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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> ALJ (Togo) -v- The Minister for Justice & Equality & anor [2015] IEHC 517 (30 July 2015)
URL: http://www.bailii.org/ie/cases/IEHC/2015/H517.html
Cite as: [2015] IEHC 517
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Judgment
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Neutral Citation [2015] IEHC 517 THE HIGH COURT JUDICIAL REVIEW [2014 No. 677 J.R] BETWEEN A.L.J. [TOGO] APPLICANT AND
THE MINISTER FOR JUSTICE AND EQUALITY ATTORNEY GENERAL RESPONDENTS JUDGMENT of Ms. Justice Stewart delivered on the 30th day of July, 2015 BACKGROUND 2. His application for refugee status was examined and rejected by the Refugee Appeals Tribunal in a decision of 6th October, 2006, based primarily on findings of a lack of credibility. 3. The applicant then applied for and was refused subsidiary protection by virtue of a decision of 19th August, 2009. The first named respondent considered the representations made by the applicant as to why he should not be deported but nonetheless decided to make a deportation order on 20th August, 2009. The deportation order required him to leave the State by 9th October, 2009. 4. These proceedings were ostensibly commenced, without prior leave of the Court as is required by s.34 of the Employment Permits Amendment Act 2014, which in turn amends s.5 of the Illegal Immigrants (Trafficking) Act 2000, and which was commenced by virtue of S.I. 435 of 2014 as and of 3rd October, 2014. Notwithstanding the irregular manner by which the notice of motion and statement of grounds were purportedly issued and proceedings commenced in this matter, when the matter came on for hearing before the Court on 9th July, 2015, it was agreed by the respondents and the applicant that the matter could proceed by way of a leave application for judicial review on notice to the respondents. 5. In the proceedings the applicant seeks leave to apply for judicial review and an order of certiorari quashing the deportation order made in respect of the applicant on 20th August, 2009. In accordance with the provisions of s.5 of the Illegal Immigrants (Trafficking) Act 2000 (as amended), the threshold for the grant of leave is that this Court is satisfied that there are substantial grounds for contending that the decision, determination, refusal or order is invalid or ought to be quashed. APPLICANT’S SUBMISSIONS 7. The applicant contended that between 2009 and 2015, effectively, the minister has not taken any steps in order to enforce the order of August, 2009 and, therefore, the potency of the order has drained away by passage of time. The applicant sought to rely on the decision of O’Neill J. in Yau v. Minister for Justice, Equality and Law Reform & anor. [2005] IEHC 360 and contended that this decision is an authority for the proposition that a deportation order can lapse and that an order which was validly made in the first instance, can cease to have force and effect, for example, a deportation which is excessively delayed or which was used for an ulterior purpose. The applicant referred to the In re Article 26 and s.5 and s.10 of Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360 at p. 411 as being ample authority for the proposition that an order, though validly made, may, for one reason or another, cease to have force and effect. 8. The applicants further relied on the decision of MacEochaidh J. in F.O. v. Minister for Justice, Equality and Law Reform & ors. [2013] IEHC 206. The applicant referred to a passage in the judgment of MacEochaidh J. wherein the learned judge refers to the decision of O’Neill J. in the Yau decision. RESPONDENTS’ SUBMISSIONS 10. The respondents contended that the applicant’s argument is misconceived and that it is not open to the applicant to seek certiorari of a deportation order on the basis of a lack of enforcement. The respondents stated that the remedy available to the applicant is to lodge an application to revoke the deportation order. This, in fact, has been done in this case and a decision is pending. DECISION 12. The applicant sought to rely on two decisions of the European Court of Human Rights in Minshall v. UK (7350/06) (20th December, 2011) and further, Shilyayev v. Russia (9647/02) (6th October, 2005). Both of those cases refer to delay in the conclusion of legal proceedings, a criminal process in the Minshall and a civil process in the Shilyayev case. They concerned article 6(1) of the European Convention on Human Rights, which requires proceedings to be determined within a reasonable period of time. The respondents submitted, and I accept, that those authorities from the European Court of Human Rights bear no relevance to the factual matrix of this case. 13. The applicant has contended that from the date of the deportation order on 20th August, 2009, to the date of the proceedings before this Court, nothing has happened with regard to the minister seeking to enforce the deportation order. This does not appear to be borne out by the evidence before the Court. First, the applicant arrived in this country on false documents and to date is without a valid passport from Togo. The applicant avers at para. 6 of his affidavit shown on 14th November, 2014, that he has been living in direct provision for over 10 years. Again, this is not borne out by the various affidavits sworn on behalf of the respondents and, in particular, the affidavit of Tom Doyle sworn on 4th June, 2015; the affidavit of Simon Duignan sworn on 20th May, 2015; a further affidavit of Tom Doyle sworn on 4th June, 2015; the affidavit of Killian Morgan sworn on 4th June, 2015; and a final affidavit of Tom Doyle sworn on 8th July, 2015. 14. The applicant generally complied with reporting and presentation requirements after the making of the deportation order up and until November, 2011. He failed to report as required from 1st December, 2011, until 8th May, 2014. The applicant recommenced reporting to the Garda National Immigration Bureau after the first named respondent had advised his solicitors that his application for revocation of the deportation order pursuant to s. 3(11) of the Immigration Act 1999 (as amended), which had been lodged on 20th January, 2014, would not be considered until he either provided confirmation that he had left the State or he regularised his position by presenting himself at the offices of the Garda National Immigration Bureau. 15. The applicant, despite his averment at para. 6 of his grounding affidavit that he has lived in direct provision for more than ten years, did not in fact so reside for the last ten years. He resided at the Glenvera Hotel accommodation centre in Cork from May, 2004 to May, 2008. He went missing in or around May, 2008. He applied for accommodation at the Reception and Integration Agency in October/ November, 2008 and was offered accommodation in Donegal, which he refused to take, insisting on accommodation in the Cork area. In July, 2009 he again requested accommodation and was offered accommodation in Limerick, which he accepted. He was recorded as having gone missing from that accommodation on 7th June, 2011. In October, 2011, he again requested accommodation and was offered and accepted accommodation in Cobh, which he did not use. That accommodation was withdrawn on 1st November, 2011, because he was not using it. He did not apply at the Reception and Integration Agency for accommodation again until 20th March, 2014. He was offered accommodation in Limerick at that time; however, he did not avail of same. On 1st May, 2014, a further request for accommodation was made and a further offer of accommodation at Mount Trechard was made, and availed of by the applicant on 12th May, 2014. He has resided there since that date. 16. In tandem with copious correspondence between the applicant’s solicitors and the respondents, the applicant himself has been writing to the first named respondent seeking repatriation to Benin, a neighbouring country to Togo. The applicant asserted in his grounding affidavit that the International Organisation of Migration had refused to repatriate him in 2011 because of the alleged risks that he would face in Togo. However, he has not provided any evidence to substantiate this claim and in contrast in his letter of 24th September, 2014, to the first named respondent, the applicant states that he asked the IOM to repatriate him to Benin in order to bury his mother but that nobody helped him. The applicant, on occasions, seeks to be repatriated to Togo and, on other occasions, seeks to be repatriated to Benin. The Court notes that other than Benin being an adjoining country and there being an agreement in relation to free movement between the two countries, the applicant has not asserted any links with Benin. Further, the IOM does not accept requests from persons subject to a deportation order; therefore, even if the applicant had made an application to the IOM for voluntary repatriation, it could not have been entertained as he was the subject of a deportation order at that time and was not, therefore, eligible for voluntary repatriation. 17. The legal validity of the deportation order must be judged at the time it was made. It can only be considered by the Court on the basis of the materials available to the minister at the time it was made. The deportation order is mandatory in its terms and directs the applicant to leave the State and to remain out of the State. The doctrine of estoppel cannot operate against the State to deprive the deportation order of effect. The respondents contended, and I accept, that the deportation order remains in force unless and until the first named respondent chooses to revoke it in exercise of the power vested in the minister pursuant to s. 3 (11) of the Immigration Act 1999. 18. The decision of MacEochaidh J. in F.O. v. Minister for Justice, Equality and Law Reform (supra) sets out the remedy open to a deportee who claims that a deportation order has lost its validity in light of a subsequent event and he states as follows at para. 37:
20. Mr. Justice O'Neill, in the Yau decision (supra), made an obiter comment with respect to the enforceability of a deportation order. That case concerned a challenge to the lawfulness of Mr Yau's detention pending the implementation of a transfer order, transferring him to Italy where he was understood to have a pending application for asylum. Reliance was also placed on the reference judgement of the Supreme Court in In re Article 26 and s.5 and s.10 of Illegal Immigrants (Trafficking) Bill 1999 [2000] (supra). The matter under consideration by the Supreme Court as relevant to this case was the challenge to s.5 of the bill, which concerned the entitlement of the asylum authorities to detain an asylum applicant for a period of up to eight weeks pending deportation and the passage at p.411 which states as follows:
21. I reject the contention of the applicant that there has been any improper and/or inordinate delay on the part of the first named respondent in the implementation of the deportation order. It is clear that up to and including the date of the hearing of this matter that the applicant did not have a valid travel document, i.e. a passport from Togo or some other emergency travel document. In the absence of such a document, the first named respondent is not in a position to execute the deportation order. The applicant appears to have dipped in and out of the asylum system as and when it suited him for reasons best known to himself. The first named respondent has since May, 2014, when the applicant recommenced presenting himself at the offices of the Garda National Immigration Bureau, been attempting to obtain an emergency travel document from the Togolese authorities but has not yet succeeded in obtaining same. In my view, there is validity in the respondents’ submission that, had the applicant continued to present himself to the Garda National Immigration Bureau as required between November, 2011 and May, 2014, the process might well have been completed earlier. 22. In order to obtain leave for judicial review in a matter such as this, the applicant must show, first, that there are grounds upon which this Court should extend the time within which to bring this purported judicial review leave application and, further, if the Court was so satisfied to extend the time, the applicant must convince the Court that there are substantial grounds upon which to bring such a challenge. I am not satisfied to extend the time within which to seek to bring a leave application in respect of the order of 20th August, 2009, and even if I was so persuaded, in any event, having considered the arguments set out by the applicant, I am satisfied that they do not constitute substantial grounds upon which to seek to commence such an application. In fact, the applicant’s contention that a valid deportation order and one which the applicant accepts was valid at the time it was made, can be somehow rendered invalid by some alleged inaction the part of the first named respondent, and which allegation of inaction I am satisfied is not borne out on the evidence before the Court, in my view, is without merit. 23. I, therefore, refuse the application. |