A (O) (ALPHA) v Min for Justice, Equality & Law Reform

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Charleton
Judgment Date14 January 2010
Neutral Citation[2010] IEHC 10
Date14 January 2010
Docket Number1177 JR/2009

[2010] IEHC 10

THE HIGH COURT

1177 JR/2009
A (O) (ALPHA) v Min for Justice, Equality & Law Reform
JUDICIAL REVEW

BETWEEN

O. A. (Alpha)
APPLICANT
v.
THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM
RESPONDENT

AND

COLGAN AND CO. SOLICITORS
NOTICE PARTY

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

REFUGEE ACT 1996 S13

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S11B

RADZUIK v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP COOKE 24.7.2009 (EX TEMPORE)

REFUGEE ACT 1996 S2

J (SEM) v REFUGEE APPEALS TRIBUNAL UNREP CLARK 13.11.2009 (EX TEMPORE)

HORVATH v SECRETARY OF STATE FOR THE HOME DEPT 2001 1 AC 489 2000 3 WLR 379 2000 3 AER 577

REFUGEE ACT 1996 S10(2)

C (L) v MIN FOR JUSTICE 2007 2 IR 133

IMMIGRATION

Deportation

Injunction - Application to restrain deportation - Refusal to revoke deportation order - Delay in raising of new issue - Lack of candour - Credibility - Whether substantial grounds for review - Whether Minister erred in failing to take appropriate account of new information - Obligation to seek state protection in country of origin - Internal relocation - LC v Minister for Justice [2006] IEHC 36, [2006] IESC 44 [2007] 2 IR 133 followed - R v Minister for Justice [2006] IEHC 353 (Unrep, Cooke J, 24/7/2009); Hogarth v Home Secretary [2001] 1 AC 489 considered - Illegal Immigrants Trafficking Act 2000 (No 29), s 5 - Leave refused (2009/1177JR - Charleton J - 14/1/2010) [2010] IEHC 10

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

JUDGMENT of
Mr. Justice Charleton
delivered ex tempore on 14th day of January, 2010
1

In this case the applicant O. A., whom I shall refer to under the pseudonym of 'Alpha', challenges a decision of the Minister for Justice, Equality and Law Reform to deport her and the application to ground the proceedings for judicial review seeks a number of reliefs. Firstly, an injunction restraining her deportation;, secondly, a declaration that the deportation is incompatible with provisions of Article 3 and 5 of the European Convention of Human Rights; thirdly an order ofcertiorari quashing the deportation order and, fourthly, an order extending time for judicial review.

2

I am satisfied in this case that the firm of solicitors who are notice parties to the case, Colgan and Co. Solicitors, have behaved at all times properly. There is nothing in their affidavit which constitutes an attack on the applicant and there are portions of the affidavit which clarifies the situation as regards time but I don't propose to rely on those because the applicant had no opportunity to reply to this affidavit. It suffices to say that in the context of any issue as to whether they deliberately withheld papers, did not take instructions properly or delayed matters, they are, as far as I am concerned, completely blameless and I thank them for their attendance and they do not need to attend any further. On the issue of time however as between that affidavit, the affidavit of Ben Ryan for the respondent and the affidavits of Ms. Alpha in the case, I am satisfied that there is enough grounds for me to say that there is some confusion concerning the time limits and in consequence of that I would be reluctant within that context to immediately apply the relevant statutory provisions which is s. 5 of the Illegal Immigrants Trafficking Act, 2000 thus holding that the application is out of time. Even if the application were out of time, it seems to me to be proper to look at the merits of the application and to see in that regard whether or not the application has such merit that any delay is such as to require me to overlook it.

3

Now the basic facts of the case are that Ms. Alpha came to Ireland at some stage in January 2007, and she did not produce a passport, she produced a birth certificate; it turns out by curious coincidence that the person with whom she came to stay, who she says is her father, also has the same parents as her on his birth certificate. She alleged that her date of birth firstly was 25th December, 1990 and later that it was 25th December, 1991. She was assessed by the HSE and they did an assessment based upon a physical typology and decided that she was not in fact a minor but she was over eighteen years of age at all material times. She came before the Commissioner when she filled in a questionnaire and a s. 13 report was issued recommending against her application for refugee status. Following on that, that decision is dated 26th June, 2007, she then appealed to the Tribunal. The Tribunal issued a report against her on 19th February, 2009. She then applied for subsidiary protection status pursuant to the Directive as implemented in Irish Law. It was decided that she did not require subsidiary protection and then following on the commencement of the procedure for deportation she made an application to be allowed to stay in the country on humanitarian grounds. That was refused by the Minister and then following upon all of those decisions, the deportation order was made on 27th January, 2009. She said she was arrested for one hour and then released on 16th October, 2009. The applicant then brought this motion for judicial review on 7th December, 2009 and I indicated when it came up before me, I was then sitting in the Asylum list, that I would not make a decision on that day, because of other cases at hearing, but that I would hear it later and that is what I have done today.

4

Now there is a basic problem in relation to Ms. Alpha's application. There are two fundamental requirements for someone seeking refugee status; both are set out the United Nations High Commission for Refugees handbook. The first is this that you have to tell the truth. The requirement to tell the truth is not necessarily undermined by a single lie and persons who have genuinely got fears of persecution can find themselves in situations where they feel they need to lie because of bad experiences with the authorities in their own or other countries on previous occasions, but even still it is an obligation to tell the truth, and on the...

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