Cosma v Minister for Justice Equality and Law Reform

• Jurisdiction: Ireland
• Judge: Mr. Justice Hanna
• Judgment Date: 15 February 2006
• Neutral Citation: [2006] IEHC 36
• Court: High Court
• Date: 15 February 2006

[2006] IEHC 36

THE HIGH COURT

[Record No.783 JR/2003]

COSMA v MIN FOR JUSTICE

BETWEEN

LIDIA COSMA

APPLICANT

AND

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

RESPONDENT

IMMIGRATION ACT 1999 S3

CONSTITUTION ART 40.3.2

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

LELIMO v MIN FOR JUSTICE 2004 2 IR 178

DUBLIN CITY COUNCIL v FENNELL 2005 2 ILRM 288

O'BRIEN v MIRROR GROUP NEWSPAPERS LTD 2001 1 IR 1

ASSOCIATED PROVINCIAL PICTURE HOUSES LTD v WEDNESBURY CORPORATION 1948 1 KB 223

Z (V) v MIN JUSTICE 2002 2 IR 135

RYAN v AG 1965 IR 294

CONSTITUTION ART 40.3

C, STATE v FRAWLEY 1976 IR 365

D v UK 1997 24 EHRR 423

AHMED v AUSTRIA 4996 24 EHRR 278

SOERING v UK 1989 ECHR 14

FINUCANE v MCMAHON 1990 1 IR 165

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

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8

AG v X 1992 1 IR 1

REFUGEE ACT 1996 S5

O v MIN JUSTICE UNREP MCKECHNIE 18.6.2003 (EX TEMPORE)

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT (EX PARTE DALY) 2001 3 AER 433

O'KEEFFE v BORD PLEANALA 1993 1 IR 39

IMMIGRATION

Deportation

Revocation - New evidence after order made- Suicide risk - Legitimate considerations in process - Whether minister entitled as matter of public policy to ignore threat of suicide when confirming deportation order - O'Keeffe v An Bord Pleanála [1993] 1 IR 39; Dublin City Council v Fennell [2005] IESC 33, [2005] 1 IR 604; Lelimo v Minister for Justice[2004] IEHC 165, [2004] 2 IR 178 and O'Brien v Mirror Group Newspapers Ltd[2001] 1 IR 1 followed - Finucane v McMahon [1990] 1 IR 165; R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 538; D v United Kingdom (1997) 24 EHRR 423 and Soering v United Kingdom (1989) EHRR 14 distinguished - Ryan v Attorney General [1965] IR 294; State (C) v Frawley [1976] IR365; Attorney General v X [1992] 1 IR 1 and VZ v Minister for Justice [2002] 2 IR 135 considered - Immigration Act 1999 (No 22), s3(11) - Relief refused (2003/783JR - Hanna J- 15/2/2006) [2006] IEHC 36 C(L) v Minister for Justice, Equality and Law Reform

Facts: The applicant sought an order of certiorari quashing the decision of the respondent to deport her, an injunction restraining such deportation and an order of mandamus directing the respondent to consider and decide her case having regard to her suicidal tendencies. It was argued on behalf of the applicant that there was a real and substantial risk of suicide and accordingly there was a clear risk her life would be jeopardised if she was deported.

Held by Hanna J. in dismissing the application: That the applicant failed to establish that there was a real and substantial risk that she would kill herself and in any event more than a sufficient account was taken of the alleged threat to her life. The applicant failed to establish that revoking the deportation alone would avert her threatened suicide. Furthermore it was not established that any material evidence was missed or disregarded by the respondent and the applicant failed to demonstrate any defect in the decision making process detrimental to her legal or constitutional rights.

Reporter: L.O’S.

1 JUDGMENT of Mr. Justice Hanna delivered on the 15th day of February, 2006

2 The applicant in this case is a Romanian national who arrived in the State on 5th September, 1999. Thereafter and up to the time of the matters with which this application is concerned no issue arises nor is challenge made to any of the procedures which subsequently took place. The applicant applied for asylum upon the grounds, inter alia, that she was suffering religious oppression. She was notified by the Refugee Applications Commissioner on 6th June, 2001 that she was being refused refugee status. This finding she appealed to the Refugee Appeals Tribunal. On 10th August, 2001, this Tribunal refused her appeal. On 5th October, 2001, the applicant was notified by the Ministerial Decisions Unit that the respondent had decided not to declare her a refugee and that he was giving consideration to her case under s. 3 of the Immigration Act, 1999. In addition, she was informed that she had fifteen working days from the date of the letter to make written representations setting out the reasons as to why she should be allowed to remain in the State. Such representations were made on her behalf by the Refugee Legal Service and the applicant herself. These representations were not successful and the Minister signed a deportation order concerning the applicant on 4th July, 2003. This was served on her by letter dated 7th July, 2003.

3 We are concerned with matters which occurred subsequent to the foregoing events. On 1st September, 2003, the applicant's solicitors, Messrs A.C. Pendred and Company, intimated an intention to bring judicial review proceedings and requested a deferral of deportation pending the bringing of such proceedings. This was declined on behalf of the respondent. On 23rd September, 2003, the applicant's solicitors submitted what purported to be a psychiatric report on her behalf and sought reconsideration of the applicant's deportation upon grounds arising from an alleged threat of suicide by the applicant were the deportation to proceed. Further requests for review followed and on 8th October, 2003, the applicant's solicitors submitted copies of two purported psychiatric reports, one to which I have already referred and another dated 3rd October, 2003 which appears to be supplemental to the former. These documents and further representations were given consideration. Subsequently, her application for leave to remain within the jurisdiction was refused. This refusal was communicated by letter bearing the date the 31st October, 2003, from Mr. Noel Dowling, Principal Officer of the Repatriation Unit in the respondent department. Later in this judgment I will set out in detail the material documentation which preceded this decision.

4 The applicant seeks a number of reliefs. Firstly, she seeks an order of certiorari quashing the decision of the respondent to deport the applicant under s. 3 of the Immigration Act 1999, an injunction restraining such deportation and an order of mandamus directing the Minister to consider and decide the applicant's case in the light of the suicide threat.

5 Counsel for both parties accepted that the applicant was entitled to the unspecified personal rights guaranteed by Article 40.3.2 of the Constitution. When the matter first proceeded before me it did so on an assumption that the provisions of the European Convention on Human Rights Act 2003 had come into force and that the applicant's constitutional and convention rights were engaged. This is notwithstanding the decision of Laffoy J. in Lelimo v. The Minister for Justice Equality and Law Reform, [2004] 2 I.R. 178 inter alia, to the effect that the provisions of the Act were not retrospective. On the 12th May, 2005, after this matter concluded but before judgment was delivered, the Supreme Court handed down judgment in Dublin City Council v. Fennell [2005] 2 I.L.R.M. 288, putting this matter beyond debate in deciding that the provisions of the said Act were not retrospective. At a further hearing in which further submissions were made to this court it was accepted by both parties that the Minister's decision to proceed with the deportation of the applicant predated the coming into force of the Act and that, accordingly, the European Convention on Human Rights did not form part of Irish Domestic Law and this Court was not bound to take into account decisions of the European Court of Human Rights.

6 That is not to say that the European Convention or Court are immaterial to this decision. As Denham J. says in her partly dissenting judgment in O'Brien v. Mirror Group Newspapers Limited [2001] 1 I.R. 1 at p. 33:

"The European Convention for the Protection of Human Rights and Fundamental Freedoms is not part of the domestic law of Ireland: In re Ó Laighléis [1960] I.R. 93. However, decisions of the European Court of Human Rights on the said European Convention may be persuasive authority in the analysis of similar constitutional rights in the same way as decisions of other constitutional courts; Norris v. The Attorney General [1984] I.R. 36 (per Henchy J. at p. 69)."

7 On behalf of the applicant, Mr. Hogan S.C. argued that this was a case of a clear suicide risk. He argued that this was a case in which there was a real and substantial risk of suicide and, as a consequence, there was a clear risk that the applicant's right to life would be jeopardised if she were deported. Her rights both under the Constitution and under the European Convention on Human Rights (were it to have applied as part of Irish Domestic Law) were engaged. As a consequence, in reviewing the respondent's decision the Court had to apply anxious scrutiny to the Minister's decision and to the materials and evidence relied upon by him in coming to his conclusion to proceed with the deportation.

8 In doing this, the court was not to apply the Wednesbury Test (See Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948] 1 K.B. 223) applying a yard stick of unreasonableness or irrationality in scrutinising the Minister's decision. On the contrary, one was to evaluate the Minister's decision applying less rigorous criteria. In the final analysis, both Mr. Hogan S.C. and Mr. Langwallner B.L. who addressed the Court in reply argued that the engagement of both constitutional and convention rights required of the Court that it engage in an hybrid function, part judicial review and part appeal. Applying such an approach, it was apparent from the material before the Minister that he had set his face as a matter of policy against revoking a deportation...