O.O v Minister for Justice

• Jurisdiction: Ireland
• Judge: Gilligan J.
• Judgment Date: 30 July 2004
• Neutral Citation: [2004] IEHC 426
• Date: 30 July 2004
• Court: High Court
• Docket Number: [2002 No.

OLASUPO OLORUNYOMI v. MINISTER FOR JUSTICE, IRELAND and AG

JUDICIAL REVIEW

BETWEEN

OLASUPO OLORUNYOMI

APPLICANT

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

[2004] IEHC 426

[2002 No. 396 J.R.]

THE HIGH COURT

Synopsis:

IMMIGRATION

Deportation

Refusal to revoke deportation order - Constitutional justice - Risk of suicide - Whether necessary to consider medical reports where risk of suicide alleged if applicant deported - Whether refusal to revoke deportation order made in compliance with constitutional justice - Whether decision to refuse to revoke deportation made in absence of consideration of medical report compatible with principal of constitutional justice - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Certiorari granted (2002/396JR - Gilligan J - 30/7/2005) - [2004] 4 IR 426; [2004] IEHC 426

O (O) v Minister for Justice, Equality and Law Reform

Facts: The applicant's application for asylum failed at first instance and on appeal to the RAT. The Minister refused to exercise his discretion to allow the applicant to remain in the State on humanitarian grounds and made a deportation order. The applicant's solicitor then wrote to the Minister advising that there were good grounds to believe that the applicant might attempt suicide if repatriation took place and a report would be shortly available. The Minister replied that he did not intend to revoke the deportation order. This decision was taken prior to the Minister being furnished with the report. The applicant applied for an order of certiorari quashing the Minister's decision.

Held by Gilligan J. in granting an order of certiorari quashing the decision of the Minister refusing to revoke the deportation order that the decision should not have been taken in the absence of sight of the report. The decision affected the right to life of the applicant and a final decision on the application clearly warranted sight of the report.

Reporter: R.W.

Citations:

IMMIGRATION ACT 1999 S3

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

IMMIGRATION ACT 1999 S3(6)

IMMIGRATION ACT 1999 S3(11)

MCCORMACK V GARDA SIOCHANA COMPLAINTS BOARD 1997 2 IR 489

AG V X 1992 1 IR 1

1 Gilligan J. delivered on the 30th day of July, 2004.

Background

2 The applicant is a Nigerian national who arrived in Ireland on 7 ^th February, 2000 when he was just over eighteen years old. He applied for asylum based on a fear of persecution due to his father's membership of the Ogboni Fraternity, a secret cult. He alleged that his father intended to carry out his promise to the cult to give him, as he was the eldest son, in human sacrifice. However, his application for asylum failed at first instance and on appeal to the Refugee Appeals Tribunal. The Tribunal member had sympathy for the applicant, was impressed by his character references but stated that the humanitarian aspects of the case were not within his jurisdiction.

3 The applicant's solicitor wrote to the first named respondent regarding the exercise of his discretion to allow the applicant to remain in the State on humanitarian grounds and outlining why a deportation order should not be made against the applicant having regard to the provisions of s. 3 of the Immigration Act, 1999. Notwithstanding this letter, dated the 5 ^th December, 2001, the applicant was made the subject of a deportation order on 27 ^th May, 2002 which order was served upon the applicant accompanied by a letter as dated the 21 ^st June, 2002. The applicant's solicitor again wrote to the first named respondent by way of a letter dated 4 ^th July, 2002 advising that the applicant had presented himself at the Immigration Bureau as requested on Friday 28 ^th June, 2002 and that since that time the applicant's solicitors had become aware as a result of contact made with the Institute of Psycho Social Medicine in Dun Laoghaire, Co. Dublin, that following a preliminary discussion with one of the practitioners there were good grounds to believe that the applicant "may well attempt to take his own life before the repatriation takes place". His therapist indicated that a report would be available to this effect by the following day. The applicant's solicitor in these circumstances called on the first named respondent to revoke the deportation order but sought a notification of the decision to be taken by the close of business on Friday 5 ^th July, 2002 on the basis that if the first named respondent was not inclined to revoke the order, legal proceedings had to be instituted within a time limit which expired on the following Monday the 8 ^th July, 2002.

4 I am satisfied on the evidence that the report of the psychotherapist (hereinafter referred to as the report) was not available to the applicant's solicitor to be enclosed with the letter of 4 ^th July, 2002. On 4 ^th July, 2002 the Private Secretary to the first named respondent wrote to the applicant's solicitor advising him that his letter of 4 ^th July, 2002 was acknowledged and was receiving attention.

5 On 5 ^th July, 2002 a representative of the first named respondent wrote to the applicant's solicitor referring to the correspondence of the 4 ^th July, 2002 and indicating that the first named respondent did not intend to revoke the deportation order in respect of the applicant and as the arrangements for the removal of the applicant from the State was a Garda operational matter it was suggested that the applicant's solicitor contact the Garda National Immigration Bureau if there were any further queries.

6 It is particularly unfortunate that the report was not available prior to the deadline as imposed by the applicant's solicitor in his letter of 4 ^th July, 2002, especially as it was set out in the letter that the therapist had indicated that he would have a report in relation to the matter by "tomorrow" which would have been 5 ^th July.

7 In his affidavit grounding this application as sworn on 8 ^thJuly, 2002 the applicant avers that if he is returned to Nigeria he believes that he will be sacrificed as a part of a cult ritual and that the fear of return to Nigeria is so strong that he would rather die than return. He cannot express the way in which this threat impacts upon him and he refers to the fact of having attended with a consultant psycho-therapist in respect of his fears and symptoms arising from the threat of return to Nigeria and he refers to a copy of the report as dated the 3 ^rd July, 2002 upon which and pinned together and marked with the letters "006" he has signed his name prior to the swearing of the affidavit.

8 Accordingly it is clear that prior to the application being made on the 8 ^th July, 2002 for leave to apply for judicial review the relevant report was available and was exhibited with the applicant's grounding affidavit.

9 The content of the report clearly makes for significant reading and concluded that the applicant's fragile sense of identity and security painstakingly rebuilt over his years in Ireland is dangerously undermined by the threat of deportation and in the view of Tony Walsh Consultant Psycho-Therapist who prepared the report, the applicant is deeply depressed and at times quite actively suicidal and will continue to be so until the risk of a return to his homeland is rescinded. Even then, Mr. Walsh envisages the applicant needing a significant period of intensive psychotherapy in order to rebuild his sense of security.

10 It is in my view further unfortunate that both parties did not step backwards...