O (O) & O (B) (A Minor) v Min for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 16 March 2011
• Neutral Citation: [2011] IEHC 165
• Court: High Court
• Date: 16 March 2011

[2011] IEHC 165

THE HIGH COURT

[No. 1336 J.R./2010]

O (O) & O (B) (A minor) v Min for Justice & Ors

JUDICIAL REVIEW

MR JUSTICE COOKE

APPROVED TEXT

BETWEEN

O. O. AND B. O. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND O. O.)

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, ATTORNEY GENERAL AND IRELAND

RESPONDENTS

IMMIGRATION ACT 1999 S3(11)

IMMIGRATION ACT 1999 S3(3)(A)

REFUGEE ACT 1996 S13

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 4(5)

IMMIGRATION ACT 1999 S3(6)

IMMIGRATION ACT 1999 S3

IMMIGRATION ACT 1999 S3(6)(I)

IMMIGRATION ACT 1999 S3(6)(F)

EFE v MIN FOR JUSTICE UNREP HOGAN 25.2.2011 (EX TEMPORE)

OGUEKWE v MIN FOR JUSTICE 2008 3 IR 795 2008 2 ILRM 481 2008/51/10890 2008 IESC 25

BUTUSHA v MIN FOR JUSTICE UNREP PEART 29.10.2003 2003/7/1531

REFUGEE ACT 1996 S5

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

IMMIGRATION

Deportation

Subsidiary protection - Refusal - Revocation of order - Quash refusal to revoke - Representations to remain received after deportation order made - Representations treated as application to revoke - Whether finding that state protection available irrational - Credibility of mother - Application of child based on facts of mother's claim - Whether decision to consider whether to make deportation order taken before decision to refuse subsidiary protection - Literal construction of regulation 4(5) - Sequence of decisions - Decision on subsidiary protection should been made before decision on deportation order - Whether representations against deportation order adequately considered - Whether procedure fair given delay - Efe v Minister for Justice [2011] IEHC 214 (Unrep, Hogan J, 7/6/2011) considered; Oguekwe v Minister for Justice [2008] IESC 25 [2008] 3 IR 795 applied; Butusha v Minister for Justice (Unrep - Peart J - 29/10/2003) distinguished - Immigration Act 1999 (No 22), s 3 - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), reg 4(5) - European Convention on Human Rights, article 3 and 8 - Leave refused (2010/1336JR - Cooke J - 16/3/2011) [2011] IEHC 165

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

Facts: An order of certiorari was sought on behalf of a four and a half year old child born in Ireland, quashing the decision of the respondent to make deportation orders and to refuse subsidiary protection. The issue arose as to the availability of State Protection for the applicant in Nigeria who feared serious harm or torture and whether the Minister had failed to comply with Regulation 4(5) European Communities (Eligibility for Protection) Regulations, 2006. The applicant alleged that there had been material changes in their circumstances, such as the applicant commencing education, that the Minister had failed to take account of. The applicant also alleged that there had been a long delay since the original representations were made and the Minister had not given any warning of the impending decision so that updated representations might be submitted.

Held by Cooke J. that the Court found that no substantial ground had been made out to justify leave. No new facts or information was available. No warning was required.

Reporter: E.F.

1 JUDGMENT of Mr. Justice Cooke delivered the 16th day of March 2011

2 1. As originally constituted this proceeding was brought to seek judicial review of two decisions made by the respondent Minister. An order of certiorari was sought quashing his decision to make deportation orders in respect of the applicants on the 5 ^th October, 2010 and a further order to quash his decision to refuse subsidiary protection to the second named applicant on the 23 ^rd September, 2010. The matter comes before the Court on the application for leave to apply for those reliefs together with the other reliefs originally set forth in the notice of motion dated the 19 ^th October, 2010.

3 2. Shortly before the application for leave was listed for hearing, a notice of motion on behalf of the first named applicant dated the 1 ^st March, 2011, was issued seeking leave of the Court to amend the statement of grounds in order to include two additional reliefs, namely, an order of certiorari quashing a decision by the respondent on the 8 ^th February, 2011, refusing to revoke the deportation orders and, secondly, a declaration that "the common law rules governing the remedy of judicial review in circumstances where no full appeal of the decision of the respondent is available, are contrary" to certain Articles of the Constitution. When this notice of motion was listed on the 7 ^th March, 2011, the Court adjourned it until the hearing of the leave application on the following day.

4 3. Having heard the submissions of the parties in relation to the motion to amend the statement of grounds, the Court decided, in the interest of the economy of proceedings, to allow an amendment of the statement of grounds for the purpose of adding the claim to relief by way of order of certiorari in respect of the decision under s. 3(11) of the Act of 1999, together with the grounds set Out in the draft amended statement numbered (after the Court's renumbering of unnumbered paragraphs) set out at paragraphs 1B, 1C, 1D, 1E, 1G, and 1H. (Ground 1A is not a ground but an introduction and ground 1F is a variation on 1E.) The Court decided to postpone consideration of the amendments to the reliefs and grounds relating to the proposed claim that the common law rules governing the remedy of judicial review were unconstitutional. There were two reasons for the Court's ruling. First, it appeared to the Court to be premature and possibly wasteful to consider an application in a judicial review proceeding to the effect that the judicial review proceeding did not provide an effective remedy prior to any decision being made as to whether substantial ground had been raised as to why the impugned ought to quashed by certiorari. Secondly, the Court was informed that the substantive issue in that regard was already under consideration in other cases already at hearing in the High Court.

5 4. In many cases the introduction of an application to revoke a deportation order under s. 3(11) of the Act of 1999, necessarily implies an acceptance on the part of the applicant that there exists a valid deportation which requires to be revoked. In such cases the Court would normally insist that the applicant choose between the contradictory reliefs and abandon the claim to quash the deportation decision in order to pursue the application to quash the refusal of revocation. In this case, however, the Court's acceptance of the amendment directed at the revocation decision is explained by the chronology. Following the failure of an asylum application on behalf of both mother and son, a letter of the 15 ^th February, 2007, was sent to the mother by the Minister notifying her of his proposal to make a deportation order and outlining the three options available, including the possibility of applying for subsidiary protection and/or making representations to remain temporarily in the State. The letter explained that in the event of this last option being taken:

"The Minister will make a decision on your eligibility for subsidiary protection first. If your application for subsidiary protection is successful, you will be allowed to remain in the State for three years (this will be reviewed at the end of the three years). If this happens it will not be necessary for your representations to remain temporarily in the State to be considered. If your application is not successful or you have not made an application for subsidiary protection, the Minister will decide on your representations to remain temporarily in the State."

6 5. In response to that letter an application for subsidiary protection was made by the mother on the 9 ^th March, 2007. That application was refused by a letter of the 11 ^th January, 2008. Judicial review proceedings were then brought against that decision. The applicant states that they were "subsequently compromised by agreement" but this is strenuously denied by the respondent who says that the issues raised in the proceedings had become moot. However that may be, the result was an acceptance by the respondent of an application for subsidiary protection made separately on behalf of the second named applicant. This was made on the 22 ^nd December, 2009. Essentially, the fear of serious harm advanced as the basis of this application on behalf of the child who was then a little over three years old, was based on the events and factors which had been relied upon by the mother in claiming asylum. She had claimed that her own father had been a successful businessman and local chief in Bayelsa State and active in a political party. As a community leader he came under pressure to misuse or divert certain public funds and as a result of his refusal to comply, became the subject of threats and attacks and he and another daughter were eventually killed. It was this history and these events which were alleged to have provoked the first named applicant to flee Nigeria. Subsidiary protection for the second named applicant was claimed on the basis that if returned to Nigeria he too would be at risk for his life from the enemies of his grandfather.

7 6. The application for subsidiary protection was refused in a decision sent under cover of a letter dated the 23 ^rd September, 2010. This enclosed an analysis and narrative determination of the application set out in a memorandum which had been compiled and signed off by a series of officers within the Department on dates as follows:

8 · - The conclusion to the analysis by an Executive Officer on the 24 ^th June, 2010;

9 · - A recommendation...