I (E P) and Others v Min for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Feeney
• Judgment Date: 30 January 2008
• Neutral Citation: [2008] IEHC 23
• Court: High Court
• Date: 30 January 2008

[2008] IEHC 23

THE HIGH COURT

[No. 29 J.R./2006]

I (E P) & Ors v Min For Justice

JUDICIAL REVIEW

BETWEEN

E.P.I., N.A.I. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND E.P.I.), J.T.I. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND E.P.I)

APPLICANTS

AND

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

RESPONDENT

CHILD CARE ACT 1991 S17(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

CONSTITUTION ART 40

CRIMINAL JUSTICE (UNITED NATIONS CONVENTION AGAINST TORTURE) ACT S4

IMMIGRATION ACT 1999 S3

REFUGEE ACT 1996 S5

O v MIN FOR JUSTICE & ORS [BABY O CASE] 2002 2 IR 169 2003 1 ILRM 241 2002/3/501

IMMIGRATION ACT 1999 S3(11)

IMMIGRATION ACT 1999 S3(2)(f)

IMMIGRATION ACT 1999 S3(6)

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

KOZHUKAROV & ORS v MIN FOR JUSTICE & ORS UNREP CLARKE 14.12.2005 2005/35/7380 2004 IEHC 424

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S4

N v FINLAND UNREP ECHR 26.7.2005 (CASE NO 38885/02)

REFUGEE ACT 1996 S17(7)

IMMIGRATION ACT 1999 S3(11)

IMMIGRATION

Deportation order

Judicial review - Extension of time - Certiorari quashing deportation order in respect of applicant and daughters -Nigeria - Whether breach of duty to comply with fair procedures - Whether breach of duty to weigh relevant materials fairly - Whether obligation to identify reasons for decision - Whether failure to take into account additional available evidence - Medical report - Whether failure to take into account change in circumstances - Statutory prerequisites to deportation order - Requirement to have regard to representations - Risk of female genital mutilation - Whether reasonable likelihood of well founded fear of persecution - Whether objective facts providing concrete foundation for concern - Nature of process carried out by respondent - Credibility - Whether requirement to disclose relevant documentation extended to exercise of ministerial discretion - Baby O v Minister for Justice [2002] 2 IR 169, Kouaype v Minister for Justice [2005] IEHC 380, (Unrep, Clarke J, 9/11/2005), Kozhukarov v Minister for Justice [2005] IEHC 424, (Unrep, Clarke J, 14/12/2005) and N v Finland (ECHR, 30/11/2005) considered - Immigration Act 1999 (No 22), s 3 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Refugee Act 1996 (No 17), ss 5 and 17 - Criminal Justice (United Nations Convention against Torture) Act 2000 (No 11), s 4 - European Convention on Human Rights, art 3 - Relief refused (2006/29JR - Feeney J - 30/1/2008) [2008] IEHC 23

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

2 2 1.1 On the 20 ^th January, 2005 the three applicants arrived in the State and on the following day the first named applicant, who is a Nigerian, applied for refugee status in respect of herself and her two Nigerian born daughters, namely the second and third named applicants. The first named applicant completed a questionnaire which she submitted to the Office of the Refugee Applications Commissioner on the 31 ^st January, 2005. On the 18 ^th February, 2005 the applicant was interviewed and on the 24 ^th February, 2005 the Office of the Refugee Applications Commissioner recommended that neither the first named applicant nor her daughters should be declared eligible for refugee status. By letter of the 3rd March, 2005 the first named applicant was notified of such recommendation and was provided with a copy of the Section 13 Report prepared and completed by the Office of Refugee Applications Commissioner.

3 3 1.2 A notice of appeal was submitted on behalf of the three applicants in respect of the said recommendation dated the 24 ^th day of March, 2005. Thereafter an oral hearing was conducted on the 28 ^th April, 2005 and on the 22 ^nd June, 2005 the Refugee Appeals Tribunal affirmed the recommendation of the Refugee Applications Commissioner. The applicants were informed of the decision of the Refugee Appeals Tribunal by letter dated the 30 ^th June, 2005. The decision of the Refugee Appeals Tribunal applied to all three applicants.

4 4 1.3 On the 13 ^th September, 2005 the Department of Justice, Equality and Law Reform wrote to the applicants informing them that the Minister proposed making deportation orders and affording each of the applicants certain options including the option to make written representations within fifteen days. Separate representations were made on behalf of each of the three applicants, the first representation being received by the Department on the 17 ^th October, 2005. A written examination of the file relating to all three applicants was carried out under s. 3 of the Immigration Act 1999and s. 5 of the Refugee Act 1996by two officers of the Department on the 17 ^th and 18 ^th November, 2005. On the 21 ^st November, 2005 it was recommended that the Minister sign deportation orders in respect of all three applicants.

5 5 1.4 Deportation orders in respect of each of the three applicants were signed on the 23rd day of November, 2005 and a letter enclosing copies of the deportation orders and notifying the applicants of the requirement to report to the Garda National Immigration Bureau was sent to the applicants on the 29 ^th November, 2005.

6 6 1.5 Additional representations were sent to the Department under cover of letters dated the 17 ^th November, 2005 and the 29 ^th November, 2005, both of which were received on the 30 ^th November, 2005. By letter dated the 3rd December, 2005 the Refugee Legal Service acting on behalf of the applicants wrote to the Garda National Immigration Bureau seeking additional time for the applicants to consider their legal position and advising that the solicitor dealing with the case was away until the 8 ^th December, 2005. The applicants failed to present themselves to the Garda National Immigration Bureau on the 5 ^th December, 2005 as required and on the 8 ^th December, 2005, Officers from the Bureau attended at the applicants' residence in Sligo. The first named applicant disappeared and "went into hiding" and the second and third named applicants were taken into care on the 8 ^th December, 2005. On the 15 ^th December, 2005 the second and third named applicants were made subject of interim care orders pursuant to s. 17(1) of the Child Care Act 1991in the Sligo District Court.

7 7 1.6 On the 12 ^th January, 2006 the first named applicant was apprehended by the Gardaí and she was placed in Mountjoy Women's Prison. On the following day a notice of motion seeking an extension of time within which to bring judicial review proceedings concerning the deportation orders was issued. On the 18 ^th January, 2006 a notice of motion and statement of grounds seeking leave to apply for judicial review issued in the Central Office returnable for the 23rd January, 2006 and on that date an undertaking was given on behalf of the respondent not to deport the first named applicant pending the determination of the judicial review proceedings. The first named applicant was also granted conditional release from detention.

8 8 1.7 The High Court heard an application seeking an extension of time within which to bring judicial review proceedings and also seeking leave to apply for judicial review in November, 2006 and on the 10 ^th November, 2006 Mr. Justice McKechnie in an ex tempore judgment extended the time within which to bring the judicial review proceedings and granted leave to apply by way of judicial review. The grounds in respect of which leave was granted are contained in the amended statement of grounds dated the 12 ^th December, 2006.

9 9 1.8 As indicated above the first named applicant is the mother of the second and third named applicants who are her Nigerian born children. The second born applicant was born on the 18 ^th December, 2000 and the third named applicant was born on the 17 ^th August, 2002. The first named applicant married the father of those two children on the 6 ^th November, 1999 and the father remains in Nigeria. The first named applicant identified that her first born daughter Elizabeth Izevbekhai was born on the 11 ^th February, 1993 and died on the 15 ^th July, 1994 as a result of blood loss which was described as being possibly the result of a traditional female circumcision. It was diagnosed that such had been performed on that child.

10 10 1.9 The applicants herein seek an order of certiorari quashing the deportation orders made by the respondent on foot of the decision to deport the applicants made on the 23rd November, 2005. The grounds upon which relief is sought are set out in the post leave amended statement required to ground application for judicial review dated 27 ^th March, 2007.

11 11 1.10 The essential grounds upon which the applicants rely are firstly:

That the manner in which the respondent scrutinised the applicants cases was in breach of his obligations under article 3 of the European Convention on Human Rights and Article 40 of the Constitution and s. 4 of the Criminal Justice (UN Convention against Torture Act 2000) and in breach of the Minister's duty to act fairly and comply with fair procedures and was in breach of his alleged duty to weigh fairly all relevant material. It was contended on behalf of the applicants that on the facts of this case there was an obligation on the Minister to identify at least in a general way the principal reasons as to why he concluded that none of the applicants were at risk of being subject to torture if returned to Nigeria and that absent the identification of the principal reasons leading to the conclusion that the applicants should be deported, that the respondent had acted in breach of his duties and legal obligations.

Secondly it was argued that there is additional material and evidence available which this Court should examine and consider and take into account and assess. Having considered such...