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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> E. -v- MJELR & Ors [2007] IEHC 302 (27 July 2007)
URL: http://www.bailii.org/ie/cases/IEHC/2007/H302.html
Cite as: [2007] IEHC 302
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Judgment Title: E. -v- MJELR & Ors Composition of Court: Peart J. Judgment by: Peart J. Status of Judgment: Approved |
Neutral Citation Number: [2007] IEHC 302 THE HIGH COURT Record Number: 2006 No. 270 JR Between: C. I. E. Applicant And The Minister for Justice, Equality and Law Reform, The Attorney General, Ireland Respondents Judgment of Mr Justice Michael Peart delivered on the 27th day of July 2007: The first named applicant is Nigerian, and is the mother of the second named applicant who was born in Ireland on the [ ] October 2005 and therefore is not an Irish citizen, and is not within the IBC05 scheme for applications for residency under that scheme. On arrival in this country on or about December 2004 the first named applicant made an application for a declaration of refugee status in order to avoid being married against her will to a man in Nigeria to whom she was allegedly promised in marriage by her father when she was six years old. She was interviewed in the normal way after she had completed the usual questionnaire. Shortly after her arrival she became pregnant and gave birth to the second named applicant on the [ ] October 2005. In the meantime, a report under s. 13 of the Refugee Act 1996, as amended was prepared, leading to a recommendation on the 10th February 2005 by the Refugee Appeals Commissioner that she be not declared a refugee. She was notified of that recommendation by letter dated 14th February 2005 and was given a copy of the said report. The first named applicant availed of her entitlement to appeal this recommendation to the Refugee Appeals Tribunal. That appeal was unsuccessful, and the recommendation made by the Refugee Appeals Tribunal was affirmed. She received a copy of that Decision which was made on the 26th May 2005 with as letter dated 13th September 2005, which in the usual way informed her of the Minister’s proposal to make a deportation order, and of the options then open to her, one of which was to make representations under s. 3 of the Immigration Act, 1999 for what is commonly known as “humanitarian leave to remain”. She opted to submit such representations, and her solicitor did this by a lengthy letter dated 2nd October 2005. Much of that letter went over the grounds on which refugee status had already been refused, including the forced marriage referred to already. However these representations also referred to the fact that the first named applicant was pregnant and that her child was due in about three weeks from the date of the letter. The letter stated that the position of such a child would have to be considered, since if returned to Nigeria with mother he/she would be left without a mother if mother was killed, would be exposed to aids, trafficking, female genital mutilation, poverty, and insecurity. This letter went on to refer to the fear on the part of the first named applicant herself of female genital mutilation as a consequence of being returned to Nigeria. This had never been part of her original application for refugee status, and appears to have been mentioned for the first time by her solicitor in his letter making these representations. Further material and representations were forwarded on the 13th October 2005, 18th February 2006. Her s.3 application was examined in due course by a first supervisor and by a second supervisor in the Minister’s Department. The examination by the former is dated 18th January 2006, which is before the final submission was received in the Department by letter dated 18th February 2006. The second examination is dated 24th January 2006, also before the receipt of the representations dated 18th February 2006. On the 6th February 2006, a principal Officer, Dermot Cassidy considered the papers in the case and recommended that the Minister sign the deportation order in respect of the first named applicant. At the foot of the examination by the second supervisor dated 24th January 2005 there is a further note signed by Mr Cassidy which states:
It would appear that following the birth of her son here on the 29th October 2005, which was after the letter was sent by her solicitor for the purpose of the s. 3 representations, the first named applicant did not contact the Minister’s office in order to inform them of the birth of her son, or make any separate or further representations under s. 3 arising from his birth here. This is apparent because in the examination of the file for the s. 3 application, the supervisor states: “After contacting the Department of Social & Family Affairs, it was stated that Ms. Ebinum gave birth in the State to a son, Master Nelson Chukuka Ebinum on 29 October 2005”. The second supervisor’s examination considered the position of this child, including by reference to the letter dated 13th October 2005 from Messrs. Mulvihill & Co. This supervisor stated that the child is not an Irish citizen because he was born here after the 1st January 2006, and that even if he was an Irish citizen he would have no automatic right to reside here in order to enjoy the company and care of his mother, and that even though there may be inferior welfare and health services available in Nigeria this would not amount to a reason why he must be allowed to remain here. She went on to say that the fact that he is not an Irish citizen “lends further weight to the conclusion that deporting the parent, along with the child, is not contrary to our national or international obligations.” That conclusion was followed by a sentence which stated that “the principal issue to be considered in this case is that of the citizenship of the child ….”, and referred in that regard to s. 6A (1) of the Irish Nationality and Citizenship Act, 1956, as amended, and also the fact that under Nigerian law he is entitled to Nigerian citizenship being the son of a Nigerian citizen. It was concluded that he did not qualify for inclusion in the IBC 05 scheme. The Minister signed a deportation in respect of the first named applicant on the 9th February 2006, and a copy of this order was sent to the first named applicant by letter dated 28th February 2006, which informed her also that she was to attend at the GNIB offices at Burgh Quay, Dublin 1 on the 9th March 2006 in order to make arrangements for her deportation. At that point she decided to make an application for a declaration of refugee status for her son, and completed an application in that regard on the 6th March 2006. This Court has been told by Counsel that this application was in turn refused, and that the decision is in turn the subject of separate judicial review proceedings here. It is now submitted that the s.3 consideration is invalid because, it is suggested, no consideration was given to anything other than the citizenship of the second named applicant when a decision was made on the s. 3 application for leave to remain. It is also suggested that in arriving at this decision the decision maker was selective in what material was had regard to, and that significant pieces of country of origin information was ignored or overlooked, and that this is a breach of fair procedures. With regard to these submissions it is submitted that part from the question of the citizenship of the second named applicant, the Minister was obliged to consider what is in the best interests of the child, and that he did not do so. In so far as he has failed to deal properly with this s. 3 application, it is submitted that the Deportation order itself is invalid, since the process undertaken prior to the signing of the deportation order is faulty. In my view there is no room for any argument that the process by which the decision on the s. 3 application was reached breached any fair procedure rule, or was in any way arrived at by failing to consider all that was required to be considered. I refer to the very clear and helpful judgment of Mr Justice Clarke in Kouaype v. Minister fro Justice, Equality and Law Reform, unreported, 9th November 2005 in which he has very clearly set out the two statutory prerequisites to the making of a deportation order by the Minister, namely that he should be satisfied that none of the conditions set forth in s. 5 of the Refugee Act, as amended, are present, and that he consider the humanitarian and other matters set forth in s. 3 of the 1999 Act in so far as they are known to him, and in this regard he is required to have regard to representations made to him on the applicant’s behalf. In this regard it is worthy of note that the section itself provides that the Minister shall have regard to various matter including “ any representations duly made by or on behalf of the person”. There is no requirement imposed on the Minister to seek out any matter which may be relevant and which has not been included in the representations. However, in his said judgment Clarke J. has stated that once the Minister has complied with the requirements of the section the Minister’s decision is not reviewable by the Court, since it is entirely a matter for the Minister as to how the various matters to be considered are weighed and determined. The learned judge reached certain conclusions as to the grounds upon which a decision to deport by the Minister in the case of a failed asylum seeker can be challenged, and I respectfully agree with and adopt what he has stated, and there is no need to repeat it here. I am satisfied that all the representations made on the applicants’ behalf were considered in the Minister’s department, being those contained in the solicitor’s letters dated 2nd October 2005, 13th October 2005 as well as those dated 18th February 2006. No representations were made about the second named applicant and how he was to be considered in the context of the application under s. 3 made by the first named applicant. The solicitor’s first representations merely warned of his impending birth, but thereafter nothing was submitted with regard to his interests. It was only after the making of the deportation order that mother decided even to make a separate application for her son. In my view the Minister’s officials were perfectly entitled to consider matters arising from the birth of the second named applicant by reference predominantly to the issue of his citizenship since no representations were made in any other respect. I am satisfied that any submission to the contrary does not surpass the hurdle of substantive grounds as to arguability. Similarly I am not satisfied that it has been demonstrated either that the Minister has failed to properly consider country of origin information in respect of the application by the first named applicant under s. 3. Mr Cassidy has stated that all matters were given consideration, and it is clear from the very full consideration evident from the papers before this Court that the applicant’s case was fully and fairly considered. It is not substantially arguable to say otherwise in my view. In so far as the applicant relies upon irrationality in relation to this application, no substantial grounds have been shown to argue that the Minister’s decision is flawed in this respect. It has been submitted that he failed to have regard to certain country of origin information and failed to have regard to others. But it is quite clear that all information was “considered” since it was before the relevant personnel at all relevant times. It is absolutely inevitable that the decisions and examinations made during the process will not specifically refer to every piece of country of origin information available or produced. The volume of such information is ever increasing. But that is not to say that something not specifically referred to has been overlooked in favour of others. There are specific statements made by Mr Cassidy and others that all representations have been considered. I reject this ground of argument. In these circumstances, I refuse leave to seek judicial review herein. |