B.J.N. v The Minister for Justice, Equality and Law Reform and Others
| Jurisdiction | Ireland |
| Judge | McCarthy J. |
| Judgment Date | 18 January 2008 |
| Neutral Citation | [2008] IEHC 8 |
| Court | High Court |
| Docket Number | [2005 No.1395 JR] |
| Date | 18 January 2008 |
[2008] IEHC 8
THE HIGH COURT
AND
AND
IMMIGRATION ACT 1999 (DEPORTATION) REGS 2002 SI 103/2002
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5(1)
O'KEEFFE v BORD PLEANALA 1993 1 IR 39
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 2
REFUGEE ACT 1996 S5
CONSTITUTION ART 40.3.2
CRIMINAL JUSTICE (UNITED NATIONS CONVENTION AGAINST TORTURE) ACT 2000
EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2
KEEGAN, STATE v STARDUST VICTIMS COMPENSATION FUND 1986 IR 642
VILVARAJAH v UNITED KINGDOM 1992 14 EHRR 248
SOERING v UNITED KINGDOM 1989 11 EHRR 439
ASSOCIATED PROVINCIAL PICTURE HOUSES LTD v WEDNESBURY CORPORATION 1948 1 KB 223
GASHI v MIN FOR JUSTICE & ORS UNREP HIGH COURT CLARKE 3.12.2004 2004/19/4277
IDIAKHEUA v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP HIGH COURT CLARKE 10.5.2005 2005/31/6357 2005 IEHC 150
O (A) & L (D) v MIN JUSTICE 2003 1 IR 1
Z v MIN JUSTICE 2002 2 IR 135 2002 2 ILRM 215
LAURENTIU v MIN FOR JUSTICE 1999 4 IR 26 1999/15/4552
MAHMOOD, R v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2001 1 WLR 840
MEADOWS v MIN JUSTICE & ORS UNREP GILLIGAN 19.11.2003 2003/34/8235
AGBONLAHOR v MIN JUSTICE UNREP FEENEY 18.4.2007 2007 IEHC 166
AKUJOBI v MIN JUSTICE UNREP MACMENAMIN 12.1.2007 2007 IEHC 19
MAKUMBI v MIN JUSTICE UNREP FINLAY GEOGHEGAN 15.11.2005 2005 IEHC 403
ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, IN RE 2000 2 IR 360S (E M) v MIN JUSTICE UNREP CLARKE 21.12.2004 2004/45/10370
MSENGI v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP MACMENAMIN 26.5.2006 2006/41/8759 2006 IEHC 241
AYOKA OGUNLADE v MIN JUSTICE UNREP GILLIGAN 29.7.2005 2005 IEHC 270
KOZHUKAROV & ORS v MIN FOR JUSTICE & ORS UNREP CLARKE 14.12.2005 2005/35/7380
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8
BODE v MIN JUSTICE UNREP FINLAY GEOGHEGAN 14.11.2006 2006/6/1136 2006 IEHC 341
KUTZNER v GERMANY 2002 35 EHRR 653
CONSTITUTION ART 40.3.3
N v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2005 2 AC 296
R (ON THE APPLICATION OF RAZGAR & OTHERS) v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2004 2 AC 368 2004 3 AER 821 2004 3 WLR 58
DUBLIN CONVENTION 1990 ART 7
REFUGEE ACT 1996 S22
EEC REG 343/2003
IMMIGRATION LAW
Deportation
Leave to remain in State -Refusal to revoke deportation order - Whether interference with right to private life -- EMS v Minister for Justice [2004] IEHC 398, (Unrep, Clarke J, 21/12/2004), Msengi v Minister for Justice [2006] IEHC 241, (Unrep, MacMenamin J, 26/5/2006), Ogunlade v RATl [2005] IEHC 270, (Unrep, Gilligan J, 29/7/2005), AO v RAT [2004] IEHC 239, (Unrep, Peart J, 26/5/2004) considered; Agbonlahor v Minister for Justice [2007] IEHC 166, (Unrep, Feeney J, 18/4/2007) applied - Immigration Act 1999 (No 22), s 3 - European Convention on Human Rights Act 2003 (No 2), s 3 - Constitution of Ireland 1937, Article 40.3.2 - European Convention on Human Rights and Fundamental Freedoms, article 8 - Application refused (2005/1395JR - McCarthy J - 18/1/2008) [2008] IEHC 8
N(BJ) v Minister for Justice, Equality and Law Reform
Judgment of McCarthy J. delivered the 18th day of January, 2008.
1. These proceedings were commenced by originating notice of motion dated 20th December, 2005. Subsequently, application was made by an undated notice of motion seeking to amend the statement of grounds upon which reliance was placed originally. Liberty to issue that notice of motion returnable for 28th February, 2007 was granted. I am not told whether or not any order was made on that application but I assume it was so made, since the matter was dealt with without objection at the hearing of the proceedings. The relief sought in the amended statement of grounds is, to a degree, repetitious and is, substantively, firstly, an application to quash a deportation order made by the Minister for Justice, Equality and Law Reform on a date which is unclear on the face of the order itself but appears to be 15th November, 2005: notification of the fact that this order was made was received by the applicant on or about 10th December, 2005. Secondly, by letter dated 13th November, 2006, the Minister was requested to revoke the order and it is sought to quash the refusal on his part to do so. The applicant did not abandon the first aspect at the hearing, though it seems fair to say that the primary focus of the application must now be the second ground, namely, that the refusal to revoke was unlawful and quashed accordingly.
2. In summarising the relief sought and the grounds therefor I propose to attenuate them somewhat or to summarise. On this basis, firstly, the relief sought, as the pleadings have been amended, may be summarised as follows:-
(a) Certiorari of the deportation order with a declaration that it was ultra vires;
(b) A declaration that the Immigration Act, 1999 (Deportation Regulations, 2002) are ultra vires the Act.
(c) Relief by way of injunction restraining deportation pending determination of these proceedings, something which is now irrelevant since the same will not take place before that time. I am not told whether or not an order was made to this effect or an undertaking given by the Minister.
(d) A declaration that the Minister has acted in breach of the applicant's constitutional rights or the European Convention on Human Rights Act, 2003, by which latter I assume a breach of the Convention itself is alleged and, in particular, a breach of article 5(1) of the Convention, by virtue of the rule of law governing the grant of judicial review (which might be colloquially called the threshold for judicial review) as set out in O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39. In fact the provision which is engaged here is article 13 of the Convention.
(e) An order of certiorari of the refusal of the Minister to revoke the Deportation Order with a declaration that it was made "without regard" to her rights under article 2 of the Convention.
3. The amended statement of grounds may be summarised as follows:-
(a) The decision of the respondent to make the impugned deportation order is ultra vires and unsustainable in law by reason of mistake of law.
(b) The respondent erred in finding that the issue of refoulement does not arise on account of the designation of South Africa as a safe country of origin.
(c) The respondent did not consider whether the provisions of s. 5 of the Refugee Act, 1996 (as amended) applied.
(d) The respondent could not reasonably have come to the view which he did in the light of country of origin information.
(e) The respondent failed to vindicate the right to life of the applicant guaranteed by Article 40.3.2 of the Constitution.
(f) The respondent failed to consider the rights afforded to the applicant by the European Convention on Human Rights.
(g) The respondent failed to properly or adequately consider the representations for leave to remain submitted by or on behalf of the applicant. In the alternative, the respondent could not reasonably have come to the conclusion arrived at.
(h) The respondent failed to apply the provisions of the Criminal Justice (United Nations Convention Against Torture) Act, s. 5 of the 1996 Act, s. 3 of the Immigration Act, 1999, article 3 of the Convention Against Torture, and other cruel or inhuman or degrading treatment or punishment in the light of s. 2 of the Act of 2003.
(i) The deportation order failed to state the place the applicant was to be deported to (a point which has already been decided against the applicant's contention) and the Deportation Regulations aforesaid were in excess of the powers under the Act and null and void.
(j) The respondent failed to consider the harshness of returning the applicant to South Africa in the light of the child sex abuse, child rape and risk to life on account of her medical condition.
(k) The respondent, his servants or agents have taken into account irrelevant considerations and failed to take into account those which are relevant.
(l) It is disproportionate to make the deportation order.
(m) Absence of constitutional justice.
(n) Insofar as the threshold for judicial review is the so-called " O'Keeffetest" the same is inadequate and contrary to the rights guaranteed by the Convention with, if appropriate, a declaration of incompatibility of that test with the Act of 2003.
(o) The reports made to the Minister and the recommendations to him were unreasoned and/or unreasonable, irrational and in the face of common sense in the light of all the circumstances of the case.
(p) An error of law in finding that there was nothing contained in representations seeking revocation dated 15/11/2006.
(q) That the respondent failed to consider the application for revocation in the context of her rights under Article 40.3.2 of the Constitution and article 2 of the Convention.
4. I think that the first matter which I should address is the issue of the threshold or test to be applied to the grant of judicial review since this must inform my consideration of the matter. It is, of course, the case that leave should be granted only where there are substantial grounds for contending that the decision, determination, recommendation, refusal or order is invalid or ought to be quashed. In deciding whether or not substantial grounds exist, one considers the law applicable to all judicial review applications where the intervention of...
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