Baby O v Minister for Justice

JurisdictionIreland
CourtSupreme Court
Judgekeane C.J.
Judgment Date06 June 2002
Neutral Citation[2002] IESC 44
Date06 June 2002
Docket Number[S.C. Nos. 4 and 17

[2002] IESC 44

THE SUPREME COURT

Keane C.J.

Denham J.

Murphy J.

Murray J.

McGuinness. J.

04 & 17/02
O v. MINISTER FOR JUSTICE & ORS [BABY O CASE]

BETWEEN

BABY O. (SUING BY MOTHER AND NEXT FRIEND I.A.O.) AND
ANOTHER
APPLICANT

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND
OTHERS
RESPONDENTS

Citations:

IMMIGRATION ACT 1999 S3

P & L & B V MIN FOR JUSTICE 2002 1 ILRM 16

CONSTITUTION ART 40.3.3

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

RSC O.84

REFUGEE ACT 1996 S5

IMMIGRATION ACT 1999 (DEPORTATION) REGS 1999 SI 319/1999

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(3)(A)

IRISH ASPHALT LTD V BORD PLEANALA 1996 2 IR 179

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S3(A)(B)(i)

IRISH HARDWARE ASSOCIATION V SOUTH DUBLIN CO COUNCIL & BARKHILL LTD 2001 2 ILRM 291

CRILLY V T & J FARRINGTON LTD & ANOR 2002 1 ILRM 161

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

RSC O.84 r21(1)

STEFAN V MIN FOR JUSTICE & ANOR UNREP SUPREME 30.11.2001

KEEGAN, STATE V STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 632

O'KEEFE V BORD PLEANALA 1993 1 IR 39

AG V X 1992 1 IR 1

CRIMINAL JUSTICE (UNITED NATIONS CONVENTION AGAINST TORTURE) ACT 2000 S4

CRIMINAL JUSTICE (UNITED NATIONS CONVENTION AGAINST TORTURE) ACT 2000 S4(1)

IMMIGRATION ACT 1999 S3(11)

Synopsis:

IMMIGRATION

Asylum

Judicial review - Certiorari - Refugee law - Practice and procedure - Hope Hanlon procedures - Fair procedures - Whether failure to give adequate reasons - Whether pregnancy grounds for preventing deportation - Refugee Act, 1996 - Immigration Act, 1999 - Rules of the Superior Courts, 1986 (4/2002;17/2002 - Supreme Court - 06/06/2002)

Baby O v Minister for Justice, Equality and Law Reform - [2002] 2 IR 169 - [2003] 1 ILRM 241

Facts: The second-named applicant had sought and had been refused refugee status. Judicial review proceedings were commenced seeking to quash the deportation order. In addition proceedings were brought to prevent deportation as the second-named applicant was pregnant. In the High Court Smyth J refused the relief sought and the second-named applicant appealed. It had been argued that a decision to deport the second-named applicant was failure to vindicate the right to life of the unborn as set out in the Constitution.

Held by the Supreme Court (Keane CJ delivering judgment; Denham J, Murphy J and McGuinness J agreeing) in dismissing the appeal. The right of appeal in this case as regulated by section 5 of the Illegal Immigrants (Trafficking) Act, 2000 was expressly precluded unless the necessary certificate was granted by the High Court. The High Court judge had effectively refused to extend time for the bringing of the applications and was entitled to arrive at that decision. The decision by the officer from the Department of Justice that the second-named applicant’s case was manifestly unfounded could not be said to be unsupported by any grounds. The State was not seeking to terminate the second-named applicant’s pregnancy and the fact that the standard of ante or post natal care available in Nigeria was lower than the standard of care available in Ireland was entirely irrelevant to the legality of her deportation. The Minister’s obligation was to consider the representations made on her behalf and this had been done.

1

JUDGMENT delivered the 6th day of June, 2002. by keane C.J. [Nem Diss]

2

On the 14th February last, the court announced that the appeals in this case would be dismissed and the orders of the High Court affirmed. I now in this judgment give my reasons for agreeing with that decision.

3

The second named applicant, who is a Nigerian national, arrived in this jurisdiction on either the 24th or 25th December 1999. She thereupon applied for refugee status and, in completing the questionnaire furnished to her by the refugee application centre, said that she feared her life would be in danger if she returned to Nigeria. The danger to her life, she claimed, arose from the activities of a body called the "Ogboni Fraternity" of which her father had at one time been a member and which, she alleged, had made threats to her life.

4

The second named applicant was then interviewed by an officer of the first named respondent ("the Minister"). He concluded that the application should be considered, in the words of the procedure then applicable in such cases and known as "the Hope Hanlon procedure", as "manifestly unfounded". (The effect of such a recommendation, if upheld, was that the application would be dealt with under the "accelerated procedure", which would mean that any appeal would be on the basis of the relevant papers.) That recommendation was upheld by another officer, Enda Hughes, who said

"I am satisfied that this case is manifestly unfounded and should be dealt with in accordance with the Hope Hanlon procedures. The following sections at paragraph 14 apply to this case:

14(a)

it does not show on its face any grounds for the contention that the applicant is a refugee

14(c)

the applicant's reason for leaving or not returning to her country of nationality does not relate to a fear of persecution.

14(e)

the applicant, without reasonable cause, made deliberately false or misleading representations of a material or substantial nature in relation to the application;

14(f)

the applicant, without reasonable cause and in bad faith, destroyed identity documents, withheld relevant information or otherwise deliberately obstructed the investigation of the application."

5

The applicant having been notified of this decision, the solicitor then acting on her behalf, Mr. Mark Graham of the Refugee Legal Service, submitted an appeal which came before the then appeals authority, i.e., the fourth named respondent (hereafter "the appeals authority".) In his written recommendation, dated the 30th May 2000, the appeals authority recommended that the appeal should be dismissed. The applicant was then informed that the officer authorised by the Minister had decided to uphold the original decision and had refused the appeal and that, as a result, the Minister proposed to make a deportation order in respect of the second named applicant under the power given to him by s.3 of the Immigration Act 1999(hereafter "the 1999 Act "). She was also informed that, in accordance with s.3 of the 1999 Act, she was entitled to make written representations to the Minister setting out any reasons as to why she should be allowed to remain in the State, provided this was done within 15 working days of the sending of the letter notifying her of the determination of the appeal. On July 24th, 2000, her solicitor wrote to the immigration division of the Minister's department setting out reasons why, in his submission, she should be granted leave to remain in Ireland.

6

On the 3rd January 2001 Ms. Wendy Murray, an officer of the repatriation unit, immigration division of the Minister, wrote to the second named applicant enclosing a copy of a deportation order made by the Minister in respect of her. The deportation order was dated the 11th December 2000. On the 17th January 2001 a legal aid certificate was granted to the second named applicant relating to the institution of judicial review proceedings by her in respect of the making of the deportation order, but limited to the ground that the Minister had failed to give reasons, or any adequate reasons, for his decision to make a deportation order. The legal aid board refused an application by her solicitor to review the decision to limit the legal aid certificate to proceedings instituted on that ground in a letter of 19th January 2001.

7

On the 19th January 2001, the second named applicant applied by motion on notice for leave to institute proceedings by way of judicial review claiming inter alia an order of certiorari quashing the deportation order on the ground that the Minister had failed to give reasons, or any adequate reasons, for the making of the deportation order. Thereafter, those proceedings were adjourned from time to time as other proceedings had been brought in the High Court, which were the subject of an appeal to this court, challenging the validity of deportation orders on that ground, i.e., the failure to give reasons or adequate reasons for the making of the order. On the 2nd January 2001 the High Court had refused to grant leave on that ground in the other proceedings and that decision was upheld by this court on 30th July 2001 ( P. L and B -v- The Minister for Justice. Equality, law Reform and Another, [2002] 1 ILRM 16.Since it was clear that the latter decision effectively disposed of the only ground on which the second named applicant was seeking leave in the proceedings instituted on her behalf, those proceedings were struck out by consent on 23rd October 2001 without any order as to costs.

8

On the 26th October 2002, a further deportation order was made in respect of the second named applicant which was served on her by registered post on that day. On 30th November 2001, a notice of motion was served on the respondents by another firm of solicitors. Those are the proceedings which are now before this court by way of appeal from two orders made in the High Court in respect of them by Smyth J. on the 20th December 2001 and 18th January 2002 respectively. At the time these proceedings were instituted, the second named applicant was pregnant and among the reliefs now being sought was an order restricting the deportation of both the first named applicant and the second named applicant on the ground that it would be in contravention of Article 40.3.3° of the Constitution guaranteeing the right to life of the unborn.

9

The notice of motion claiming the various reliefs was in two parts. Part A sought leave pursuant to s.5 of the Illegal Immigrants (Trafficking)...

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