NWOLE v MIN for JUSTICE & Commissioner of an GARDA Síochána

JurisdictionIreland
JudgeMs. Justice Finlay Geoghegan
Judgment Date31 October 2003
Neutral Citation[2003] IEHC 72
Docket NumberNo. 656 J.R./2002
CourtHigh Court
Date31 October 2003
NWOLE v. MIN FOR JUSTICE & COMMISSIONER OF AN GARDA SIOCHANA
JUDICIAL REVIEW

BETWEEN

ANGELA NWOLE LISA NWOLE CHICHI NWOLE ULOMA NWOLE CHRISTLE NWOLE AND WHITNEY NWOLE
APPLICANTS

AND

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM AND COMMISSIONER OF AN GARDA SÍOCHÁNA
DEFENDANTS

[2003] IEHC 72

No. 656 J.R./2002

THE HIGH COURT

Abstract:

Immigration - Judicial review - Delay - Deportation - Refugee - Asylum -Whether the first named applicant’s application for refugee status was also an application for refugee status on behalf of her five dependent children - Whether the second to sixth named applicants were persons whose applications for asylum had been refused by the Minister - Immigration Act, 1999 - The Refugee Act, 1996

Facts: The first named applicant was the mother of the five other applicants who were all citizens of Nigeria and arrived in Ireland in May, 1998. The first named applicant applied for refugee status on the 11 May, 1998. The first named applicant was informed by letter dated 29 December, 1999 that a decision had been made on behalf of the first named respondent to refuse her recognition as a refugee. Subsequently, the first named applicant appealed against that decision. However, the appeals authority issued a recommendation that her appeal be dismissed and she was informed by letter on 23 August, 2000 from an authorised officer of the first named respondent that her appeal had been refused. Consequently, the first named applicant applied for leave to remain in the State pursuant to section 3 of the Immigration Act, 1999 on the basis that she would be in immediate personal danger if she was returned to Nigeria. The first named applicant also applied some time after that for citizenship or residency on the basis that she had been in the country for four years. However, on the first of July, 2002 a letter was sent on behalf of the Minister, addressed to all six applicants, confirming that the Minister proposed to make deportation orders pursuant to section 3 of the 1999 Act in respect of all six applicants. On 2 August, 2002 the first named respondent made deportation orders against each of the applicants in which it was stated in respect of each of the applicants that they were a person in respect of whom deportation may be made under subsection (2)(f) of section 3 of the Immigration Act, 1999. Subsequently, by notice of motion issued on 16 October, 2002 the applicants sought leave to issue judicial review proceedings, in which they sought an order of certiorari quashing each of the deportation orders made by the first named respondent on 2 August, 2002. The first named applicant submitted that the decision to uphold the original decision made on behalf of the first named respondent and refusing the appeal therefrom to the appeals authority contained an error of fact that was fatal to the subsequent process. The respondents submitted that no fatal error of fact occurred but simply that there was a typographical error and further submitted that in any event the first named applicant was out of time to seek judicial review of the decision made on 23 August, 2000.

The second to sixth named applicants sought leave to challenge the deportation orders made against them on the basis that the Minister made those orders in respect of the applicants as being persons to whom section 3 subsection (2)(f) of the Immigration Act, 1999 applied whereas it was submitted that in fact that subsection did not apply to the applicants on 2 August, 2002. That subsection expressly authorised the Minister to make a deportation order in respect of a person whose application for asylum had been refused by the Minister. That was the sole basis upon which the Minister purported to make the deportation orders against the second to sixth named applicants. The second to sixth named applicants submitted that no application for asylum was made by them or in respect of them and accordingly the Minister could not have refused such an application. The only application for asylum was made by the first named applicant. Alternatively, the applicants contended that if an application was deemed to have been made by them or on their behalf, it was not considered in accordance with the statutory provisions to the point of refusal by the Minister.

Held by Finaly Geoghegan J. in refusing the first named applicant’s application and granting to the second to sixth named applicants leave to issue judicial review proceedings:

1. That the first named applicant was out of time to apply for leave to issue judicial review proceedings on the basis that the decision sought to be reviewed was communicated to her on 23 August 2000 and the notice of motion was not issued until 16 October 2002 and no good grounds had been advanced to justify an extension of time.

2. That persons who are minors may be applicants for a declaration of refugee status under section 8 of the Refugee Act, 1996. There were substantial grounds for contending that every application by or on behalf of a minor for asylum must be processed in accordance with the statutory scheme and ultimately a decision made by the Minister as to whether such minor should be granted or refused a declaration of refugee status.

3. That the provisions of the Act of 1996 must be construed, and its operation applied by the authorities in accordance with the Convention on the Rights of the Child which was ratified by Ireland. Accordingly, the first named respondent was required, at minimum to conduct an inquiry in respect of the minor applicants for a declaration of refugee status as to the capacity of the minors and the appropriateness of conducting an interview with them. The first named respondent was obliged to consider whether each individual minor applicant was or was not entitled to a declaration of refugee status.

4. That the documents exhibited relating to the first named applicant’s application did not disclose any consideration of the individual minor applicants. Even if the application of the first named applicant was treated as an application also on behalf of her minor children there were substantial grounds for contending that there was no determination of such applications of the second to sixth applicants for a declaration of refugee status.

5. That in interpreting the provisions of the 1996 Act the court was required to have regard to the Convention and where possible interpret the provisions so as to give effect to the Convention. The principle of family unity as explained by the UNHCR Handbook did not assist the respondents in their submission that the respondents did in fact, and were entitled to treat or deem the application of the first named applicant as being an application for a declaration of refugee status made also on behalf of the second to sixth named applicants as her dependent children.

6. That an expressed intent to make an application for asylum did not constitute a substantial ground upon which an order of deportation already made could be declared invalid. The entitlement to remain in the State under section 9 of the 1996 Act only applied to a person who had made an application for asylum under section 8 of that Act.

Reporter: L.O’S.

Citations:

IMMIGRATION ACT 1999 S3(2)(F)

IMMIGRATION ACT 1999 S3

IMMIGRATION ACT 1999 S5

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

RSC O.84

RSC O.84 r21

IMMIGRATION ACT 1999 S3(2)

IMMIGRATION ACT 1999 S3(2)(A)

IMMIGRATION ACT 1999 S3(2)(B)

IMMIGRATION ACT 1999 S3(2)(C)

IMMIGRATION ACT 1999 S3(2)(D)

IMMIGRATION ACT 1999 S3(2)(E)

IMMIGRATION ACT 1999 S3(2)(G)

IMMIGRATION ACT 1999 S3(2)(H)

IMMIGRATION ACT 1999 S3(2)(I)

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

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PAR 2

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PAR 3

REFUGEE ACT 1996 S8(1)

REFUGEE ACT 1996 S17

REFUGEE ACT 1996 S17(1)(A)

REFUGEE ACT 1996 S17(1)(B)

REFUGEE ACT 19961996 S 9(A)

IMMIGRATION ACT 1999 S11

REFUGEE ACT 1996 S8

REFUGEE ACT 1996 S9(12)(A)

REFUGEE ACT 1996 S8(5)(B)

REFUGEE ACT 1996 S8(1)(A)(I)

REFUGEE ACT 1996 S11

EMEKOBUM V MIN JUSTICE UNREP SMYTH 18.7.2002 2002/10/2387

UN CONVENTION ON THE RIGHTS OF THE CHILD ART 12

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PAR 213

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PAR 184

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PAR 185

REFUGEE ACT 1996 S2

IMMIGRATION (PROCEDURE) RULES 1984 PAR 349 (UK)

CONSTITUTION ART 29.6

REFUGEE ACT 1996 S9

RSC O.15 r20

Ms. Justice Finlay Geoghegan
1

The first named applicant is the mother of the second to sixth named applicants all of whom are under the age of eighteen. Whilst the title does not so indicate the affidavit sworn by the first named applicant states that she is the next friend of the second to sixth named applicants in the proceedings. I will return to this issue at the end of the judgment.

2

The applicants are citizens of Nigeria and arrived in this country, it is stated, in May, 1998 and the first named applicant made an application for refugee status on the 11th May, 1998.

3

On the 2nd August, 2002 the first named respondent made deportation orders against each of the applicants in which it is stated in respect of each that they are a person in respect of whom deportation may be made under sub-s. (2)(f) of s. 3 of the Immigration Act,1999. By a notice of motion issued on the 16th October, 2002 the applicants seek leave to issue judicial review proceedings seeking primarily an order of certiorari quashing each of the deportation orders made by the first named respondent on 2nd August, 2002. The grounds advanced on behalf of the first named applicant differ from those advanced on behalf of the second to...

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