Mokrane v Minister of Justice
| Jurisdiction | Ireland |
| Court | High Court |
| Judge | MR. JUSTICE T.C. SMYTH |
| Judgment Date | 28 June 2002 |
| Neutral Citation | 2003 WJSC-HC 8987 |
| Date | 28 June 2002 |
| Docket Number | 768 JR/2001 |
2003 WJSC-HC 8987
THE HIGH COURT
Immigration - Asylum - Constitution - Injunction - Refugee status - Residency - Deportation -Rights of family - Irish born child - Bunreacht na hEireann, 1937 Article 41.3.1°
Facts: the applicant, an Algerian national, sought an injunction and other relief’s to prevent his deportation. He had a child with an Irish girl and sought residency here. It was an accepted fact that he had used a number of false names. His application for refugee status was refused and when he appealed he failed to turn up for the hearing. On failing to get a response from the minister to his residency application he sought relief before the High Court which included constitutional rights of family and his Irish born child.
Held The relief under family law in Article 41. 3.1° was founded on marriage and as the applicant wasn’t married this part of his claim was not within settled law. Case law in regard to his claim regarding his Irish born child did not assist him. The injunction had been granted but the applicant did not come with clean hands and there was a lack of bone fides. Application dismissed.
APPROVED JUDGMENT DELIVERED BY MR. JUSTICE T.C. SMYTH ON FRIDAY, 28TH JUNE 2002
I hereby certify the following to be a true and accurate transcript of my shorthand notes of the evidence in the above-named action.
APPEARANCES
For THE APPLICANT
MR. DE BLACAM SC
For THE RESPONDENT
MR. McCARTHY SC
Instructed by:
JOHN BOYLE
Chief State Solicitors Office
Little Ship Street
Dublin 2
COPYRIGHT : Transcripts are the work of Gwen Malone Stenography Services and they must not be photocopied or reproduced in any manner or supplied or loaned by an appellant to a respondent or to any other party without written permission of Gwen Malone Stenography Services
| MR. JUSTICE SMYTH: | The Applicant is an |
| Algerian national, male, |
single and a Muslim. He was born and reared in Algiers and made his living as a mechanic. Called up for military service in 1992, he did not report for duty and so could be considered as a draft dodger. He gave up his job and lay low at home, taking care to keep out of the way of police and military patrols.
In March or April 1997, he decided to get out of Algeria. He claims he travelled by ship as a stowaway from Algiers to Marseille, France. From there, he travelled to La Harve onwards to Cork, again, as a stowaway. He arrived in Cork on or about 28th April 1997 and claimed asylum.
In the course of an interview held on 18th September 1998, the Applicant stated that his correct name was Motker Belhadjar and that the name he gave first, Mokrane Belhadj, was a false name concocted so that it would not be recognized by the Algerian Embassy who would, therefore, refuse to accept him if the Irish authorities tried to repatriate him. In short, he entered the State on a misrepresentation and a falsehood. At the interview, he also denied ever using the name Mohammed Drafli — this answer, in the events which have happened, was also an untruth. On another occasion the Applicant used another false name, Karim Hadad. These facts are not disputed in these proceedings and I find the facts to be as agreed. The Applicant admits that he made dual applications for asylum in the State.
The application for a declaration for refugee status failed at first instance. The recommendation in this regard was made by Mr. Patrick McKevitt in October 1998 and the decision of refusal was communicated to the Applicant by letter dated 12th April 1999. The letter drew the Applicant's attention to his right of appeal and noted (inter alia) the following:
"The grounds for this decision are that you have not demonstrated a well-founded fear of persecution for a Convention reason.
Also, a number of discrepancies came to light during the assessment of your application and these adversely affected the credibility of your claim. As you are aware, credibility is a critical factor in the determination of any claim, in addition to meeting the requirements of the Convention."
The Applicant appealed the first instance decision to the then Appeals Authority, but he did not attend at the hearing. Accordingly, the appeal was determined on the papers on 21st August 1999. The unfavourable decision was conveyed to the Applicant by a letter dated 26th August 1999, in that he was advised of his entitlements in the light of the clearly expressed intention of the Minister to make a deportation order.
An application for leave to remain in the State on humanitarian grounds pursuant to Section 3(6) of the Immigration Act 1999, variously referred to in the papers as the 5th or, more probably, correctly the 15th September 1999 was made. This was followed by further correspondence in January/February 2000 which (inter alia) pleaded on the basis of prohibition on refoulement that the Applicant should be allowed to remain in the State. It appears that these overtures were in some way persuasive as there was no immediate action taken against the Applicant given the country of origin information concerning Algiers.
On 20th November 2000, one Diane Curran, an Irish citizen, gave birth to a daughter, the father of whom is stated to be the Applicant.
In order of date sequence, the next matter is a letter dated 20th June 2001 addressed to the then Minister for Justice by name in which the mother of the Irish born child made many disclosures about the Applicant being "involved in making false passports ID'S etc." and describing a very fractious and fraught relationship with him involving outbursts of temper and threats of various kinds and an apprehension by Ms. Curran of child abduction. It would appear from a consideration of this document and paragraph 3 of the Applicant's supplemental affidavit sworn on 10th May 2002 that Diane Curran was granted custody of her daughter in or about late June 2001.
The next recorded event of significance is an application made by the Applicant pursuant to Section 11 of the Guardianship of Infants Act 1964in the Dublin District Court on 28th September 2001 for access to his daughter. The addresses of the natural parents indicate that they were not living together and the restricted nature of the access clearly reflects the Court's concern for short, infrequent and monitored visits in the presence of the child's grandparents.
On 11th October 2001, the Minister signed a Deportation Order. A letter of notification of the Order with a copy of the Order dated 25th October 2001 was sent to the Applicant. At no time in the period between the birth of the Irish born child on 20/11/2000 and receipt of the Deportation Order after 25th October 2001 is reference made to this circumstances under Section 3(6) of the Immigration Act 1999. I am wholly unconvinced by the reason given in paragraph 8 of the Applicant's Supplemental Affidavit, which is clearly inconsistent with his overall conduct during that time.
By letter dated 1st November 2001, the Applicant's Solicitor applied for residency in the State on the basis that the Applicant was the father of an Irish born child. The following day, the Applicant avers that he attended at Harcourt Street Garda Station for the purposes set out in the letter of 25th October 2001 hereinbefore referred to. The Applicant avers that he was requested by the Garda to return again on 16th November 2001 “to facilitate his deportation from the State”. As there had been no response to the letter of 1st November 2001 seeking a stay on the deportation pending the determination of the residency application, a letter of reminder was sent to the Minister on 7th November 2001. On 8th November 2001, Ms. Diane Curran wrote a letter to the then Minister for Justice in person which was received by the Department on 12th November 2001, in which, effectively, was a retraction of her earlier letter of 20th June 2001. On 9th November 2001, the Office of the Registrar General issued a form of reference to Whom it May Concern that:
"An application has been received in this office to deal with the re-registration of the birth of Maria Christina Curran.
The application states that Maria Christina was born on 20th November 2000 to Diane Curran and Mokrane Ait Elhadj (a fourth name which the Applicant has used and sought to explain in his replying affidavit) at the National Maternity Hospital. The application is currently being processed."
The applicant has due back to the Garda on 16th November 2001 and as no reply had been received concerning the residency application, his solicitor wrote to the Minister as follows on 15th...
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