IM v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 06 November 2003
• Neutral Citation: [2003] IEHC 75
• Docket Number: Record Number: No. 659/2003 JR
• Court: High Court
• Date: 06 November 2003

MAMYKO v. MIN FOR JUSTICE & ORS

IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT, 2000, SECTION 5;

AND IN THE MATTER OF THE REFUGEE ACT, 1996(AS AMENDED)

Between:

Irana Mamyko, Andrei Mamyko, and Anton Mamyko (suing byhis mother and next friend Irana Mamyko)

Applicants

And

The Minister for Justice, Equality and Law Reform,Ireland and the Attorney General

Respondents

[2003] IEHC 75

Record Number: No. 659/2003 JR

THE HIGH COURT

Citations:

IMMIGRATION ACT 1999 S3(6)

IMMIGRATION ACT 1999 S3

REFUGEE ACT 1996 S17(6)

REFUGEE ACT 1996 S5

UNITED NATIONS CONVENTION ON THE STATUS OF REFUGEES 1951

1 Mr Justice Michael Peartdelivered the 6th day of November 2003

2 The applicants are Russian Nationals who came to this country, via Belgium on the 29 ^th May 2000, and immediately applied for Refugee status on the grounds of persecution arising from an alleged involvement by the second named applicant in exposingcorruption by senior officials in Kaliningrad and Moscow. They were interviewed in the normal way, and in due course the Refugee Applications Commissioner made a recommendation refusing refugee status on the 26th October 2001.

3 An Appeal was lodged with the Refugee Appeals Tribunal and on22 ^nd April 2002 that body made its decision confirming the recommendation of the Refugee Appeals Commissioner. This decision was notified to the applicants by letter dated 3 ^rd May 2002.

4 The first named applicant in her grounding affidavit states that by letter dated 19 ^th June 2002 she submitted representations to the Minister.

5 However, on the 26 ^th August 2002, the Minister made a Deportation in respect of all the applicants. By letter dated6 ^th September 2002 the Minister's office wrote to the applicants notifying them of the making of the Deportation Order. This letter makes it clear that representations made on behalf of the applicants were taken into consideration, as well as the factors required to be taken into account under the provisions of section 3(6) of the Immigration Act, 1999.

6 The first named applicant in her said grounding affidavit has sworn that this letter was sent to the wrong address. It appears that on some date following the receipt of the letter dated 3 ^rd May 2002 from the Refugee Appeals Commissioner (which clearly was received by them), and following the making of representations to the Minister by letter dated 19 ^th June 2002, the applicants moved address. Her affidavit gives no detail whatsoever as to why they changed address, or what attempt was made by them to notify their change of address to the Minister's office. The only reference to this matter is in paragraph 9 which states as follows:

"The first named respondent notified us of the making of the said orders by letter dated the 6 ^th September 2002. The said letter was sent to the incorrect address. By letter dated25 ^th march 2003 we made further representations to the first named respondent."

7 The next reference to this change of address is contained in a letter dated 25 ^th March 2003 fro the Refugee Legal Service to the Minister which simply states that the said letter dated 6 ^thSeptember 2002 was sent to "an old address and which they never received".

8 That letter goes on to state that its author has been assured by the applicants that they informed the Department of Justice of their change of address. But it does not state in what manner and when this change of address was communicated. I find this extraordinary in relation to a most crucial aspect of the case. In such a case, there is a heavy onus on the applicants to demonstrate other than by bald assertion that the Minister's office is in some way at fault in having sent a letter of such importance as that dated 6 ^th September 2002 to an incorrect address.

9 I am unaware of how the applicants in fact became aware of the existence of the Deportation Orders made against them on 26 ^th August 2002 if they had not received the letter dated 6 ^th September 2002. But in any event the Refugee Legal Service wrote to the Minister by letter dated 25 ^th March 2003 pointing out that that letter had not been received, and made an application under section 3 of the Immigration Act, 1999that they be allowed to remain in the State so that the third named applicant, a schoolboy of about 14 years of age, might complete his education here. This application was supported by a letter from his school teachers.

10 By letter dated 10 ^th July 2003 the Minister's office wrote to the applicants informing them of the making of the Deportation Orders made previously and enclosed copies thereof, and informed them that the representations made on their behalf had been taken intoconsideration as well as the factors required to be taken into consideration under the provisions of section 3(6) of the Immigration Act, 1999. By letter dated 21 ^st July 2003, the Minister's office wrote to the Refugee Legal Service in answer to their letter dated25 ^th March 2003. That letter refereed to the fact that Deportation Orders were made on the 26 ^th August 2002, and that a letter dated 6 ^th September 2002 notifying them of this fact had not been received by the applicants. The Minister's office noted that the applicants had stated that they had notified their change of address to the Department butstated also that the notification of change of address had not been received by the Department. That letter concludes by stating that full consideration was given to the case in arriving at the decision to make deportation orders. The applicant's Counsel has submitted that it is clear from this statement that the Minister's office was not intending to consider at all the representations made by the Refugee Legal Service by letter dated 25 ^th March 2003.

11 By letter dated 23 ^rd July 2003, the Refugee Legal Service again wrote to the Department, making an application under section 17 (6) of the Refugee Act, 1996, this time enclosing medical reports in relation to the health of the third named applicant. In addition further country of origin information was furnished. The medical reports deal with the trauma suffered by the third named applicant due to the events in Russia which led to their flight out of that country, the burning of their house, his fear of returning, fears of having to do military service in Russia, depression, post traumatic stress syndrome and soforth. Letters from friends in Russia were also enclosed.

12 The Department replied on 28 ^th July 2003 indicating that deportation orders were made after full consideration of all relevant matters in August 2002 and that the time for making representations had passed, and that the Minister had made a final decision in the matter. The Refugee Legal Service replied by letter dated 5 ^th August 2003 stating that the Minister did not appear to have considered their representations contained in their letter dated 23 ^rd July 2003, and pointed out that it was an application under the Refugee Act, 1996and that there was no time limit for the making of such an application, and that the Minister was not exclude the Minister from making a decision after a Deportation Order has issued. They asked that proper consideration be given to the application. The Minister's office responded by letter dated 25 ^th August 2003 stating that the Minister has made his final...