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Akujobi & Anor v Minister for Justice
Factual and Procedural Background
The Applicants arrived in the State on 1st February 2005 seeking asylum after residing in Indonesia and being assisted by a family from Northern Ireland to travel first to Belfast and then to Dublin. Their asylum applications were processed by the Refugee Applications Commissioner and appealed to the Refugee Appeals Tribunal. The Respondent refused to grant refugee status and notified the Applicants of an intention to deport them by letter dated 24th November 2005. After representations made under section 3 of the Immigration Act 1999, the Respondent issued deportation orders on 7th February 2006, notified on 20th February 2006.
The Applicants, represented by new solicitors, applied to the Respondent on 28th February 2006 to revoke the deportation orders under section 3(11) of the Immigration Act 1999, submitting further country of origin information and medical reports. The Respondent refused this application by letter dated 1st March 2006.
The Applicants sought leave of the High Court on 9th March 2006 to bring judicial review proceedings challenging the refusal to revoke the deportation orders and obtained an interim injunction restraining deportation. The High Court directed the application for leave to be brought on notice to the Respondent and adjourned the matter for further legal argument on several procedural and evidential issues.
Legal Issues Presented
- The appropriate procedural test for an application for leave to seek judicial review and an injunction restraining deportation when the decision challenged is under section 3(11) of the Immigration Act 1999.
- The evidential threshold applicable in such applications when made on notice to the Respondent.
- The extent to which matters presented in an application to revoke a deportation order under section 3(11) must be materially different from those presented or capable of being presented to the Minister prior to the making of the deportation order.
- Whether material distinctions concerning detention, health matters, or rights and care of a minor justify a different approach to the judicial review leave application when made on notice.
Arguments of the Parties
Applicants' Arguments
- The Respondent breached their right to fair procedures and natural justice by failing to consider fresh evidence, including country of origin information indicating a risk of arbitrary detention in Nigeria and medical reports regarding the first Applicant's health.
- The Applicants contended that the medical condition and risk of detention were new matters warranting revocation of the deportation orders and restraining their deportation.
- The Applicants alleged that their previous legal representatives failed to present relevant material to the Refugee Appeals Tribunal.
Respondent's Arguments
- The Respondent contended the new information was either known or capable of being known to the Applicants before the deportation orders were made.
- The Respondent asserted that the country of origin information did not demonstrate that persons in the Applicants’ position faced arbitrary detention or ill-treatment upon return to Nigeria.
- Procedures are in place to ensure the wellbeing of returnees to Nigeria, including advance coordination with Nigerian authorities and NGOs.
- The medical information was not new and was within the Applicants’ capacity to submit prior to the deportation decision.
- The Respondent argued that the Applicants’ submissions amounted to a drip feeding of material, lacking candour and credibility.
- The Respondent maintained that the Applicants failed to establish arguable or substantial grounds for judicial review or an interlocutory injunction.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| G. v. Director of Public Prosecutions [1994] 1 I.R. 374 | Sets the low evidential burden for an ex parte application for leave to seek judicial review: the applicant must show a stateable, arguable case. | The court applied this standard as the appropriate test for leave in this case, even on an inter partes application, emphasizing the light burden and screening function of leave. |
| R. v. Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 | Clarifies that leave should be granted if there appears to be an arguable case on a quick perusal of material. | The court cited this to support the principle that the leave stage is not a full hearing but a preliminary screening. |
| OBrien v. Dun Laoghaire Rathdown Co Co [2006] IEHC 1 | Defines the "substantial grounds" test as requiring a reasonable chance of success for statutory leave applications on notice. | The court distinguished statutory schemes requiring substantial grounds from the present case, which is governed by the lower "arguable grounds" test. |
| Potts v. Minister for Defence [2005] 2 I.L.R.M. 517 | Discusses the court's discretion to order leave applications on notice and the appropriate evidential standards. | The court relied on this to explain that a higher standard than arguability may be appropriate on notice but rejected applying a standard higher than statutory cases here. |
| Gorman v. Minister for Environment [2001] 1 IR 306 | Considers the standard of proof in ex parte applications adjourned to inter partes hearings. | The court noted this case in relation to the evidential standard where the respondent is on notice, highlighting that the standard may be higher than simple arguability. |
| Agbonlahor v. Minister for Justice (Unreported, High Court, 3 March 2006) | Interprets statutory provisions limiting the application of certain leave thresholds to specific subsections of the Immigration Act 1999. | The court followed this view that section 5 of the Illegal Immigrants (Trafficking) Act 2000 does not apply to section 3(11) applications. |
| OBrien v. Moriarty [2005] 2 I.L.R.M. 321 | Addresses the standard of proof and burden in inter partes leave applications for judicial review. | The court considered the differing views on whether a higher standard than arguability should apply on notice but ultimately applied the G. v. D.P.P. standard. |
| D.C. v. D.P.P. (2005, Unreported Supreme Court) | Reaffirms the appropriateness of the G. v. D.P.P. standard for leave applications, even when the respondent is on notice. | The court considered itself bound by this authority and applied the lower test of arguable grounds despite the application being on notice. |
| Kouyape v. Minister for Justice (Unreported, High Court, 9 November 2005) | Clarifies that applications to revoke deportation orders must show unusual, special, or changed circumstances and that the Minister is entitled to rely on the prior asylum process. | The court applied this principle to find the Applicants’ case weaker post-deportation order and requiring materially different grounds than previously presented. |
| Mamyko v. Minister for Justice, Equality and Law Reform (Unreported, High Court, 6 November 2003) | Criticizes drip feeding of grounds and emphasizes the need for applicants to present their best case promptly. | The court relied on this to reject the Applicants’ approach of presenting new material late and to emphasize the limited scope of review post-deportation order. |
| Dada v. Minister for Justice (Unreported, High Court, 3 May 2006) | Highlights the restricted scope of review for representations made after deportation orders compared to asylum phase. | The court cited this to support that the Applicants’ representations were insufficient and lacked credibility. |
| Cosma v. Minister for Justice, Equality and Law Reform (Unreported, Supreme Court, 10 July 2006) | States that valid deportation orders not impugned in proceedings cannot be stayed by injunction except in exceptional circumstances. | The court applied this to refuse the interlocutory injunction, noting no new facts of sufficient gravity were presented to stay the deportation order. |
Court's Reasoning and Analysis
The court first addressed the Applicants' candour and credibility, concluding that the material submitted as new was either known or capable of being known prior to the deportation decision, and that the Applicants had failed to explain the late submission adequately. The country of origin information largely predated the asylum process and did not specifically relate to the Applicants. Evidence from the Respondent demonstrated procedures to safeguard returnees to Nigeria, including cooperation with Nigerian authorities and NGOs, and no evidence showed arbitrary detention beyond identity verification.
The medical reports concerning the first Applicant were found not to be new, as earlier medical correspondence dated prior to the deportation decision was not disclosed. The court inferred a pattern of "drip feeding" material, undermining the Applicants’ good faith and credibility.
The court applied the legal principles from G. v. D.P.P. to determine the appropriate test for leave to seek judicial review on notice, concluding that the lower "arguable grounds" test applied rather than the higher "substantial grounds" test applicable in statutory schemes. It exercised its discretion to consider the full evidential context given the Respondent was on notice.
Considering the Applicants’ failure to present materially different or changed circumstances from those considered previously, the court noted the limited scope for judicial review of a refusal to revoke a deportation order under section 3(11), especially after full consideration in the asylum process and prior deportation order.
On the application for interlocutory injunction, the court noted the Supreme Court authority that valid deportation orders not challenged cannot be restrained by injunction except in exceptional cases involving new facts of grave importance. The Applicants failed to meet this threshold.
Overall, the court found no credible, arguable grounds to grant leave for judicial review or to justify an interlocutory injunction restraining deportation.
Holding and Implications
The court REFUSED the Applicants' application for leave to seek judicial review of the Respondent's refusal to revoke the deportation orders and DENIED the application for an interlocutory injunction restraining deportation.
The decision confirms that late submissions of material not previously presented or capable of being presented in the asylum or deportation process are unlikely to succeed absent a credible explanation and demonstration of changed or special circumstances. It emphasizes the limited scope of judicial review of deportation order revocation decisions under section 3(11) of the Immigration Act 1999 and the importance of good faith and candour in such applications. No new precedent was established; the ruling applies the established tests for leave and injunctions in this context.
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