Matthew v. Minister for Justice, Equality and Law Reform [2002] IEHC 9 (15th January, 2002)

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 2. Section 5 of the Refugee Act, 1996 (prohibition of a refoulement). 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, 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 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII