and is prima facie liable to deportation under s. 3(2)(f) of the Act of 1999. Such person cannot actually be deported until the Minister has complied with certain procedural requirements under s. 3 of the Act of 1999. Consequently, pending the Minister making a decision as to whether to deport an individual, that former applicant has a limited entitlement to remain in the State deriving from the operation of the s. 3 procedures (see the judgement of Hardiman J. in P,B and L v. Minister for Justice.
8. Deportation orders requiring the applicants to leave the State within a specified time and to thereafter remain outside the State have now been made in respect of each of the applicants. The applicants have not challenged the procedure in or the validity of these orders in these, or any other proceedings. An application to the Minister to revoke a deportation order under s. 3(11) does not have a suspensive effect and a deportation order remains valid and of full effect unless and until the Minister makes a decision to revoke it.
The applicants sought leave of the High Court to issue judicial review proceedings challenging the respondent's refusal to revoke their deportation orders on 9 th March, 2006. Hanna J., directed the applicants to put the respondent herein on notice of the making of such application. The applicants did however secure an interim injunction simply preventing their deportation at that time.
At the hearing of an application for an interlocutory injunction on 15 th March, 2006, for reasons outlined later in this judgment, I directed that the application for leave should be adjourned to facilitate further legal argument on the following issues:
i I. The appropriate test for an application for leave to bring judicial review pursuant to Order 84 of the Rules of the Superior Courts when the application for leave is made " ex parte on notice" to an intended respondent.
ii II. The extent to which matters presented in an application to revoke a deportation order pursuant to s. 3(11) of the Act of 1999 must be materially different from those presented or capable of being presented to the Minister in the making of the deportation order itself.
iii III. Whether a material distinction, if it concerns detention, health matters, or rights and care of a minor is of sufficient gravity to justify a different approach to the leave application in an Order 84 " ex parte on notice" judicial review application for leave?
While under s. 3(6) of the Act of 1999 the Minister must have regard to a range of issues such as in the making of a deportation order such as age, duration of residence, circumstances, employment character humanitarian considerations the common good and natural security, s. 3(11) provides simply:
2 3(11) "The Minister may be order amend or revoke an order made under this section including an order made under this subsection".
The applicants submit that the respondent acted in breach of their right to fair procedures and natural justice in failing inter alia to have regard to their potential status in Nigeria as returned asylum seekers and a risk of arbitrary detention if they were to be deported to their home State. They contend the respondent failed to take into account fresh evidence identified as 'country of origin' information, and also evidence with regard to the first named applicant's medical status submitted as part of their s. 3(11) application. The applicants remained in this jurisdiction on foot of the interim injunction which was continued on consent until this hearing.
Two affidavits have been filed on behalf of the respondent in reply, in which certain factual assertions of the applicants are addressed and in which the procedure now stated to be in place for persons deported from this State to Nigeria is outlined. The respondent contends that on the basis of the matter set out in these affidavits, sworn by Detective Inspector Philip Ryan and Mr. Noel Dowling Principal Officer in the Department of Justice, Equality and Law Reform, the concerns which the applicants raise are not, in reality, borne out. The essential issues raised by the applicants are first, that there is a risk in their deportation should they be returned to Nigeria as "failed' asylum seekers of being placed in detention and, second, whether the respondent had given proper consideration to new material submitted with regard to the first named applicant's health.
The application under s. 3(11) of the Act of 1999 to revoke these deportation orders was made by the applicants within approximately one week of the actual orders by the respondent. However it is not disputed that the documentation in support of the s. 3(11) application to revoke the order was not put to the Minister in advance of the making by him of the deportation orders as part of the s. 3(6) representations made prior to the order itself.
Counsel for the respondent submits that the new "information" was either known or capable of being known to the applicants in advance of the making of the deportation order. Furthermore, counsel submits that one letter in this correspondence...
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