High Court of Ireland Decisions

Mamyko & Ors v. Minister for Justice, Equality and Law Reform & Ors [2003] IEHC 75 (6 November 2003)

 
THE HIGH COURT

Record Number: 2003 No. 659 JR

IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT, 2000, SECTION 5;

AND IN THE MATTER OF THE REFUGEE ACT, 1996 (AS AMENDED)

Between:

Irana Mamyko, Andrei Mamyko, and Anton Mamyko (suing by his mother and next friend Irana Mamyko)

Applicants

And
The Minister for Justice, Equality and Law Reform, Ireland and the Attorney General

Respondents

Judgment of Mr Justice Michael Peart delivered the 6^th day of November 2003

The applicants are Russian Nationals who came to this country, via Belgium on the 29^th May 2000, and immediately applied for Refugee status on the grounds of persecution arising from an alleged involvement by the second named applicant in exposing corruption by senior officials in Kaliningrad and Moscow. They were interviewed in the normal way, and in due course the Refugee Applications Commissioner made a recommendation refusing refugee status on the 26^th October 2001.

An Appeal was lodged with the Refugee Appeals Tribunal and on 22^nd April 2002 that body made its decision confirming the recommendation of the Refugee Appeals Commissioner. This decision was notified to the applicants by letter dated 3^rd May 2002.

The first named applicant in her grounding affidavit states that by letter dated 19^th June 2002 she submitted representations to the Minister.

However, on the 26^th August 2002, the Minister made a Deportation in respect of all the applicants. By letter dated 6^th September 2002 the Minister's office wrote to the applicants notifying them of the making of the Deportation Order. This letter makes it clear that representations made on behalf of the applicants were taken into consideration, as well as the factors required to be taken into account under the provisions of section 3(6) of the Immigration Act, 1999.

The first named applicant in her said grounding affidavit has sworn that this letter was sent to the wrong address. It appears that on some date following the receipt of the letter dated 3^rd May 2002 from the Refugee Appeals Commissioner (which clearly was received by them), and following the making of representations to the Minister by letter dated 19^th June 2002, the applicants moved address. Her affidavit gives no detail whatsoever as to why they changed address, or what attempt was made by them to notify their change of address to the Minister's office. The only reference to this matter is in paragraph 9 which states as follows:

"The first named respondent notified us of the making of the said orders by letter dated the 6^th September 2002. The said letter was sent to the incorrect address. By letter dated 25^th march 2003 we made further representations to the first named respondent."

The next reference to this change of address is contained in a letter dated 25^th March 2003 fro the Refugee Legal Service to the Minister which simply states that the said letter dated 6^th September 2002 was sent to "an old address and which they never received".

That letter goes on to state that its author has been assured by the applicants that they informed the Department of Justice of their change of address. But it does not state in what manner and when this change of address was communicated. I find this extraordinary in relation to a most crucial aspect of the case. In such a case, there is a heavy onus on the applicants to demonstrate other than by bald assertion that the Minister's office is in some way at fault in having sent a letter of such importance as that dated 6^th September 2002 to an incorrect address.

I am unaware of how the applicants in fact became aware of the existence of the Deportation Orders made against them on 26^th August 2002 if they had not received the letter dated 6^th September 2002. But in any event the Refugee Legal Service wrote to the Minister by letter dated 25^th March 2003 pointing out that that letter had not been received, and made an application under section 3 of the Immigration Act, 1999 that they be allowed to remain in the State so that the third named applicant, a schoolboy of about 14 years of age, might complete his education here. This application was supported by a letter from his school teachers.

By letter dated 10^th July 2003 the Minister's office wrote to the applicants informing them of the making of the Deportation Orders made previously and enclosed copies thereof, and informed them that the representations made on their behalf had been taken into consideration as well as the factors required to be taken into consideration under the provisions of section 3(6) of the Immigration Act, 1999. By letter dated 21^st July 2003, the Minister's office wrote to the Refugee Legal Service in answer to their letter dated 25^th March 2003. That letter refereed to the fact that Deportation Orders were made on the 26^th August 2002, and that a letter dated 6^th September 2002 notifying them of this fact had not been received by the applicants. The Minister's office noted that the applicants had stated that they had notified their change of address to the Department but stated also that the notification of change of address had not been received by the Department. That letter concludes by stating that full consideration was given to the case in arriving at the decision to make deportation orders. The applicant's Counsel has submitted that it is clear from this statement that the Minister's office was not intending to consider at all the representations made by the Refugee Legal Service by letter dated 25^th March 2003.

By letter dated 23^rd July 2003, the Refugee Legal Service again wrote to the Department, making an application under section 17 (6) of the Refugee Act, 1996, this time enclosing medical reports in relation to the health of the third named applicant. In addition further country of origin information was furnished. The medical reports deal with the trauma suffered by the third named applicant due to the events in Russia which led to their flight out of that country, the burning of their house, his fear of returning, fears of having to do military service in Russia, depression, post traumatic stress syndrome and soforth. Letters from friends in Russia were also enclosed.

The Department replied on 28^th July 2003 indicating that deportation orders were made after full consideration of all relevant matters in August 2002 and that the time for making representations had passed, and that the Minister had made a final decision in the matter. The Refugee Legal Service replied by letter dated 5^th August 2003 stating that the Minister did not appear to have considered their representations contained in their letter dated 23^rd July 2003, and pointed out that it was an application under the Refugee Act, 1996 and that there was no time limit for the making of such an application, and that the Minister was not exclude the Minister from making a decision after a Deportation Order has issued. They asked that proper consideration be given to the application. The Minister's office responded by letter dated 25^th August 2003 stating that the Minister has made his final decision and that every consideration has been given to the case "including the innumerable representations received both from and on their behalf".

It is against this background that the applicants request leave to seek relief by way of judicial review including an order of certiorari quashing the said Deportation Orders, the decisions dated 23rdJuly 2003 and the 28^th July 2003 refusing to consider the representations made on behalf of the applicants, as well as certain declarations that the Deportation Orders are invalid having regard to the Immigration Act, 1999 and the Refugee Act, 1996 (as amended), and that the decisions of the Minister dated 21^st July 2003, 28^th July 2003 and 25^th August 2003 are wrong in law having regard to the provisions of those Acts, and other related declaratory reliefs as appear set forth in the Notice of Motion. Certain mandatory reliefs are sought in addition to injunctive relief.

Conclusion:

No ground has been made out that would justify the granting of leave to quash the Deportation orders in this case. The Minister was entitled to make those orders as he did on the 26^th August 2002. He duly notified those decisions by letter dated 6^th September 2002, and I have not been satisfied, even to the level that would be sufficient in an application for leave, that the applicants notified any change of address to the Department. They must be assumed to be aware of the importance attaching to the Department being aware of their whereabouts so that they can receive communications, and it seems to follow from the fact there is simply as assertion that they informed the Department, that they did not even communicate their change of address by letter to the Department. I would have thought that if there was any substance to their assertion that they had notified their change of address, they would have done this by at least a letter sent by ordinary post of which they would have kept a copy, even if they did not take the normal precaution of sending a registered letter. The Court has not even been informed as to whether this information was communicated in a telephone call or by letter. Nothing has been said other than the Department was informed. This is not sufficient.

Prior to the making of the Deportation Orders on 26^th August 2002, representations were made by letter dated 19^th June 2002 for leave to remain under the provisions of section 3 of the Immigration Act, 1999. That application gave as grounds the following:

1. that the family had integrated into Irish society, as evidenced by character references written on their behalf.

2. that the second named applicant was anxious not to have to depend on social welfare and that he is a qualified electronic engineer, and has been offered work here;

3. that the third named applicant's rights are of paramount importance, since he is a child attending school and doing well there, and that he has integrated into Irish society, and that it would be contrary to Ireland's national and international obligations to return him to Russia;

4. that if returned the second named applicant would be subjected to treatment which would be a breach of his human rights;

5. that to return the family to Russia would be a breach of the principle of non-refoulement contrary to section 5 of the Refugee Act, 1996, as well as the 1951 Convention relating to the status of refugees;

6. that if returned, the second named applicant would suffer imprisonment as a result of leaving the country illegally.

The Minister in his letter dated makes it clear that he has considered these representations in relation to his decision under section 3 of the Immigration Act, 1999. What happened next was that the letter dated 6^th September 2002 was apparently not received by the applicants, and therefore nothing further was done on behalf of the applicants until well into 2003, when word reached the applicants that a Deportation Order had been made. On the 25^th March 2003 the Refugee Legal Service wrote to the Minister asking that the family be allowed to remain a little longer so that the third named applicant could complete his education. School reports and testimonials from his teachers were referred to, as well as letters of support. While that letter did not refer to being an application under section 17(6) of the Refugee Act, 1996 (as amended), it clearly was such as there would be no other basis for making the application for leave to remain. That letter was responded to by letter dated 21st July 2003 in the manner which I have already set forth, but I refer again to the fact that this letter states that full consideration was given to the case in arriving at the decision to make the deportation orders. Counsel for the applicants submits that this letter indicates that the Minister is refusing to give consideration to the letter dated 25^th March 2003, being an application under section 17(6) of the Refugees Act, 1996. But I do not agree that that is a reasonable interpretation of the response, given that there is nothing new in the letter dated 25^th March 2003. The emphasis in that letter, and which comprises the basis of the application for leave to remain, is the educational welfare of the third named applicant. It must be borne in mind that that very matter was part of the representation made on behalf of the applicants in the letter from the Refugee Legal Service on the 19^th June 2002, before the Deportation Orders were made, so it is reasonable for the Minister's office to respond on 21^st July 2002 to the application under section 17(6) to the effect that this among other matters had already been taken into account. Nothing new had been put forward.

It was only after that, namely on 23^rd July 2003 that the Refugee Legal Service first commenced making a further application under section 17(6) of the Refugee Act, 1996 but based on a new ground, namely the health, both mental and physical of the third named applicant, as well as the possibility of his conscription into the Russian Army.

As I have already stated the Minister responded on the 28^th July 2003 restating that full consideration had been given to all matters, but the Refugee Legal Service wrote again on 5^th August 2003 complaining that the Minister did not appear to have given any consideration to their letter dated 23^rd July 2003 and its contents which they stated contained new and relevant information. The Minister responded that he had made his final decision in the matter including the "innumerable representations" received.

The reports contained in the latter dated 23^rd July 2003 are from Ms. Bernadette Hegarty, Counsellor/Psychotherapist, and from Dr. Ann Schofield, Consultant Psychiatrist.

The report from Ms. Hegarty is dated 21^st July 2003 and is based on two meetings with the applicants, one being on the 17^th July 2003 and the other on the 21^st July 2003. She reports that the third named applicant feels his life has bee very disrupted by everything that has happened to him over the past few years, that he fears going back to Russia, that he is depressed and "panicky" about the future, and she expresses the view that it would be detrimental to his psychological well-being if his life should be disrupted again by being returned to Russia. I have to comment that there is nothing in this report that could not have been known or told to the Minister when representations were made to him in June 2002.

The other report from Dr. Schofield states that if returned to Russia he will be in danger of suffering a relapse of post traumatic stress disorder which he suffered as a result of the fire which destroyed their home in Russia, and that he would be disadvantaged as far as his education is concerned. She also reports in her history that the third named applicant started to suffer asthma attacks before the family left Russia. After the family came to Ireland, apparently the boy suffered badly from asthma and spent a night in hospital here. She goes on to say that the boy's two fears are that his education will suffer if returned to Russia, and that he will be called up for army service. He is at present just fifteen years of age.

Dr Schofield states that she saw the first and second named applicant on the 16^th and 17^th July 2003 respectively. I assume that she spoke to the third named applicant on one of those days.

Apart from the history of asthma, there is nothing new in this report that could not have been communicated to the Minister in June 2002.

I have the utmost sympathy for the predicament of this family. There are many such families in this country at the present time, each with their own individual fears and reasons why they feel that they should not be returned to their country of origin. But sympathy is beside the point as far as the task that this court is required to perform is concerned.

What I am concerned about is whether a case has been made out in sufficient terms to justify the granting of leave as sought, namely to quash the deportation orders, and what are described as the decisions of the Minister dated 21^st July 2003, 28^th July 2003 and 25^th August 2003 which are essentially decisions that the matter has already been finally decided, and which the applicants say are decisions not to consider further representations being made as of that time.

In my view the Minister was entitled to act as he did. He has no blame for the fact that his letter dated 6^th September 2002 did not reach the applicants. Further representations were made to him on 25^th March 2003 and he considered them. A further application was made in July 2003 raising questions about the education of the third named applicant, but this was a matter that had already been taken into account by the Minister for the purpose of his decision to deport, so nothing new was raised then. The further representations which followed in the nature of the medical reports which I have referred to, again add nothing to the sum of knowledge, except that reference is made to the fact that the third named applicant suffers from asthma. But all of these matters are matters which the applicants could have brought to the attention of the Minister in their representations which were made in June 2002.

While the Minister has under section 17 (6) of the Refugee Act, 1996 been given power, at his or her discretion, to grant permission in writing to remain in the State, to any person who has either withdrawn his/her application or to whom the Minister has refused to give a declaration, that does not mean that an applicant should be permitted to "drip feed" grounds from time to time for any such application to remain. If grounds are to be put forward in relation to asking the Minister to exercise his discretion under section 17(6) of the Refugee Act, 1996, those grounds must be made promptly, or at least within what is reasonable in all the circumstances, and all the available grounds must be included at that time, rather than put forward in a piecemeal way. Otherwise, the entire fabric and integrity of the asylum process would be thrown into chaos.

In this case the applicants have reacted at the eleventh hour to the prospect of deportation by submitting fresh applications for leave to remain but the grounds are such as to have been capable of communication at a much earlier stage, and in fact at a time when representations were made on their behalf.

I do not consider that any sufficient grounds have been made out that leave should be granted for any of the reliefs sought, and I refuse the application accordingly.