B (O A) & B (A)(A Minor) v Refugee Applications Commissioner and Others
| Jurisdiction | Ireland |
| Judge | MS. JUSTICE CLARK |
| Judgment Date | 21 April 2009 |
| Neutral Citation | [2009] IEHC 186 |
| Court | High Court |
| Date | 21 April 2009 |
[2009] IEHC 186
THE HIGH COURT
BETWEEN
AND
AND
REFUGEE ACT 1996 S13(1)
REFUGEE ACT 1996 S13(6)(A)
IMMIGRATION ACT 1999 S3
REFUGEE ACT 1996 S5
O (A) & L (D) v MIN FOR JUSTICE 2003 1 IR 1 2003/31/7267
P & L & B v MIN FOR JUSTICE & AG 2002 1 IR 164 2002 1 ILRM 38 2001/20/5496
CRIMINAL JUSTICE (UNITED NATIONS CONVENTION AGAINST TORTURE) ACT 2000 S4
N (A) & ORS v MIN FOR JUSTICE & CMSR OF AN GARDA SIOCHANA 2008 2 IR 48 2007/43/9091 2007 IESC 44
E (CI) v MIN FOR JUSTICE & ORS UNREP PEART 27.7.2007 2007/22/4446 2007 IEHC 302
KOUAYPE v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (EAMES) UNREP CLARKE 9.11.2005 2005/35/7364 2005 IEHC 380
OGUEKWE & ORS v MIN FOR JUSTICE 2008 2 ILRM 481 2008 IESC 25
OJUADE v REFUGEE APPEALS TRIBUNAL UNREP PEART 2.5.2008 (EX TEMPORE)
IMMIGRATION ACT 1999 S3(2)(F)
UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992
IMMIGRATION
Deportation
Judicial review - Leave - Mother and child - Deportation order against mother - Claim that no consideration given to best interests of child - Family unity - No application for asylum for minor at time deportation order was made in respect of mother - No deportation order made in respect of child - Adequacy of consideration of child's position when making deportation order for mother - Whether consideration of child's position adequate - Applicant arguing issue previously determined by court - Application misconceived - Order of costs against applicants - N(A) v Minister for Justice [2007] IESC 44 (Unrep, Supreme Court, 18/10/2007), Oguekwe v Minister for Justice [2008] IESC 25 [2008] 3 IR 795 and O v Minister for Justice [2003] 1 IR 1 distinguished - E(CI) v Minister for Justice [2007] IEHC 302 (Unrep, Peart J, 27/7/2007), P, L &B v Minister for Justice (Unreported, Supreme Court, 30/7/2001) and Kouaype v Minster for Justice [2005] IEHC 380 (Unrep, Clarke J, 9/11/2005) considered - Refugee Act 1996 (No 17) ss 3, 5 & 13 - Immigration Act 1999 (No. 22) s 3 - Criminal Justice (UN Convention Against Torture) Act 2000 (No 11) s 4- Leave refused (2005/1122JR - Clark J - 21/4/2009) [2009] IEHC 186
B (OA) v Refugee Applications Commissioner
This is an application for leave to apply for judicial review of the decision of the Minister for Justice, Equality and Law Reform ("the Minister") to make a deportation order in respect of the first named applicant, who is the mother of the second named applicant. Mr. Garry O'Halloran B.L. appeared for the applicants and Ms. Sinéad McGrath B.L. appeared for the respondents. The hearing took place at the King's Inns, Court No. 1, on the 19 th March, 2009.
The applicants must show substantial grounds for the contention that the decision to make a deportation order ought to be quashed. As is now well established, this means that grounds must be shown that are reasonable, arguable and weighty, as opposed to trivial or tenuous.
The first named applicant is a national of Nigeria and the second applicant is her infant daughter. The first applicant applied for asylum in the State on the 15 th April, 2005 when she was approximately six months pregnant. She claims that in February, 2005, her village in Adamawa State was attacked by neighbouring villagers. Her parents and 26 other local residents were killed and the village was destroyed. The applicant fled to Lagos where she lived by begging on the streets as she could not locate her husband or siblings. She was afraid of what might happen to her unborn baby and used the money she made from begging to pay for her travel to Ireland. She left Nigeria in April, 2005 with an agent and flew to Dublin via Amsterdam. She had no travel documents and, as is the now frequently recounted story, the agent held all travel documents and showed everything at the airport for her when required and then retained the documents. She had no documents to establish her identity or travel arrangements.
The first named applicant says that although she could not locate her husband in Nigeria and did not see him after the attack on her village she met him in Ireland ten days after she arrived here. She has given no explanation for this happy coincidence. Her asylum application was dealt with on a priority basis and her interview with the Office of the Refugee Applications Commissioner (ORAC) took place within weeks after her arrival. In the s. 13(1) report prepared after a consideration of her questionnaire and interview, a finding was made under s. 13(6) (a) of the Refugee Act 1996, i.e. that she had showed either no basis or a minimal basis for the contention that she is a refugee. She was therefore not entitled to an oral hearing on appeal. Her document based appeal was not successful before the Refugee Appeals Tribunal (RAT) and in June, 2005, she was notified that the Minister had refused to grant her refugee status and was proposing to make a deportation order.
Representations were made on her behalf by the Refugee Legal Service (RLS) seeking leave to remain temporarily in the State. The Minister was informed that she had been joined in the State by her husband and that she was pregnant and due to give birth in July, 2005. No further submissions were made in relation to the expected child and when the second applicant was born on the 9 th August, 2005 the Minister was not notified. Under the Irish Nationality and Citizenship Act 2005, the baby is not entitled to Irish citizenship.
In September, 2005, an examination of the first named applicant's file was conducted under s. 3 of the Immigration Act 1999. The applicant's family and domestic circumstances were noted including that her spouse was in the State and was in the asylum process; that her parents were deceased and the whereabouts of her eight siblings was unknown; and that she had entered the State six months pregnant and gave birth to a child on 9 th August, 2005. (It appears that the Minister's officials were aware of the birth as a result of enquiries they conducted with the Department of Social and Family Affairs.)
The file was examined under s. 5 of the Refugee Act 1996 and each of the submissions relating to what are known as the humanitarian grounds for leave to remain was examined and commented upon. It was noted that the applicant had given birth to a child in the State in August, 2005 but was not eligible for inclusion under the IBC'05 scheme. Consideration was then given to the situation of the child born in Ireland who was not an Irish citizen and that it was observed that even if she had been an Irish citizen, the judgment of the Supreme Court in Lobe and Osayande v. The Minister for Justice, Equality and Law Reform [2003] 1 I.R. 32 makes it clear that there is no absolute right for a child to have the care and company of its parents in Ireland and that this can be provided abroad. It was also noted that it cannot be said as a matter of law that the parents of a minor can assert a choice to reside in the State on behalf of the minor, even if that could be said to be in the interests of the minor. It was noted that "children can return to countries which would have inferior welfare and health services to those available in Ireland" and that is not, in itself, a basis for allowing them to remain here. It was concluded that "the fact that, in this instance, the child is not an Irish citizen lends further weight to the conclusion that deporting the parent, along with the child, is not contrary to our national or international obligations". It was noted that the child is not entitled to Irish citizenship but is entitled to Nigerian citizenship and "does not have an automatic right to remain in the State". It was further noted that the child's father is in the State and that his application for asylum, made on the 25 th April, 2005, had been rejected. It was pointed out that the Supreme Court in P, B and L v. The Minister for Justice, Equality and Law Reform [2001] I.E.S.C. 107 rejected the submission that the Minister is precluded from deporting one partner while the other's leave to remain application is pending.
The Executive Officer ultimately found that repatriating the first named applicant to Nigeria would not be contrary to s. 5 of the Refugee Act 1996 and no issues arose under s. 4 of the Criminal Justice (U.N. Convention against Torture) Act 2000. She recommended that the Minister sign a deportation order. An Assistant Principal endorsed that recommendation the following day but added no substantive analysis to the examination on file. A deportation order was then signed directed to the first applicant on the 29 th September, 2005 and she was notified of that order by letter dated the 5 th October, 2005. At the date of the deportation order, the first named applicant had been in the State for a period of less than six months.
The applicants” current solicitors came on record on the 12 th October, 2005 and on the 17 th October 2005, an individual application for asylum was made on behalf of the child, who was then two months old. The child's asylum file was not before the Court and counsel for the applicants was unable to...
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