Garibov and Another v Minister for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Herbert
• Judgment Date: 16 November 2006
• Neutral Citation: [2006] IEHC 371
• Court: High Court
• Date: 16 November 2006

GARIBOV v MIN FOR JUSTICE & ORS

JUDICIAL REVIEW

BETWEEN

SEBADIN GARIBOV AND NELI GARIBOV

APPLICANTS

AND

MINISTER FOR JUSTICE EQUALITY AND LAW REFORM, NOEL CONROY, REFUGEE APPEALS TRIBUNAL IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

[2006] IEHC 371

[No. 76/2003 JR]

THE HIGH COURT

IMMIGRATION ACT 1999 S3(9)(a)(i)

REFUGEE ACT 1996 S3(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

CONSTITUTION ART 41

REFUGEE ACT 1996 S5

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

IMMIGRATION ACT 1999 S3

REFUGEE ACT 1996 S5(1)

IMMIGRATION ACT 1999 S3(11)

RSC O 84 r20(1)

RSC O 99 r1(1)

RSC O 99 r1(4)

ONASANWO v MIN JUSTICE UNREP MCKECHNIE 19.6.2003

1 JUDGMENT of Mr. Justice Herbert delivered the 16th day of November, 2006 .

THE FACTS

2 The Statement Grounding Application for Judicial Review in this matter is dated 24th October, 2003. The applicants seek an Order of Certiorari by way of Judicial Review quashing Deportation Notices purportedly issued by the Garda National Immigration Bureau dated 17th October, 2003 against both applicants pursuant to the provisions of s. 3(9)(a)(i) of the Immigration Act, 1999, made on foot of purported Deportation Orders made by the first named respondent pursuant to the provisions of s. 3(1) of the Refugee Act, 1996, (as amended) in respect of the first named applicant on 21st August, 2003 and in respect of the second named applicant on 22nd August, 2003, and other reliefs. These reliefs were sought on 13 grounds.

3 Ground (E) 3 claims as follows:

"The first named applicant is suffering from cancer of the vocal chords for which he is receiving treatment in Ireland. Such treatment and monitoring would be substantially disrupted if he were to be returned to Bulgaria. His return, pursuant to the decisions impugned would be contrary to his right to bodily integrity pursuant to the Constitution and his rights pursuant to the European Convention on Human Rights in particular Articles 3 and 8 thereof".

4 The other grounds upon which relief is claimed in the Statement Grounding Application for Judicial Review are as follows:

5 1. The first named respondent failed to take into account that the applicants are the parents and parents in law of an Irish Citizen and to remove them from the State would be to act in breach of Article 41 of the Constitution and/or the principle of family reunification.

6 2. The decision was grossly irrational and discriminatory as the Applicants son and daughter in law have been granted asylum in the State.

7 4. The first named applicant was convicted in absentia on 19th November 1997 and sentenced to one year imprisonment. This prosecution was malicious and motivated by racial harassment.

8 5. The return of the first named applicant would in such circumstances contravene s. 5 of the Refugee Act, 1996and/or s. 4 of the Criminal Justice (United Nations Convention Against Torture) Act, 2000.

9 6. The applicants were entitled to remain in this State and/or have a legitimate expectation in that regard by virtue of the Treaty of Nice and as a matter of European Law.

10 7. The purported decisions failed to state any or any adequate reasons.

11 8. The first named respondent precluded the Applicants from making a meaningful application to him by failing to publish particulars of previous decisions pursuant to s. 3 of the Immigration Act, 1999.

12 9. Subject to full discovery, the first named respondent in breach of fair procedures and natural and constitutional justice relied on materials and documents not made available to the Applicants.

13 10. The Applicants were not liable to deportation on foot of the impugned decisions as refugee status had not been validly refused.

14 11. The Deportation Orders are void and ultra vires as not specifying the place of deportation in the Orders or alternatively in the Notices accompanying the Orders.

15 12. The first named respondent failed to have regard to all relevant considerations.

16 13. The form of the purported Notices is defective as referring to the "Deportations" of each of the applicants in each case.

17 A petition pursuant to s. 3 of the Immigration Act, 1999was submitted by A.C. Pendred and Company, Solicitors for the applicants, to the first named respondent dated 9th October, 2001. The bulk of this two and a half page petition addressed issues of alleged threats to the life and freedom of the applicants by reason of their ethnicity as Roma people and, the stated involvement of the first named applicant in an organisation known as the Movement for Rights and Liberties which had investigated human rights abuses during the Communist Era in Bulgaria and, relies upon the provisions of s. 5(1) of the Refugee Act, 1996and Article 3 of the European Convention on Human Rights, 1938.

18 This Petition contains the following two paragraphs:-

"Mr. Garibov has been treated in Ireland for cancer of his vocal chords. He has received radiotherapy to his neck and is followed on a regular basis at Saint Luke's Hospital (letter from Dr. Maeve Pomeroy, Saint Luke's Hospital dated 6th September, 2001 and letter from Dr. Nadeem Pervez, Saint Luke and Saint Anne's Hospital, Radiotherapy and Oncology Service dated 5th September, 2000, Tabs Five and Six). He will continue to need follow-up treatment for the next two to three years.

Please be advised that this is an open letter. We must produce this letter in any High Court proceedings were we to be so instructed or in any other proceedings which we would deem appropriate to the Garibovs" circumstances. Further we must and shall use this letter to fix you with any costs thereof. Moreover should the issue of damages for serious loss arise for our client or his next of kin, we shall also use this letter to fix you with the costs thereof."

19 The letter dated 5th September, 2000 and addressed "to whom it may concern" states that the first named applicant completed radiotherapy for cancer of the larynx in late July 2000 and would be called regularly for routine check up which will continue for years (the emphasis is mine). The letter dated 6th September, 2001 and addressed "to whom it may concern" confirms that the first named applicant will require a follow-up examination on a monthly basis for the next 2 to 3 years in order to detect and treat any recurrence of the cancer of his vocal chords.

20 A document disclosed by the respondents and entitled "Examination of file under s. 3 of the Immigration Act, 1999— First Supervisor" and, dated 12th December, 2002 and, which it was accepted was before the first named respondent in making his decision, contains reference to the above letters which are indicated to be annexed to it. A further document disclosed by the Respondents and entitled "Examination of File under s. 3 of the Immigration Act, 1999— second Supervisor" and, dated 25th July, 2003 recommended that refoulement was not an issue, (s. 5 of the Refugee Act, 1996) and recorded that the Refugee Applications Commissioner and the Refugee Appeals Tribunal had both expressed their opinion that the first named applicant might have been fleeing prosecution rather than persecution.

21 This Examination of File disclosed by the Respondents, contains the following paragraph under the heading, "Section 3(6)(h) Humanitarian Considerations":-

"Mr. Garibov has cancer of the vocal chords. He received radiotherapy to his neck, which he completed in late July, 2000. According to his consultant in St. Luke's Hospital, Dr. Maeve Pomeroy, the cancer is in remission, and the final checkup is scheduled for 14/10/03. She has offered to then forward a medical report to the Department. It is also noted that the Garibovs have been living in Ireland for a considerable amount of time, and that their son Galip has been granted refugee status in Ireland (69/1908/99 A), although in the light of the positive human rights developments in Bulgaria, following that country's application for EU membership, it would not be unreasonable to review his refugee status with regard to whether he would be persecuted in Bulgaria now."

22 Mr. S. Bonnlander, Executive Officer, Repatriation Unit, concludes his recommendation by stating:-

"There are humanitarian considerations in this case; however, how to weigh them remains difficult particularly in the context of imminent policy developments. Therefore, the case is submitted without specific recommendation."

23 The Approval of the first named respondent dated 6/08/03, is endorsed on this document above a handwritten note which is dated 1/08/2003 and signed Michael Flynn and is in the following terms:-

"I have considered the papers on file in this case. Despite the illness of Mr. Garibov I do not see any ground for granting humanitarian leave to remain to this couple given that they have failed the asylum process. However, we can hold off in any deportation until the final cancer checkup in October 2003".

24 As already appears the Deportation Orders were made by the first named respondent in respect of the Applicants on 21st and 22nd August 2003, notified to the Applicants on 9th October, 2003 by the Repatriation Unit, Immigration Division of the Department of Justice, Equality and Law Reform and, Deportation Notices served on the Applicants by the Garda National Immigration Bureau on 17th October, 2003. These judicial review proceedings were instituted by a Motion on Notice seeking leave to apply for Judicial Review dated 24th October, 2003 and returnable for 5th November, 2003.

25 At paragraph 3 of his Affidavit sworn herein on 20th January, 2004 the first named applicant states as follows:-

"I say that I have attended St. Luke's Hospital, Highfield Road, Rathgar, Dublin 6 for...