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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> B. (K.) v. Minister for Justice, Equality and Law Reform & Ors [2002] IEHC 134 (19 March 2002) URL: http://www.bailii.org/ie/cases/IEHC/2002/134.html Cite as: [2002] IEHC 134 |
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THE HIGH COURT
DUBLIN
1591A/ 20001
In the matter of an Application for injunctive relief
BETWEEN/
K. B.
Applicant
-AND-
THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM, COMMISSIONER OF AN GARDA SIOCHANA, GOVERNOR OF MOUNTJOY PRISON, ATTORNEY GENERAL AND IRELAND
Respondents
THE JUDGMENT WAS DELIVERED, AS FOLLOWS, ON TUESDAY, 19TH MARCH 2002
MR. JUSTICE SMYTH: An interim injunction was granted by the Court on 11th December 2001 on foot of an ex parte application moved by counsel which was grounded on an affidavit sworn on the 11th day of December 2001 by "the Applicant's partner" Kunle Akande. The facts then disclosed to the court were as follows:
The Applicant first arrived in the State in the year 2000. She applied for asylum under the name of Yetunde Ashiru. Her application was refused and a Deportation Order was made in relation to the Application on March 2001. The Applicant then left this State but returned here in May 2001, whereupon she applied for asylum under the name in these proceedings and resided in Dundalk. There on 8th December 2001 she was stopped at the Post Office and asked to provide identification. She was found to have a UK passport in her possession in the name of Tara Gaynor. She was, it was stated, brought to the Garda Station and identified as Yetunde Ashiru, she was sent to Mountjoy Prison and informed that she would be deported on the 12th December 2001. It was averred that she was pregnant, not fit to travel, deportation would threaten the life of mother and child and that the general-practitioner's medical report was exhibited that medical difficulties arose in prison and that she had attended the National Maternity Hospital on the 10th December.
The matter was returned to this Court on 13th December 2001 when Mr. Bradley, BL appeared on behalf of the Respondent and on their behalf gave an undertaking to the Court that the Respondents would consent to the immediate release of the Applicant from custody and would not take any steps to deport the Applicant until such time as the child was born. In those circumstances the Applicant through her counsel Mr. David Goldberg, SC sought an order as to the costs of the proceedings. This application was resisted by Mr. Bradley for the Respondents. From what had been disclosed to the Court I considered that a full and accurate account of all the facts should be put before the Court on affidavit before any adjudication on the issue of costs could be determined.
The true state of facts as I find them now to be are that the Applicant arrived in Ireland on 25th February 2000, not as the applicant averred in May 2000, and applied for asylum under the name of Yetunde Ashiru. By letter dated 4th October 2001, the Applicant was informed that she had been refused refugee status, the decision was confirmed by them Appeals Authority and by letter of 31st October 2000, the Applicant was notified that the decision
refusing her asylum had been upheld. A Deportation Order was made against the Applicant on 14th February 2001. By letter dated 23rd February 2001, the Applicant was notified that a Deportation Order had been made in respect of her. The said Deportation Order required the Applicant to leave the State within the time set out in the letter of notice (i.e. not later than 29th March 2001) "and to remain thereafter out of the State". The letter of notice obligated the Applicant to present herself to the Member in Charge, Garda National Immigration Bureau, Harcourt Square, Harcourt Street, Dublin on 1st March 2001. The Applicant failed or neglected to challenge the Deportation Order and further did not report to Garda National Immigration Bureau on 1st March 2001.
Following notification of the Deportation Order the Applicant alleges that she left Ireland (day, date and method of transport or destination unspecified or whether it was the State or the island of Ireland that she left) in March 2001 not May 2001.
The Applicant returned to the State in April/May 2001 and applied for asylum in the name of K. Balogue. The Applicant's indigenous name is Yetunde Ashiru, her father's name is Alhadji Ashiru. Although her religion is disclosed in form ASY/1 in the application of 25th February 2000, the Immigration Officer of An Garda Siochana in Dundalk was led to believe that the name of K. was the Muslim version of her name.
The application of 25th February 2000 disclosed a date of birth as 13 July 1976. The application of 27th April 2001 discloses the date of birth of 21st July 1983, which may account for the "unaccompanied minors - Referral Form dated 27th April 2001".
The matter was returned to Court on 18th December 2001; the Applicant swore an affidavit on 17th December 2001 (she is a Nigerian female and an undergraduate of Ladoke Akintola University of Technology) in which she admitted using different names on each occasion she entered the State, made no reference to the United Kingdom passport referred to her by her partner, gave a description of a meeting on 8th December 2001 by Garda O'Connell that portrayed him as insensitive and indifferent to her physical condition and distress, that she was strip searched in Mountjoy prison in a fashion that was demeaning on reading the affidavit, that she was put into a cell with two convicted criminals, was given no bed but "given a mattress and told to sleep on the floor" - that the State authorities had failed to provide her with a telephone card to phone her fiance," and that a special diet of African food was not immediately available to her, that she visited the Rotunda Hospital (not the National Maternity Hospital, the confusion was explained to me as to the haste in preparing the affidavits for the ex parte application), there is a clear, inference that there was want of proper medical attention in the prison concerning iron tablets and finally an averment that she was not released forthwith (a word not used in the Court Order of 13th December 2001), a fact which she blamed on the State authorities for not informing the prison authorities. The impression left on reading this affidavit was one of mistreatment, discourtesy, negligence, indifference, degrading and inhuman treatment of the Applicant.
Affidavits were filed by the Respondent on 31st January, which were not replied to - a termination of continuation of controversy was the approach taken by the Applicant's advisors; but serious matters were left unchallenged on the affidavits.
Garda O'Connor's affidavit indicates that he did on foot of a Deportation Order arrest the Applicant on 8th December 2001 but that at no stage did she accept or admit that she was the person named in the Deportation Order, she was calm not distressed in the Garda Station and on route to Mountjoy prison – that she did not request to speak to her doctor but instead phoned a Mr. Akande on what would indicate to be a mobile telephone number of 086-3255347, her pregnancy was obvious. The Applicant called to Dundalk Garda Station on 8th December 2001 - "two days before she was due to get married" - to use her words - I inferred from this information given to Garda O'Connor by the Applicant (whereas she avers in her affidavit it was 21st December 2001 she intended to get married). The Applicant requested her "Temporary Residence" - this he refused as it did not refer to her alleged true identify - his enquiries were clearly parried and her identify was not satisfactorily accounted for. The United Kingdom passport was in the name of Tara Layane Gaynor (with a date of birth of 8th July 1976), valid to 2nd August 2006. The Documents Section of Garda Headquarters believed that there was photograph substitution, the original removed and that of the Applicant put in its place. Enquiries with the British Embassy confirmed that the passport had been cancelled and a new one issued in its place. The Applicant failed to substantiate her contention that the passport was the property of her friend. The affidavit confirmed that substantial sums of money, in one instance US$400 and in another instance $2,400 had been transferred by Western Union transfer money receipt in the name of Tara Gaynor on 7th and 8th December 2001.
The Applicant was apparently working in Clonsaugh Industrial Estate, Coolock - under the name of Tara Gaynor. Kathleen McMahon, the Deputy Governor of Dochas Centre, in her affidavit sworn on 30th January 2002, indicates the nature and manner of the checking in of the Applicant which could not be considered at all as strip searching as that phrase is generally understood. Due to overcrowding on the 8th and the 9th in the Dochas Centre a bed was not available. The Applicant was taken to the Health Care Unit which was occupied by two women on remand, one of whom offered the Applicant her bed; this she declined and chose to sleep on a mattress on the floor.
Without relating all the details of the complaints made by the Applicant concerning the use of the telephone, medical attention and special diet requirements it is clear by reference to dates, specifically times, what exactly was served for different meals that all these matters were answered fully and do not accord with the Applicant's account of events.
The time off release is shown to be is an hour and ten minutes earlier than asserted by the Applicant. My Court notebook shows a late sitting on 13th December and the Registrar's fax would have been within minutes of the Court rising.
I am satisfied and find as a fact in accordance with the averments of paragraph (6) of the Affidavit of Terry Lonergan that:
"When the Applicant returned to Ireland, the Applicant failed and neglected to disclose to the Respondents the fact that she was pregnant, at any stage in the process of her Application for Refugee Status or otherwise. It was only when the Applicant was arrested by Garda O'Connell on 8th December 2001 did the Applicant first State that she was pregnant. Furthermore/ the letter of Dr. Dara Mishra dated 11th December 2001, exhibited in the affidavit of Klule Akande, grounding the Ex Parte Application in these proceedings, constituted the first written medical evidence that the Applicant was pregnant."
Mindful of the fact that I have evidence on affidavit only I nonetheless place credit in the affidavit of the Respondent because of the various elements of untrustworthiness of the Applicant's own account of events, lack of candour and deceit about identity, putting a gloss on the truth of events in the Dochas Centre to the point of almost total distortion, the misrepresentation about her date of marriage and the United Kingdom passport, failure to aver to working and no reference to a work permit, the clear impression given of a downtrodden victim insensitively and indifferently treated when the true picture is of a manipulative user of the asylum/refugee/inunigration system who can negotiate substantial sums of money and transactions is given in detail.
Yet again this is an ex parte application which had I been given the facts now on affidavit I would have viewed in a different manner. Either selective facts were made known to the legal advisors, or there was a complete failure before counsel was instructed to critically analyse instructions so that the duty and obligation to observe good faith with the Court on an ex parte application could be observed.
It should be unnecessary - but it is clearly imperative that once again I should record what was stated by Donaldson M.R. in the Court of Appeal in re: C. (Wardship: Medical Treatment) [1990], Family 26 at 36:
"The fundamental duty of members of the legal profession is to assist the courts in the administration of justice regardless of the views or interests of their clients."
I, unhesitatingly, award the costs (including all reserve costs, to be taxed in default of agreement) to the Respondents. Frankness and truth by the Applicant would as a matter of probability have avoided all these proceedings.
