Judgment Title: P.O. & anor -v- Minister for Justice and Equality & ors
Neutral Citation:  IEHC 141
High Court Record Number: 2013 226 JR
Date of Delivery: 21/03/2014
Court: High Court
Composition of Court:
Judgment by: McDermott J.
Status of Judgment: Approved
Neutral Citation:  IEHC 141
THE HIGH COURT
[2013 No. 226 J.R.]
P.O. AND S.O. (AN INFANT SUING BY HIS MOTHER AND NEXT FRIEND P.O.)
THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL
JUDGMENT of Mr. Justice McDermott delivered the 21st day of March, 2014
1. The applicants seeks an order of certiorari quashing a decision made by the first named respondent on the 25th February, 2013, affirming the deportation orders made against them following a grant of leave to apply for judicial review on the 22nd April, 2013 (Clark J.).
2. The applicants are Nigerian nationals. The first named applicant arrived in the State on the 11th September, 2006 and applied for asylum on the 26th September. On the 20th October, the applicant’s son, the second named applicant was born in the State, but is not entitled to Irish citizenship.
3. On the 1st October, 2007, the Refugee Applications Commissioner refused to recommend that the applicants be granted refugee status. No appeal was taken against this decision; instead judicial review proceedings issued. This challenge was subsequently withdrawn in 2010.
4. On the 20th January, 2010, a “three options” letter was sent to the applicants, detailing the State’s intention to deport them on foot of the failed asylum claim. No application for subsidiary protection was made at this time and instead the applicants’ case was considered by the respondent under s. 3 of the Immigration Act 1999. The deportation orders were signed on the 9th May, 2012. The applicants were notified in the appropriate way.
5. An application to revoke the deportation orders was made by the solicitors for the applicants on the 21st September, 2012, under s. 3(11) of the Immigration Act. In a decision dated the 25th February, 2013, the respondent refused to do so. The applicants now seek to quash the decision by way of judicial review.
The first named applicant’s asylum claim
7. While in Jos, the first named applicant met a friend, A., a Muslim, who was converted to Christianity after interacting with the applicant and her Church. She claims that a month after the conversion, A. disappeared and that her family held her responsible. She claims that the family pursued her and attacked the applicant’s brother in law, a pastor and her step daughter.
8. The first named applicant went into hiding and her husband arranged her safe passage out of Nigeria. She claims that she travelled with an agent under a Nigerian passport that was not her own and that her own passport is held in safe keeping in a bank in Nigeria.
9. She claims that she did not make any complaints to the police about the various threats to her safety. She claims that she could not relocate in Nigeria as she is a well known footballer. She feared that her son would be subject to the same dangers if returned to Nigeria.
10. The Refugee Applications Commissioner raised issues of credibility concerning this story. It doubted her claim to be a member of the Roman Catholic Church because of her failure to name any of the Roman Catholic Sacraments and because she had not heard of Protestants before her conversion. A further credibility issue arose because the applicant did not know the pastor of the Redeemed Christian Church to which she said she had converted. The headquarters of the Church was in Jos.
11. The first named applicant fears harm at the hands of her mother and the family of her disappeared friend A. Though she escaped from her own family after marrying her husband, the applicant was not followed or found by her family in Jos. She claimed that she did not go to the police as they would do nothing to help her because it was a family matter.
Grounds 1(a), (b) and (c)
13. The first named applicant contends that the information supplied by her solicitors was of a higher quality than that relied upon by the respondent and should have been preferred. In order to attract relief on this basis, the applicant must demonstrate a high degree of carelessness on the part of the decision maker or a fundamental error apparent from the materials. In E.E. v. Refugee Appeals Tribunal  IEHC 135, Cooke J. stated:-
(2) “Nigeria: Police abuse rife despite anti corruption efforts”. Integrated Regional Information Networks – published the 20th August, 2010;
(3) “Everyone’s in on the game: corruption and human rights abuses by Nigerian police force” Human Rights Watch 17th August, 2010.
(4) Amnesty International 2012 Report.
(b) Article “Nigeria Police Reforms in Era of Transformation”, James Odaudu, 20th September, 2011;
(c) Article from Nigerian Best Forum, 24th November, 2011
(d) Article, “Senate to Repeal Police Act, Back Reform” in All Africa, 30th November, 2011;
(e) Amnesty International press release “Effective police reform must end legacy of human rights violations” 26th January, 2012;
(f) Article in Vanguard, 25th January, 2012;
(g) Article in All Africa published in February, 2012;
(h) Report from Integrated Regional Information Networks “Nigeria: Urgent need for police reform”, 18th April, 2012;
(i) Article in Punch, 5th May, 2012;
(j) Article in Vanguard, 12th June, 2012;
(k) Article in Vanguard, “Jonathan to inaugurate code of conduct for police, 6th January, 2012;
(l) BBC News Article 19th December, 2011;
(m) International Religious Freedom Report, 30th July, 2012;
(n) United States Department of State Report, 30th July, 2012;
(o) Article, Al Jazeera news, 12th May, 2012;
(p) Article, The Nigerian Voice, 30th May, 2012;
(q) Article, Voice of America, 17th May, 2012
17. The respondent relied upon a wider body of more recent information that details the reforms put in place by the Nigerian government and the challenges and developments arising out of this policy. It is clear from the respondent’s decision that due regard was given to the country of origin information submitted by the applicant and it was acknowledged, referenced and weighed by the respondent as appears at pp. 6, 7, 18, 25 and 27 of the decision. Furthermore, p. 35 contains the following statement:-
19. The nature of an application under s. 3(11) is that new or additional evidence is advanced in order to obtain a review of a deportation order. The applicants did not advance much that was new in the s. 3(11) application, or that could not have been advanced in an application for leave to remain had the first named applicant thought it appropriate to do so. The Supreme Court in Smith & Smith v. Minister for Justice and Equality  IESC 4, held that it is only when additional material is advanced that a s. 3(11) application could receive a favourable review. Any judicial review seeking to challenge a refusal to revoke must be directed towards the lawfulness of the decision making process concerning that additional material.
20. It is claimed that the procedures adopted by the first named respondent were unfair in that the applicants ought to have been made aware of the respondents intention to rely on information other than that submitted by the applicant before making a decision. While there is no general obligation to inform an applicant of the documentation used and sourced, it has been recognised that situations may arise where such disclosure would be just and appropriate. In Ahmed v. Minister for Justice, Equality and Law Reform (Unreported, High Court, 24th March, 2011), Birmingham J. stated:-
23. The applicants also contend that the first named respondent failed to inform them of the principles, policies and guidelines in operation with regard to decision making under s. 3(11), and that such a failure renders the contested decision invalid. The respondent contends that a decision under s. 3(11) is based on the facts of the case, the country of origin information and the applicable law. The nature and extent of the jurisdiction exercised by the first named respondent under s. 3(11) has been considered in a number of cases. In T.C. v. Minister for Justice  4 IR 109, Fennelly J. stated at para. 26:-
24. Furthermore, the issue concerning the absence of guidelines, principles and policies has already been considered in Sivsivadze v. Minister for Justice and Equality  IEHC 244 in which a challenge to the validity of s. 3(11) having regard to the provisions of the Constitution, was rejected. Kearns P. stated:-
25. The applicant relies upon R.(Lumba) v. Secretary of State for the Home Department  UKSC 12 in support of the proposition that a blanket policy or guidelines are required. I am satisfied that the Lumba case is distinguishable in that it revolved around the misuse of a blanket policy to justify the detention of prisoners prior to the making of a deportation order. The blanket policy, which allowed no exceptions, was also contrary to the published policy of the United Kingdom Home Department. There is no analogous situation to Lumba which makes it applicable or persuasive in the present case. As Sivsivadze, Smith, M.A. and other authorities illustrate, the s. 3(11) process is not a policy decision, but a power exercised under the functions conferred on a Minister by the Act in respect of changed circumstances.
26. Following the receipt of the “three options” letter from the first named respondent refusing asylum, the first named applicant failed to make any application for subsidiary protection or leave to remain in the State, though it was stated that it was intended to be done. No further explanation is offered for this omission. Consequently, on 17th May, 2012, a letter issued enclosing deportation orders dated 9th May, 2012, together with “an examination of file” dated 24th April, 2012. The examination of file contained an assessment in accordance with the provisions of s. 3(6) of the applicants’ case. It accurately outlined the circumstances of the first named applicant and her son. It included reference to and an assessment of the material submitted. The applicants made no challenge to the deportation decision and the conclusions reached in the examination of file by way of judicial review. Other material offered by the applicants in the s. 3(11) application would have been available to them in an application for humanitarian leave to remain, but this was not made. Nevertheless, the first named respondent received the material offered and considered the matter under s. 3(11) which, in this case in the reasonable exercise of his discretion, he might have refused to do. As already noted, the court is completely satisfied that most of the material considered in the s. 3(11) consideration was previously considered and available in the examination of file prior to the making of the deportation orders. Some additional materials are referenced and quoted in the consideration and the court is satisfied that these were readily available to the applicant and do not afford any basis upon which to challenge the decision refusing to revoke the orders.
Article 8 of the European Convention on Human Rights – Ground 2
28. This was also a matter that was considered in the examination of file prior to deportation. Both aspects of Article 8(1) were considered, though no representations had been submitted on the behalf of the applicants at that time. It was noted that the second named applicant had entered the education system in the state. The first named applicant was married to a Nigerian husband who continued to reside in Nigeria. They had no other family connections in the state. In the consideration of file prior to the s. 3(11) decision, these rights were reconsidered. A number of character references were noted and quoted in respect of the first named applicant. Her involvement in the community and participation in a number of educational and vocational courses were considered. Educational reports were received in respect of the second named applicant and his mother’s involvement with the local national pre-school. It was concluded that a decision to deport the applicants did not constitute a breach of their right to respect for private or family life under Article 8. The consideration notes that the first named applicant stated during her asylum interview that she was still in contact with her husband who was living in Nigeria. Though the second named applicant was not an Irish citizen, he was entitled to Nigerian citizenship as both his parents were Nigerian. The first named applicant’s immediate family, including her parents and three siblings, were currently living in Nigeria. It was concluded that a decision to deport the applicants did not, therefore, constitute an interference with the right to respect for family life under Article 8(1).
29. It was contended that the second named applicant had commenced school and that he would benefit from the Irish education and health systems. As noted by Feeney J. in Agbonlahor v. Minister for Justice, Equality and Law Reform  4 IR 309:-