A.G.A.O. v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 13 July 2006
• Neutral Citation: [2006] IEHC 251
• Date: 13 July 2006
• Court: High Court
• Docket Number: [2003 No. 255 JR]

[2006] IEHC 251

THE HIGH COURT

[No. 255 J.R./2003]

OKENLA v MIN FOR JUSTICE & ORS

JUDICIAL REVIEW

BETWEEN

ADEGBOYEGA GABRIEL ADESINA OKENLA

APPLICANT

AND

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

RESPONDENTS

Abstract:

Immigration - Asylum - Deportation - Access to legal advice - Whether applicant denied access to legal advice for purposes of challenging deportation order

The applicant instituted judicial review proceedings contending that he was denied access to his legal advisors prior to his deportation and that mala fide the deportation was effected in order to defeat such a right of access.

Held by McMenamin in refusing the relief sought that the applicant was not denied access to legal advice for the purposes of challenging the deportation order. The sequence of events showed that if instructions been received by the applicant's solicitors, steps could have been taken prior to his deportation in order to restrain it. There was no evidence that any such instructions were given by the applicant.

Reporter: R.W.

1 Mr. Justice John MacMenamin delivered the 13th day of July, 2006.

2 The applicant is a Nigerian national who arrived in the State in or about September 1999. He applied for asylum by completing the requisite forms on 19 ^th September, 1999 under the sole name of Adegboyega Adesina date of birth 31 ^st March, 1963. No other versions of his name were registered in the application form. The applicant was given a letter entitled "application for refugee status" dated 13 ^th September, 1999 in which his application for asylum in that name was acknowledged with an indication that he would be called for interview and when attending he was to bring with him all available documentation regarding his identity for example his passport or national identity card.

3 Under this name the applicant was registered for the purposes of his asylum application. Thereafter the application used a number of variations of his name in the various form in which were submitted during the course of the asylum process. The applicant did not produce a passport to the State authorities at any time. In none of the passports subsequently found in his possession did he utilise the same first name as that in which these proceedings are entitled.

4 On 22 ^nd January, 2001 a work issue was issued by Department of Enterprise Trade and Employment to Olu G. Ohikenla. This application set out the date of birth of the applicant as the 7 ^th June, 1965, provided a passport number with an expiry date on 11 ^th May, 2005.

5 It identified the holder's place of birth as Birmingham and his nationality as Nigerian British together with an address at 22 Moore Street Dublin. The named employer was a "Pan African Organisation Limited" with the employer's signature being Adegboyega Adesina. In the course of this application the applicant exhibited a letter of appointment dated 8 ^th January, 2001 to "Mr. Okenla" signed on behalf of the organisation by A.Adesina. It is accepted by the applicant in his affidavit that these are one of the same person that is himself. Question 9 on the work permit application form seeks an asylum reference number. The applicant struck out this answer. No evidence has been adduced that the applicant brought his application for asylum to the attention of the Department of Enterprise Trade and Employment. The first named respondent was, I am satisfied, not aware until 6 ^th March, 2003 that the applicant held any work permit even in the name identified.

6 On 30 ^th October, 2002 a notice of intention to make a deportation order was sent to Mr. Adegboyega Adesina at his notified address in Lower Kevin Street and to his solicitors PC Moore and Company. The applicant states that he was outside the State at the time and did not return until 15 ^th November, 2002. By virtue of s. 9(4) of the Refugee Act 1996 as amended (hereinafter the 1996 Act) an applicant is not entitled to leave the State without permission of the Minister during the course of the asylum process.

7 On 28 ^th November, 2002 an examination under s. 3 of the Illegal Immigrants Trafficking Act 1999 as amended was conducted by the Minister through the Department on which the applicants name was cited as Adegboyega Gabriel Okenla Adesina or Adegboyega Gabriel Adesina Okenla.

8 The applicant re-entered the State on 15 ^th November, 2002 giving the name of Gabriel Okenla to the Gardaí. He held two passports in different names: one Olugboyega Gabriel Okenla and two other Olu Ohikenia in his possession which were detained by the Gardaí. Forensic examination of the second passport established that it was genuine but that the GNIB and visa entry stamps were false.

9 By letters of 23 ^rd and 29 ^th November, 2002 the applicant's solicitor retained in that matter Mr. Michael Farrell of Michael E. Hanahoe Solicitors wrote to the Garda National Immigration Bureau and requested the applicant's passports to be returned. No communication took place with the Minister's Department at this time. This letter refers to "our client Gabriel Okenla (otherwise Ohikeula). There was no reference to an asylum applicant in the name of Adegboyega Adesina in these letters, nor indeed in any communication from Messrs Hanahoe Solicitors on behalf of the applicant in advance of March 2003.

10 By letter dated 3 ^rd December, 2002 a law firm GM Legal (in which practised Mr. John Morris formerly a solicitor in PC Moore and Company) wrote to the Minister to inform him that the applicant proposed to leave the State "within the next few days". This letter was received by the respondent on 11 ^th December, 2002.

11 The applicant states that he left the State on 6 ^th December, 2002. There is no extra stamp for that date on any of the applicant's three passports. The contention made that he left the State must be seen in the light of the affidavit evidence which indicates that even towards the end of December 2002 the applicant was completing arrangements for the mortgage on his house which he occupied with his partner in Dublin. On 10 ^th December, 2002 Mr. Farrell of Messrs Hanahoe states that he spoke to Superintendent John Mulligan of the Garda National Immigration Bureau seeking return of "the applicant's" travel documents indicating that he had left the State. The attendance of this telephone conversation indicates that it was in relation to "Gabriel Okenla". No reference was made to any asylum applicant in the name of Adegboyega Adesina.

12 On 10 ^th January, 2003 the Minister signed a deportation order in relation to the applicant as a failed asylum seeker identified in three different variations of his name and sent notice thereof to the applicant at his last notified address and a copy to his then solicitors (as known to the Department) PC Moore and Company on 14 ^th January, 2003. The solicitor recorded as acting for the applicant continued to be the firm PC Moore and Company. No indication of any change of solicitor was received and no authorisation for such purpose from the applicant forwarded.

13 The evidence discloses that an application was made in the name of Olugboyega Gabriel Okenla date of birth 7 ^th June, 1965 for a visa to re-enter the State from Nigeria based on the work permit previously referred to. The evidence does not disclose that the applicant gave the name used as an asylum applicant that is Adegoyega Adesina.

14 The applicant states that he arrived in the State on 12 ^th February, 2003 and his visa was stamped with leave to remain till expiry of his work permit on 4 ^th March of that year.

15 The applicant states that he attended the Garda National Immigration Bureau on 13 ^th February, 2003 and was given permission to remain on his visa until 4 ^th March of that year this permission was under the style of Gabriel Okenla.

16 The applicant states that no mention was made to him of the deportation order on the date when he attended at the Garda National Immigration Bureau. It is claimed by the applicant that the Minister was aware he was outside the State on 14 ^th January, 2003 as he made a visa application from outside the State. These assertions must be seen in the light of the fact that the names on the visa application and as registered in the asylum process appear significantly different. None of the names of the person against whom the deportation order was in force was identical to that on the passport or visa which was purportedly produced ultimately to the Garda National Immigration Bureau. At no time when the applicant was seeking a visa or work permit did he mention his asylum application under the name of Adegboyega Adesina.

17 On 4 ^th March, 2003 the applicant was arrested. While the arrest took place in the context of an invalid passport, the applicant's identity was established and he was subsequently detained pursuant to the deportation order. When arrested, the applicant produced a passport with the name Olugboyega Gabriel Okenla date of birth 7 ^th June, 1965. It will be seen that the dates of birth which are referred to in the work permit used by the applicant, in the passport and application for visa, and in the subsequent passport held in a different name all of which are 7 ^th June, 1965 differ from the date of birth provided by the applicant for the purposes of his asylum claim which was 31 ^st March, 1963.

18 It is not disputed in the course of the case that the applicant engaged in conduct which involved deliberate falsification of identity. Nor is it in dispute that he used a number of names interchangeably. The evidence as to his departure from the jurisdiction on 6 ^th December, 2002 is not reflected in any of the identity documents which were identified as held by the applicant. While it is clear that an application was made to the Irish Embassy...