I (E A) & I (A A) v Min for Justice

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Cooke
Judgment Date09 Jul 2009
Neutral Citation[2009] IEHC 334

[2009] IEHC 334

THE HIGH COURT

[No. 194 J.R./2009]
I (E A) & I (A A) v Min for Justice
BETWEEN/
E.A.I. AND A.A.I.
APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
RESPONDENT

IMMIGRATION ACT 1999 S3(11)

REFUGEE ACT 1996 S13

KOUAYPE v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (EAMES) UNREP CLARKE 9.11.2005 2005/35/7364 2005 IEHC 380

REFUGEE ACT 1996 S5

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

TANG v MIN FOR JUSTICE 1996 2 ILRM 46

DEVANNEY v JUDGE SHIELDS & ORS 1998 1 IR 230 1998/5/1197

CARLTONA LTD v CMRS OF WORKS & ORS 1943 2 AER 560

DIMBO v MIN FOR JUSTICE UNREP SUPREME 1.5.2008 2008/12/2530 2008 IESC 26

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(1)(A)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

UN CONVENTION ON THE RIGHTS OF THE CHILD ART 3

REFUGEE ACT 1996 S5(2)

IMMIGRATION

Deportation

Ministerial decision - Fairness - Duty to consider representations - New circumstances - Whether obligation to embark on new investigation - Reasons for refusal - Discretion to amend or revoke deportation order - Whether delegation of decision - Absence of signature of minister - Absence of stamp - Whether obligation to give reasons - Whether deportation of minor disproportionate - Attempts to re-open decision - Subsidiary protection - Non-refoulement - Kouaype v MJELR [2005] IEHC 380 (Unrep, Clarke J, 9/11/2005); Tang v Minister for Justice [1996] 2 IR 46; Devaney v Shields [1998] IR 230; Carltona Ltd v Commissioners of Works [1943] 2 All ER 560; Dimbo v Minister for Justice [2008] IESC 26 (Unrep, SC, 1/5/2008) considered - Refugee Act 1996 (No 17), s 5 - Immigration Act 1999 (No 22), s 3 - European Convention on Human Rights Act 2003 (No 20), s 3 - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006) - Application refused (2009/194JR - Cooke J - 9/7/2009) [2009] IEHC 334

I (EA) v Minister for Justice, Equality and Law Reform

Facts: The applicants sought an order of certiorari quashing the decision of the respondent refusing to revoke the deportation orders made in respect of the applicants. The applicants had previously unsuccessfully applied for refugee status and later for subsidiary protection. However, the applicants did not challenge the decision refusing subsidiary protection or the making of the deportation orders. The letter communicating the decision of the respondent was accompanied by a 13 page memorandum comprising the analysis made by the Repatriation Unit of the revocation request. The applicants argued that because the impugned decision was signed by an individual other than the respondent, it was not made by the Minister personally as required by s. 3(11) of the Immigration Act, 1996. The applicants also submitted that the respondent failed to furnish a substantial reason why the applicants should be deported. The applicants further submitted that respondent failed to consider whether protection was available to the first named applicant if returned to Nigeria, that the refusal to afford the applicants protection was contrary to the State’s obligation under s. 3(1) of the European Convention of Human Rights Act, 2003, that the respondent failed to have regard to the best interests of the second named applicant and finally that the deportation of the applicants would result in refoulement.

Held by Cooke J. in refusing the application: That it was not necessary that the decision refusing to revoke the deportation order be made and signed personally by the Minister, it was validly and effectively made as it stood. There was no obligation on the respondent to furnish substantial or any reason why the applicants should be deported. Those reasons were given when the deportation orders were made and the representations made to the contrary were rejected. The respondent duly considered the reasons for the request for revocation. The applicant’s remaining arguments were an attempt to re-open issues expressly dealt with in the decisions on the making of the deportation order and the refusal of subsidiary protection, without any change in circumstances since the making of those orders.

Reporter: L.O’S.

1

1. By order of Peart J. on 9 th March 2009 the applicants were granted leave to bring the present application for, inter alia, an order of certiorari to quash the decision of 17 th December, 2008 made by the respondent Minister under s. 3, (11) of the Immigration Act 1999, refusing to revoke deportation orders made in respect of the applicants on 30 th May, 2008. The five grounds for which leave was granted are set out later in this judgment. The decision of the 17 th December, 2008 is hereinafter refereed to as the "Contested Decision". The background to that contested decision can be quickly stated.

2

2. The first named applicant arrived in the State on the 9 th October, 2006 from Nigeria and claimed asylum on the basis of a claimed fear of persecution if returned there in the form of a risk to her of human and degrading treatment or torture because she had been the victim of abuse, rape and incest by her father.

3

3. On 10 th November, 2006 the second named applicant was born in the State. On the 10 th February, 2007 they were notified of the Section 13 Report of the Refugee Applications Commissioner in which it was recommended that they be not declared to be refugees. On the 9 th August, 2007 they received the Contested Decision of the Refugee Appeals Tribunal, which affirmed the report and the negative recommendation of the Commissioner.

4

4. In response to the Minister's subsequent proposal to deport them, the applicants made representations to the Minister and applied for subsidiary protection. The applications for subsidiary protection and for temporary leave to remain were considered and rejected and on the 30 th October, 2008 deportation orders were made.

5

5. No challenge was brought by way of judicial review to either the refusal of subsidiary protection or to the making of the deportation orders. Instead, on the 17 th November, 2008 an application was made on behalf of the applicants to the Minister to revoke the deportation orders under Section 3 (11) of the 1999 Act.

6

6. By letter of 19 th December 2008, signed by Eamon Bennett, an officer of the Repatriation Unit of the Irish Naturalisation and Immigration Service in the Department of Justice, Equality and Law Reform, the applicants were informed that the outcome of the consideration of the application was "that the Minister's earlier decision to make the deportation orders remained unchanged." This is the Contested Decision which is now sought to be quashed.

7

7. As Clarke J. pointed out in the case of Kouaype v. MJELR, ( [2005] I.E.H.C.380), the circumstances in which a person refused refugee status can challenge the making of a deportation are necessarily limited and require the special circumstances which he describes in that judgment. It follows, obviously, that in a case were a valid deportation order exists, as here, the circumstances in which a refusal under Section 11 (3) of the 1999 Act to revoke such an order may be challenged are even more restricted.

8

8. No conditions or criteria are stipulated in the section for the exercise of the Minister's power. Clearly however, it follows from first principles that the Minister must consider fairly the reasons put forward by an applicant for the request to revoke and he must also satisfy himself that no new circumstances are shown to have arisen since the making of the deportation order which would bring into play any of the statutory impediments to the execution of a deportation order at that point such as, for example, a change of...

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