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

• Jurisdiction: Ireland
• Judge: MR JUSTICE HEDIGAN,
• Judgment Date: 18 December 2008
• Neutral Citation: [2008] IEHC 433
• Court: High Court
• Date: 18 December 2008

[2008] IEHC 433

THE HIGH COURT

[1155 JR/2006]

O (E) (A Minor) & Ors v Min for Justice & Ors

BETWEEN

E. O., S. O. (A MINOR, SUING BY HIS MOTHER AND NEXT FRIEND E. O.), D.O. (A MINOR, SUING BY HER MOTHER AND NEXT FRIEND E. O.) AND J. O. (A MINOR, SUING BY HIS MOTHER AND NEXT FRIEND E. O.)

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE REFUGEE APPEALS TRIBUNAL, THE REFUGEE APPLICATIONS COMMISSIONER, THE ATTORNEY GENERAL, AND IRELAND

RESPONDENTS

AND

HUMAN RIGHTS COMMISSION

NOTICE PARTY

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

OJUADE v REFUGEE APPLICATIONS CMSR & ANOR UNREP PEART 2.5.2008 (EX TEMPORE)

N (A) & ORS v MIN FOR JUSTICE & CMSR OF AN GARDA SIOCHANA UNREP SUPREME 18.10.2007 2007/43/9091 2007 IESC 44

JOLLY v MIN FOR JUSTICE UNREP FINLAY-GEOGHEGAN 6.11.2003 2003/28/6616 2004 IEHC 36

S (C) & ORS v MIN FOR JUSTICE & AG 2005 1 ILRM 81 2004/45/10305

BUGOVSKI & BUGOVSKA v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP GILLIGAN 18.3.2005 2005/6/1153 2005 IEHC 78

A (K) & A (A) (A MINOR) v REFUGEE APPLICATIONS CMSR & ORS UNREP HEDIGAN 16.10.2008 2008 IEHC 314

T (OS) v MIN FOR JUSTICE UNREP HEDIGAN 12.12.2008 2008 IEHC 384

IMMIGRATION ACT 1999 S3(6)

REFUGEE ACT 1996 S5

IMMIGRATION ACT 1999 S3(6)(H)

IMMIGRATION ACT 1999 S3(6)(I)

IMMIGRATION ACT 1999 S3(6)(C)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8.2

SPARTARIU v MIN FOR JUSTICE 2006 2 IR 95 2005/56/11671 2005 IEHC 104

OGUEKWE & ORS v MIN FOR JUSTICE UNREP SUPREME 1.5.2008 2008 IESC 25

S (BI) & ORS v MIN FOR JUSTICE UNREP DUNNE 30.11.2007 2007/54/11584 2007 IEHC 398

BEOKU-BETTS v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2008 3 WLR 166 2009 1 AC 115

SEZEN v NETHERLANDS 2006 43 EHRR 30

LUPASCU v MIN FOR JUSTICE & ORS UNREP PEART 21.12.2004 2004/28/6549 2004 IEHC 400

A (C) & A (OS) v MIN FOR JUSTICE & ORS UNREP MCCARTHY 23.11.2007 2007 IEHC 393

IMMIGRATION

Deportation

Judicial review - Leave - Humanitarian leave to remain - Extension of time - Whether explanation for delay inadequate - Necessity for reasonable and credible reasons to explain delay - Failure to advance reasons for delay - Whether flawed consideration of convention rights - Whether mistake of fact - Whether failure to assess proportionality of proposed interference with right to respect for family life - Obligation to consider and balance competing interests - Whether failure to consider interests of family as whole - Family and domestic circumstances - Claim that no functioning family unit existed - Error in relation to name of child in order - Whether substantial grounds for review - Failure to provide information relating to husband - Obligation on applicants to act in process - Failure to update Minister as to birth of child - AN v Minister for Justice [2007] IESC 44 [2008] 2 IR 48, CS v Minister for Justice [2004] IESC 44, [2005] 1 IR 343, Bugovski v Minister for Justice [2005] IEHC 78 (Unrep, Gilligan J, 18/3/2005), A(K) v Refugee Applications Commissioner [2008] IEHC 314 (Unrep, Hedigan J, 16/10/2008) , T(O S) v Minister for Justice [2008] IEHC 384 (Unrep, Hedigan J, 12/12/2008), Spartariu v Minister for Justice [2005] IEHC 104 (Unrep, Peart J, 7/4/2005), Oguekwe v Minister for Justice [2008] IESC 25 [2008] 3 IR 795, S(B I) v Minister for Justice [2007] IEHC 398 (Unrep, Dunne J, 30/11/2007), Beoku-Betts (FC) v Secretary of State for the Home Department [2008] 3 WLR 166, Sezen v The Netherlands (2006) 43 EHRR 621, Lupascu v Minister for Justice [2004] IEHC 400 (Unrep, Peart J, 21/12/2004), Adegbemi v Minister for Justice [2007] IEHC 393 (Unrep, McCarthy J, 23/11/2007) and A(P) v Minister for Justice [2008] IEHC 359 (Unrep, Hedigan J, 18/11/2008) considered - Refugee Act 1996 (No 17), s 5 - Immigration Act 1999 (No 22), s 3 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Leave refused (2006/1155JR - Hedigan J - 18/12/2008) [2008] IEHC 433

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

1 JUDGMENT OF MR JUSTICE HEDIGAN, delivered on the 18th day of December, 2008.

2 1. The applicants are seeking leave to apply for judicial review of two decisions:-

3 (i) The decision of the Minister for Justice, Equality and Law Reform ("the Minister") to make deportation orders in respect of the first, second and third named applicants; and

4 (ii) The decision of the Refugee Appeals Tribunal ("RAT") to affirm the earlier recommendation of the Office of the Refugee Applications Commissioner ("ORAC") that the third named applicant should not be granted a declaration of refugee status.

Background

5 2. Each of the applicants in this case is a national of Nigeria. The first named applicant is the mother of the second, third and fourth named applicants, who are minors. The second and third named applicants were born in Nigeria in 2002 and 2004, respectively. The first named applicant applied for asylum upon arrival in the State on 3 ^rd October, 2005; she gave consent for the second and third named applicants to be included under her application. She claimed that she fled Nigeria in 2005 after suffering persecution as a result of difficulties experienced by her husband (Oke O.) over chieftaincy matters; she stated that they had to re-locate on a number of occasions and that she was sexually abused and raped many times. She said that her husband had been kidnapped and she did not know where he was, and that her husband's friend, Emmanuel, arranged their travel and accompanied them to Ireland.

6 3. A negative recommendation issued from ORAC in respect of the first, second and third named applicants. Their appeal to the RAT was rejected by decision dated 6 ^th March, 2006; that decision was notified to them on the same day. Soon afterwards, on 31 ^st May, 2006, the first named applicant gave birth to the fourth named applicant. Some confusion surrounds the identity of his father; the first named applicant's husband, Oke O., is named on his birth certificate but it has been submitted that he is, in fact, the son of Emmanuel, who is variously described as Oke O.'s friend and manager, and who it appears the first named applicant says raped her in Nigeria. In any event, the fourth named applicant was not included under the first named applicant's original asylum application; the ORAC and RAT decisions do not therefore relate to him. He remains in the asylum process.

7 4. The first named applicant was informed in March, 2006 that the Minister was proposing to make deportation orders in respect of her and the second and third named applicants. Representations seeking leave to remain in the State were made and considered, and deportation orders were made in respect of the first, second and third named applicants; those orders were notified to them on 15 ^th September, 2006.

Extension of Time: The RAT Decision

8 5. The Notice of Motion herein was instituted on 27 ^th September, 2006. The applicants are therefore outside of the 14 day time limit set out in section 5(2) of the Illegal Immigrants (Trafficking) Act 2000 by a period of 6 months and 1 week in respect of the RAT decision. Just one paragraph of the first named applicant's grounding affidavit addressed this substantial period of delay. In that paragraph, she simply states that she had always wished to challenge the RAT decision but failed to get any advice relating to the notification to her of the RAT decision. She instructed her current solicitors only after the deportation orders were notified to her.

9 6. Reliance is placed on the judgment of Peart J. in Ojuade v The Refugee Applications Commissioner & Anor (unreported, High Court, Peart J., 2 ^nd May, 2008), wherein the judgment of the Supreme Court in A.N. & Ors v The Minister for Justice, Equality and Law Reform [2007] IESC 44 was interpreted with respect to the extension of time in the case of a minor. Peart J. held as follows:-

"In my view, since the second named applicant is a minor, and one of very tender years, she ought not to be refused an extension of time simply because the court is satisfied that her mother, the first named applicant, did not act in time to seek to challenge decisions made which affect her also."

10 7. The respondents oppose the extension of time. It is argued that the explanation offered by the first named applicant in her grounding affidavit is wholly inadequate. It is complained that the first named applicant implicitly impugns the conduct of the RLS members who were acting for the applicants at the time of the RAT decision, and it is argued that those complaints are utterly unsubstantiated. It is complained that the RLS were not named as notice parties and could easily have been so named. Reliance is placed on the following passage in the ex tempore judgment in Jolly v The Minister for Justice, Equality and Law Reform (unreported, Finlay Geoghegan J., High Court, 6 ^th November, 2003):-

"This court may only consider extending the time where what might be considered to be good and sufficient reasons are set out on affidavit either by the applicant or on some other person swearing an affidavit or making a declaration on his behalf."

11 8. In that case, Finlay Geoghegan J. refused to extend time on the basis that no reference was made to the delay in the applicant's affidavit, nor did that affidavit set out any grounds or facts which would permit the Court to consider exercising its discretion under section 5(2)(a) of the Act of 2000. The respondents submit that although consideration of an application for an extension of time will normally require consideration of the merits, in accordance with the judgment of McGuinness J. in C.S. v The Minister for Justice, Equality and Law Reform (unreported, Supreme Court, 27 ^th July, 2004), in circumstances such as...