T (O S) v Min for Justice and Others

JurisdictionIreland
JudgeMR JUSTICE HEDIGAN
Judgment Date12 December 2008
Neutral Citation[2008] IEHC 384
CourtHigh Court
Date12 December 2008
T (O S) v Min for Justice & Ors

BETWEEN

O. S. T.
APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM,
THE REFUGEE APPEALS TRIBUNAL,
THE ATTORNEY GENERAL AND IRELAND
RESPONDENTS

[2008] IEHC 384

[1022 JR/2008]

THE HIGH COURT

IMMIGRATION

Subsidiary protection

Deportation - Refusal - Deportation order - Nigerian national - Adverse credibility findings - Delay -Failure to challenge decision of RAT within time - Extension of time - Inordinate delay - Purpose of short time frame - Necessity for clear and credible reasons for delay - Failure make leave application promptly - Decision to make deportation order - Whether substantial grounds for review - Claim of risk to life or liberty if returned - Whether consideration given to matters set out in statute - Whether positive obligation to demonstrate matters taken into account - Entitlement to rely on analysis in previous procedures - Alleged breach of natural and constitutional justice - Delay between representations seeking leave to remain and deportation order - Whether prejudice to applicant - Assessment of interference with private life - Whether special case made out - Rusu v Refugee Applications Commissioner (Unrep, Hanna J, 26/5/2006), In re Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360, FU v Minister for Justice (Unrep, Hedigan J, 11/12/2008), De Ráiste v Minister for Defence [2001] 1 IR 190, Abdukhareem v Minister for Justice (Unrep, Gilligan J, 7/7/2006), EB (Kosovo) (FC) v Secretary of State for Home Department [2008] 3 WLR 178, Agbonlahor (a minor) v Minister for Justice [2007] IEHC 166 [2007] 4 IR 309, Kouaype v Minister for Justice [2005] IEHC 380 (Unrep, Clarke J, 9/11/2005), Dada v Minister for Justice [2006] IEHC 140 (Unrep, O Neill, 3/5/2006), I (E P) v Minister for Justice, [2008] IEHC 23 (Unrep, Feeney J, 30/1/2008), N (F R) v Minister for Justice [2008] IEHC 107 (Unrep, Charleton J, 24/4/2008), O (G) v Minister for Justice [2008] IEHC 190 (Unrep, Birmingham J, 19/6/2008) and R (Razgar) v Secretary of State for Home Department [2004] 2 AC 368 considered - Refugee Act 1996 (No 17), s 5 - Immigration Act 1999 (No 22), s 3 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Rules of the Superior Courts 1986 (SI 15/1986), O 84 - Leave refused (2008/1022JR - Hedigan J - 12/12/2008) [2008] IEHC 384

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

Facts: The applicant sought judicial review of the decisions of the Refugee Appeals Tribunal (RAT) inter alia affirming that a declaration of refugee status would not be granted, the refusal of the Minister of subsidiary protection and the decision of the Minister to deport him. The applicant was a national of Nigeria, a member of the Yoruba tribe and a Christian. He alleged that he had been threatened with death in the event that he did not take over his father’s role in a secret fraternity. The issue arose as to whether it was appropriative to extend time and whether the applicant had acted promptly. The applicant alleged that the Minister had failed to consider matters set out in s. 3(6) Immigration Act 1999, that there was a delay between receipt of the representations and the making of the decision and that there had been a failure to adequately assess the interference with the applicant’s private life.

Held by Hedigan J. that the Court was not satisfied that there was good and sufficient reason to extend time and that it was open to the respondent to reach the conclusion drawn based on the evidence before her. The Minister did not need to examine each and every matter in s. 3(6) of the Act of 1999. The applicant made out no special case in his representations with respect to the interference with his private life by deportation. The Court was not satisfied that substantial grounds had been established and leave would be refused.

Reporter: E.F.

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(a)

RUSU v REFUGEE APPLICATIONS COMMISSIONER & MIN FOR JUSTICE UNREP HIGH HANNA 26.5.2006 2007/54/11474

RSC O.84 r21

U (F) (A MINOR) & ORS v MIN FOR JUSTICE & ORS UNREP HIGH HEDIGAN 11.12.2008 2008 IEHC 385

DE R ÓISTE v MIN FOR DEFENCE & ORS 2001 1 IR 190

IMMIGRATION ACT 1999 S3(6)

REFUGEE ACT 1996 S5

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 3

CRIMINAL JUSTICE (UNITED NATIONS CONVENTION AGAINST TORTURE) ACT 2000 S4

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8

IMMIGRATION ACT 1999 S3(6)(a)

IMMIGRATION ACT 1999 S3(6)(b)

IMMIGRATION ACT 1999 S3(6)(c)

IMMIGRATION ACT 1999 S3(6)(d)

IMMIGRATION ACT 1999 S3(6)(e)

IMMIGRATION ACT 1999 S3(6)(f)

IMMIGRATION ACT 1999 S3(6)(j)

IMMIGRATION ACT 1999 S3(6)(k)

ABDUKHAREEM v MIN FOR JUSTICE UNREP HIGH GILLIGAN 7.7.2006 (EX TEMPORE)

EB (KOSOVO) (FC) v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2008 3 WLR 178

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

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

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

DADA v MIN FOR JUSTICE UNREP HIGH O'NEILL 3.5.2006 2006/14/2921

I (EP) & ORS v MIN FOR JUSTICE UNREP HIGH FEENEY 30.1.2008 2008 IEHC 23

N (FR) & ORS v MIN FOR JUSTICE UNREP HIGH CHARLETON 24.4.2008 2008 IEHC 107

O (G) & ORS v MIN FOR JUSTICE UNREP HIGH BIRMINGHAM 19.6.2008 2008 IEHC 190

R (RAZGAR) v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2004 2 AC 368

1

MR JUSTICE HEDIGAN, delivered on the 12th day of December, 2008.

2

1. The applicant is seeking leave to apply for judicial review of three decisions:-

3

(i) The decision of the Refugee Appeals Tribunal (RAT) to affirm the earlier recommendation of the Office of the Refugee Applications Commissioner (ORAC) that he should not be granted a declaration of refugee status;

4

(ii) The decision of the Minister for Justice, Equality and Law Reform ("the Minister") not to grant subsidiary protection to him; and

5

(iii) The decision of the Minister to make a deportation order in respect of him.

Background
6

2. The applicant is a national of Nigeria, a member of the Yoruba tribe and a Christian. He applied for asylum upon arrival in the State on 29 th December, 2006. Until then, he had lived in Oyo State. He had qualified as a civil engineer and had worked in the construction business and as a parish pastor. The account of events given by him in respect of his asylum application was as follows. His father was a staunch member of the secret Ogboni fraternity; after he died in December, 2006, the fraternity sought to take control of the corpse and subject it to various rituals. When the applicant opposed those practices, he was incarcerated. He was released seven days later, after his father's burial. He claims to have been threatened with death if he did not join the fraternity and take over his father's role. He moved his family to Kano State; he joined them there briefly but then fled, leaving them behind.

7

3. ORAC issued a negative recommendation in respect of the applicant in January, 2007, making a number of adverse credibility findings. That decision was upheld on appeal by the RAT in May, 2007. The Minister informed the applicant in June, 2007 that he was proposing to make a deportation order, and invited him to make representations seeking leave to temporarily remain in the State and/or to apply for subsidiary protection. By letter dated 18 th July, 2007, an application for leave to remain was made on his behalf, as was an application for subsidiary protection.

8

4. The applicant was notified by letter dated 25 th June, 2008 that his application for subsidiary protection had failed, and that the Minister was considering whether or not he should be deported. He did not reply to that letter and made no attempt to update the representations made in support of his application for leave to remain. By a further letter dated 26 th August, 2008, he was notified that a deportation order had been made in respect of him.

I. PRELIMINARY CONSIDERATIONS
9

5. Two preliminary matters arise for consideration: first, the applicant requires an extension of time in respect of his challenge to the RAT decision and secondly, the respondents have complained that the applicant did not move promptly to issue proceedings challenging the subsidiary protection decision.

Extension of Time: RAT Decision
10

6. The RAT decision was notified to the applicant by letter dated 23 rd May, 2007. The within proceedings were not issued until 5 th September, 2008 and so, the applicants were more than 15 months outside of the 14 days allowed under 5(2)(a) of the Illegal Immigrants (Trafficking) Act 2000 for the bringing of the within leave application. Counsel for the applicant has sought to explain the delay by reference to what he describes as the traumatic experiences preceding the applicant's flight from Nigeria; no further explanation has been proffered.

11

7. The respondents submit that the applicant has failed to put forward a reasonable explanation for the delay. It is argued that the applicant did not take any action in respect of the RAT decision until a deportation order was made in respect of him, notwithstanding that he was legally represented at all relevant times.

12

8. The period of delay incurred by the applicant is some 32 times longer than the period envisaged by statute. There is no doubt in my mind that the delay is inordinate, bearing in mind that the applicant was legally represented at all material times. The purpose of the short time frame set out in section 5 of the Act of 2000 is to ensure that the relevant decision-makers can operate an efficient system for the delivery of decisions. That such a system is capable of functioning unhindered by excessive delays is clearly in the public interest. As was noted in Rusu v The Refugee Applications Commissioner (unreported, Hanna J.,...

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