J. (OL) J(F) J (OY) & J (R) v Minister for Justice, Equality & Law Reform & others

• Jurisdiction: Ireland
• Judge: MS. JUSTICE M. H. CLARK
• Judgment Date: 09 October 2009
• Neutral Citation: [2009] IEHC 437
• Court: High Court
• Date: 09 October 2009

[2009] IEHC 437

THE HIGH COURT

[No. 224 J.R./2004]

J (OL) & Ors v Min for Justice & Ors

JUDICIAL REVIEW

BETWEEN

OL. J., F. J., OY. J. and R. J.

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE REFUGEE APPEALS TRIBUNAL AND COMMISSIONER OF AN GÁRDA SÍOCHÁNA

RESPONDENTS

IMMIGRATION ACT 1999 S3(2)(F)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

REFUGEE ACT 1996 S13

BRENNAN & ORS v GOVERNOR OF PORTLAOISE PRISON & DPP 2008 3 IR 364 2007/5/976 2007 IEHC 384

Q (M) v JUDGE OF THE NORTHERN CIRCUIT & DPP UNREP MCKECHNIE 14.11.2003 2003/44/10828

C (C) v JUDGE EARLY & ORS UNREP MACMENAMIN 28.4.2006 2006/9/1698 2006 IEHC 147

N (A) & ORS v MIN FOR JUSTICE & CMSR OF AN GARDA SIOCHANA 2008 2 IR 48 2007/43/9091 2007 IESC 44

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 215

IMMIGRATION

Deportation

Judicial review - Leave - Claims for asylum refused - No proceedings brought challenging decision - Application made by parent on behalf of all family members under one asylum application - Deportation order made - Application for leave to remain in state - Application for extension of time - Four months outside of fourteen day period allowed - Explanation for delay - Whether good or sufficient reason for court to grant extension of time - Substantial grounds - Whether asylum applications properly considered - Relevant factors in determining whether to grant an extension of time - Merits of application - Reasons for delay - Whether good and sufficient reasons to grant extension of time - Brennan v Governor of Portlaoise Prison [2007] IEHC 384, [2008] 3 IR 364 mentioned; AN v Minister for Justice [2007] IESC 44, [2008] 2 IR 48 distinguished; MQ v Judge of the Northern Circuit (Unrep, McKecknie J, 14/11/2003) and CC v Judge Early [2007] IEHC 147, (Unrep, MacMenamin J, 28/4/2006) applied - Immigration Act 1999 (No 22), s 3(2)(f) - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5(2) - Application refused (2004/224JR - Clark J - 9/10/2009) [2009] IEHC 437

J (OL) v Minister for Justice

Facts: The applicants sought leave for judicial review of decisions to make deportation orders in respect of the second, third and fourth named applicants, who were nationals of Nigeria. The first named applicant was the father of the other applicants. The first named applicant claimed fear of persecution arising from his political opinions. The other applicants had come to Ireland after 2000, and by 2001, seven children claimed the first applicant as their father. A dispute had arisen as to whether the Tribunal member had considered all seven children at the RAT stage. The applicants in 2002 sought leave to remain unsuccessfully and then deportation orders were made as to the father and the seven children in 2003. The proceedings were commenced four months outside of the fourteen-day period in s. 5(2) Illegal Immigrants (Trafficking) Act 2000. The applicants argued that the deportation orders as to the second, third and fourth applicants were invalid as they had not been refused asylum or considered appropriately in the asylum process.

Held by Clark J. that substantial grounds had not been shown nor had good or sufficient reason been established to grant an extension of time. The application would be refused. The Tribunal member was aware of the policy of treating all members of a family as a family unit and that he treated the father's appeal as including each of the even children. The applicants had at all times been legally represented. With the benefit of legal advice, they chose to apply for leave to remain temporarily in the State and could not after eighteen months legitimately complain that there were not properly the subject of those submissions and that the deportation orders were without legal effect. By their conduct, they had surrendered or waived their option to challenge the RAT decision of the decision of the Minister. The father had not sought judicial review but they all had instead willingly submitted to the leave to remain process. No case had ever been made by any of the applicants as to the nature of their claim for asylum.

Reporter: E.F.

1 This is an application for leave to apply for judicial review of the decision of the Minister for Justice, Equality and Law Reform ("the Minister"), dated the 5 ^th September, 2003, to make deportation orders in respect of the second, third and fourth named applicants. Ms. Ruth Dowling B.L. appeared for the applicants and Ms. Emily Farrell B.L. appeared for the respondents. The hearing took place at the Kings Inns in Court No. 1 on the 24 ^th June, 2009. The essential issue is whether the second, third and fourth named applicants are persons whose applications for asylum have been refused by the Minister within the meaning of s. 3(2) ( f) of the Immigration Act 1999.

Background

2 The applicants are nationals of Nigeria. The first named applicant is the father of the second, third and fourth named applicants. He claims to have three wives (V.,E. and S.) who had six, five and four children respectively. The dates of birth of his children indicates an overlap with the three marriages and the first named applicant (who is referred to hereafter as "the father") claims to have 15 children in total. The second and third named applicants are the daughter and son of E. and the fourth named applicant is the daughter of V.. They claim to have been born in 1980, 1982 and 1983 respectively.

3 The father arrived in Ireland on the 11 ^thAugust, 1998 with his third wife S. and their two youngest sons. On the 14 ^th August, 1998 the father and S. made individual applications for asylum in the State. The father was assigned the reference number 69/6683/98A and S. was assigned number 69/6683/98B. The Court was not made aware of the position of the two sons who accompanied their parents.

The ORAC stage

4 The father claimed to fear persecution by reason of his political opinion. He gave an account of being arrested and detained by police under the then military government of Nigeria in 1998 because of his financial support for a students' union. He escaped from detention and fled to a nearby village. The police detained and beat his wife S. and one of their sons. After she escaped a friend arranged for the father, S. and their two youngest children to leave Nigeria.

5 At the time of his interview with ORAC in August, 1999, the father said his first two wives and 13 of his children were in Nigeria. He provided the names of all his children together with their dates of birth.

6 Negative recommendations issued from the Office of the Refugee Applications Commissioner (ORAC) in respect of the father and S.. It was found that the father's claim of persecution was not substantiated and that there were a numberof items that cast doubt over the authenticity of his story. The father and S. each lodged notification of their intention to appeal to the Refugee Appeals Tribunal (RAT) on the 19 ^th January, 2000.

Arrival of the fourth, second and third named applicants

7 On the 20 ^th January, 2000, the fourth named applicant arrived in the State. In her affidavit she says she fled Nigeria with other family members - it seems these were her two half brothers, the older sons of S. and her father. She says she did not apply for asylum but in the replying affidavit of Dermot Cassidy it is stated that an ASY-1 form was completed in respect of her and she was then re-united with her "parents" and their application was regarded as including her application.

8 The second and third named applicants arrived in the State some eighteen months later, on the 28 ^th June, 2001. This brought the number of people who had arrived in Ireland claiming to be the father's children to seven. The latest children to arrive say on affidavit that they met with immigration officers upon arrival in the State and outlined their claim. They also say they were taken to St. Vincent's Hospital after their arrival in Ireland and that the third named applicant was operated upon in relation to bullet wounds that he had sustained. No evidence was furnished in that regard. They say they then went to live with their father.

9 The second and third named applicants claim to have been born in 1980 and 1982 respectively and in accordance with those dates were adults when they arrived in Ireland in 2001. They were however assessed as minors by the HSE and ORAC. On the 29 ^th June, 2001 - the day after they arrived in the State - a Social Worker wrote to ORAC indicating that the second and third named applicants had been reunited with their father. She expressed concern that "given their physical appearance anddetails of their schooling, they appeared to be significantly younger than the ages they claimed to be." She considered them both to be under 18. No mention was made of their being taken to St.Vincent's Hospital or having sustained bullet wounds.

10 On the same day (the 29 ^th) the applicants' father sent a handwritten letter to ORAC. He named the second and third named applicants and wrote as follows:-

"I agree that the above named persons will stay with me and we will [illegible] together with them. They are my children and I don't want them to apply another asylum but I want them to add themselves to my application [sic]."

11 He signed and dated the letter and then he added "And they do not want to apply for asylum for their self. When I ask them if they wish." The letter was then signed and dated by the second and third named applicants. No reference was made to the fourth named applicant who had arrived in January, 2000 at the age of 17 and who according to the affidavit of Dermot Cassidy had applied for asylum and filled out an ASY-1 form.

The RAT stage

12 In February, 2002 the RAT wrote to the father's solicitors indicating that as the Refugee...