M (I N)(an Infant) v Min for Justice & Refugee Applications Commissioner

JurisdictionIreland
CourtHigh Court
JudgeMS. JUSTICE M. H. CLARK,
Judgment Date19 May 2009
Neutral Citation[2009] IEHC 233
Date19 May 2009
M (I N)(An Infant) v Min for Justice & Refugee Applications Commissioner
JUDICIAL REVIEW

BETWEEN

I. N. M. (AN INFANT, SUING BY HIS MOTHER AND NEXT FRIEND F. M.)
APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND THE REFUGEE APPLICATIONS COMMISSIONER
RESPONDENTS

[2009] IEHC 233

[No. 68 J. R./2009]

THE HIGH COURT

Abstract:

Immigration law - Judicial review - Deportation order - Nigeria - Time - Delay - Extension - Substantial grounds - Legal advice - Reasons for delay - Justice - Illegal Immigrants (Trafficking) Act 2000

Facts: The applicants sought leave for judicial review of inter alia decisions of the respondent to make a deportation order as to the applicant. The applicant and his mother were nationals of Nigeria. The mother made an application for asylum in 2003. The deportation order was made in 2005. The applicant child was outside of the time limit for judicial review, pursuant to s. 5 Illegal Immigrants (Trafficking) Act 2000, of one day short of four years. The child complained that there was no consideration of his asylum application. The issue arose as to the adequacy of legal advice received and the reasons for the delay.

Held by Clark J. that the Court was not satisfied that good and sufficient reason had been established for the extension of time and accordingly, the Court would refuse to extend the time. The application for leave therefore failed. Substantial grounds were not established.

Reporter: E.F.

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S13(6)(A)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 4(2)

IMMIGRATION ACT 1999 S3

REFUGEE ACT 1996 S17(7)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

OJUADE v REFUGEE APPEALS TRIBUNAL UNREP PEART 2.5.2008 (EX TEMPORE)

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, IN RE 2000 2 IR 360 2000/11/4122

A (J) & A (D) (A MINOR) v REFUGEE APPLICATIONS CMSR & ORS UNREP IRVINE 3.12.2008 2008 IEHC 440

N (A) & ORS v MIN FOR JUSTICE & CMSR OF AN GARDA SIOCHANA UNREP SUPREME 18.10.2007 2007/43/9091 2007 IESC 44

IMMIGRATION ACT 1999 S3(2)(F)

REFUGEE ACT 1996 S18

EEC DIR 2003/86

CONVENTION ON THE STATUS OF REFUGEES & STATELESS PERSONS 1951 (GENEVA CONVENTION)

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 205

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 196

K-M (FL) (A MINOR) & ORS v MIN FOR JUSTICE & ORS UNREP CHARLETON 16.3.2009 2009 IEHC 125

MURESAN v MIN FOR JUSTICE & ORS 2004 2 ILRM 364 2003/38/9156

K (G) & ORS v MIN FOR JUSTICE & ORS 2002 1 ILRM 81 2001/13/3546

1

MS. JUSTICE M. H. CLARK, delivered on the 19th day of May, 2009.

2

1. This is an application for leave to apply for judicial review of two decisions:-

3

(a) The decision of the Minister for Justice, Equality and Law Reform ("the Minister"), dated 21 st January, 2005, to make a deportation order in respect of the applicant; and

4

(b) The refusal of the Office of the Refugee Applications Commissioner (ORAC) dated January, 2009, to accept and determine an individual application for asylum made on behalf of the applicant.

5

2. Mr. Paul O'Shea B. L. appeared for the applicant and Mr. Patrick O'Reilly B. L. appeared for the respondents. The hearing took place at the King's Inns, Court No. 2, on 21 st April, 2009.

Background
6

3. Both the applicant and his mother, who is acting as his next friend in these proceedings, are nationals of Nigeria. The applicant was born in Nigeria in February, 2002. He is now six years old. He faces a deportation order which he seeks to revoke and he seeks to be considered as a completely new applicant into the refugee process. In order to understand the nature of this application it is necessary to outline some background information relating to the applicant's mother as she preceded her son to this State and the two cases are closely linked. From hereon the applicant will be referred to as the child and his next friend as the mother.

7

4. The mother made an application for asylum in the State on 16 th September, 2003. According to her questionnaire she was almost 23 and a hairdresser with her own business. She was married and had a son of one and a half. She was a member of the Yoruba tribe and a Christian and English was her first language. She claimed to fear persecution on two fronts which caused her to leave Nigeria.

8

5. Her account of the events preceding her departure from Nigeria was that a wealthy but very much older man - Mr. Abdulai - wanted to marry her and called to her father's home seeking his approval from time to time. Her father was easygoing and left the decision to his daughter who was not interested as she had a boyfriend who she subsequently married. After she married, the older suitor continued from time to time to speak to her but caused her no problems. Eighteen months after she married her husband, she was abducted by this suitor and his friends; she was held in a derelict house for three days where she was beaten and raped until she agreed to marry Mr. Abdulai. During the early part of her detention she called the police and her husband but her phone and bag were then taken from her. When she was coerced into agreeing to marry Mr. Abdulai he apologised for the rapes and said he would return the next day with a doctor and take her away. She was then untied and that night she managed to escape and reported the incident to the police but was unable to furnish the address of the place of her imprisonment or Mr. Abdulai's address or any details about him which might identify him to the police although she said he was very rich, powerful and "above the law".

9

6. The police advised her to move away from the area while they were trying to establish who her abductor was. She feared for her safety and following the report to the police, put her things together and fled her town. The rape incidents caused her to be shunned by her husband and his family who considered that she had been adulterous and refused to help her or even take her calls. She was then told by a friend that Mr. Abdulai had come looking for her and said that he would find her no matter where she was. She was advised to leave the country. She sought refuge with a church who introduced her to a travel agent who arranged her travel to Ireland where she already had a sister living. She travelled from Lagos to Zurich on 14 th September, 2003 and applied for asylum the next day but not at the airport. Her son did not feature in her account at all and she said she claimed asylum because she feared that she would be found by Mr. Abdulai and killed and that her husband's family would force her to walk naked in the market because she had slept with another man.

10

7. In her grounding affidavit the mother says that her son entered the State on 23 rd January, 2004. No information is provided as to how he was treated at the airport or how and when he was reunited with his mother. An ASY - 1 form was completed by his mother on his behalf on 12 th February, 2004 at the offices of the Refugee Applications Commissioner (ORAC). That form notes that his mother is in Ireland and that his father had paid his air fare to this State. It records that he had travelled to Dublin by air from Lagos via Amsterdam and arrived through Dublin airport. No documents were submitted on his behalf.

11

8. On 12 th February, 2004, the same day as his mother made an application for refugee status on his behalf, she also signed a form requesting that her son be included as a dependant under her asylum application. This form also states "I understand that the decision which will be made in relation to my asylum claim will also apply to my child/children."

12

9. The mother attended for her s. 11 interview in June, 2004 when her son was two years and four months old. The child did not attend at the ORAC offices as a letter had been sent to mother stating that no facilities for the care of infants were available. Page No. 3 of the interview notes records that at the start of the interview the mother confirmed that she wished for her son to be included under her application and she was told that any issues arising in relation to the child should be raised during the course of the interview. No reply is recorded on behalf of the mother.

13

10. The child did not feature at all in the account given by his mother at her s. 11 interview. He was not mentioned by his mother when she was asked who lived with her at her last address in Nigeria - she replied said that she lived with her husband. She described how she and her husband married in a traditional ceremony on 14 th January, 2002 at her house but did not mention his birth one month later. Previously in her questionnaire she stated that she had lost contact with her husband and child when she left Lagos State. Although the child was in the State for six months prior to her interview, his mother did not volunteer any information relating to any fears for her son's safety and the only mention made to him was when the authorised ORAC officer asked how she got in touch with her husband to have her son sent over. She replied that when she was in Ireland a man rang her with a message from her husband; she met that man and found that he had her son with him. She said her son was very sick at the time. The ORAC officer asked no further questions about the child and his mother volunteered no further information. In particular, no questions were asked as to where he was during the period of his mother's captivity and escape and while she was in this State or how the child was able to enter the State with a stranger or how and where she made contact with him. The mother was not asked if her son had a passport or who had travelled with...

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