F (B) v Min for Justice and Others
Jurisdiction | Ireland |
Judge | Mr Justice Michael Peart |
Judgment Date | 02 May 2008 |
Neutral Citation | [2008] IEHC 126 |
Court | High Court |
Docket Number | Record Number: No. 651 JR/2006 |
Date | 02 May 2008 |
[2008] IEHC 126
THE HIGH COURT
BETWEEN:
And
And
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5
ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, RE 2000 2 IR 360
IMAFU v MIN FOR JUSTICE & ORS UNREP PEART 9.12.2005 2005/31/6380 2005 IEHC 416
BUTUSHA v MIN JUSTICE UNREP PEART 29.10.2003 2003/7/1531
UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD 1990 ART 3
KOUAYPE v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (EAMES) UNREP HIGH COURT CLARKE 9.11.2005 2005 35 7364 2005 IEHC 380
IMMIGRATION
Deportation
Delay - Judicial review - Leave - Application for extension of time - Minor - Prescribed period of fourteen days - Application out of time by 23 months - Factors to be taken into account -Whether good and sufficient reason for extending time for commencement of proceedings - Whether applicant disadvantaged in relation to the availability of legal advice - Whether distinction in case of adult applicant and minor applicant - Whether court should consider merits of case sought to be made - Whether court should be satisfied that grounds put forward are arguable or have some chance of success - Whether court could refuse to extend time even where grounds are substantial grounds - Re Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360 and Imafu v Minister for Justice [2005] IEHC 416, (Unrep, Peart J, 9/12/2005) considered - Illegal Immigrants (Trafficking) Act 2000 (No 24), s 5 - Deportation - Revocation - Delay - Proportionality - Whether onus on applicant to place all relevant information before Minister - Botusha v Minister for Justice (Unrep, Peart J, 29/10/2003) distinguished and Kouaype v Minister for Justice [2005] IEHC 380, (Unrep, Clarke J, 9/11/2005) followed - Leave to apply for judicial review refused (2006/651JR Peart J - 2/5/2008) [2008] IEHC 126
F(B) v Minister for Justice
: The applicant, an unaccompanied minor from Nigeria, sought leave for judicial review to quash a decision of the respondent to deport her from the jurisdiction. The applicant had been found not to be credible. A 23 month delay existed between the institution of the proceedings and the deportation order. The issue arose as to the public interest in deporting the applicant and the proportionality of any proposed action.
Held by Peart J. that there were no substantial grounds for challenging the deportation decision. Proportionality had been addressed and the public interest in deporting the applicant was not outweighed by other concerns. Time would not be extended for review.
Reporter: E.F.
By Notice of Motion issued on the 1st June 2006 the applicant seeks leave to seek certain reliefs by way of judicial review following the making of a deportation order by the first named respondent on the 2nd May 2006, and communicated to her no later than the 22nd May 2006.
In the present application she seeks to quash that deportation order, and the decision of the Refugee Appeals Tribunal made on the 17th May 2004 whereby her appeal against the decision of the Refugee Applications Commissioner was refused.
It will be immediately apparent that while her application seeking to challenge the Deportation Order has been issued within the permitted time, her application to quash the decision of the Refugee Appeals Tribunal is out of time by approximately 23 months. In that regard she seeks an extension of time.
When the applicant was aged fifteen she arrived in this State from Nigeria as an unaccompanied minor, although it would appear from her account that her journey here was arranged for her by a pastor from her village in Nigeria who accompanied her as far as Dublin Airport, but who, according to her, then abandoned her, taking away with him any travel documents which were used for the purpose of her gaining entry.
Some days after her arrival she made an application for refugee status, and this was processed in the usual way. She completed a Questionnaire, and was interviewed. In June 2004 the Refugee Applications Commissioner recommended that she be refused refugee status, and this decision was communicated to her on the 9th June 2004. She was represented by the Refugee Legal Service at this time and an appeal was lodged against this decision to the Refugee Appeals Tribunal, and she was afforded an oral hearing of that appeal, which was unsuccessful. The decision of the Tribunal was made on the 17th May 2004, and this was notified to the applicant by letter dated 21st June 2004. By this time, the applicant was aged sixteen and a half years.
By letter dated 12th November 2004, she was informed that the Minister had decided to refuse to give her a declaration of refugee status, and her options were explained to her in the usual way, including that which she adopted, namely that representations could be made to the Minister for leave to remain in the State. When informing the applicant of this option, he informed her that such representations should be made on the Form 3 attached to that letter, and that any other documents which she wished to attach should be attached to that form. In addition, she was informed that "should facts referred to in the form change following its completion and submission to the Minister, these should be brought to the notice of the Minister immediately". This assumes some relevance in relation to one of the submissions being made in relation to the challenge to the Deportation Order.
It would appear from the affidavit sworn by the applicant on this application that the Refugee Legal Service wrote to the applicant on the 13th July 2004 following the negative result of her appeal, in which they set out the three options which were contained in the Minister's letter, and offered to prepare representations on her behalf for leave to remain should she wish that this be done. That letter contained no reference to the possibility that the applicant might commence an application to seek reliefs by way of judicial review of the Tribunal's decision. The applicant says that she simply followed the advice of the Refugee Legal Service, and it is implicit in that, and it was stated before me in submissions, that she is stating that the Refugee Legal Service never discussed or advised her in relation to judicial review. However, Ground 16 of the Statement of Grounds states:
"16. ........ the applicant was informed by the Refugee legal Service that the RLS would not be taking judicial review proceedings. No reason for this decision was afforded. The applicant relied on the legal advice proferred by the Refugee Legal Service and did not have the financial resources required to procure alternative advice."
Unless that submission is simply wrong, it would appear that the question of judicial review application was canvassed with the applicant since she is relying on the fact that they stated that such an application would not be made.
At any rate, the Refugee Legal Service made representations for leave to remain by letter dated 25th November 2004. No decision was made by the Minister's office in relation to these representations until after they had been examined on the 13th March 2006 by a first and second supervisor, and until a recommendation was made by an Assistant Principal dated 26th April 2006 that a deportation order be signed by the Minister. The passage of time between the making of these submissions and the date on which a decision was made to sign the deportation order, namely about sixteen months, is something upon which the applicant relies for challenging the deportation order, since she states that her circumstances altered during that period of time, and the Minister did not communicate with her prior to making his decision in order to see whether there were any other circumstances which she wished him to take into account when reaching his decision to deport her. I will return to that again.
The Deportation Order was then signed by the Minister on the 2nd May 2006, and this, as I stated at the outset, was communicated to her on the 22nd May 2006.. By this time the applicant was aged eighteen and a half years.
The applicant states in her grounding affidavit that after she received the deportation order she contacted her present solicitor, Seán Mulvihill & Co. That seems to have happened on the 24th May 2006 since that is the date on which she signed a letter authorising her solicitor to take up her file from the Refugee Legal Service. In her affidavit she states that by the date of swearing thereof, namely 31st May 2006, this file had not yet been received.
The important factors to be taken into account in deciding whether in all the circumstances of this case the time for challenging this decision are, in my view, the prescribed period of fourteen days laid down by s. 5 of the Illegal Immigrants (Trafficking) Act,2000, the length of the delay which occurred, the reasons given for it having occurred, the age of the applicant at the time when she ought to have lodged an application, the availability of legal advice to her, and the potential merit of the grounds put forward for so challenging the decision. These are all matters to be taken account of by the Court when considering whether there is "good and sufficient" reason for extending the time for commencement of proceedings.
The period of delay is about 23 months, almost two years. That is an enormous delay especially when looked at in the context of the permitted...
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