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

• Jurisdiction: Ireland
• Judge: MS JUSTICE CLARK
• Judgment Date: 16 March 2010
• Neutral Citation: [2010] IEHC 83
• Judgment citation (vLex): [2010] 3 JIC 1601
• Court: High Court
• Date: 16 March 2010

[2010] IEHC 83

THE HIGH COURT

[No. 373 J.R./2009]

Olaniran v Min for Justice

JUDICIAL REVIEW

BETWEEN

OLUWABUNMI OLANIRAN, INIOLUWA "FAVOUR" OLANIRAN (A MINOR, SUING BY HER MOTHER AND NEXT FRIEND OLUWABUNMI OLANIRAN), ERIOLUWA "MARVELLOUS" OLANIRAN (A MINOR, SUING BY HIS MOTHER AND NEXT FRIEND OLUWABUNMI OLANIRAN) AND TEMILOLUWA OLANIRAN (A MINOR, SUING BY HIS MOTHER AND NEXT FRIEND OLAUWABUNMI OLANIRAN) [ NIGERIA ]

APPLICANTS

AND

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

RESPONDENTS

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S5

CRIMINAL JUSTICE (UN CONVENTION AGAINST TORTURE) ACT 2000 S4

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

ILLEGAL IMMIGRATION (TRAFFICKING) ACT 2000 S5(2)

JOLLY v MIN FOR JUSTICE UNREP FINLAY-GEOGHEGAN 6.11.2003 2003/28/6613 2004 IEHC 36

S v REFUGEE APPEALS TRIBUNAL 2002 2 IR 163

MEADOWS v MIN FOR JUSTICE UNREP KEARNS 21.1.2010 2010 IESC 3

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

BABY O v MIN FOR JUSTICE & ORS 2002 2 IR 169

KOUAYPE v MIN FOR JUSTICE & ORS UNREP CLARKE 9.11.2005 2005/35/7364 2005 IEHC 380

REFUGEE ACT 1996 S16(7)

REFUGEE ACT 1996 S13

CONSTITUTION ART 29

KAVANAGH v GOVERNOR OF MOUNTJOY PRISON 2002 3 IR 97

IMMIGRATION ACT 1999 S3(6)

IMMIGRATION

Deportation

Mother and children - Irish born children - Alleged fear of persecution - Alleged risk of female genital circumcision - Application for asylum - Negative credibility findings - Application for leave to remain - Supporting documentation - Letters of support - Decision on leave to remain - Delay in issuing proceedings - Whether good and sufficient reason for delay - Challenges to validity of decisions to deport - Whether insufficient reasons given by Minister - Whether failure to consider best interests of children - Whether substantial grounds for review -Whether failure to consider issue of refoulement - Nature of obligation to assess refoulement - Availability of internal relocation - United Nations Convention on Rights of Child - Whether convention conferred rights on children - Absence of representations to Minister - Jolly v Refugee Appeals Tribunal (Unreported, Finlay Geoghegan J, 6/11/2003); S v Refugee Appeals Tribunal [2002] 2 IR 163; Meadows v Minister for Justice, Equality and Law Reform [2010] IESC 3 (Unreported, SC, 21/1/10); Baby O v Minister for Justice, Equality and Law Reform [2002] 2 IR 169; Kouaype v Minister for Justice, Equality and Law Reform [2005] IEHC 380, (Unreported, Clarke J, 9/11/2005) and Kavanagh v Governor of Mountjoy Prison [2003] 3 IR 97 considered - Constitution of Ireland 1937, art 29 - Refugee Act 1996 (No 6), s 5 - Immigration Act 1999 (No 22), s 3 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Leave refused (2009/373JR - Clark J - 16/3/2010) [2010] IEHC 83

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

Facts the applicants sought leave to seek orders quashing the deportation orders made in respect of them on the grounds, inter alia, that the respondent had given insufficient reasons for his conclusion that refoulement was not an issue or that such reasons he did give were irrational in their application pursuant to section 3 of the Immigration Act 1999 for leave to remain in the State. There was also an unspecific allegation that the respondent had failed to adhere to the terms of the UN Convention on the Rights of the Child in making a deportation order against the minor applicants. The particular provision of the Convention that the applicants alleged had been breached was not identified in legal argument. The applicants were out of time in bringing their application for leave.

Held by Ms. Justice Clark in refusing leave to seek judicial review that the applicants had not demonstrated any substantial ground as to why the time for bringing their application should be extended pursuant to section 5 of the Act of 2000.

That, before considering making a deportation order, the respondent was obliged to consider whether that proposed deportation would breach the prohibition of refoulement set out in section 5 of the Refugee Act 1996. This he had done properly and in a rational manner.

That the reasonableness of the respondent's decision on refoulement had to be assessed in the context of the facts that were before him. In that light, it could not be said that his decision had been unreasonable.

That the fact that Ireland was a signatory to the UN Convention on the Rights of the Child conferred no rights on individuals to rely on its provisions before the domestic courts nor did it impose any obligations on the Irish state to police the adherence of other states who were signatories to the same Convention to that instrument.

Reporter: P.C.

1 JUDGMENT OF MS JUSTICE CLARK, delivered on the 16th day of March, 2010

2 1. The applicants, who are a mother and her three minor children, are nationals of Nigeria. They seek leave to apply for judicial review of the decision of the Minister for Justice, Equality and Law Reform, dated the 23 ^rd February, 2009, to make deportation orders against the second and third named applicants who were born in Ireland in 2005 and 2007 respectively. Deportation orders have already been made against the mother and her first son.

3 2. The hearing took place on the 3 ^rd March, 2010. Mr Garry O'Halloran B.L. appeared for the applicants and Mr David Conlan Smyth B.L. for the respondents.

Background

4 3. The first applicant ("the mother") was six months pregnant when she applied for asylum on the 16 ^th February, 2005. Her son T. (the fourth applicant), who was born in Lagos in 2003, was included as a dependent under her application. Although she submitted no identity documentation she presented as a well educated woman of Yoruba ethnicity, born in 1973 in Lagos where her parents continue to live. She claimed that she graduated in 1994 with a Higher National Diploma in Secretarial Studies from Federal Polytechnic in Ogun State and then two years later she passed the Final Examination of the National Diploma in Secretarial Administration, also in Ogun State. In November, 2000 she married her husband who has a BSc in Economics and his own travel agency business.

5 4. She claimed to fear persecution at the hands of her husband's family. Her account was that when pregnant with her second child, her second scan at the clinic used by the family confirmed that she was carrying a girl. It was the tradition within her husband's family that all mothers carrying a girl baby would be genitally circumcised. Her husband was on a business trip in a village in Calabar State for three months starting from the 1 ^st January, 2005. She did not know the name of the village he was working but was aware that there was no phone contact available and that she was unable to contact him. One day ten men from her husband's family arrived together at her house, forcibly abducted her and took her to a shrine where they stripped her naked and chained her hands and feet. They then left to find her husband's uncle who, as the head of the family, would carry out the procedure. When alone, she removed the chains and walked to her Pastor's house where her son was staying. She did not contact the police nor did she attempt to relocate because she did not know where or to whom she should run. Tradition did not allow for a married woman to go back to her family and she did not know anywhere else in Nigeria. She had to go somewhere her husband's family could not trace her so the Pastor organised for her and her son to travel with him to Ireland via the Netherlands. He made all the arrangements.

6 5. The Refugee Applications Commissioner did not find this narrative convincing and a negative recommendation was made in March, 2005. That recommendation was affirmed by the Refugee Appeals Tribunal (Ms. Michelle O'Gorman). Both decision-makers made a series of negative credibility findings. Deportation orders were made against mother and son in September, 2005 which were not challenged. Meanwhile on the 19 ^th April, 2005 the mother gave birth to her daughter, the second applicant, in the State. At an unspecified date later that year her husband joined them in Ireland. There are no details available of how and when he arrived or of his mode of entry into the State. He has never applied for asylum and has been illegally in the State since 2005. He is not a party to these proceedings. In September, 2007 the mother gave birth to their second son, the third named applicant. Both of the children who were born in Ireland have birth certificates which indicate that their father was in Nigeria at the time of their birth.

The Children's Asylum Applications

7 6. In December, 2007 the mother made individual applications for asylum on behalf of her daughter and younger son (the second and third applicants). She claimed to fear that she and her daughter would be subjected to FGM in Nigeria and that if she died, there would be no-one to look after her younger son. The infant children's questionnaires state that their father was in Ogun State, Nigeria but at their s. 11 interviews the mother disclosed that he was in fact in Ireland illegally. She said he was also being persecuted in Nigeria but had not applied for asylum because he did not want to be deported. The mother said that she and her daughter could die as a result of circumcision and her husband's family would not accept or take care of his younger son and would regard him as an outcast. They could not return to live with her parents in Lagos because in their culture, once a girl is married she must stay with her husband's family. In any event her in-laws know where her parents live and they could employ people to find her. NGOs could not...