O v Minister for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Paul McDermott
• Judgment Date: 12 October 2012
• Neutral Citation: [2012] IEHC 457
• Court: High Court
• Date: 12 October 2012

[2012] IEHC 457

THE HIGH COURT

[No. 564 J.R./2012]

O (R) v Min for Justice & Ors

JUDICIAL REVIEW

IN THE MATTER OF THE IMMIGRATION ACT 199, AND

IN THE MATTER OF THE CONSTITUTION AND

IN THE MATTER OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003, SECTION 3(1)

BETWEEN

R.O.

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY, ATTORNEY GENERAL AND IRELAND

RESPONDENTS

AND

THE HUMAN RIGHTS COMMISSION

NOTICE PARTY

REFUGEE ACT 1996 S17

IMMIGRATION ACT 1999 S3(11)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EEC DIR 2005/85

REFUGEE ACT 1996 S17(1)

REFUGEE ACT 1996 S12(1)

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

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

ARTICLE 26 & ILLEGAL IMMIGRANTS TRAFFICKING BILL 1999 2000 2 IR 360

RSC O.84

G v DPP & KIRBY 1994 1 IR 374

IMMIGRATION ACT 1999 S3(6)(H)

IMMIGRATION ACT 1999 S5

T (D) & ORS v MIN FOR JUSTICE UNREP HOGAN 25.1.2011 2011/10/2394 2011 IEHC 37

P (M) v MIN FOR JUSTICE UNREP HOGAN 28.10.2011 2011/34/9389 2011 IEHC 409

PONTIN v T-COMALUX SA C-63/08 UNREP ECJ 29.10.2009

RSC O.84 r21(1)

BM JL & ORS v MIN FOR JUSTICE UNREP CROSS 14.2.2012 2012 IEHC 74

WORLDS PORT IRELAND LTD , IN RE UNREP CLARKE 16/6/2005 2005/58/12287 2005 IEHC 189

BEADS CONSTRUCTION LTD v DUBLIN CORP UNREP MCKECHNIE 7.9.2005 2005/32/6641 2005 IEHC 406

WHITE v DUBLIN CITY CO COUNCIL 2004 1 IR 545

LENNON v CORK CITY COUNCIL UNREP SMYTH 19.12.2006 2006/34/7172 2006 IEHC 438

O D D & F A O v MINISTER FOR JUSTICE UNREP CLARK 30.7.2010 2010/10/2304 2010 IEHC 390

D (HI) A MINOR v REFUGEE APPLICATIONS COMMISSIONER UNREP COOKE 9.2.2011 2011/ 10/2306 2011 IEHC 33

EEC DIR 2005/85 ART 23.3

EEC DIR 2005/85 CHAP 2

EEC DIR 2005/85 ART 23

TREATY FOUNDING EUROPEAN UNION ART 267

IMMIGRATION ACT 1999 S3(1)

IMMIGRATION ACT 1999 S3(2)(F)

IMMIGRATION ACT 1999 S3(6)

S & ORS v MINISTER FOR JUSTICE UNREP KEARNS 21.6.2012 2012 IEHC 244

IMMIGRATION ACT 1999 S3(1)

CARLTONA LTD v CMRS OF WORKS 1943 2 AER 560

DEVANNEY v SHIELS 1998 1 IR 230 1998 5 1197

TANG v MINISTER FOR JUSTICE 1996 2 ILRM 46

MEADOWS v MINISTER FOR JUSTICE 2010 2 IR 701

T(LA) v MINISTER FOR JUSTICE UNREP HOGAN 2.11. 2011 2011/47/13240 2011 IEHC 404

EUROPEAN CONVENTION ON HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS ART 8

BURDEN v UK 2008 47 EHRR 38

A v MINISTER FOR JUSTICE 2007 IEHC 166

N v SECRETARY OF STATE 2005 2 AC 296

D v UK 1997 24 EHRR 423

N (BJ) v MIN FOR JUSTICE 2008 3 IR 305 2008/45/9720 2008 IEHC 8

EUROPEAN CONVENTION ON HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS ART 8(1)

IMMIGRATION

Asylum

Applicable time limits to seek to review decision refusing refugee status, issuing deportation order, revoking deportation order, granting priority to application for asylum - Constitutionality of Immigration Act 1999, s 3(1) and/or s 3(11) - Compatibility of s 3 with State obligations under European Convention on Human Rights - Effective remedy - Carltona doctrine - Conduct of applicant - Medical treatment - Substantial grounds - Stateable grounds - Leave to apply for judicial review - Application for asylum given priority on ground of being from Nigeria - Refugee status refused - Deportation order issued - Application to revoke order refused - Whether statutory time limit equivalent and effective - Whether O 84, r 21 applied where statutory limit not equivalent and effective - Whether application for leave brought promptly - Whether conduct of applicant precluded applicant impugning decision of Minister - Whether prioritisation of claim permitted - Whether stateable ground on point of priority -Whether applicant could establish prejudice or failure in fundamental procedures such as to deny effective remedy - Whether stateable grounds for contending s 3(11) unconstitutional - Whether stateable grounds for contending s 3(11) incompatible with State obligations - Whether Minister obliged to personally consider issue of refoulement - Whether Minister obliged to personally sign deportation order - Whether substantial grounds -Whether stateable ground to challenge refusal to revoke deportation order on treatment of medical condition - The Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360; G v Director of Public Prosecutions [1994] 1 IR 374; Pontin v T-Comalux SA (Case C-63/08)[2009] ECR I-10467; White v Dublin City Council [2004] IESC 35, [2004] 1 IR 545; Devanney v Sheils [1998] 1 IR 230 and Tang v Minister for Justice [1996] 2 ILRM 46 applied - D v United Kingdom, [1997] 24 EHRR 423; L(T) v Minister for Justice and Equality [2012] IEHC 74, (Unrep, Cross J, 14/2/2012); Re Worldport Ireland Limited (In liquidation) [2005] IEHC 189 (Unrep, Clarke J, 16/6/2005); Jerry Beades Construction Limited v Dublin City Council [2005] IEHC 406, (Unrep, McKechnie J, 7/5/2005); Lennon v Cork City Council [2006] IEHC 438 (Unrep, Smyth J, 19/12/2006); A (O) v Refugee Appeals Tribunal [2009] IEHC 296 (Unrep, Cooke J, 25/6/2009); HID v Refugee Applications Commissioner (Case C-175111), OJ C 204, 09/07/2011 p 0014; D(HI) v Refugee Applications Commissioner [2011] IEHC 33, (Unrep, Cooke J, 9/2/2011); S(L) v Minister for Justice and Equality [2012] IEHC 244, (Unrep, Kearns P, 21/6/2012); Carltona Ltd v Commissioners of Works [1943] 2 All ER 560; T(LA) v Minister for Justice and Equality [2011] IEHC 404, (Unrep, Hogan J, 2/11/2011); N v United Kingdom [2008] 47 EHRR 38; Agbonlahor v Minister for Justice [2007] IEHC 166, [2007] 4 IR 309 and BJN v Minister for Justice [2008] IEHC 8, [2008] 3 IR 305 approved - D(T) v Minister for Justice Equality and Law Reform [2011] IEHC 37, (Unrep, Hogan J, 25/1/2011) and M(P) and Minister for Justice and Law Reform [2011] IEHC 409, (Unrep, Hogan J, 28/10/2011) considered - Meadows v Minister for Justice, Equality and Law Reform [2010] IESC 3, [2010] 2 IR 701 and Afolabi v Minister for Justice and Equality [2012] IEHC 192, (Unrep, Cooke J, 17/5/2012) distinguished - Rules of the Superior Courts 1986 (SI 15/1986), O 84 - Refugee Act 1996 (No 17), ss 5, 11, 12 and 17 - Immigration Act 1999 (No 22), s 3 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Planning and Development Act 2000 (No 30), s 50 - Council Directive 2005/85/EC of 1/12/2005, articles 23, 39 and ch 2 - Treaty on the Functioning of the European Union, art 267 - European Convention on Human Rights 1950, articles 3 and 8 - Leave refused (2012/564JR - McDermott J - 12/10/2012) [2012] IEHC 457

O(R) v Minister for Justice and Equality

Facts: The applicant was originally from Nigeria. She applied for asylum upon entering the country in July 2008 and applied for refugee status on the basis that she feared she would be at a risk of serious harm if returned to her country of origin. She claimed that her husband and son had been murdered by hired assassins following a gubernatorial election as her husband had been involved in a political campaign and had been suspected of misappropriating campaign funds. Her application before the Refugee Applications Commissioner and the Refugee Appeals Tribunal was rejected on the basis of a lack of credibility. It was found that the applicant had been diagnosed with HIV shortly after arriving in Ireland but that this was of no relevance to her application. The applicant was informed by writing of the outcome along with the options available to her including an opportunity to apply for subsidiary protection. She was informed that she was obliged to notify the authorities if she changed address in the interim period.

The applicant did not respond to the letter and instead moved in with a family in June 2009 at a different address in order to evade deportation. In early 2012, her deteriorating health forced her to attend hospital. By that stage, a deportation order had been made following further consideration of her grounds for refugee status and her health. The applicant applied to revoke the order on the basis that her health had deteriorated to the point that the health service in Nigeria was inadequate to care for her needs. This was refused and so an application was made for leave to apply for judicial review to challenge the first named respondent's decision not to grant her refugee status in the initial stages, the making of a deportation order and the refusal to revoke the deportation order along with an interlocutory injunction restraining her deportation.

Held by McDermott J that an application for leave to apply for judicial review on the first two grounds made out by the applicant had to be made within 14 days of the decision under section 5(2)(a) of the Illegal Immigrants (Trafficking) Act 2000. This time restriction did not apply to the third ground. The application had not been made within the time limit of the first two grounds and there had been no application for an extension of time in that regard. The applicant contended that there was no time limit applicable when Convention rights were concerned. It was offered by the court that even if the 14 day period didn't apply in this case, in default the time limit applicable for leave to apply for judicial review would be under O. 84 of the Rules of the Superior Courts which didn't assist the applicant's case.

It was further held that even if there were no time limits per the contentions of the applicant, substantial grounds to compel leave to apply for judicial review had not been made out. This decision also applied to the challenge to the first named respondent's decision not to revoke the deportation order.

It was further held that the Convention did not impose an obligation on the state to continue to treat the applicant indefinitely even if her country of origin couldn't offer the same level of service especially considering that her treatment was as an indirect result of her disengaging from the deportation process

Application for leave refused.

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