Nastase & Others v Minister for Justice, Equality and Law Reform

JurisdictionIreland
CourtHigh Court
JudgeMR. JUSTICE T.C. SMYTH
Judgment Date24 July 2002
Neutral Citation2002 WJSC-HC 5227
Date24 July 2002

2002 WJSC-HC 5227

THE HIGH COURT

Record No. 400JR/2002
NASTASE v. MINISTER FOR JUSTICE
(JUDICIAL REVIEW)
Between/
BENONI NASTASE MIHAELA NASTASE EDY-ALIN NASTASE (A MINOR SUING BY HER FATHER AND NEXT FRIEND BENONI NASTASE)
Applicants
-and-
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
Respondent

Citations:

REFUGEE ACT 1996 S9(4)(A)

MART V MIN FOR EQUALITY UNREP 19.4.2002

CONSTITUTION ART 40

IMMIGRATION ACT 1999 S3

IMMIGRATION ACT 1999 S5

OSAYANDE & LOBE V MIN FOR JUSTICE UNREP SMYTH 8.4.2002

FAJUJONU V MIN FOR JUSTICE 1990 2 IR 151

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

IMMIGRATION ACT 1999 S6

POPA V MIN FOR JUSTICE UNREP AUG 2000

R V SECRETARY OF STATE FOR THE HOME DEPARTMENT EX PARTE YEBOH 1987 3 AER 999

OMIJIDI V MIN FOR JUSTICE UNREP 22.11.2001

IMMIGRATION ACT 1999 S3(11)

IMMIGRATION ACT 1999 S3(6)

M, STATE V AG 1979 IR 73

Synopsis:

IMMIGRATION

Asylum

Deportation order - Certiorari - Whether rights of Irish born child infringed by deportation orders - Refugee Act, 1996 - Immigration Act, 1999 (2002/400JR - Smyth J - 24/07/2002)

Nastase v Minister for Justice, Equality and Law Reform

Facts: the first and second applicants were Romanian nationals who applied for asylum in 2000. Subsequent communications from the respondent concerning their asylum application were returned by the postal authorities. A first decision was made in September, 2001 consequent upon which deportation orders were signed by the Minister on 20th February, 2002, which orders were sent to the applicants at the address confirmed for them. No response was received to the notification but on the 4th June, 2002 the respondent received a notice of withdrawal from the asylum system and notification of the birth of an Irish born child, the third respondent to the first and second respondents. The respondents, relying on the Supreme Court decision in Fajujonu v Minister for Justice challenged the deportation orders on the grounds that qua family unit a separate interest required to be addressed by the Minister and the rights of the Irish born child required to be considered in its own right.

Held by Smyth J in refusing the reliefs sought that an asylum seeker who is the parent of an Irish born child does not by virtue of that fact alone acquire an automatic or absolute right to remain in this State nor does it render non nationals immune from deportation. Distinguishing the present case from Fajujonu, the applicants entered the state by deception, they had failed to participate in a co-operative manner in the asylum process, the period of time the parent applicants had been in the state, unlike the case of the Fajujonus, was not an appreciable time, and the Fajujonu children, unlike the third applicant, had become integrated with their local community.

1

MR. JUSTICE T.C. SMYTH DELIVERED ON THE 24TH DAY OF JULY 2002

2

I hereby certify the following judgment to be a true and accurate transcript of my shorthand notes.

MR. JUSTICE T.C. SMYTH DELIVERED HIS JUDGMENT, AS FOLLOWS, ON THE 24TH DAY OF JULY 2002
3

The first and second-named Applicants are husband and wife and are Romanian nationals. They arrived in this country on 12th May 2000. On their arrival they identified themselves as Miron, Benoni and Miron, Mihaela. They were interviewed at Rosslare and completed forms in respect of the Dublin convention at the time. It was made clear to them in their application for refugee status that their status would be considered on the basis of the information supplied in the form of questionnaire and any subsequent interview and any other submissions they might make. It was, therefore, in their interests to answer all questions fully and truthfully. Equally so, they were furnished with an Information Guide for Applicants for Refugee Status in which it was stated, inter alia:-

"As credibility is a key factor in determining if a person should be recognised as a refugee, it is in an Applicant's interest to co-operate fully with the authorities, to attend for interview as required, to provide all requested documentation and to supply all information requested. In addition, it is important that you make it known to the Department of Justice, Equality and Law Reform your address and any change of address. You must not leave the State while your application is under consideration. You are not entitled to enter employment. A person duly authorised by the Minister will make a decision based on the information available during the process described above."

4

On 18th May 2000, the Applicants came to complete the ASY1 form, the correct names of the Applicants was given and it emerged that they had left a son behind them in Romania. It was equally clear from the forms that were later returned on 24th May 2000 (the Questionnaire forms) that the first-named Applicant was an entrepreneur of considerable experience. Documentation that was made available to the Applicants at the initial stage of their application for refugee status included a notice to the Refugee Applications Commissioner of change of address or legal representative. Specifically, this drew attention to the provisions of section 9(4)(a) of the Rufugee Act as amended, which indicated to the Applicants that they were required to inform the Commissioner of their address and any change of address — the form given to them was being given to them for that purpose. It is clear from the documentation that a substantial sum of money was given to the “travel facilitator”. The Applicants, apparently, removed themselves from their country of origin by means of obtaining a Schengen visa.

5

Among the details given in the Questionnaire was the fact that one Prunila Costel, 17 Gardiner Place, Flat 4, Dublin 3, was a friend or relative of the Applicant in Ireland. This person also seemed to have played a pivotal part in the case of Paula Mart -v- The Minister for Equality and Law Reform, (unreported 19/ 4/2002) dealing also with a Romanian refugee who came into this country, was detained and the matter led to an inquiry under Article 40 of the Constitution. I refer to this coincidence not for anything the court may be able to do or concern itself about in these matters, but it is a matter perhaps that the Garda National Immigration Bureau may be concerned to be aware of.

6

By letter dated 23rd July 2001, the Applicants were invited to attend for interview on 20th August 2001. In the period between the invitation and the date of the intended interview, on the 7th August 2001, the letter of invitation was returned through the postal authorities. Accordingly, a second invitation was sent out for interview on 20th August 2001, but again this letter was also returned on 7th September 2001 by the postal authorities. 17th September 2001 was the date set for the second interview, but as there was a failure to attend it, a letter pointing out the consequences of failure to attend the interview was written on 27th September 2001, and a first instance decision was arrived at 29th September 2001. This letter of 27th September was returned by the postal authorities on 17th October 2001, and the letter send on 29th September, with the first instance decision, was again returned by the postal authorities on 26th October 2001.

7

Apparently, because of the failure to receive post on no less than four occasions, enquiries were made of the Department of Social Welfare, which counsel advise me were made by telephone, concerning the first-named and second-named Applicants. It was confirmed to the Respondent's Department on 2nd November 2001 that their address was as registered, at 21 Harrington Street, Dublin 8, and furthermore that a check was at that time made with the Refugee Applications Commissioner, whose office also confirmed that the current address held by the Applicants was 21 Harrington Street. Dublin 8. A supplemental affidavit filed by the Applicants herein I found wholly unconvincing. They remained outside the asylum system they had invoked for 2 years and I was asked not to draw any inference that they remained in the State without Social Welfare assistance. I am not satisfied to decline to do so in the light of the information given by the first named Applicant in the Questionnaire. On 27th November 2001, the file of the Applicants was examined to give consideration to the provisions of Section 3 of the Immigration Act 1999, and in that regard recommendations were formulated on 21st December 2001, and again on 15th February 2002. As a result of those recommendations, Deportation Orders were signed by the Minister on 20th February 2002. Deportation Orders and a letter of notice of their making and of...

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