Nwole & Ors v. Minister for Justice, Equality and Law Reform & Anor [2003] IEHC 72 (31 October 2003)
2002/ No. 656 J.R.
BETWEEN
APPLICANTS
DEFENDANTS
JUDGMENT of Ms. Justice Finlay Geoghegan delivered 31st day of October, 2003.
The first named applicant is the mother of the second to sixth named applicants all of whom are under the age of eighteen. Whilst the title does not so indicate the affidavit sworn by the first named applicant states that she is the next friend of the second to sixth named applicants in the proceedings. I will return to this issue at the end of the judgment.
The applicants are citizens of Nigeria and arrived in this country, it is stated, in May, 1998 and the first named applicant made an application for refugee status on the 11th May, 1998.
On the 2nd August, 2002 the first named respondent made deportation orders against each of the applicants in which it is stated in respect of each that they are a person in respect of whom deportation may be made under sub-s. (2)(f) of s. 3 of the Immigration Act, 1999. By a notice of motion issued on the 16th October, 2002 the applicants seek leave to issue judicial review proceedings seeking primarily an order of certiorari quashing each of the deportation orders made by the first named respondent on 2nd August, 2002. The grounds advanced on behalf of the first named applicant differ from those advanced on behalf of the second to sixth named applicants inclusively. Also the facts pertaining to the first named applicant and those pertaining to the second to sixth named applicants differ. I propose therefore to consider separately the claim sought to be made on behalf of the first named applicant and the claims sought to be made on behalf of the second to sixth named applicants inclusive.
Claim of first named applicant.
The facts pertaining to the first named applicant may be summarised as follows:
On the 11th May, 1998 the first named applicant applied for a declaration of refugee status. She completed the standard questionnaire which was given to her on the 13th May, 1998. She was interviewed on the 30th March, 1999. Her application was then considered in accordance with the procedures which had been notified to the United Nations High Commissioner. She was informed of a decision made on behalf of the first named respondent ("the Minister") to refuse her recognition as a refugee. That decision was communicated by a letter of 29th December, 1999. She subsequently appealed against that decision and an oral hearing was held before Mr. James Nicholson of the then Appeals Authority. He issued a recommendation that her appeal be dismissed on 25th July, 2000. By letter dated 23rd August, 2000 the first named applicant was informed by Ms. Linda Greely, an authorised officer of the Minister, that she had considered the recommendation of the appeals authority and decided to uphold the original decision and refuse the first named applicant's appeal. In that letter the first named applicant was also informed of the alternatives then open to her including her entitlement under s. 3 of the Immigration Act, 1999 to make written representations to the Minister setting out reasons as to why she should be allowed to remain in the State. In response to that letter the solicitors then acting on behalf of the first named applicant, Messrs. Cathal O'Neill and Company Solicitors sent a letter dated the 14th September, 2000 applying for leave to remain in the State pursuant to s. 3 of the Immigration Act. That application was made upon the basis that "Our client and her family would be in immediate personal danger if they returned to Nigeria". Included with that letter were a series of references including references from teachers in the schools being attended by the second to fifth named applicants since 1998.
It appears to be common case that there was no communication from the Minister in response to that letter. The first named applicant states that she applied in early 2002 for citizenship or residency on the basis that she had then been in the country for four years.
On the first of July, 2002 a further letter was written on behalf of the Minister, this time addressed to all six applicants, confirming that the Minister proposed to make deportation orders under s. 3 of the Immigration Act, 1999 in respect of all six applicants. The applicants were informed of their entitlement to make representations to the Minister setting out reasons why they should be allowed remain temporarily in the State. They were informed that if representations were previously made that they would be considered by the Minister. They were also told to complete an address notification form confirming their current addresses. A copy of this letter was also sent to Messrs. Cathal O'Neill and Company. In response, by letter of the 8th July, 2002, Cathal O'Neill and Company confirmed that representations had been made in the case and that the applicants wished these to be taken into account by the Minister. By further letter of the 16th July, 2002, the address notification forms were returned.
By letter of 9th August, 2002, addressed to all six applicants, they were sent copies of deportation orders made in respect of each of them on the 2nd August, 2002 by the Minister and requested that they present themselves to the member in charge of the Garda National Immigration Bureau, Harcourt St., on Friday the 16th August, to make arrangements for their deportation from the State.
The first named applicant did not attend at the Garda National Immigration Bureau on the 16th July, 2002, as directed and appears to have moved to reside with her sister and family in Celbridge, Co. Kildare. On the 5th October, 2002 she was arrested at her sister's home by a member of the Garda National Immigration Bureau and detained in Mountjoy. Subsequent to the issue of the notice of motion herein she was released temporarily pursuant to s. 5 of the Immigration Act, 1999.
At the hearing before me the challenge on behalf of the first named applicant to the Deportation Order made by the Minister on the 2nd August, 2002, was confined to one ground only. It was submitted that the decision made and communicated to the first named applicant in the letter of 23rd August, 2000, upholding the original decision made on behalf of the first named respondent and refusing the appeal therefrom to the appeals authority contained an error of fact which was fatal to the subsequent process. In the first paragraph of that letter it is stated:
"I am directed by the Minister for Justice, Equality and Law Reform to refer to your appeal against the decision that your application for Refugee Status within the State is manifestly unfounded under procedures drawn up following consultation with the United Nations High Commissioner for Refugees."
It is submitted that the original decision in December 1999 was a decision on the substantive application and not a decision that the application was manifestly unfounded.
The letter of 23 August 2000 then goes on to state:
"The appeals authority, having considered your appeal, has made a recommendation based on the papers available in your case. The recommendation is that your appeal be refused. A copy of the appeals authority recommendation is enclosed. Please note that the recommendation is only being sent to you and your legal representative.
As the officer authorised by the Minister, I have considered the recommendation of the appeals authority and have decided to uphold the original decision and refuse your appeal."
This decision made by the authorised officer is the final decision in the application for a declaration of refugee status. The decision was made prior to the 23rd August, 2000. The respondents submit that independently of the question as to whether there is an arguable case by reason of what they submit is simply a typographical error in the reference to "manifestly unfounded" in the first paragraph of the letter of the 23rd August 2000 the first named applicant is now too late to seek to challenge the decision made to refuse the applicant refugee status. It was submitted that even if s. 5 of the Illegal Immigrants (Trafficking) Act, 2000, does not apply to the decision recorded in the letter of the 23rd August, 2000 that under Order 84 of the Rules of the Superior Courts the application must be made within six months.
I am satisfied that the submission on delay made on behalf of the respondent is well founded. Even considering the time under Order 84, rule 21 it is now too late for the first named applicant to seek to challenge the decision refusing her refugee status communicated to her by letter of 23rd August 2000. The notice of motion herein was not issued until 16th October 2002 and no good grounds have been advanced to justify an extension of the time. Enclosed with the letter of the 23rd August, 2000, was the recommendation of the member of the appeals authority. This makes it clear that the decision previously made on behalf of the first named respondent communicated in a letter of the 29th December, 1999, was based on the ground that the applicant had not demonstrated a well founded fear or persecution for a Convention reason. It is also clear from the recommendation of the member of the Appeals Authority that he reached a similar conclusion having considered the substance of the applicants' claim for asylum. The first named applicant was represented and advised by solicitors in August 2000. In response to the letter she did not seek in any way to challenge the final decision made in the asylum process but rather sought through her solicitor to take up the opportunity expressly given to her under s. 3 of the Immigration Act to make representations to the Minister in the subsequent immigration procedure envisaged by the Act of 1999 prior to the making of any deportation order.
Accordingly I am refusing the first named applicants application for leave to apply for judicial review.
Claims of second to sixth named applicants.
Leave is sought on behalf of the second to sixth named applicants to challenge the deportation orders made in respect of each of them by the Minister on the 2nd August, 2002, primarily upon the ground that the Minister has made these orders in respect of the applicants as being persons to whom sub-s. (2)(f) of s. 3 of the Immigration Act, 1999 applied whereas in fact the subsection did not apply to the applicants on 2nd August, 2002. Subsection 3(2) of the Immigration Act, 1999 expressly authorises the Minister to make deportation orders in respect of certain classes of persons who are set out in subparagraphs (a) to (i) inclusive. Subparagraph (f) is
"a person whose application for asylum has been refused by the Minister."
This is the sole basis upon which the Minister has purported to make the deportation orders against the second to sixth named applicants. The Deportation Orders were made by the Minister on the 2nd August, 2002, and accordingly s. 5 of the Illegal Immigrants (Trafficking) Act, 2000 applies to the challenge sought to be made to the validity of the deportation orders. The second to sixth named applications must establish that they have "substantial grounds" for asserting that the deportation orders are invalid. In accordance with the decision of the Supreme Court in The Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 IR 360 to constitute substantial grounds the alleged grounds must be equivalent to 'reasonable', 'arguable' and 'weighty' and must not be "trivial or tenuous".
If the second to sixth named applicants have reasonable, arguable or weighty grounds for asserting that on the 2nd August, 2002, they were not persons whose application for asylum had been refused by the Minister then it appears to me that they have substantial grounds within the meaning of s. 5 of the Act of 2000 for asserting that the deportation orders made in respect of them are invalid.
This issue turns on the question as to whether the second to sixth named applicants made an application for asylum which was duly processed and considered and refused by or on behalf of the Minister.
The primary claim made on behalf of the second to sixth named applicants is that no application for asylum was made by them or in respect of them and hence has not been refused by the Minister. The only application for asylum made was that of the first named applicant, their mother. Alternatively, they contend that if an application is deemed to have been made by them or on their behalf, it was not considered in accordance with the statutory provisions to the point of refusal by the Minister.
On behalf of the respondents, it is not contended that there were individual applications for asylum made by each of the second to sixth named defendants on their arrival in the State. The principal replying affidavit is an affidavit sworn by an Assistant Principal Officer in the Department of Justice, Equality and Law Reform. In that affidavit it is stated that the first named applicant made an application for asylum on the 11th May, 1998 and the relevant form "ASY 1" is exhibited. The assertion made is that the Minister, as he was entitled to do, applied the policy of treating the first named applicant's application for asylum as being an application on behalf of herself and each of the accompanying minors. It is also stated that as the second to sixth named applicants were dependent children of the first named applicant, that her application was regarded as including the children for the purpose of the asylum process. It is contended that this was the proper course for the Minister to take "taking into account the diminished capacity of the second to sixth named applicants herein". It is further contended that this is in accordance with the principle of family unity and paras. 2 and 3 of the Handbook on Procedures and Criteria for Determining Refugee Status.
The only factual matter relied upon by the respondents in support of this claim is the assigning to the first named applicant of a file reference number 69/1346/98(b) and to each of the second to sixth named applicants the reference numbers 69/1346/98(c), 69/1346/98(d), 69/1346/98(e), 69/1346/98(f) and 69/1346/98(g) respectively plus the taking of photo references for each of the first to sixth named applicants inclusive.
All the correspondence with the first named applicant up to and including the letter of 23rd August 2000 with the final refusal and decisions relating to her application refer to her application as a single application and make no reference to any application of the 2nd to 6th named applicants.
It is necessary to consider the competing claims in the context of the statutory framework established for applications for declarations of refugee status or asylum and the regulation by statute of the power to deport. Whilst the first named applicant's application was dealt with under the procedures then notified to the United Nations High Commissioner for Refugees, no reliance was placed by Counsel for the Minister on any aspect of that scheme in support of the submissions and it is clearer to consider the issues in the context of the full statutory scheme as now applied.
Statutory framework.
The Deportation Orders made in respect of the second to sixth named applicants have been made pursuant to s. 3 of the Immigration Act, 1999. The Minister had purported to make these orders on the basis that the second to sixth named applicants were each "a person whose application for asylum has been refused by the Minister". It was accepted by counsel on behalf of the Minister that if there were substantial grounds for contending that the second to sixth named applicants did not come within this class of person on the date the Deportation Orders were made, that there are substantial grounds for contending that the Orders are invalid.
Section 8(1) of The Refugee Act, 1996, expressly gives the right to apply to the Minister for asylum to a "person who arrives at the frontiers of the State seeking asylum in the State or seeking the protection of the State against persecution . . . "
Thereafter there is prescribed by the Act of 1996 a procedure to be followed, including a decision by the Commissioner, a potential appeal and decision by the Tribunal and ultimately a recommendation to the Minister. As already pointed out the procedure followed at the time of this application was slightly different but the differences do not affect the issues I have to consider. Section 17 now makes provision for the decision ultimately to be taken by the Minister which, where positive under s. 17(1) (a) is "a statement in writing (in this Act referred to 'a declaration' declaring that the applicant is a refugee". Section 17(1) (b) authorises the Minister in any other case to "refuse to give the applicant a declaration". It is a refusal to give an applicant a declaration that he or she is a refugee, which is the refusal of the application for asylum and brings the person within the class of persons envisaged by s. 3(2)(f) of the Immigration Act, 1999, being persons whose application for asylum has been refused by the Minister.
A refugee is defined in s. 2 of the Act of 1996. The well known definition refers to a person who, owing to "a well-founded fear of persecution" for a Convention reason is outside the country of his or her nationality and is unable or, owing to such fear, unwilling to avail himself or herself of the protection of that country. While s. 17 makes it mandatory for the Minister to grant a declaration in favour of a person in respect of whom a recommendation to that effect has been made by the Tribunal, the Minister does appear to retain discretion in respect of other persons. However, no submission was made that the Minister may at present make a declaration that a person is a refugee without grounds for concluding that the person came within the definition of a refugee within s. 2 of the Act of 1996.
Hence, in the statutory scheme expressly established by the Act of 1996, it appears probable that a person at present must satisfy the authorities, following the process prescribed, that they come within the definition of "a refugee" in s. 2 of the Act of 1996 in order to be granted a declaration of refugee status. Whilst s. 3 of the Act of 1999 uses the term "application for asylum", the Act of 1996 is based upon a declaration that a person is a refugee. In practical terms and in the way in which the phrases have been used between the different Acts, there appears to be no distinction between the status of a person who has been granted a declaration that he is a refugee and a person who is considered to have been granted asylum. The rights accorded to such persons are set out in s. 3 of the Act of 1996.
Minor Applicants
A "person" is not defined for the purposes of s. 8(1) of the Act of 1996. Accordingly, prima facie, all natural persons would appear to potentially come within the class of person described in s. 8(1). This was not disputed on behalf of the respondents. It was accepted that the persons envisaged in s. 8(1) include minors. Section 9(A) of the Act of 1996 (as inserted by s. 11 of the Immigration Act, 1999) appears to confirm that the Oireachtas envisages that minors may be applicants for declaration of refugee status under s. 8 of the Act of 1996 insofar as it expressly permits fingerprints to be taken of "an applicant above the age of fourteen years". Section 9(12) (a) also appears to envisage applicants under the age of 18 years. Accordingly I conclude that persons who are minors may be applicants for a declaration of refugee status under s. 8 of the Act of 1996.
The Act of 1996 contains no express provision as to any special procedure to be followed where an application for a declaration of refugee status under s. 8(1) is made by or on behalf of an accompanied minor. Section 8(5)(b) contains a provision mandating a health board in certain circumstances to appoint an officer of the Health Board or other person to make an application on behalf of an unaccompanied minor who has arrived at the frontiers of the State and is not in the custody of any person.
Having regard to the necessity of each applicant for asylum establishing that she is a "refugee" within the meaning of s.2 of the Act of 1996 for the reasons already set out there appear to be substantial grounds for contending that every application by or on behalf of a minor for asylum must be processed in accordance with the statutory scheme and ultimately a decision made by the Minister as to whether such minor should be granted or refused a declaration of refugee status.
In reaching this conclusion I am conscious of the practical difficulties of applying the process established by the Act of 1996 to a minor applicant and in particular the obligation under s. 8(1)(a)(i) and s. 11 to interview an applicant for a declaration of refugee status. The obligation imposed by s. 8(1)(a)(i) was considered by Smyth J. in Emekobum & Ors v. Minister for Justice, Equality and Law Reform (Unreported, the High Court 18th July, 2002). In that case he considered that the subsection imposed a "duty to interview but it does not impose an absolute obligation to do so". I would respectfully agree with this construction of the obligation imposed by the section but would add the following in relation to an application made by or on behalf of a minor. The provisions of the Act of 1996 must be construed, and its operation applied by the authorities in accordance with the Convention on the Rights of the Child which has been ratified by Ireland. Article 12 of that Convention entitles children, capable of forming their own views to "the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child". It also provides that ". . . the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law".
This would appear to require, at minimum, an inquiry by or on behalf of the respondent in respect of any minor applicant for a declaration of refugee status as to the capacity of the minor and the appropriateness of conducting an interview with him or her.
Even if the application of the first named applicant was treated as an application on behalf of herself and of her minor children (and I am not so concluding) there are substantial grounds for contending that the above provisions (and earlier procedures) impose on the authorities an obligation to consider whether each individual minor applicant is or is not entitled to a declaration of refugee status. The documents exhibited relating to the application of the first named applicant up to and including the letter of 23rd August 2000 do not disclose any such consideration.
Accordingly I have concluded that even if the application of the first named applicant was treated as an application also on behalf of her minor children (and I am not so concluding) there are substantial grounds for contending that there was no determination of such applications of the 2nd to 6th applicants for a declaration of refugee status.
Principle of family unity.
The respondents seek alternatively to rely upon the principle of "family unity" as that term has been used in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and in particular paragraph 213 of the Handbook which provides:-
"213. There is no special provision in the 1951 Convention regarding the refugee status of persons under age. The same definition of a refugee applies to all individuals, regardless of their age. When it is necessary to determine the refugee status of a minor, problems may arise due to the difficulty of applying the criteria of "well-founded fear" in his case. If a minor is accompanied by one (or both) of his parents, or another family member on whom he is dependent, who requests refugee status, the minor's own refugee status will be determined according to the principle of family unity (paragraphs 181-188 above)."
The principle of family unity is most succinctly set out in the opening sentence of paragraph 184 which states:-
"184. If the head of a family meets the criteria of a definition, his dependents are normally granted refugee status according to the principle of family unity…"
Paragraph 185 makes it clear that the principle of family unity is not intended to take away from persons who may be dependents of the head of a family the right to individually apply for recognition as refugees under the Convention. It provides:-
"185. As to which family members may benefit from the principle of family unity, the minimum requirement is the inclusion of the spouse and minor children. In practice, other dependents, such as aged parents or refugees, are normally considered if they are living in the same household. On the other hand, if the head of the family is not a refugee, there is nothing to prevent any of his dependents, if they can invoke reasons on their own account, from applying for recognition as refugees under the 1951 Convention or the 1967 protocol. In other words, the principle of family unity operates in favour of dependants and not against them."
The principle of "family unity" as set out in the above extracts from the UNHCR Handbook envisages a choice of two ways in which a dependent minor may obtain asylum:
1. The minor may apply for asylum in his or her own right. In such cases the minor applicant will have to establish that s/he comes within the definition of a refugee in the Convention and in s.2 of the Act of 1996 and the full procedures established by statute or otherwise must be followed; or
2. The minor may be included as a dependent in the application for asylum of his/her parent. In such case the minor applicant need not establish that s/he is a refugee as defined. Hence no separate inquiries need be made as to the status of the minor. The only inquiries relate to the parent's status. The minor's entitlement to asylum depends entirely on the success of the parent's application.
I accept that it may be arguable that such a principle forms part of the law relating to the Convention. Other signatory states appear to have so implemented the Convention. For example the current United Kingdom Immigration Rules (HC 395 as amended) at Rule 349 provide:
"A spouse or minor child accompanying a principal applicant may be included in his application for asylum as his dependant. A spouse or minor child may also claim asylum in his own right. If the principal applicant is granted asylum and leave to enter or remain any spouse or minor child will be granted leave to enter or remain for the same duration. The case of any dependant who claims asylum in his own right will be considered individually in accordance with paragraph 334 above…"
However, under article 29.6 of the Constitution, the Convention may only be part of the domestic law of this State "as determined by the Oireachtas". The Refugee Act, 1996 contains the provisions according to which the Oireachtas has determined that the Convention should form part of the law of this State. I accept that in interpreting the provisions of 1996 Act I should have regard to the Convention and where possible interpret the provision so as to give effect to the Convention.
Notwithstanding I can find nothing in the Act of 1996 or the procedures established thereunder (including the earlier procedures notified to the United Nations High Commissioner) which would permit me to conclude that was in existence in the State at the time of the first named applicant's application an authorised scheme based upon the principle of family unity as explained above. In reaching this conclusion I am not reaching any conclusion as to whether or not within the present statutory framework established by the Act of 1996, the Minister could by appropriate regulation or notified procedure establish such a procedure.
In reaching the above conclusion I have considered s.18 of the Act of 1996. That section establishes a procedure whereby a person who is already a refugee, i.e. in respect of whom a declaration of refugee status is in force may apply to the Minister for permission to be granted to a member of his or her family to enter and reside in the State. It is not dealing with an applicant parent such as the first named applicant herein.
Accordingly, I have concluded that the principle of family unity as explained by the UNHCR Handbook does not assist the respondents in their submission that the respondents did in fact, and were entitled to under the Act of 1996 to treat or deem the application of the first named applicant as being an application for a declaration of refugee status made also on behalf of the second to sixth named applicants as her dependent children such that following her refusal of refugee status and on the 2nd August, 2002 the second to sixth named applicants were deemed to be persons whose application for asylum had been refused by the Minister within the meaning of s.3(2)(f) of the Immigration Act, 1999.
Application for refugee status by the second to sixth named applicants
A second subsidiary ground was advanced on behalf of the second to sixth named applicants. It was submitted that they now wish to make an application for a declaration of refugee status. It was submitted that independently of any matter raised by the first named applicant in the course of her application for asylum that each of the second to sixth named applicants has a well-founded fear of persecution, namely female genital circumcision, if they were to be returned to Nigeria. No evidence was adduced at the hearing by or on behalf of the second to sixth named applicants that they had made individual applications for asylum. An expressed intent to make an application for asylum does not appear to constitute a substantial ground upon which an order of deportation already made could be declared invalid. The entitlement to remain in the state under s. 9 of the 1996 Act only applies to a person who has made an application for asylum under s. 8 of the Act.
On the evidence before me I am not granting leave on this ground.
Conclusion
I am refusing the application of the first named applicant for leave to seek judicial review.
I am granting the second to sixth named applicants leave to issue judicial review proceedings, by a next friend who has complied with the provisions of O. 15, r. 20 of the Superior Courts Rules, seeking an order of certiorari quashing the deportation orders made by the Minister in respect of each of the second to sixth named applicants on the 2nd August, 2002 and the consequential relief sought at paragraphs 5 and 6 of the statement of grounds upon the following ground
"The deportation orders of the 2nd August, 2002 relating to the second to sixth named applicants are invalid in that the second to sixth named applicants were not on that date persons whose applications for asylum had been refused by the Minister within the meaning of s.3(2)(f) of the Immigration Act, 1999."