S v Minister for Justice, Equality and Law Reform

• Jurisdiction: Ireland
• Judge: Mr. Justice John Edwards
• Judgment Date: 29 July 2008
• Neutral Citation: [2008] IEHC 269
• Court: High Court
• Date: 29 July 2008

[2008] IEHC 269

THE HIGH COURT

[No. 155 J.R./2005]

S (V) & Ors v Min for Justice

JUDICIAL REVIEW

BETWEEN

V. S., B. S., Vv. S. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND B. S.) AND Va. S. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND B. S.)

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S5

IMMIGRATION ACT 1999 S3(6)

IMMIGRATION ACT 1999 S3

KOUAYPE v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (EAMES) UNREP HIGH CLARKE 9.11.2005 2005/35/7364

AKINKOULIE & POWER v MIN FOR JUSTICE & ORS 2005 4 IR 564

MALSHEVA & CLARE v MIN FOR JUSTICE UNREP HIGH FINLAY-GEOGHEGAN 25.7.2003 2003/33/8051

LUPASCU v MIN FOR JUSTICE & ORS UNREP PEART 21.12.2004 2004/28/6549

M (K) & G (D) v MIN FOR JUSTICE & ORS UNREP HIGH EDWARDS 17.7.2007 2007/38/7754

IMMIGRATION ACT 1999 S3(6)(b)

IMMIGRATION ACT 1999 S3(6)(h)

IMMIGRATION ACT 1999 S3(6)(g)

IMMIGRATION ACT 1999 S3(6)(k)

AGBONLAHOR (A MINOR) v MIN FOR JUSTICE & AG UNREP HIGH FEENEY 18.4.2007 2007/3/447

OSAYANDE & LOBE v MIN JUSTICE 2003 1 IR 1

OGUEKWE & ORS v MIN FOR JUSTICE UNREP SUPREME DENHAM 1.5.2008 2008 IESC 25

COSMA v MIN FOR JUSTICE UNREP HIGH HANNA 15.2.2006 2006/12/2423

N v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2005 2 AC 296

IMMIGRATION

Deportation

Humanitarian leave to remain - Delay - Family settled within State - Entitlement to have duration of residence taken into account -- Alleged factual misrepresentations regarding character of father - Alleged failure to consider circumstances of children included in application of mother - Alleged failure to properly consider medical history of mother - Whether lack of fair procedures - Kouaype v Minister for Justice [2005] IEHC 380 (Unrep, Clarke J, 9/11/2005), AA v Minster for Justice[2005] IEHC 393 [2005] 4 IR 564, Lupascu v Minister for Justice [2004] IEHC 400 (Unrep, Peart J, 21/12/2004), M(K) v Minister for Justice [2007] IEHC 234 (Unrep, Edwards J, 17/7/2007), Agbonlahor v Minister for Justice [2007] IEHC 166 [2007] 4 IR 309, L & O v Minister for Justice [2003] 1 IR 1, Oguekwe v Minister for Justice [2008] IESC 25 (Unrep, SC, 1/5/2008), Cosma v Minister for Justice [2006] IEHC 36 [2007] 2 IR 133 and N v Home Secretary [2005] 2 AC 296 considered - Refugee Act 1996 (No 17), s 5 - Immigration Act 1999 (No 22), s 3 - Claims dismissed (2006/155JR - Edwards J - 29/7/2008) [2008] IEHC 269

S(V) v Minister for Justice, Equality and Law Reform

Facts: The applicants, a family of Croatian nationals, were granted leave to seek judicial review of the deportation orders. The applicants sought to challenge the deportation orders on the grounds that the respondent was guilty of delay, that the respondent failed to consider leave to remain on humanitarian grounds and that the facts given to the respondent in respect of one applicant were seriously misrepresented. The applicant also alleged that certain medical facts were not properly considered.

Held by Edwards J. in dismissing the claims of the applicants. The deportation orders signed by the Minister were lawful and were rational and within jurisdiction. There was no serious misrepresentation of facts to the Minister. The complaints in respect of medical issues had not been made out. The applicants were afforded the benefit of fair procedures.

Reporter:EF

1 Mr. Justice John Edwards on the 29th day of July 2008

Factual background

2 The applicants are a family of four Croatian nationals. The first and second named applicants are husband and wife respectively and they are the parents of the third and fourth named applicants. The third named applicant is a sixteen year old boy, who was born on the 30 ^th May, 1992. The fourth named applicant is a twelve year old girl, who was born on the 21 ^st February, 1996. By an order of Mr. Justice Charleton dated 19 ^th February, 2008, the applicants were each respectively granted leave to apply by way of judicial review for orders of certiorari quashing deportation orders signed by the respondent on the 17 ^th January, 2006, in respect of each of the applicants.

3 The applicants arrived in Ireland on the 23 ^rd June, 2003. At that time the third and fourth named applicants would have been eleven years of age and seven years of age respectively. On the 24 ^th June, 2003, the first and second named applicants applied for refugee status. On the same date the second named applicant signed a document in which stated that she wished to have her children, the third and fourth named applicants, included under her application for asylum and did not wish to have them interviewed or considered separately from her asylum application. On the 13 ^thMarch, 2004, the Refugee Applications Commissioner issued reports under s. 13 of the Refugee Act 1996, in respect of the first and second named applicants' asylum applications recommending that they should not be declared by the respondent to be refugees. The report relating to the second named applicant referred in its heading to the third and fourth named applicants as "dependents covered by this application".

4 The first and second named applicants appealed the Refugee Applications Commissioners' recommendations to the Refugee Appeals Tribunal on the 13 ^th May, 2004. On the 3 ^rd June, 2004, the Refugee Appeals Tribunal made a determination refusing the appeal of the first named applicant. He was notified of this by letter dated 16 ^th June, 2004. The respondent wrote to the first named applicant on the 13 ^thJuly, 2004, informing him that he proposed to make a deportation order in respect of him, and advising him of the options open to him.

5 It appears from the paperwork that the Refugee Appeals Tribunal also purported to issue a determination refusing the appeal of the second named applicant (covering the third and fourth named applicants also) on the 3 ^rd June, 2004. However, due to some procedural irregularity, the nature of which is not entirely clear to the court, the second named applicant's appeal was reconsidered by the Refugee Appeals Tribunal and a further determination was arrived at by the said Tribunal on the 2 ^nd February, 2005, refusing the appeal of the second named applicant. Once again, the determination in the second named applicant's case was expressed to cover and bind the third and fourth named applicants. The second named applicant was notified of the Refugee Appeals Tribunal's determination on the 7 ^th February, 2005. On the 16 ^thFebruary, 2005, the respondent wrote to the second named applicant informing her that he proposed to make a deportation order in respect of the second, third and fourth named applicants and advising her of the options open to them.

6 On the 30 ^th July, 2004, the Refugee Legal Service submitted representations on behalf of the first named applicant, in response to the respondent's letter of the 16 ^thJune, 2004, seeking leave for the first named applicant to remain in the State on humanitarian grounds. On 6 ^th March, 2005, the Refugee Legal Service submitted representations to the respondent on behalf of the second, third and fourth named applicants, in response to the respondent's letter of the 16 ^th February, 2005, seeking leave for the second, third and fourth named applicants to remain in the State on humanitarian grounds.

7 On the 4 ^th August, 2005, a Ms. Tanya M. Hanbury, Clerical Officer of the Repatriation Unit of the respondent's Department prepared a submission following an examination of the file relating to the first named applicant. She concluded that returning the first named applicant to Croatia would not be contrary to s. 5 of the Refugee Act 1996, and she recommended that the respondent should sign a deportation order in respect of the first named applicant. The evidence before me confirms that Ms. Hanbury made her recommendation having considered the papers on file, including the Refugee Applications Commissioner's recommendation and the Refugee Appeals Tribunal's decision. On the 9 ^th August, 2005, a Ms. Claire L. Grayson, Executive Officer in the respondent's Department, confirmed that she had read and considered all the papers on the file and she also recommended that a deportation order should be made. On the 9 ^th August, 2005, the entire file relating to the first named applicant was further considered by a Mr. Tony Butler, Assistant Principal Officer, in the Repatriation Unit of the respondent's Department and he in turn endorsed the recommendation of Ms. Grayson, that a deportation order should be made in respect of the first named applicant. The entire file was then placed before the respondent, who followed the recommendations of his officials and signed a deportation order in respect of the first named applicant on the 17 ^th January, 2006.

8 On the 5 ^th August, 2005, the aforementioned Ms. Tanya M. Hanbury, Clerical Officer in the Repatriation Unit the respondent's Department prepared a submission following an examination of the file in relation to second, third and fourth named applicants. She concluded that returning the second, third and fourth named applicants to Croatia would not be contrary to s. 5 of the Refugee Act 1996, and she recommended that the respondent should sign deportation orders in respect of them. The evidence before me establishes that Ms. Hanbury made her recommendation having considered the papers on file, including the Refugee Applications Commissioner and the Refugee Appeals Tribunal's decision. On the 9 ^th August, 2005, the aforementioned Ms. Claire L. Grayson, Executive Officer in the Repatriation Unit of the respondent's Department, having read and considered all the papers on file including the submission of Ms. Hanbury, endorsed the recommendation of Ms. Hanbury that deportation orders should be made in respect of the second, third and fourth named applicants. On the...