Dada and Others v Minister for Justice, Equality and Law Reform

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 03 May 2006
• Neutral Citation: [2006] IEHC 140
• Docket Number: 442JR/2006
• Court: High Court
• Date: 03 May 2006

[2006] IEHC 140

THE HIGH COURT

442JR/2006

DADA v MIN FOR JUSTICE

DADA v MIN FOR JUSTICE

JUDICIAL REVIEW

BETWEEN

OLUWAKEMI ADEDAJU DADA, YEWANDE DADA (A MINOR) DOYINSOLA DADA (A MINOR) SUING THROUGH THEIR NEXT FRIEND AND MOTHER OLUWAKEMI ADEDAJU DADA

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

IMMIGRATION ACT 1999 S3(11)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(1)

HOPE HANLAN LETTER (PROCEDURES FOR PROCESSING ASYLUM CLAIMS IN IRELAND) 1997

REFUGEE ACT 1996 S17(7)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS 1950 ART 3

CRIMINAL JUSTICE (UN CONVENTION AGAINST TORTURE) ACT 2000 S4

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS 1950 ART 8

O v MIN FOR JUSTICE & ORS (BABY O CASE) 2002 2 IR 169 2003 1 ILRM 241

REFUGEE ACT 1996 S5

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5(1)

MURESAN v MIN FOR JUSTICE & ORS 2004 2 ILRM 364

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

IMMIGRATION

Deportation

Revocation - Judicial review - Illegal re-entry into State following deportation - Application for revocation made following illegal re-entry- Scope of review - Immigration Act 1999(No 22), s 3(11) - Relief refused (2006/442JR- O'Neill J - 3/5/2006) [2006] IEHC 140

D(OA) v Minister for Justice, Equality and Law Reform

Facts: The Applicants sought to challenge the refusal of the respondent to

revoke a deportation order on the grounds that country of origin information

relating to genital mutilation in Nigeria had not been considered, nor had their risk

of unlawful detention of their rights pursuant to Article 8 of the European Convention on

Human Rights. The Applicants also submitted that the Baby O decision had been superseded

by the incorporation of the European Convention on Human Rights Act, 2003.

Held by O’Neill J., in refusing the reliefs sought, that the applicants had not

established that the Baby O decision was incorrect. No complaint as to female genital mutilation

had been made during the asylum process. No arguable ground could be made out that the respondent had failed to consider their risk of illegal detention.

Reporter: E.F.

1 EX-TEMPORE JUDGMENT of O'Neill J. delivered the 3rd day of May, 2006.

O'Neill J.

2 The applicants in this case seek leave to challenge by way of judicial review the decision of the respondent whereby he refused to revoke a deportation order already made in respect of the applicants. The application to the respondent was made pursuant to s. 3(11) of the Immigration Act,1999 and the decision challenged was communicated by letter of 4th April, 2006.

3 Curiously applications under s. 3(11) are not listed amongst those matters set out in s. 5(1) of the Illegal Immigrants Trafficking Act,2000, which can only be challenged by way of judicial review and in respect of which leave must be sought by motion on notice and substantial grounds shown to merit leave being granted. Thus it was conceded by Ms. Butler S. C. for the respondent that the test which must be applied to determine whether or not leave should be granted in this case, is whether or not the applicant has demonstrated arguable grounds for contending that the decision in question should be quashed.

4 The applicants also apply for an interlocutory injunction retraining their deportation pending the determination of these proceedings.

5 The background to this matter is as follows. The first named applicant was born in 1966. She is the mother of the second and third named applicants who were respectively born in 1993 and 1995. The applicant is divorced from the father of the two children and all three applicants are Nigerian nationals. The first named applicant came to this country in January of 1998 and sought asylum. The second named applicant arrived in May of 1999 and the third named applicant in January of 2000. The applicants applied for asylum under the "Hope - Hanlon Procedure" and at the initial stage their application was refused and on 18th March, 2000, their appeal also refused. On the 11th April, 2000, the applicants were notified of a proposal to deport them. On 20th April, 2000, a letter written on behalf of the applicants sought leave to remain in the State. A letter of the 19th November 2001, confirmed the proposal to deport the applicants and also confirmed the refusal of refugee status. This letter expressly referred to the second and third named applicants for the first time. On 5th March, 2004, the applicants were told by letter of a decision to make a deportation order for all three applicants and the deportations orders in question were made on 27th February, 2004. All three applicants were deported to Nigeria on 6th April, 2004. The three applicants had instituted judicial review proceedings seeking to challenge their deportation orders but these had not been served prior to their deportation. Leave was sought from Mr. Justice MacMenamin in respect of that application and that leave was granted on 9th December, 2005, by Mr. Justice MacMenamin in a reserved judgment. On 19th December, 2005, an interlocutory injunction was granted restraining their removal from the State. The judicial review application challenging the validity of the deportation order was heard and judgment was given by Mr. Justice MacMenamin on 31st January, 2006 and he refused all of the reliefs sought. Subsequently an application was made under s. 3(11) of the Immigration Act,1999, in respect of all of the applicants seeking the revocation of the deportation order and additionally in respect of the second and third named applicants, an application was made under s. 17(7) of the Refugee Act, 1996, to permit the second and third named applicants back into the asylum process individually. In due course all of those applications were refused.

6 When the applicants arrived in Nigeria on their deportation it is claimed that all three were detained in a place called Alagbon for a period of about four weeks or a month and could not secure their lease until money was paid. This was arranged by a friend of the first named applicant named Remi. When she in due course produced the money, they were released. The applicants complain that their conditions during the detention were extremely poor; that they were subject to intense heat, that they were sleeping on sacks; that they had insufficient water and food and were plagued by mosquitoes. And as a consequence of these hardships and deprivations all three became ill and after release from detention were admitted to hospital on 11th May, 2004 and discharged on 16th May, 2004.

7 While they were in Nigeria, for a period of in excess of a year, according to the affidavit of the first named applicant, she sought to put the children into school and on application to the first school they were refused admittance. In the second school chosen, the school wished to put them back a class and obviously they didn't want that, and also it is claimed that they were unwilling to go to school because of a fear that their father who it was claimed had become aware of their whereabouts, would apprehend them and they feared that they would have Female Genital Mutilation imposed on them. As a consequence of this they moved to a place called Akodo where it is claimed living conditions were poor and the school was very poor and that because of that and their alleged fear of their father, the children did not attend school.

8 According to the affidavit of the first named plaintiff as a result of all these circumstances, she grew desperate, and in due course arranged with a man called Mr. Malik to whom she paid the sum of €3,000, to travel to Ireland. He arranged a false passport for the first applicant with the second and third named applicants on it and on this passport they flew to London and from there to Belfast from where they took a taxi to Dublin. Thereafter the application was made to the respondent pursuant to s. 3(11) of the Immigration Act,1999, to revoke the deportation order and in due course he responded and communicated his refusal to do that by letter of 4th April, 2006 and it is that decision which is now sought to be challenged in these proceedings.

9 In challenging the decision to refuse to revoke the deportation order the applicants raise three concerns. The first of these is in respect of the practice of Female Genital Mutilation and the complaint which the applicants make in that regard is that in his decision as represented by the letter of the 4th April, 2006 and the accompanying documents, it is said that there was a reliance upon country of origin information which had not been alerted to or exposed to the applicants so that they could comment on same, and that this was a breach of the applicants right to constitutional justice and fair procedures. It was contended that there was a failure, by the respondent to consider the applicants fears in regard to Female Genital Mutilation as breaches of their rights under Article 3 of the European Convention on Human Rights.

10 Secondly the applicants make the case that the respondent failed to consider the risk of unlawful detention being imposed upon the applicants if they were returned, having regard to their claim to have been unlawfully detained for a month on arrival in Nigeria, on deportation previously, and that failure by the respondent to consider such risk was a breach of s. 4 of the Criminal Justice (UN) Convention Against Torture) Act,2000 and also was contrary to Article 3 of the European Convention on Human Rights.

11 Thirdly the applicants complain that the respondent failed to consider the position and status of the applicants as integrated aliens in this State...