L.K. (infant) v Minister for Justice
| Jurisdiction | Ireland |
| Judge | Mr. Justice McDermott |
| Judgment Date | 05 November 2014 |
| Neutral Citation | [2014] IEHC 521 |
| Court | High Court |
| Date | 05 November 2014 |
[2014] IEHC 521
THE HIGH COURT
BETWEEN
AND
IMMIGRATION ACT 1999 S3(11)
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5
IMMIGRATION ACT 1999 S3(6)
EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8
EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8(1)
ABDULAZIZ & CABALES & BALKANALI v UNITED KINGDOM 1985 7 EHRR 471
R (MAHMOOD) v HOME SECRETARY 2001 1 WLR 840
CONSTITUTION ART 41
CONSTITUTION ART 40.3
MCHUGH & ASEMOTA v MIN FOR JUSTICE UNREP 9.3.2012 2012/32/9388 2012 IEHC 110
EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8(2)
IMMIGRATION ACT 1999 S3
REFUGEE ACT 1996 S5
IMMIGRATION ACT 1999 S3(2)(F)
IMMIGRATION ACT 1999 S3(3)(B)(II)
CRIMINAL JUSTICE (UN CONVENTION AGAINST TORTURE) ACT 2000 S4
IMMIGRATION ACT 1999 S3(1)
MEADOWS v MIN FOR JUSTICE 2007 2 IR 701
O v MIN FOR JUSTICE & ORS [BABY O CASE] 2002 2 IR 169 2003 1 ILRM 241 2002/3/501
E (J) MIN FOR JUSTICE 22.10.2010 2011 1 IR 574 2010/18/4345 2010 IEHC 372
K (T) v MIN FOR JUSTICE UNREP HOGAN 9.2.2011 2011/29/7926 2011 IEHC 99
S (JD)[NIGERIA] v MIN FOR JUSTICE UNREP COOKE 11.7.2012 2012/41/12289 2012 IEHC 291
A (A) v MIN FOR JUSTICE & ORS UNREP DUNNE 8.7.2011 [TRANSCRIPT NOT AVAILABLE]
Judicial Review – Deportation – Refugee Appeals Tribunal – European Convention on Human Rights - Refugee Act 1996, Sec, 5 – Refoulement – Fear of persecution – Procedure
The facts of this case involved the deportation of a failed asylum seeker M.O.
The applicants, M.O, his now wife M.K and stepchildren sought an order of certiorari quashing the deportation order made against M.O. and a declaration that his deportation was unlawful. The applicants claimed that the deportation of M.O contravened, the constitution, Section 5 of the Refugee Act 1996, which dealt with a prohibition of refoulement and contravened Article 8 of the convention which protect the right to a private and family life. After allowing an extension of time for the application the issue came before McDermott J. in the High Court.
McDermott J. carefully considered the arguments put forward by the t Applicants, analyzed the procedure adopted by the Refugee appeal tribunal in M.O"s case and considered the submissions of the respondent, the minster for Justice, Equality and Law Reform. Article 41 of the Constitution recognises the family as the natural, primary and fundamental unit group of society possessing inalienable and imprescriptible rights and recognizes the importance of guarding the institution of marriage. The applicants stated that the respondent failed to consider adequately or at all the applicants right to marry. McDermott J. decided Article 41 of the Constitution did not apply to the couple at the time of the making of the order as they merely engaged to be married. The applicants further submitted that the respondent failed to provide adequate reasons and failed to give consideration to Article 8(2) of the European Convention on Human Rights. McDermott J. concluded that M.O."s rights were considered under Article 8 against the rights of the state and in weighing those rights, the conclusion was reached that there was no less restrictive process available which would achieve the legitimate aims of the state. In regards to the issue of refoulement, the applicants suggested a failure by the respondent to give reasons or clearly state the rationale for the s. 5 determination. The Tribunal concluded that the applicant had neither a subjective nor an objective fear from any persecution upon return to his home state. Aided by the case Meadows v. Minister for Justice, Equality and Law Reform [2007] case which involved vague reasoning by the Refugee Appeals Tribunal, McDermott J concluded that the applicant had established a substantial ground upon which to grant leave to apply for judicial review of the deportation order on the basis of the suggested failure by the respondent to give reasons or clearly state the rationale for the s. 5 determination. However McDermott J was not satisfied that the applicant discharged the onus of establishing that the decision was fundamentally flawed on that basis. McDermott J. ruled that the applicant was not entitled to relief on any of the other grounds advanced and therefore the application is refused.
1. M.O. is a failed asylum seeker who arrived in the state from Nigeria on 28 th October, 2008, and claimed asylum. A recommendation was made by the Office of the Refugee Applications Commissioner (ORAC) that he be refused refugee status. This was appealed to the Refugee Appeals Tribunal. The appeal was rejected on 7 th August, 2009. A "three options letter" issued on 8 th September, 2009. Applications for subsidiary protection and leave to remain on humanitarian grounds were made on 19 th September. The application for subsidiary protection was refused on 16 th November and notified to the applicant on 26 th. A deportation order was made on 8 th December, 2009, and notified to the applicant on 11 th December. This application is by way of telescoped hearing whereby the applicants seek an order of certiorari quashing the deportation order made against M.O. and a declaration that his deportation in accordance with that order prior to the determination of a subsequent application to revoke the order under s. 3(11) of the Immigration Act 1999, made on 26 th January, 2010, would be unlawful. On 25 th January, 2010, the respondent was requested by the applicants' solicitors not to enforce the deportation order pending the making of a decision on the application for revocation. This undertaking was not forthcoming and an application seeking an injunction restraining the deportation of the applicant was made on 3 rd February, 2010, and refused (Cooke J.). The applicant was deported on the same day. These proceedings were initiated on 2 nd February, 2010, and were not brought within the fourteen day period required under s. 5 of the Illegal Immigrants (Trafficking) Act 2000. Accordingly, an extension of time is required if the application is to proceed.
2. The proceedings were instituted 37 days out of time. The court may grant an extension of time if satisfied that there is good and sufficient reason for so doing. The basis upon which an extension is sought is set out in the second affidavit of the third named applicant, M.K. She stated that following the receipt of notification of the deportation order in mid December, 2009, M.O. called his former solicitor several days later. He was informed that no assistance could be given to him and he then contacted his present solicitor. An appointment was given for 2 nd January, 2010. M.K. and M.O. were married on 31 st December, 2009, and M.O. was informed by his solicitors that he must obtain the balance of the file documents before an opinion could be obtained. These were obtained two weeks later from the former solicitor. A consultation was held on 9 th January, 2010, and further documents from the file were requested by the solicitors, which were later given on a date unspecified. On receipt of same, counsel was briefed and proceedings issued on 2 nd February. M.O. was arrested on the evening of 19 lh January, and this, it is implied, further hampered the preparation of the case. In addition, it is claimed that further delay was caused by the fact that the applicants' solicitor and counsel were not working for periods during the Christmas vacation.
3. The court is also entitled to take into account whether any grounds have been established upon which leave might be granted, and in this case the fact that two of the applicants are minors. The court is satisfied that M.K. and M.O. formed an early intention within the fourteen day period to pursue a challenge to the deportation order by way of judicial review but were not in a position in any practical sense to do so until 2 nd February, 2010. The court is satisfied that good and sufficient reason has been demonstrated upon which to grant an extension of time on the basis of the matters set out above and because the court is also satisfied that a ground exists upon which to grant leave to apply for judicial review.
4. The first and second named applicants L.K. and T.K. are minors and the children of M.K. and J.K. (who is not a party to these proceedings). A relationship developed between M.K. and M.O. at a time which is not specified in any of the documents. There is no reference to the dates of birth or the ages of the children. There is no reference in the asylum application or the appeal to the Refugee Appeals Tribunal to the existence of this relationship. It emerged for the first time in the course of the applications for subsidiary protection and humanitarian leave to remain in the state made on 19 th September, 2009. The respondent was then informed that M.O. was engaged to be married to M.K. and that plans for the wedding were at an advanced stage. It was intended that the applicant would live with his wife once they married. The respondent was also informed that M.K. was an Irish national. The existence of M.K.'s children was not mentioned. There is no explanation for this omission, although a complaint is now made that certain claimed rights on behalf of the minor applicants were not considered by the respondent when making his decision.
5. As is required under s. 3(6) of the Immigration Act 1999, a number of relevant matters were considered when assessing M.O.'s case. It was noted that he was born on 4 th April, 1980. Both his parents were dead and he had one...
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WJF v Minister for Justice and Equality
...on that judgment in coming to my decision. The respondent relies on McDermott J.'s judgment in the case of L.K. v. Minister for Justice [2014] IEHC 521. The following are quotations from paras. 36 and 38 of McDermott J.'s judgment:- ‘If it is thought that the underlying rationale cannot be ......