Oluwakemi Adedaju Dada v The Minister for Justice, Equality and Law Reform

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 31 January 2006
• Neutral Citation: [2006] IEHC 166
• Judgment citation (vLex): [2006] 1 JIC 3106
• Court: High Court
• Date: 31 January 2006

[2006] IEHC 166

THE HIGH COURT

[No. 312 J.R./2004]

DADA v MIN FOR JUSTICE & REFUGEE APPLICATIONS COMMISSIONER

JUDICIAL REVIEW

IN THE MATTER OF THE REFUGEE ACT 1996, THE IMMIGRATION ACT 1999 AND

THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000

BETWEEN

OLUWAKEMI ADEDAJU DADA, YEWANDE DADA (A MINOR), DOYINSOLA DADA (A MINOR) SUING THROUGH THEIR NEXT FRIEND AND MOTHER OLUWAKEMI ADEDAJU DADA

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND THE OFFICE OF THE REFUGEE APPLICATIONS COMMISSIONER

RESPONDENTS

IMMIGRATION

Deportation

Asylum - Accompanied minor - Whether children's application for asylum properly subsumed into mother's application - Application to quash deportation order -Judicial review - Exercise of discretion to refuse relief - Conduct of applicant - State(Abenglen Properties Ltd) v Dublin Corporation [1984] IR 381 considered - Nwole v Minister for Justice [2004] IEHC 433 (Unrep, Peart J, 26/5/2004) followed -Refugee Act 1996 (No 17) - Application refused (2004/312JR - MacMenamin J -31/1/2006) [2006] IEHC 166

D(OA) v Minister for Justice, Equality and Law Reform

The applicants sought to challenge by way of judicial review orders for their deportation made by the first named respondent. The first named applicant, who was the mother of the other two applicants, contended that she did not apply for refugee status on behalf of her daughters. Although the first named applicant applied to the Minister for leave to remain on humanitarian grounds, she did not raise any point in relation to the alleged failure to consider the separate positions of her daughters.

Held by MacMenamin J. in refusing the application: That on any objective interpretation of the evidence and the actions of the first named applicant it was clear that she understood and intended that her two daughters were residing in the State as asylum seekers, who had no grounds for seeking asylum independent of her own. Having regard to the overall conduct of the first named applicant, including lack of good faith, delay, acquiescence, waiver and the availability of alternative remedies, judicial review ought not to be granted.

Nwole and Ors v. The Minister for Justice, Equality and Law Reform and Anor [2004] I.E.H.C. 433 applied.

Reporter: L.O’S

1 JUDGMENT of Mr. Justice John MacMenamin dated the 31st day of January, 2006 .

2 On the 30th of November and 1st December, 2005 the applicants herein sought leave to apply for judicial review inter alia challenging orders for their deportation made by the first named respondent on 5th March, 2004 and claiming entitlement to apply for asylum status. Judgment granting leave was delivered on 9th December, 2005. Having regard to the circumstances the first named respondent was not disposed to furnish any undertaking to the court regarding the applicants remaining in the jurisdiction pending full hearing of the judicial review proceedings. Thereafter an application for an injunction restraining the deportation of the applicants was brought. Judgment was delivered on that discrete issue on 19th December, 2005. The court granted an interlocutory injunction restraining the deportation of the applicants on specified grounds pending the determination of the issues in the judicial review proceedings. The grounds upon which the injunction was granted related to the statutory considerations applicable as to the manner in which the first named respondent should exercise his discretion to deport having regard to events which occurred, involving the applicants” apparent unlawful detention subsequent to the applicants deportation on 6th April, 2005.

3 The issues which arise for consideration in these proceedings however are distinct, and relate to a challenge to the decision made by the first named respondent to deport the applicants which was made and transmitted between 27th day of February, 2004, and 5th March, 2004. The issues applicable to the first applicant are quite distinct from those which arise relating to the second and third named applicant. The judgment on the leave application set out the background to those applications. The findings of fact in this judgment reflect that background material, but now based on the following facts as determined herein.

4 The first named applicant is the adult mother of the second and third named applicants. The second applicant was born on 5th April, 1993 and is now aged 12 years. The third applicant was born on 7th July, 1995 and is now aged 10 years.

5 The first named applicant arrived in Ireland in January 1998. The second named applicant arrived later in the State in early May 1999. The third named applicant then arrived in this state in January 2000. Following arrival the first named applicant sought refugee status and was issued with an “ASY1” form on 30th January, 1998. She subsequently completed a questionnaire on 16th January of that year.

6 The first named applicant says that it is clear that her application for refugee status was made in relation to herself only and not in relation to the second and third named applicants who, she says, were not at that point in this country.

7 The first named applicant deposes that when her daughter the second named applicant arrived in this State in early May 1999 she notified the authorities of her arrival by reporting to the Immigration Officer at Anglesea Street Cork. She states that she submitted a birth certificate in respect of her, and she was allocated a reference number by the Department of Justice, Equality and Law Reform. The applicant refers to a note contained in her file from the Immigration Office in Anglesea Street in Cork stamped 10th May, 1999 by a Detective Sergeant Holland. She contends that she did not make an application for a declaration of refugee status on behalf of her daughter. She disputes a note made by Detective Sergeant Holland on the date in question indicating that such an application had been made. She avers that her purpose in going to the Immigration Office with her daughter was solely to notify the authorities that her daughter had arrived in this State.

8 In the course of these proceedings heard on 19th January, 2006 the court heard evidence from former Detective Sergeant Holland (now retired) and also, from the first named applicant. Former Detective Sergeant Holland made reference to a record book which was maintained in Anglesea Street Garda Station in 1999. This record book was kept in relation to asylum seekers. Mr. Holland then had custody of this as he was the Immigration Officer in Cork during the relevant period. After an entry for the 28th April, 1999 that book contains the following note:

"2/5/99 Her daughter Yewande Dada dob 5/4/93 came to Ireland."

9 Thereafter there was recorded an entry for 4th May, 1999 which merely states the first named applicant "signed on" on that date. Former Detective Sergeant Holland testified however that on the intervening date, that is 3rd May, 1999 the first named applicant called to the Garda Station. He stated that she requested asylum for the second named applicant who was a Nigerian national. She produced her birth certificate which was thereafter forwarded to Dublin. The first named applicant gave details of the second named applicant's father and said they were now divorced. The witness took photographs of the child and commented on the fact that she had a rash. He asked was she ill and he was told that she had a skin disorder. The first named applicant was advised to have a health check carried out on the second named applicant from the Southern Health Board. She was further advised that for this purpose she should visit the Southern Health Board premises. In the course of an affidavit sworn on 11th January, 2006 it was alleged that Detective Sergeant Holland had interrogated the applicant in an overbearing fashion. He denied having done so, or having engaged in any intimidating conduct. It is unnecessary to resolve this issue in the context of these proceedings.

10 It is now necessary again to make reference to additional documentation relating to the 3rd May, 1999. Subsequently Detective Sergeant Holland reported to his superior officer in the Gardai in Cork. Ultimately this report went to the immigration authorities in Dublin. It was titled:

"Re Asylum Kemi Dada DOB 22/12/1966 and daughter Yewande Dada DOB 5/4/93 Nigerian national." Thereafter it states:

"On 3/5/99 Kemi Dada, asylum applicant 69/168/98 arrived at Anglesea Street Immigration Office and requested Asylum for her daughter Yewande Dada DOB 5/4/93 Nigerian National. She produced her original birth certificate, attached, and stated that Babasanmi, Nigerian National was the father. They are now divorced."

11 I photographed her and requested her to notify the Southern Health Board of the child's presence and to have her medically examined as she was ill with some rash or skin disorder.

12 They are residing at Middle Flat, 45 Bandon Road, Cork. "For your information and for transmission to the Aliens and Immigration Office, "C" branch (ILO) please." This document was signed by Detective Sergeant Holland and forwarded for transmission to the Aliens and Immigration Office.

13 The cover note thereto dated 18th May, 1999 signed by Detective Sergeant Holland's Superintendent is headed:

"APPLICATIONS FOR POLITICAL ASYLUM Kemi and Yewande Dada — Nigerian nationals".

14 When the third named applicant arrived in this State in January 2000, the first named applicant was living in Ireland. She went to the reception centre of the second named respondent in Mount Street in Dublin and notified them of her younger daughters” arrival in this State. Again the first named applicant swore that no application for refugee status was made by either her or her younger daughter at that point.

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