I (O)(A Minor) and Others v Governor of Dochas Prison & Min for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Bryan McMahon
• Judgment Date: 24 June 2009
• Neutral Citation: [2009] IEHC 393
• Court: High Court
• Date: 24 June 2009

[2009] IEHC 393

THE HIGH COURT

[No. 878 J.R./2008]

I (O)(A Minor) & Ors v Governor of Dochas Prison & Min for Justice

BETWEEN

O.I. AND On. P.I. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND O.I.) AND Oe.I. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND O.I.)

APPLICANTS

AND

THE GOVERNOR OF DOCHAS PRISON AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000

AJ & AD v REFUGEE APPLICATIONS CMSR & ORS UNREP IRVINE 3.12.2008 2008/1/43 2008 IEHC 440

KOUAYPE v MIN FOR JUSTICE EQUALITY & LAW REFORM UNREP CLARKE 9.11.2005 2005 35 7364 2005 IEHC 380

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

IMMIGRATION

Deportation

Judicial review - Leave - Delay - Good and sufficient reason - Principles to be applied - Statutory time limits and extent of delay to be considered - Whether applicants in receipt of legal advice - Reasons for delay - Strength of potential claims - Balance of justice - Applicant refused service of deportation order - Deliberate avoidance - Delay inordinate -Failure by applicant to accept legal advice - No good reasons advanced for delay - No injustice to applicant in failing to extend time - A(J) v Refugee Applications Commissioner [2008] IEHC 440 (Unrep, Irvine J, 3/12/2008), A(J) v Refugee Applications Commissioner [2008] IEHC 431 (Unrep, Hedigan J, 18/12/2008) and Kouaype v Minster for Justice [2005] IEHC 380 (Unrep, Clarke J, 9/11/2005) applied - Illegal Immigrants (Trafficking) Act 2000 (No 29) - Illegal Immigrants (Trafficking) Act 2000 (No 29) - Leave refused (2008/878 JR - McMahon J - 24/6/2009) [2009] IEHC 393

I (O) v Governor of Dochas Prison

1 EX TEMPORE JUDGMENT of Mr. Justice Bryan McMahon delivered on the 24th day of June, 2009

2 The applicant is from Nigeria and arrived in this State on 27 ^th July, 2005 and she applied for asylum status within a short time. She has two infant children, both of whom were born in Ireland. The first was born shortly after she arrived on 31 ^st July, 2005 and the second child was born on 13 ^th July, 2007 again in Ireland.

3 A deportation order was made against the applicant on 9 ^th June, 2006. At that time the applicant had been housed in Balseskin Facility and communications to her were addressed to that address. She left Balseskin on her own evidence in August 2006. She first went to Dublin for two to three months and then she went to Cork, on each occasion failing to notify the authorities of a change of address.

4 On 14 ^th June, 2007, she made contact with the second named respondent, the Minister, and on 14 ^th July, 2007, a letter was written to her from the Refugee Legal Service which conveyed the following information to her:-

5 1. That she should have reported to the authorities on 18 ^th June, 2006 and that she was now subject to arrest.

6 2. It told her to report immediately to the Garda National Immigration Bureau.

7 3. It advised her that any asylum application could be made separately on behalf of the two infant children and

8 4. It advised her of the possibility of subsidiary protection she might apply for in those proceedings. That was on 14 ^th July, 2008.

9 A meeting was scheduled for her on 28 ^th July, 2008 to meet with the Refugee Legal Service. Before that, however, on 17 ^th July, 2008, the applicant was arrested in Northern Ireland, and she said that she was on a shopping expedition to Newry. In an affidavit from the respondents, it is averred that she was arrested at Belfast Port.

10 She was conveyed back to Dundalk on 18 ^th July to Dochas. The third named applicant was taken from her at that time but the family was reunited on 22 ^nd July, 2008.

11 The applicant then sought an injunction against deportation and this came before Mr. Justice O'Neill. On 23 ^rd July, she was given a letter by the Garda National Immigration Bureau and on 24 ^th July, 2008, judicial review proceedings issued which was approximately two years and one month after the deportation order came into being. On 29 ^th July, 2008, O'Neill J. refused the injunction. On 11 ^th August, 2008, the applicant was advised to submit asylum applications on behalf of the two children which she did. The Refugee Applications Commissioner has refused these applications and these are now on appeal to the Refugee Appeals Tribunal.

12 During the course of the hearing before me, the question of delay was raised by the respondent and I determined that I should hear that as a discrete issue. The applicant's arguments, in this respect, I now set out briefly. Before I do so, however, it is appropriate that I should refer to the time limits set out in the legislation, which in the Illegal Immigrants (Trafficking) Act 2000, provides that the applicant has 14 days to commence judicial review proceedings unless there is good and sufficient reason that the period should be extended.

13 The applicant's arguments are as follows:-

14 1. She did not become aware of the deportation order made against her on 9 ^th June, 2006 until 18 ^th June, 2008.

15 2. She left Balseskin under duress.

16 3. Her asylum documents were taken away from her by threat.

17 4. She contacted the Refugee Legal Service on 6 ^th July, 2007 and this was a voluntary act on her part. It was a genuine effort according to the applicant to regularise her status I will refer to this later in my judgment.

18 5. The applicant says that the extension of time sought only applies to the adult applicant and there is not question of extending time for the children in their proceedings.

19 The respondent's arguments are to the effect that the applicant lived in Balseskin until August 2006 and she must have received the appropriate communications up to that time. Secondly, they argued that the applicant was arrested at Belfast Port and not as she says in Newry on her shopping expedition. Thirdly, during the period of 18 ^th June, 2006 to 7 ^th July, 2007, there is no evidence on behalf of the applicant that she was badly advised or inhibited in making the arguments which she now advances. Fourthly, there was no notification to the authorities as there should have been of the changes of address which the applicant moved to after leaving Balseskin and going to Dublin first, and later to Cork. Fifthly, the applicant admits that she knew of the deportation order on 18 ^th June, 2008, but she only brought this notice of motion in September, 2008. Finally, the State has given an undertaking that the adult applicant will not be deported until the children's applications are finally determined.

20 Returning to the delay issue, the relevant time limits I have already mentioned in the Act is 14 days and that is the time limit within which proceedings must be commenced in judicial review proceedings unless the High Court considers that there is a good and sufficient reason for extending the period in which the application is to be made. In J.A. & D.A. v. Refugee Applications Commissioner & Ors, Irvine J. set out five criteria which are useful in determining whether there is good or sufficient reason in the circumstances of any particular case. These are: first of all, consideration must be given to the relevant statutory time limit and the extent of the...