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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Okoroafor v. Governor of Cloverhill Prison & Ors [2003] IEHC 62 (30 September 2003)
URL: http://www.bailii.org/ie/cases/IEHC/2003/62.html
Cite as: [2003] IEHC 62
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No. 2003/1508/S.S.
BETWEEN:
APPLICANT
RESPONDENTS
JUDGMENT of Mr. Justice Herbert delivered the 30th day of September, 2003.
By an Order of the High Court (Mr. Justice White), made on the 25th of September, 2003, the Governor of Cloverhill Prison was Ordered to certify in writing the reasons for the detention of the Applicant at that Prison. On the same date Mr. Ronan Maher, Assistant Governor of Cloverhill Prison, certified to the Court that the Applicant was held in custody pursuant to the terms of a Detention Order dated the 28th August, 2003.
By the terms of this Detention Order, the Applicant was directed to be detained in a prescribed place for the purpose of Section 5(1) of the Immigration Act, 1999, pending the making of arrangements for his removal from the State, pursuant to
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the provisions of the Immigration Act, 1999 (Deportation) Regulations 2002, made in exercise of the powers conferred by Section 7 of the Immigration Act, 1999. It is common case between the parties that the Applicant had made an Application for asylum in this State in the year 2000. This Application was deemed to be manifestly unfounded by the Minister for Justice, Equality and Law Reform on the 14th November, 2000. This finding was upheld by the Refugee Appeals Tribunal on the 26th January, 2001. The Applicant was deported from the State to Nigeria on the 28th March, 2002, pursuant to a Deportation Order made on the 12th February, 2002 by the Minister for Justice, Equality and Law Reform.
It is stated at paragraph 3 of the Affidavit of Kevin Tunney, Solicitor, of Tunney O'Leary, Solicitors for the Applicant in this Application, sworn on the 16th September, 2003, that the decision of the Refugee Appeals Tribunal was expressly based on a finding that the Applicant feared violence between the Muslim and the Christian Communities in Nigeria but did not express any fear of persecution by the State or any other form of State involvement contrary to his interests.
The Applicant did not dispute at the hearing of this Application that the terms of the Deportation Order required of him, the non-national to whom the Order was directed, to leave the State within the time specified in the Order, and "to remain thereafter out of the State". I am satisfied that this Order remains in full force and effect despite the deportation of the non-national named therein from the State. In my judgment this Order remains in full force and effect until amended or revoked by a further Order of the Minister for Justice, Equality and Law Reform made in exercise of the power in that behalf vested in him alone by Section 3(11) of the Immigration Act, 1999.
Despite this Deportation Order, which I am satisfied still applied to him, the Applicant re-entered the State in July, 2003. Through the Refugee Legal Service, by a letter dated the 25th July, 2003 he sought the consent of the Minister for Justice, Equality and Law Reform, pursuant to the provisions of Section 17(7) of the Refugee Act, 1996 to make a further Application for a Declaration that he is a Refugee. This Subsection of the Act provides as follows:-
"A person to whom the Minister has refused to give a declaration may not make a further application for a declaration under this Act without the consent of the Minister."
By letter dated the 28th July, 2003 from the Ministerial Decisions Unit of the Department of Justice, Equality and Law Reform, the Applicant's advisers were informed that in considering an Application pursuant to Section 17(7) of the Refugee Act, 1996, the Minister for Justice, Equality and Law Reform did not examine the asylum claim. What was considered was whether, excluding material which the Applicant could reasonably have been expected to rely upon in the earlier claim, the new claim was sufficiently different from the earlier claim to warrant further investigation. If so, the Applicant would be given permission to re-enter the asylum process and his claim would be determined in the usual way. This letter concluded as follows:-
"... Please forward evidence supporting a further application for asylum on behalf of your client within 15 working days of the date of this letter. Specifically, please produce the documentation referred to in your application which verifies Mr. Okoroafor was held in Alagbo Prison and verification of the reason for his being detained..."
In a letter dated the 25th July, 2003 from the Refugee Legal Service, to which I have already referred, it was stated as follows:-
"Unfortunately, Mr. Okafor was arrested by the State authorities immediately upon his arrival in Nigeria, in connection with the activities that had originally caused him to fear persecution in that State. Mr. Okafor's original asylum claim was grounded in his participation in protests against the Nigerian State following which, he was given cause to fear persecution which led him to flee from his home country.
Consequently Mr. Okafor spent 12 months in prison in Nigeria. We are instructed that this detention was illegal and persecutory in nature. Mr. Okafor characterises his time in prison as a tool of political oppression by the Nigerian State authorities. He finally escaped from confinement by running away after his brother had him temporarily released on bail, two days after President Obasanjo was sworn into office after the recent elections.
Mr. Okafor instructs that he was held in Alagbo Prison in Ikoyi, Lagos, for one year pending trial and that he can produce documentation to verify this if same is required.
The result of Mr. Okafor's deportation from this country, and the results of his failure to be declared a refugee in this country, was that he suffered further persecution at the hand of the State authorities upon his return to Nigeria. This has produced in the mind of Mr. Okafor, an even greater fear of prosecution from the Nigerian State authorities than he had originally had."
By letter dated the 7th August, 2003 Tunney O'Leary and Company, Solicitors, responded to the letter of the 28th July, 2003 from the Minister for Justice, Equality and Law Reform as follows:-
"... Mr. Okafor was deported from Ireland in March, 2002 and subsequently was imprisoned in Nigeria for 14 months for religious reasons. He was given Bail and returned to Ireland where he is again claiming Refugee Status under the circumstances.
We enclose Affidavit from our client's brother in Nigeria concerning his imprisonment to support his claim..."
By letter dated the 28th August, 2003 the Ministerial Decisions Unit of the Department of Justice, Equality and Law Reform replied to this letter from Tunney O'Leary and Company. This letter was transmitted by Telefax to the offices of Tunney O'Leary and Company, Solicitors for the Applicant, at either 15.35 hrs. or 03.45 p.m. on the 28th August, 2003. I find the difference in time to be immaterial in the circumstances of this Application. This letter stated, inter alia, as follows:-
"Your client has clearly stated at all stages in the asylum process that he was seeking asylum based on his fear of persecution because of his religion. This ground of asylum was very carefully explored and considered by both the Refugee Applications Commissioner and the Refugee Appeals Tribunal. The information set out in your letter of 7th August, 2003 does not significantly add to the likelihood of the applicant qualifying for asylum on the totality of the evidence already available and considered.
You have forwarded no objective, independent evidence supporting his claim of being detained for fourteen months on religious grounds
following his return to Nigeria. I have therefore decided to refuse your client's application under Section 17(7) of the Refugee Act (as amended).
The deportation orders made in respect of your clients remain valid. The enforcement of these orders is a matter for the Garda National Immigration Bureau as previously notified."
In his Affidavit sworn at the Magistrate Court Registry, Umuahia, North Judicial District, before a Commissioner for Oaths, Mr. Maxwell Okoroafor swears as follows:-
"4. ... My said Brother Sunny Okoroafor is a student in the Northern part of Nigeria where he was involved and became a victim of a religious riot that occurred there. He ran away thereafter.
5. ... When he came back in March, 2002 he was arrested and detained at Alagbor close Lagos, Nigeria for one year and two months before I was able to secure his release on bail.
6. ... He may be re-arrested and detained if he comes back to Nigeria.
7. ... He committed no offence and has never been charged to Court, tried or found guilty of any criminal offence known to Law."
It is stated at paragraph 14 of the Affidavit of Kevin Tunney, Solicitor, that the Applicant was arrested and taken into custody in Galway on or about 10.00 a.m. on the 28th August, 2003 and was lodged in Cloverhill Prison at 10.00 p.m. on the same date. This was not denied by the Respondents at the hearing of the Application. No issue was raised at the hearing of the Application as to whether Cloverhill Prison was
a "prescribed place" for the purposes of Section 5(1) of the Immigration Act, 1999 (as substituted). At paragraphs 17 and 19 of that Affidavit, Mr. Tunney states:-
"I believe that the said decision of the deciding officer post-dated the arrest and detention of the Applicant and that the arrest occurred whilst the application was under consideration and whilst there was no concluded intention to deport the Applicant... I believe that the second named respondent did not consider the Applicant's case adequately, or at all. I believe that there were and are no good grounds for a refusal of consent to his application."
No evidence whatsoever is set out in the Affidavit of Kevin Tunney or in the Affidavit of Edward Micheau to support these alleged beliefs. The reasons for the decision of the Minister for Justice, Equality and Law Reform to withhold his consent are clearly set out in the letter dated the 28th August, 2003 to which I have already referred. It appears to be mere surmise from the undisputed fact that the letter of the 28th August, 2003 was received by Tunney O'Leary and Company, Solicitors for the Applicant, by Telefax several hours after the Applicant had been arrested and detained in Galway, that the decision of the Minister for Justice, Equality and Law Reform to refuse his Consent had been taken after the arrest and detention of the Applicant.
In my judgment, as the Deportation Order made in respect of Mr. Okoroafor remains valid and in full force and effect, he could have been arrested and detained at any time pursuant to the provisions of Section 5(1) of the Immigration Act, 1999, as substituted by Section 10(b) of the Illegal Immigrants (Trafficking) Act, 2000. It was not established in the course of this Application that there is a statutory or legal requirement, nor was any evidence put before the Court that it is a feature of any
established administrative scheme that a decision of the Minister for Justice, Equality and Law Reform, to refuse his consent pursuant to the provisions of Section 17(7) of the Refugee Act, 1996, in order to be valid, should be communicated in some form to the legal representatives of an Applicant prior to the arrest and detention of that Applicant. The provisions of Section 17(5) of the Refugee Act, 1996 (as Amended by Section 11(1) of the Immigration Act, 1999), do not apply to an application made and refused pursuant to the provisions of Section 17(7) of the Refugee Act, 1996. It was not alleged that the Applicant was not informed by the arresting Garda or by the Member in Charge of the Garda Station at Galway to which he was brought and where he was detained, or that he did not understand why he was being arrested and detained. It was not alleged that he was directly or indirectly deprived of an opportunity to contact his Solicitors.
It was not denied on behalf of the Respondents that an Officer of the Department of Justice, Equality and Law Reform told Mr. Edward Micheau, a Legal Executive in the firm of Tunney O'Leary, Solicitors, acting on behalf of the Applicant, that no action would be taken in relation to the deportation of the Applicant while his Application was being considered by the Minister for Justice, Equality and Law Reform. It was submitted by Counsel on behalf of the Respondents that the making of an Application pursuant to Section 17(7) of the Refugee Act, 1996, does not suspend the operation of a Deportation Order. In my judgment this contention is correct. A person, who in breach of a Deportation Order, re-enters the State does not secure any right to remain in the State by making an Application pursuant to the provisions of Section 17(7) of the Refugee Act, 1996. An assurance of the type alleged to have been given by Mr. Adrian O'Keeffe, even though given in good faith, could not suspend the operation of the Deportation Order, something
which could only be done by Ministerial Order made in accordance with the provisions of Section 3(11) of the Immigration Act, 1999. It could not create an enforceable right in the Applicant to remain in the State pending the determination of his Application. In any event, as no evidence was placed before the Court which established, even on a prima facie basis, that there had been a departure from the terms of the assurance, the argument is entirely academic.
By Section 5(6)(a) of the Immigration Act, 1999, it is provided that a person should not be detained under that Section for a period or periods exceeding eight weeks in aggregate. It was stated on behalf of the Applicant and was not disputed by the Respondents that the Applicant was detained pursuant to the provisions of Section 5(1) of the Immigration Act, 1999 as substituted, from the 13th February, 2002 to the 28th March, 2002. The Applicant has now been detained in Cloverhill Prison since the 28th August, 2003. It was submitted by Counsel for the Applicant that these periods must be aggregated and therefore the detention of the Applicant is unlawful as in excess of the period permitted by Section 5(6)(a) of the Immigration Act, 1999. It was submitted by Counsel for the Respondents that the limitation period of eight weeks only commenced to run from the date of the detention of the Applicant on the 28th August, 2003.
In my judgment the purpose of Section 5(6)(a) of the Immigration Act, 1999, is to ensure that persons are not kept in custody indefinitely following upon the making of a Detention Order. The provision as to aggregation is necessary to prevent multiple detentions for periods of less than eight weeks. Once the person detained has been deported from the State the operation of Section 5(6)(a) is exhausted. However, should a person deported re-enter the State in breach of the provisions of the
Deportation Order, the limitation provisions of Section 5(6)(a) of the Immigration Act, 1996 revive, but only as regards any subsequent period or periods of detention. I am therefore satisfied that Mr. Sunny Okoroafor is being detained in accordance with Law and I refuse this Application.