Lelimo v Minister for Justice

JurisdictionIreland
CourtHigh Court
Judgment Date30 April 2004
Neutral Citation[2003] IEHC 78
Docket Number[2003 No. 136 J.R.]
Date30 April 2004
LELIMO v. MIN FOR JUSTICE
JUDICIAL REVIER

BETWEEN

MOSEBATHO JUSTINA LELIMO
APPLICANT

AND

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM
RESPONEDT

[2003] IEHC 78

Rec. No.136JR/2003

THE HIGH COURT

Abstract:

Judicial review - Deportation - Criminal Justice (United Nations Convention Against Torture) Act 2000 - Whether it was arguable that the failure of the respondent to consider section 4 of the 2000 Act when making a deportation order rendered the order invalid.

Facts: The applicant sought leave to challenge by way of judicial review the validity of the respondent's deportation order. The applicant submitted, amongst other grounds, that the respondent failed to consider whether there was substantial evidence for believing that the applicant would be subjected to torture if she was returned to her country of origin and therefore was in breach of his obligations under section 4 of the Act of 2000.

Held by O'Sullivan J. in granting leave: That it was arguable that the failure of the respondent to implement the provisions of s. 4 of the Act of 2000, in reaching his decision to deport the applicant rendered that decision invalid.

Reporter: L.O'S.

Citations:

IMMIGRATION ACT 1999 S3

MURESAN V MIN JUSTICE 2004 2 ILRM 364

CRIMINAL JUSTICE (UNITED NATIONS CONVENTION AGAINST TORTURE) ACT 2000 S4

K (G) V MIN FOR JUSTICE 2002 1 ILRM 81

REFUGEE ACT 1996 S2

REFUGEE ACT 1996 S5

IMMIGRATION ACT 1999 S3(6)(A)

REFUGEE ACT 1996 S5(2)

IMMIGRATION ACT 1999 S3(6)

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 2

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 3

UNITED NATIONS CONVENTION ON THE STATUS OF REFUGEES 1951

PROTOCOL ON THE STATUS OF REFUGEES 1967 ART 1(A)(2)

R V IMMIGRATION APPEALS TRIBUNAL & ANOR EX-PARTE SHAH 1999 2 AC 629

ROSTAS V REFUGEE APPEALS TRIBUNAL (HAYES) & ANOR UNREP GILLIGAN 31.7.2003

R V SECRETARY OF STATE FOR THE HOME DEPT EX PARTE TURGAT 2001 1 AER 719

A V SECRETARY OF STATE FOR THE HOME DEPT 2003 ILNR 249

CRIMINAL JUSTICE (UNITED NATIONS CONVENTION AGAINST TORTURE) ACT 2000 S1

REFUGEE WOMEN'S LEGAL GROUP GENDER GUIDELINES FOR THE DETERMINATION OF ASYLUM CLAIMS IN THE UK JULY 1998 5

HORVATH V SECRETARY OF STATE FOR THE HOME DEPARTMENT 2000 WLR 379 2000 3 AER 577 2000 INLR 15

HATHAWAY THE LAW OF REFUGEE STATUS 1998 105

P & L & B V MIN FOR JUSTICE 2002 1 ILRM 16

OSAYANDE & LOBE V MIN JUSTICE 2003 1 IR 1

REFUGEE ACT 1996 S5(1)

1

JUDGMENT of O'Sullivan J delivered 12thNovember, 2003

Introduction
2

This is an application for leave to challenge the Minister's Deportation Order made pursuant to s. 3 of the Immigration Act 1999and communicated to the applicant on 3 rd February, 2003. These proceedings were initiated on 26 th February and were accordingly nine days out of time.

3

An initial application has been made not only to extend the time for the filing of the statement grounding the application for Judicial Review which is nine days late but also for a further amended statement dated 29 th October, 2003 which is therefore dated some eight months later. No evidence was before me as to why the time should be extended for the later amended statement other than to say that counsel had shortly before that date advised the applicant to amend by expanding her original Statement of Grounds.

Extension of time
4

Having regard to the observations of Ms. Justice Finlay Geoghegan in her judgment of 8 th October, 2003 in Muresan v. Minister for Justice Equality and Law Reform and Ors. to the effect that the mere change of Counsel would not of itself provide good and sufficient reason for extending this period, with which conclusion I concur, and also to the fact that no other reason was advanced as to why the period should be extended and also to the fact that the period is some eight months or more out of time I refused to extend the period for the later Statement of Grounds. I further indicated and ruled that the phraseology in the earlier statement grounding the application for Judicial Review was sufficiently wide at paragraph 7 thereof to include a challenge based on the submission that in reaching a decision to make a Deportation Order the Minister failed to give any consideration to the provisions of s. 4 of the Criminal Justice (United Nations Convention Against Torture) Act 2000which prohibits refoulement where he is of opinion that there are substantial grounds for believing that the deportee would be in danger of being subjected to torture.

5

With regard to the extension of time (by nine days) to enable the filing of the first Statement of Grounds there is clear evidence not only that the applicant formed an intention well within the 14 day time limit to take whatever legal action was available to her but that she contacted the Refugee Legal Service immediately on the same day, was advised to call back, did so, and was then further advised that they could be of no assistance to her and that she then subsequently despite having no money engaged the services of her present solicitors and went to their officers on 17 th February, 2003 following which a consultation was arranged on the 19 th when the merits of initiating Judicial Review proceedings were discussed; she attended their offices to swear the appropriate affidavits on 26 th February and the proceedings were initiated on the same day.

6

It seems to me that having regard to this evidence, and in particular to the observations of Finnegan J. (as he then was) in G.K. v. Minister for Justice Equality and Law Reform (2002: 1:1.L.R.M. 81 at page 86) to the effect that delay which is the responsibility of the Refugee Legal Service should not be held against an applicant, and subject to an assessment as to whether any arguable ground has been made out, there is prima facie good and sufficient reason to extent the period of fourteen days by the appropriate nine days. In reaching this conclusion, of course, I have had regard to the extent of that period which is relatively short.

7

I must now, accordingly, consider the submissions made on the applicant's behalf by her counsel Mr. Christie S.C. Before doing so, however, I shall set out in summary form the basis of her application for asylum in this country.

The asylum application
8

The applicant comes from Welkom town in South Africa and arrived in this country on 29 th March, 2001 then aged 32. She sought asylum at Dublin Airport on arrival and subsequently applied for refugee status, was refused, appealed the refusal unsuccessfully and on 9 th February, 2002 was notified of this and the Minister's intention to make the challenged Deportation Order and of her entitlements to make representations. This she did and these were received on 31 st July, 2002 but notwithstanding this the Minister make such an order and communicated this to the applicant on 3 rd February, 2003.

The applicant's history
9

The applicant fled South Africa on 28 th March, 2001 fearing for her life. On 4 th August, 1997 she was raped by a famous footballer Eric September in her hometown. He was arrested at the scene and detained by the South African police and charged with rape. She was interviewed and two police officers informed her that Mr. September had asked them to offer her money to withdraw the charge. She refused. They also told her that Mr. September warned her of severe consequences if she refused Mr. September was released on bail paid by his then fiancée while the matter was being investigated. While out on bail he sent friends and family members to harass, intimidate, bully, oppress and on several occasions beat up the applicant. They threatened that unless she dropped the rape charge they would kill her. This was reported to the police who took her reports but were unable to do anything. They said they were mere threats and they had no resources in any event. As a result she fled Welkom and went to another town to stay with relatives until the trial.

10

She had to come back to Welkom however for the trial to give evidence which she did. Meanwhile, apparently, Mr. September had lied to his fiancée about his arrest saying that he had been involved in a fight. When his fiancée discovered that the true reason was an allegation of rape there was a row and in his rage Mr. September killed his fiancée on the 1 st October, 1997. He was tried for both murder and rape and was convicted getting fifteen years for murder and twelve years for rape. There was a lot of public interest in this case and newspaper reports were presented to the Refugee Appeal Commissioner.

11

After the trial the applicant's situation got worse: she got more threatening phone calls from friends and family members of Mr. September who on several occasions threatened to kill her. They blamed her for the death of Mr. September's fiancée saying that if she had not accused him of rape there would never have been an argument followed by her murder. They said she was paid to ruin Mr. September's career and he had never raped her. They demanded that she drop the charge and she would not. They followed her and she said she was no longer safe.

12

Because of this she went to Johannesburg but they traced her there and one day a man came to the saloon where she was working asking for her. She became very afraid and a few days later two men whom she knew from the trial followed her from work. They said Mr. September had not raped her and they would show her what rape is. They grabbed her by the neck and she screamed and was only rescued by passers-by. After this she got really sacred, complained to the police but they said that they could not offer her 24 hours protection and advised her to be more careful. She knew then she was no longer safe in South Africa and a friend offered to buy her a ticket to Ireland and that is why she came here. She said if she is sent back she will be killed. The South African police did not offer any protection. As a result of...

To continue reading

Request your trial
27 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT