O and Another v Minister for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Paul McDermott
• Judgment Date: 06 November 2012
• Neutral Citation: [2012] IEHC 458
• Court: High Court
• Date: 06 November 2012

[2012] IEHC 458

THE HIGH COURT

[No. 575 J.R./2012]

O (PU) & M (C) v Minister For Justice & Ors

JUDICIAL REVIEW

IN THE MATTER OF THE IMMIGRATION ACT, 1999 AND

IN THE MATTER OF THE CONSTITUTION AND,

IN THE MATTER OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003, SECTION 3(1)

BETWEEN

P.U.O AND C.M.

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY AND ATTORNEY GENERAL

RESPONDENTS

AND

THE HUMAN RIGHTS COMMISSION

NOTICE PARTY

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S13(6)

REFUGEE ACT 1996 S17(1)

IMMIGRATION ACT 1999 S3

REFUGEE ACT 1996 S5

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(1)

CONSTITUTION ART 40.3

CONSTITUTION ART 41

IMMIGRATION ACT 1999 S3(11)

EEC DIR 2005/85 ART 39

REFUGEE ACT 1996 S17

IMMIGRATION ACT 1999 S3(1)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(A)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(B)

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, IN RE 2000 2 IR 360 2000/11/4122

G v DPP & DISTRICT JUDGE KIRBY 1994 1 IR 374 1994/3/724

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

RSC O.84

D (T) & ORS v MIN FOR JUSTICE & ORS UNREP HOGAN 25.1.2011 2011/10/2394 2011 IEHC 37

PLANNING & DEVELOPMENT ACT 2000 S50(2)

RSC O.84 r21

M (P) v MIN FOR JUSTICE & ORS UNREP HOGAN 28.10.2011 2011/34/9389 2011 IEHC 409

L (BM-J) & ORS [DEMOCRATIC REPUBLIC OF CONGO] v MIN FOR JUSTICE & ORS UNREP CROSS 14.2.2012 2012 IEHC 74

WORLDPORT IRL LTD (IN LIQUIDATION), IN RE UNREP CLARKE 16.6.2005 2005/58/12287 2005 IEHC 189

JERRY BEADES CONSTRUCTION LTD v DUBLIN CITY COUNCIL & ORS UNREP MCKECHNIE 7.9.2005 2005/32/6641 2005 IEHC 406

RSC O.84 r21(1)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(1)

WHITE v DUBLIN CITY COUNCIL & ORS 2004 1 IR 545 2004 2 ILRM 509 2004/50/11423 2004 IESC 35

LENNON v CORK CITY COUNCIL UNREP SMYTH 19.12.2006 2006/34/7172 2006 IEHC 438

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

IMMIGRATION ACT 1999 S3(2)(F)

IMMIGRATION ACT 1999 S3(6)

SIVSIVADZE & ORS v MIN FOR JUSTICE & ORS UNREP KEARNS 21.6.2012 2012 IEHC 244

OMOREGIE & ORS v NORWAY 2009 IMM AR 170 2008 ECHR 761

EEC DIR 2005/85 CHAP V

D (HI) (A MINOR) & A (B) v REFUGEE APPLICATION CMSR & ORS UNREP COOKE 9.2.2011 2011/10/2306 2011 IEHC 33

EUROPEAN COMMUNITIES ACT 1972

EEC DIR 2005/85 ART 43

EEC DIR 2005/85 ART 8(3)

EEC DIR 2005/85 ART 9(2)

EEC DIR 2005/85 ART 10(1)

EEC DIR 2005/85 ART 15

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION PROTOCOL 21 ART 3

EEC DIR 2005/85 ANNEX I

REFUGEE ACT 1996 S2

D (OT) & O (FA) v MIN FOR JUSTICE UNREP CLARKE 25.6.2009 (EX TEMPORE)

IMMIGRATION ACT 1999 S3(6)(C)

IMMIGRATION ACT 1999 S3(6)(H)

O (G) & ORS v MIN FOR JUSTICE 2010 2 IR 19 2008/47/10172 2008 IEHC 190

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 9

AKUJOBI v MIN FOR JUSTICE 2007 3 IR 602 2007/3/555 2007 IEHC 19

CONSTITUTION ART 40.3.1

O'SHEA v IRELAND & AG 2007 2 IR 313 2007 1 ILRM 460 2006/47/10081 2006 IEHC 305

MCHUGH & ASEMOTA v MIN FOR JUSTICE UNREP HOGAN 9.3.2012 2012 IEHC 110

C (T) (ORSE MCC) & C (A) v MIN FOR JUSTICE 2005 4 IR 109 2005 2 ILRM 547 2005/10/2112 2005 IESC 42

CARLTONA LTD v CMRS OF WORKS & ORS 1943 2 AER 560

DEVANNEY v DISTRICT JUDGE SHIELDS & ORS 1998 1 IR 230

TANG & LEUNG v MIN FOR JUSTICE & ORS 1996 2 ILRM 46 1995/21/5597

MEADOWS v MIN FOR JUSTICE & ORS 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 3

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

AFOLABI v MIN FOR JUSTICE & ORS UNREP COOKE 17.5.2012 2012 IEHC 192

Judicial Review - Asylum - Deportation - Application for subsidiary protection refused - Country of origin information - Risk of serious harm - Protection from serious harm - Membership of a particular social group - Illegal Immigrants (Trafficking) Act 2000 - Right to a private and family life - Time limits - Rules of the Superior Courts

Facts: The first named applicant was originally from Nigeria. She arrived in Ireland in September 2010 and formed a relationship with the second named applicant, an Irish citizen, the following December. They decided to marry in February 2011. The first named applicant applied for asylum upon entering the country on the basis there was a risk of serious harm if she was returned to the country of origin because of her membership of a particular social group. She had maintained that she feared for her life due to threats of violence made to her by her partner there. Her application was rejected before the Refugee Applications Commissioner and the Refugee Appeals Tribunal on the basis that she was not part of a particular social group and so was outside the ambit of the Convention. The applicant then made a claim for subsidiary protection on the basis that if she was deported, she would be subjected to domestic violence with police protection in the country being inadequate to alleviate the risk against her. She did not mention the fact that she had recently got engaged to the second named applicant. Whilst this process was ongoing, the first named respondent became aware of the applicants' relationship after a Registrar of Marriages refused to marry them following dissatisfaction with the fact that the first named applicant had properly identified herself and informed the Garda Siochana. Eventually, it was concluded that the first named applicant's application be rejected on the basis that there was sufficient state protection in Nigeria and that deportation would not be a breach of her Article 8(1) right of the European Convention on Human Rights to respect for her private and family life.

The first named applicant then sought to revoke the subsequent deportation order on the basis that proper consideration of the documents that had been submitted to the Registrar had not been conducted in light of her right to marriage under the Constitution. This was also rejected. Leave for judicial review was subsequently sought to challenge the first named respondent's decision not to grant her refugee status in the initial stages, the making of a deportation order and the refusal to revoke the deportation order along with an interlocutory injunction restraining her deportation.

Held by McDermott J that an application for leave to apply for judicial review on the first two grounds made out by the first named applicant had to be made within 14 days of the decision under section 5(2)(a) of the Illegal Immigrants (Trafficking) Act 2000. This time restriction did not apply to the third ground. The application had not been made within the time limit of the first two grounds and there had been no application for an extension of time in that regard. The first named applicant contended that there was no time limit applicable when Convention rights were concerned. It was accepted by the court that the 14 day period didn't apply in this case but in default the time limit applicable for leave to apply for judicial review under O. 84 of the Rules of the Superior Courts applied instead which was of no assistance to the first named applicant.

It was further held that even if there were no time limits per the contentions of the first named applicant, substantial grounds to compel leave to apply for judicial review had not been made out. This decision also applied to the challenge to the first named respondent's decision not to revoke the deportation order.

Application for leave refused.

1. Introduction

2 2 1.1 This is an application for leave to apply for judicial review. It arose in circumstances in which application was made to this Court on the 20 ^th June, 2012, for an interim injunction restraining the first named respondent from deporting the first named applicant. An interim injunction was granted to that effect. It remained in force during the hearing of the application for leave to apply for judicial review made on notice to the respondents and continues in force until today's judgment.

2. Background

2 2 2.1 The first named applicant, a citizen of Nigeria, was born on the 8 ^th August, 1985, and arrived in Ireland on the 5 ^th September, 2010. The second named applicant is a citizen of Ireland with whom the first named applicant formed a relationship in December, 2010. The applicants decided to marry in or about February, 2011. In the meantime, the applicant had failed in an application for asylum in Ireland made on her arrival at Dublin Airport. During the course of that process, a number of documents were submitted as part of the application; a passport or expired passport was not amongst them. In the course of that application, the first named applicant maintained that a Nigerian man had been paid money by her family to arrange her passage to Ireland and that he had provided her with a passport which was taken from her just before she landed in Dublin. In the course of a s. 11 interview, she denied that she had ever possessed her "own genuine Nigerian passport".

3 3 2.2 The basis of her claim for asylum was a fear of persecution by reason of her membership of a particular social group. This was based on the asserted fear that her life was in danger in Nigeria due to her partner's threats of violence. There was no motive for this abuse that related to any of the Convention grounds of religion, nationality or membership of a particular social group. The Refugee Applications Commissioner concluded that s. 13(6) of the Refugee Act 1996 (as amended) applied to the applicant because "the applicant showed either no basis or a minimal basis for the contention that the applicant is a refugee" and recommended that the applicant not be granted refugee status on the 9 ^th November, 2010. The first named applicant was notified of this decision by letter dated the 12 ^th November, 2010. A notice of appeal against this decision was submitted to the Refugee Appeals Tribunal dated the...