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Matthew v. Minister for Justice, Equality and Law Reform [2002] IEHC 9 (15th January, 2002)
THE
HIGH COURT
Judicial
Review
365JR/2001
BETWEEN
KELLY
IKOROJE MATTHEW
APPLICANT
AND
THE
MINISTER FOR JUSTICE
EQUALITY
AND LAW REFORM
RESPONDENT
JUDGMENT
of Mr. Justice T.C. Smyth deliver the 15th day of January, 2002
1. The
Applicant is a Nigerian national. Having arrived in the State in January, 1999
he made application for refugee status, signed an application form and
completed a questionnaire which was followed by an interview held on 4th March,
1999. He received an unfavourable result to his application recorded as of
29th December, 1999. He decided to appeal this decision at first instance and
his own appeal hearing took place on 3rd October, 2000. He was notified of the
unsuccessful outcome of the appeal by letter dated 14th November, 2000. This
letter pointed out the alternatives open to the Applicant. His chosen
alternative was to apply to the Respondent under section 3 of the Illegal
Immigrants Act, 1999 for leave to remain in the state on humanitarian grounds.
In this regard a very detailed submission was made by the Refugee Legal Service
on the Applicant’s behalf, to which were attached a number of supporting
references.
2. This
application have a document referred to in the documentation as
“JW3”, being the report of one John O’Neill of the
Repatriation Unit of the Respondent Department, dated 26th March, 2001 upon
which there are a number of manuscript notes being those of a First and Second
Supervisor and the Runaì Aire - it is this document which is in issue in
these proceedings, for from it sprung a deportation order of 10th May, 2001 and
a letter of notification of the making of the order dated 18th May, 2001.
Proceedings were lodged in the Central Office on 4th June, 2001 in time.
3. It
is conceded and agreed that the only issue between the parties is the document
“JW3”. It is entitled -
“Examination
of appeal against deportation - Kelly Ikoroje Matthew - Nigerian
national”. It has really four headings:-
1.
Background
3.
An examination of the Applicant’s case under the provisions of section
3(6) of the Immigration Act, 1999 and
4.
Recommendation.
The
following submissions were made in this regard:-
- By
use of the expression “examination of appeal against deportation, it is
suggested that this is to embark on an already concluded enquiry if the letter
14th November, 2000 has any meaning, in that if - as the letter states, the
Minister “proposes to make a deportation order”, then an
examination is inappropriate. However, the response made for the Respondent is
that the title of the document does not effect the content of the document and
furthermore that in reading the document as a whole the supposed ambiguity is
between an examination “against deportation” /proposed
deportation/leave to remain is unreal, that the document is in truth and fact
(however unhappily titled) is clearly a document recording the required
enquiries arising from section 3 of the Act of 1999. No criticism is made
concerning either the text or content of the information contained in the first
two headings.
The
criticism levelled against the consideration of section 3(6) and its details,
centred on paragraph (g) which considered the “character and conduct of
the Applicant” both within and (where relevant and ascertainable) outside
the State (including the criminal convictions). This is a matter properly to
be considered under the Statute. It is a matter for evaluation by the Minister
if the facts exist. The fact that the information did not come to the Minister
in the section 3 letter of application is not fatal, for as appears in the
“Recommendation” there was “an examination of the entire
file” - hence there were available recorded relevant facts upon which a
decision could rest. An Applicant may consider that a dis-apportionate weight
was given to adverse factors and that the favourable factors should out weigh
those that were adverse - but that is a matter for Ministerial evaluation or
assessment; the Court cannot act as an appellant tribunal and usurp the
function or power of the Minister.
The
real gravamen of complaint centred on the Recommendation, which states -
“Mr.
Matthew’s case has been considered under section 5 of the Refugee Act,
1996 and refoulement was not found to be an issue. His case was then examined
under section 3(6) of the Immigration Act, 1999. I have examined the complete
file and taken into account all representations received on behalf of Mr.
Matthew.
In
my opinion Mr. Matthew has failed to establish a well-founded fear of
persecution as defined in the 1951 Convention relating to the Status of
Refugees as amended by the 1967 Protocol as defined in section 2 of the Refugee
Act 1996. Therefore I recommend that Mr. Matthew be repatriated to
Nigeria”.
(emphasis
added)
4. It
is on the basis of the two concluding sentences that the submission is made
that the Minister applied the incorrect test, i.e. he applied the test
referable to a determination of refugee status rather than one centred on a
consideration of a “leave to remain on humanitarian grounds”; and
the decision was flawed on the basis of taking into account irrelevant matters
and failing to have regard to relevant matters. The argument advanced was that
before a deportation order is made the Minister must consider and have regard
to the provisions of section 3(6) of the Act of 1999 and, the words of the
Supreme Court per Hardiman J. in
PL
& B -v- The Minister for Justice Equality and Law Reform & Anor
.
(unreported 30/7/2001) at p15 were sighted thus -
“In
the circumstances of this case, the Minister was bound to have regard to the
matters set out in section 3(6) of the 1999 Act.”
5.
However, although from earlier parts of the judgment Pages 7-9 setting out the
contentions of the parties and in particular the element of judgment on page 7
stating-
“In
principle, therefore, the Minister may make the Order but subject to the
subsequent provisions of the Section in relation to seeking and considering
representations broadly on humanitarian grounds. In so doing the Minister is
exercising specifically the power contained in section 3 but that power is
simply the current statutory manifestation of the inherent power residing in
the State itself and as an essential attribute of its sovereignty”
6. Much
more importantly and in point is that passage in the Supreme Court judgment at
p 15 following that relied upon by the Applicant, which states that:-
“In
my view he was clearly entitled to take into account the reason for the
proposal to make a deportation order i.e. that the Applicants were in each case
failed Asylum seekers.
If a reason for the proposal had been a different one, he would have been
entitled to take that into account as well.”
7. Accordingly,
I am satisfied and find as a fact and as a matter of law that the Minister
applied the correct test, the fact that the Applicant was a person who fell
within S.3(2)(f) was a matter the Minister was entitled to take into account in
deciding whether or not to make a deporatation order. The application for
leave was effectively treated as if an application for judicial review. There
are in any event no good and substantial grounds why leave should be given a
fortiori why judicial review should be granted. The application is dismissed .
© 2002 Irish High Court
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