O. O. and Others v Minister for Justice Equality and Law Reform and Others

JurisdictionIreland
CourtHigh Court
JudgeMs. Justice Faherty
Judgment Date16 Jan 2015
Neutral Citation[2015] IEHC 11

[2015] IEHC 11

THE HIGH COURT

[No. 400 J.R./2010]
O (O) & Ors v Min for Justice & Ors
JUDICIAL REVIEW

BETWEEN

O. O. AND
F. O. AND
A. O.
APPLICANTS

AND

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

AND

THE HUMAN RIGHTS COMMISSION IRELAND
NOTICE PARTY

Judicial Review – Order of Certiorari – Deportation Order – Asylum - Refugee Act 1996 – Fear of Serious Harm – Leave to Remain – Refugee Status – Practice and Procedure – Clerical Error - ECHR

Facts: This case concerned a telescoped application for judicial review of two decisions of the Minister. The first, second and third applicants sought an Order of Certiorari by way of application for judicial review quashing the decision of the Minister making a Deportation Order against them. The first named applicant, a Nigerian Citizen, was the mother of the second and third named applicants. The second named applicant's application was dealt within the scope of his mother's application. The third named applicant was born in Ireland and that application was dealt with separately. The applicant submitted that due to the unique circumstances of the case, namely the first named applicant having been advised she was eligible for subsidiary protection and then told she was not, the Minister's response that he would consider the representations furnished between 9th and 24th March 2010 in the context of the discretion he enjoyed pursuant to s 3(11) of the Immigration Act 1999 to revoke a Deportation Order did not meet the justice of the case and was unfair. It was further submitted that the assessment of the applicants' private life rights under Article 8 of the European Convention on Human Rights was irrational and that there was no consideration of the proportionality of the decisions to make Deportation Orders in respect of them.

Held by Justice Faherty, in light of the available evidence and submissions presented that he was satisfied that the first and second named applicants had established a ground to warrant the quashing of the two Deportation Orders made against them. There was no basis to quash the Deportation Order made in respect of the third named applicant on the s 3 ground as the infirmity found by the court arose in the processing of the applications of the first and second named applicants. Justice Faherty was further satisfied that some components of an Article 8 challenge had been laid in the statement of grounds. Thus, in all the circumstances, and in light of the fact that the respondents had been on notice since July 2014 of the type of Convention arguments being made by the Applicants, the Court did not find that the respondents were prejudiced by the paucity of the pleadings. Acknowledging that the respondents needed time to make submissions in response to the substantive arguments made on behalf of the applicants, it was decided that the Court would await such submissions before embarking on the substantive consideration of the Article 8 ground any further.

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JUDGMENT of Ms. Justice Faherty delivered on the 16th day of January 2015

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1. This is a telescoped application for judicial review of two decisions of the Minister. The first and second applicants seek an Order of Certiorari by way of application for judicial review quashing the decision of the Minister making a Deportation Order against them and notified to the first named applicant not earlier than 28 th March 2010. The third named applicant seeks an Order of Certiorari by way of application for judicial review quashing the decision of the Minister against her and notified to her not earlier than 14 th April 2010.

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2. The first named applicant is the mother of the second and third named applicants. The second named applicant's application, throughout the asylum process and subsequently, was dealt within the scope of his mother's application. The third named applicant was born in this State following the initiation of her mother's asylum claim, and presumably this is the reason for the third named applicant's application having been dealt with separately at all relevant stages.

Background Facts
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3. The first and second named applicants arrived in Ireland from Nigeria on the 13 th October 2005. Each of them was born in Nigeria. The third named applicant was born in Ireland on the 2 nd November 2005. An asylum application was commenced by the first named applicant on the 13 th October 2005 on her and on the second named applicant's behalf. It was rejected by the Commissioner and by the Refugee Appeals Tribunal on appeal. A legal challenge in respect of the Tribunal's decision was not successful. An asylum application was made on behalf of the third named applicant on the 15 th March 2006 but was rejected by the Commissioner. An appeal was not lodged with the Refugee Appeals Tribunal. Following the procurement of legal representation from the Refugee Legal Service, an application pursuant to s. 17(7) of the Refugee Act 1996 was made on behalf of the third named applicant on the 30 th June 2006 seeking re-entry into the asylum system. This was refused by letter dated 9 th October 2006. Representations seeking leave to remain were made to the Minister on behalf of the third named applicant by the Refugee Legal Service on the 5 th July 2007. On the 10 th August 2007, via her current solicitor, the third named applicant made an application for subsidiary protection and made further representations seeking leave to remain. On the 4 th September 2007, the representations for leave to remain were further augmented.

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4. By letter dated 1 st March 2010, subsidiary protection was refused to the third named applicant. A copy of the report setting out the Minister's determination was enclosed with the letter to the third named applicant. On the 12 th March 2010, her solicitor wrote to the Repatriation Section of the first named Respondent making "a strong plea to grant the applicant Leave to Remain along with her mother and brother" and enclosing two testimonials in this regard. The first named Respondent was asked to take into consideration all the correspondence which had been forwarded in conjunction with the first named applicant's application (discussed more fully below). By letter dated the 14 th April 2010, the third named applicant was advised that the Minister had decided to make a Deportation Order in respect of her pursuant s. 3 of the Immigration Act, 1999. A copy of the Deportation Order and a copy of the Minister's considerations, ("examination of file"), pursuant to s. 3 of the 1999 Act and s. 5 of the Refugee Act, 1996 were enclosed with the letter. The Deportation Order was dated 9 th March 2010.

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The chronology with regard to the first and second named applicants

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5. On the 28 th April 2009, in the wake of their failed applications for refugee status, the Minister wrote to the first named applicant advising her that the Minister had accepted the recommendation of the Refugee Appeals Tribunal and that he was refusing the first and second named applicants refugee status. She was further advised that the Minister proposed to make a Deportation Order in respect of both herself and the second named applicant. Pursuant to s. 3 (4) of the 1999 Act, three options were advised to the first and second named applicants

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1. To leave the State before the Minister decided on a Deportation Order;

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2. To consent to a Deportation Order;

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3. To apply for subsidiary protection and/or make representations to remain temporarily in the State.

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The first named applicant took up option 3.

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6. Under cover of letter dated 18 th May 2009, her solicitor forwarded Forms CP/01 Part 1 and CP/01 Part 2 duly completed by the first named applicant. Included with her application for subsidiary protection were a number of documents in support of her claim of fear of serious harm if deported. She was further relying on the documentation which had been submitted with her (now failed) asylum application. Attached also were some 26 testimonials from third parties in support of the first and second named applicants' application for leave to remain. Further such representations were made on the 21 st May 2009. It would appear that the representations seeking leave to remain were made in respect of all three applicants.

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7. There the matter rested for a number of months.

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8. By letter dated the 1 st March 2010, the first named applicant was advised by an Executive Officer of the Repatriation Unit as follows

"I am directed by the Minister for Justice Equality and Law Reform to refer to your application for subsidiary protection under the EU (Eligibility for Protection) Regulations 2006 S.I. No. 518 of 2006 ("The Regulations")."

"Your application was considered in accordance with the above regulations and the Minister has determined that you are persons eligible for subsidiary protection. A copy of the Report setting out the Minister's determination is enclosed for your information."

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9. It is not in dispute but that the enclosed report was totally at odds with the contents of the letter of 1 st March 2010 in that the report concluded that substantial grounds had not been shown for believing that the first named Applicant would face a real risk of suffering serious harm if returned to Nigeria.

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10. On the 9 th March 2010, the applicant's solicitor received the following faxed correspondence from the Minister's Office

"I am directed by the Minister for Justice, Equality and Law Reform to refer to your correspondence dated 8/ 3/2010 Please be advised that the letter issued to your applicant and copied to your office contained a clerical error. Please be advised that the letter issued to your applicant should read:"

"Dear Olawunmi Oloyede,"

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I am directed by the Minister for...

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