Ighama v Minister for Justice
| Jurisdiction | Ireland |
| Judge | Mr. Justice Aindrias Ó Caoimh |
| Judgment Date | 04 November 2002 |
| Neutral Citation | 2003 WJSC-HC 6389 |
| Date | 04 November 2002 |
| Docket Number | [No. 455 J.R./2000] |
| Court | High Court |
Between:
and
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2003 WJSC-HC 6389
THE HIGH COURT
Synopsis:
JUDICIAL REVIEW
Immigration
Certiorari - Immigration - asylum - Practice and procedure - Refugee law - Right to work - Whether applicant denied access to legal advice - Whether manner of implementation of legislation by Minister flawed - Whether decision of Minister ultra vires - Refugee Act, 1996 (2002/455JR - O Caoimh J - 4/11/2002)
Ighama v Minister for Justice, Equality and Law Reform
The applicant had sought refugee status in the State. The applicant had claimed that if returned to Nigeria he would be shot by the authorities. The applicant had a job offer from Dublin Bus and stated that he intended to further his education in the State. Ultimately the authorities deemed the applicant's case to be manifestly unfounded and informed the applicant that the Minister for Justice, Equality and Law Reform proposed to make a deportation order. The applicant initiated judicial review proceedings in respect of the decision claming that the same was made in excess of jurisdiction and in addition claimed that the applicant was denied access to legal advice. Complaints were also made about the manner in which the relevant refugee legislation had been implemented and the application thereof.
Held by Ó Caoimh J in dismissing the application. The applicant was made aware of a legal assistance scheme and in addition had not shown that he had been deprived of any constitutionally protected right to work. In applying the non-statutory scheme (which was in effect at that time) the Minister was not undermining the Refugee Act, 1996 but was complying with his legal obligations at the time which were embodied in the 'Hope Hanlan' procedures. There had been no legal enforceable duty on the Minister to bring certain sections of the Refugee Act, 1996 into force at a particular time.
Citations:
REFUGEE ACT 1996 S5(1)
CONSTITUTION 1937
RSC O.84 r21
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000
HOPE HANLON PROCEDURES
REFUGEE ACT 1996 S22
REFUGEE ACT 1996 S25
REFUGEE ACT 1996 S23
REFUGEE ACT 19961996 SCH 1
R V SECRETARY OF STATE FOR THE HOME DEPT, EX PARTE FIRE BRIGADES UNION 1995 2 AC 513
CRIMINAL JUSTICE ACT 1988 (UK) S171
CRIMINAL JUSTICE ACT 1988 (UK) S108
CRIMINAL JUSTICE ACT 1988 (UK) S109
CRIMINAL JUSTICE ACT 1988 (UK) S110
CRIMINAL JUSTICE ACT 1988 (UK) S111
CRIMINAL JUSTICE ACT 1988 (UK) S112
CRIMINAL JUSTICE ACT 1988 (UK) S113
CRIMINAL JUSTICE ACT 1988 (UK) S114
CRIMINAL JUSTICE ACT 1988 (UK) S115
CRIMINAL JUSTICE ACT 1988 (UK) S116
CRIMINAL JUSTICE ACT 1988 (UK) S117
CRIMINAL JUSTICE ACT 1988 (UK) S117(1)
SHEEHAN, STATE V THE GOVERNMENT 1987 IR 550
REFUGEE ACT 1996 S30
REFUGEE ACT 1996 S30(2)
REFUGEE ACT 1996 S12
REFUGEE ACT 1996 S16
REFUGEE ACT 1996 S16(10)
CONSTITUTION ART 37.1
CONSTITUTION ART 15.2.1
MURTAGH PROPERTIES V CLEARY 1972 IR 330
ROONEY V MIN AGRICULTURE 1991 2 IR 539
DISEASES OF ANIMALS ACT 1966 S58
PINE VALLEY DEVELOPMENTS V MIN ENVIRONMENT 1987 IR 23
Mr. Justice Aindrias Ó Caoimh delivered the 4th day of November 2002.
By order of 14 th August, 2000 the applicant was given leave by order of this Court (Finnegan J.) to apply for judicial review for:
(a) Certiorari quashing the first respondent's decision to refuse the applicant refugee status;
(b) A declaration that the classification of the applicant's application for refugee status as manifestly unfounded is ultra vires the Refugee Act, 1996as commenced and otherwise contrary to law;
(c) A declaration that the applicant should have been provided with legal advice and representation when applying for recognition of refugee status;
(d) An order of mandamus directing the first respondent to provide the applicant with a work permit.
Leave was granted to the applicant on the following grounds:
1. The first respondent, his servants or agents has no legal authority to decide the applicant's refugee status, there being no statutory basis upon which he acts or purports to act in that regard;
Further or in the alternative:
2. The first respondent in excess of jurisdiction classified the application for refugee status as manifestly unfounded when no such classification [was] present in the Refugee Act, 1996as commenced;
3. The first respondent has failed and refused to apply s. 5 (1) of the Refugee Act 1996(as commenced) whereby it is provided that "[a] person shall not be expelled from the State or returned in any manner whatsoever to the frontiers of territories where, in the opinion of the Minister, the life or freedom of that person would be threatened on account of his or her religion, nationality, membership of a particular social group or political opinion."
4. The first respondent wrongly and unreasonably has failed and refused to issue the applicant with a work permit contrary to the provisions of the Constitution of Ireland, 1937.
The applicant has sworn an affidavit in which he states that he is a national of Nigeria and that he fled the country and came to Ireland to seek asylum. He says that he arrived in Ireland on 21 stMarch, 1999. The applicant completed an application form for the purposes of recognition of refugee status and he attended an interview. The applicant has exhibited the application form and a report of the interview dated 14 th December, 1999 and the document entitled "Re: Claim for Refugee Status" prepared by the first respondent dated 6 th December, 2000. The applicant states that he had no legal advice or representation at this time and was not aware of any entitlement that might exist in this regard.
The applicant states that on 27 th March, 2000 he received a letter from the first respondent stating that his application for refugee status had been determined to be manifestly unfounded and therefore his application was being refused. Subsequently the applicant's solicitors petitioned the first respondent by letter of the 13 th April, 2000 for leave for the applicant to remain in the State. By letter of the 28 th June, 2000 the first respondent wrote to him and his solicitors proposing to deport him from the State.
The applicant claims that he is in fear of return to Nigeria and states that he believes that he will be shot by the authorities as soon as they become aware of his presence and that as he was a musician in a leading band he is well known in Nigeria. He says that the authorities there do not forget persons whom they wish to kill or persecute. He says that two friends of his were shot dead summarily by the Nigerian army and that they carried no weapon and were not arrested. He claims that if he were to be charged with an offence he would receive no or no fair trial and he says that many people, mostly women and children died in fires caused by spilling oil catching fire. He says that those who survived were refused hospital treatment in the State hospital.
The applicant says that he wishes to remain in Ireland until he may return safely to Nigeria and that he wishes to contribute fully to Irish society. He says that he has been offered a job with Dublin Bus but that the first respondent has refused to permit him to work. He says that he is presently seeking to further his education and has been accepted on to a N.C.D. course at Inchicore College. The applicant says that he is a member of the Victory Christian Fellowship where he plays the drums at church services.
The applicant claims that the procedures, decisions and omissions of the first respondent as applied to him are unjust and contrary to law.
A statement of opposition has been filed on behalf of the respondents in which the following grounds are relied upon:
1. The within application for judicial review was not brought promptly as required by O. 84 r. 21 of the Rules of the Superior Courts. Further, the applicant has failed to adduce any good reason to explain his delay and/or failure to act promptly. The within application ought to be dismissed accordingly;
2. It is denied that the first respondent (hereinafter referred to as "the Minister") has or had no legal authority to decide the refugee status of the applicant as alleged in para. 51 of the applicant's statement of grounds or at all.
3. Without prejudice to the generality of the foregoing, it is denied that there is or was no statutory basis entitling the Minister to decide the refugee status of the applicant as further alleged in para. 5 (1) of the applicant's statement of grounds and in this regard the respondents shall at the hearing of this application refer to and rely upon the provisions of the Aliens Act, 1935, the Refugee Act, 1996, the Immigration Act, 1999and the Illegal Immigrants (Trafficking) Act 2000and the regulations made under these Acts so as to establish the statutory entitlement of the Minister to decide the refugee status of the applicant. The respondent shall further refer to and rely upon the Department of Justice, Equality and Law Reform Procedures for Processing Asylum Claims in Ireland as notified to the notice party on the 10th December, 1997 (as amended on the 13th March, 1998 and the 27th January, 2000).
4. Strictly without prejudice to the foregoing, having made application to the Minister for refugee status in the State, the applicant is estopped from asserting that the Minister has no authority to decide on that application.
5. It is denied that the Minister acted in excess of jurisdiction in the...
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