A (O) v Minister for Justice, Equality and Law Reform
| Jurisdiction | Ireland |
| Judge | Mr. Justice Herbert |
| Judgment Date | 01 July 2010 |
| Neutral Citation | [2010] IEHC 268 |
| Court | High Court |
| Date | 01 July 2010 |
[2010] IEHC 268
THE HIGH COURT
BETWEEN:
AND
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(A)
IMMIGRATION ACT 1999 S3
K (G) & ORS v MIN FOR JUSTICE & APPEALS AUTHORITY & ORS 2002 2 IR 418 2002 1 ILRM 401 2001/13/3557
IMMIGRATION ACT 1999 S5(2)
ILLEGAL IMMIGRANTS (TRAFFICKING) BILL, RE 1999 2 IR 360
IMMIGRATION ACT 1999 S3(6)
S (DVT) v MIN FOR JUSTICE & ORS 2008 3 IR 476 2007/54/11621 2007 IEHC 305
EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 ART 3
BENSAID v UNITED KINGDOM 2001 33 EHRR 205
HLR v FRANCE ECHR REP 1997-III P 758
N v FINLAND ECHR 30.11.2005 APPLICATION NO 38885/02
EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 ART 8 SCHED 1
REFUGEE ACT 1996 S5
KOUAYPE v MIN FOR JUSTICE & ORS UNREP CLARKE 9.11.2005 2005/35/7364 2005 IEHC 380
REFUGEE ACT 1996 S5(1)
IMMIGRATION ACT 1999 S3(3)(B)(I)
IMMIGRATION ACT 1999 S3(6)(H)
CRIMINAL JUSTICE (UNITED NATIONS CONVENTION AGAINST TORTURE) 2000 S4
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)(G)
IMMIGRATION ACT 1999 S3(6)(I)
IMMIGRATION ACT 1999 S3(6)(J)
EZZOUDHI v FRANCE ECHR 3.2.2001 APPLICATION NO 47160/99
KUGATHAS v SECRETARY OF STATE FOR THE HOME DEPT 2003 INLR 170 2003 EWCA CIV 31
S v UK 1984 40 DR 196 1984 ECHR 20
ABDULAZIZ & CABALES & BALKANALI v UNITED KINGDOM 1985 7 EHRR 471
ADVIC v UK 1995 20 EHRR CD 125
R (MAHMOOD) v HOME SECRETARY 2001 1 WLR 840
OGUEKWE v MIN FOR JUSTICE & ORS 2008 3 IR 795
S (BI) & ORS v MIN FOR JUSTICE UNREP DUNNE 30.11.2007 2007/54/11584 2007 IEHC 398
OLSSON v SWEDEN 1989 11 EHRR 259
BOUGHANEMI v FRANCE 1996 22 EHRR 228
MOUSTQUINN v BELGIUM 13 EHRR 208
RADOVANOVIC v AUSTRIA ECHR 22.04.2004 APPLICATION NO 42703/98
BERREHAB v NETHERLANDS 1988 11 EHRR 328
A & FAMILY v SWEDEN 1994 18 EHRR CD 209
IMMIGRATION LAW: Subsidiary protection
Mental illness - Involuntary detention under Mental Health Act 2001 - Availability of medical treatment in country of origin - No substantial grounds of real and substantial risk of being subject to conduct contrary to Convention - Whether less favourable medical treatment sufficient to engage Convention rights - Whether failure by respondent to consider impact of medical condition on capacity to avail of state protection relevant - Whether material before respondent capable of grounding claim decision unreasonable - Balance humanitarian considerations and integrity of asylum process - Right to family life - Relationship not amounting to family life - Whether application really assertion of choice of State within which to reside rather than interference with rights - Scope of justified interference with right - Whether medical evidence affected level of dependence on mother - GK v Minister for Justice [2002] 2 IR 418, The Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360, S(BI) v Minister for Justice[2007] IEHC 398 (Unrep, Dunne J, 30/11/2007) and Agbonlahor v Minister for Justice [2007] IEHC 166 [2007] 4 IR 309 applied - R (Mahmood) v Home Secretary [2000] EWCA Civ 315 [2001] 1 WLR 840 and R (Razgar) v Home Secretary [2004] UKHL 27 [2004] 2 AC 368 followed - Bensaid v United Kingdom (2001) 33 EHRR 205, HLR v France (1998) 26 EHRR 2, N v Finland (2006) 43 EHRR 12 and Kouaype v Minister for Justice, Equality and Law Reform [2005] IEHC 380 (Unrep, Clark J, 9/11/2005) considered - DVTS v Minister for Justice [2008] 3 IR 476 and D v United Kingdom (App No 30240/96) (Unrep, 02/05/1997) distinguished - Refugee Act 1996 (as amended) (No 17), s 5 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5(2) - Mental Health Act 2001 (No 25) - European Convention on Human Rights Act 2003 (no 20), sch I art 3 - Criminal Justice (United Nations Convention against Torture) Act 2000 (No 11), s 4 - Immigration Act 1999 (No 22), s 3 - Leave refused (2008/1375JR - Herbert J - 01/07/2010) [2010] IEHC 268
A(O) v Minister for Justice
Facts The applicant sought leave to challenge by way of judicial review the decision of the respondent made pursuant to s. 3 of the Immigration Act 1999 requiring the applicant to leave this State within the period of time indicated in the order and, to remain thereafter out of the State. The respondent relied on findings made by Supervising Officials of his Department and on country or origin information and concluded that there were no exceptional circumstances in this case to suggest that there was a real risk that deporting the applicant to Nigeria would breach Article 3 of the European Convention on Human Rights and further that although the conditions and treatments available to the applicant would be less favourable in Nigeria the deportation would not have consequences of such gravity as to engage rights under Article 8(1) of the Convention. Medical evidence was submitted on behalf of the applicant to show that he suffered from a psychotic depressive illness. It was submitted on behalf of the applicant that the respondent's opinion that the repatriation of the applicant to Nigeria would not be contrary to the provisions of s. 5 of the Refugee Act, 1996 was unreasonable and unjust and failed to have regard to the specific circumstances of the applicant. The applicant also submitted that the decision of the respondent interfered with his right to respect to family life under Article 8(1) of Schedule I of the European Convention on Human Rights Act 2003 as his mother and siblings were lawfully resident in this State.
Held by Herbert J. in refusing the application: That having considered the country of origin information it was rationally and reasonably open to the respondent to reach the conclusions he arrived at regarding Articles 3 and 8 of the Convention. The respondent also carefully considered the individual circumstances of the applicant and reasonably and rationally came to the conclusion that there were not relevant and substantial grounds for believing that there was a real and substantial risk that the applicant would be subjected to torture or to inhuman or degrading treatment should he be returned to Nigeria or that the authorities were unwilling or unable to provide appropriate protection. Furthermore it was reasonable and rational for the respondent to conclude on the material before him that the repatriation of the applicant to Nigeria would not be contrary to the provisions of s. 5 of the 1996 Act. Finally, the applicant failed to show substantial grounds for contending that the respondent's conclusion that the applicant did not establish "family life" with his mother and siblings within the meaning of Article 8 (1) of the 2003 Act was unreasonable or irrational.
Reporter: L.O'S.
JUDGMENT of Mr. Justice Herbert delivered the 1st day of July 2010
Section 5(2)(a) of the Illegal Immigrants (Trafficking) Act 2000, provides that any application for leave to apply for judicial review to challenge a decision of the respondent made pursuant to the provisions of s. 3 of the Immigration Act 1999, shall be made within the period of 14 days commencing on the date on which the person was notified of the decision, unless this Court considers that there is good and sufficient reason to extend the period.
The letter of notification in the instant case is dated the 6 th November, 2008, (Thursday) and was sent by post to the applicant's advised address at Hatch Hall, 25A Lower Hatch Street, Dublin. A copy of this letter was sent to A.C. Pendred & Co. then, and presently, solicitors for the applicant. It is accepted by Mr. Pendred, principal of that Firm, that this copy letter was received by his Firm on the 7 th November, 2008, (Friday). Despite this fact, counsel for the respondent accepted that this Court should allow a period of three days for delivery of the notification to the applicant in ordinary course of post. Since the 9 th November, 2008, fell on a Sunday, this Court must assume that the notification would have been delivered to the applicant's advised address on Monday the 10 th November, 2008, at the latest. By reference to the date impressed by the Central Office Stamp, the application herein was received there on Thursday the 4 th December, 2008. The application was therefore made ten days outside the maximum time permitted by s. 5(2)(a) of the Act of 1999. Counsel for the respondent submits that no good or sufficient reason has been shown on affidavit why the period should be extended by this Court.
In G.K. v. The Minister for Justice, Equality and Law Reform [2002] 2 I.R. 418 at 423, Hardiman J. pointed out that while this Court must address the extent of the delay and the reasons, if any, offered for it, it is not limited to considering these matters only. This Court should also consider other matters such as whether the applicant appears to have an arguable case, that there are reasonable and weighty, not just trivial or tenuous grounds, for contending that the decision of the respondent is invalid or ought to be quashed.
The extent of the delay on the part of the applicant in the instant case, must be judged by reference to the clear indication on the part of the Legislature in fixing a time limit as short as fourteen days, that great vigilance and promptness are demanded of those intending to rely upon the provisions of s. 5(2) to challenge a decision of the respondent by way of judicial review in matters to which the section applies. In Re. The Reference of Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 I.R. 360 at 392-4, the Supreme Court held that this Court should be prepared to grant an extension of time if satisfied that the particular applicant, though out to...
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