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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Okenla v. Minister for Justice, Equality & Law Reform & Ors [2006] IEHC 251 (13 July 2006) URL: http://www.bailii.org/ie/cases/IEHC/2006/H251.html Cite as: [2007] 2 IR 492, [2006] IEHC 251 |
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Neutral Citation Number: [2006] IEHC 251
THE HIGH COURT
JUDICIAL REVIEW
[2003 No. 255 J.R.]
BETWEEN
ADEGBOYEGA GABRIEL ADESINA OKENLA
APPLICANT
AND
THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM, ANGELA WILLIS, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
Ex tempore JUDGMENT of Mr. Justice John MacMenamin delivered the 13th day of July, 2006.
The applicant is a Nigerian national who arrived in the State in or about September 1999. He applied for asylum by completing the requisite forms on 19th September, 1999 under the sole name of Adegboyega Adesina date of birth 31st March, 1963. No other versions of his name were registered in the application form. The applicant was given a letter entitled "application for refugee status" dated 13th September, 1999 in which his application for asylum in that name was acknowledged with an indication that he would be called for interview and when attending he was to bring with him all available documentation regarding his identity for example his passport or national identity card.
Under this name the applicant was registered for the purposes of his asylum application. Thereafter the applicant used a number of variations of his name in the various form in which were submitted during the course of the asylum process. The applicant did not produce a passport to the State authorities at any time. In none of the passports subsequently found in his possession did he utilise the same first name as that in which these proceedings are entitled.
On 22nd January, 2001 a work issue was issued by Department of Enterprise Trade and Employment to Olu G. Ohikenla. This application set out the date of birth of the applicant as the 7th June, 1965, provided a passport number with an expiry date on 11th May, 2005.
It identified the holder's place of birth as Birmingham and his nationality as Nigerian British together with an address at 22 Moore Street Dublin. The named employer was a "Pan African Organisation Limited" with the employer's signature being Adegboyega Adesina. In the course of this application the applicant exhibited a letter of appointment dated 8th January, 2001 to "Mr. Okenla" signed on behalf of the organisation by A.Adesina. It is accepted by the applicant in his affidavit that these are one of the same person that is himself. Question 9 on the work permit application form seeks an asylum reference number. The applicant struck out this answer. No evidence has been adduced that the applicant brought his application for asylum to the attention of the Department of Enterprise Trade and Employment. The first named respondent was, I am satisfied, not aware until 6th March, 2003 that the applicant held any work permit even in the name identified.
On 30th October, 2002 a notice of intention to make a deportation order was sent to Mr. Adegboyega Adesina at his notified address in Lower Kevin Street and to his solicitors PC Moore and Company. The applicant states that he was outside the State at the time and did not return until 15th November, 2002. By virtue of s. 9(4) of the Refugee Act 1996 as amended (hereinafter the 1996 Act) an applicant is not entitled to leave the State without permission of the Minister during the course of the asylum process.
On 28th November, 2002 an examination under s. 3 of the Illegal Immigrants Trafficking Act 1999 as amended was conducted by the Minister through the Department on which the applicants name was cited as Adegboyega Gabriel Okenla Adesina or Adegboyega Gabriel Adesina Okenla.
The applicant re-entered the State on 15th November, 2002 giving the name of Gabriel Okenla to the Gardaí. He held two passports in different names: one Olugboyega Gabriel Okenla and two other Olu Ohikenia in his possession which were detained by the Gardaí. Forensic examination of the second passport established that it was genuine but that the GNIB and visa entry stamps were false.
By letters of 23rd and 29th November, 2002 the applicant's solicitor retained in that matter Mr. Michael Farrell of Michael E. Hanahoe Solicitors wrote to the Garda National Immigration Bureau and requested the applicant's passports to be returned. No communication took place with the Minister's Department at this time. This letter refers to "our client Gabriel Okenla (otherwise Ohikeula). There was no reference to an asylum applicant in the name of Adegboyega Adesina in these letters, nor indeed in any communication from Messrs Hanahoe Solicitors on behalf of the applicant in advance of March 2003.
By letter dated 3rd December, 2002 a law firm GM Legal (in which practised Mr. John Morris formerly a solicitor in PC Moore and Company) wrote to the Minister to inform him that the applicant proposed to leave the State "within the next few days". This letter was received by the respondent on 11th December, 2002.
The applicant states that he left the State on 6th December, 2002. There is no extra stamp for that date on any of the applicant's three passports. The contention made that he left the State must be seen in the light of the affidavit evidence which indicates that even towards the end of December 2002 the applicant was completing arrangements for the mortgage on his house which he occupied with his partner in Dublin. On 10th December, 2002 Mr. Farrell of Messrs Hanahoe states that he spoke to Superintendent John Mulligan of the Garda National Immigration Bureau seeking return of "the applicant's" travel documents indicating that he had left the State. The attendance of this telephone conversation indicates that it was in relation to "Gabriel Okenla". No reference was made to any asylum applicant in the name of Adegboyega Adesina.
On 10th January, 2003 the Minister signed a deportation order in relation to the applicant as a failed asylum seeker identified in three different variations of his name and sent notice thereof to the applicant at his last notified address and a copy to his then solicitors (as known to the Department) PC Moore and Company on 14th January, 2003. The solicitor recorded as acting for the applicant continued to be the firm PC Moore and Company. No indication of any change of solicitor was received and no authorisation for such purpose from the applicant forwarded.
The evidence discloses that an application was made in the name of Olugboyega Gabriel Okenla date of birth 7th June, 1965 for a visa to re-enter the State from Nigeria based on the work permit previously referred to. The evidence does not disclose that the applicant gave the name used as an asylum applicant that is Adegoyega Adesina.
The applicant states that he arrived in the State on 12th February, 2003 and his visa was stamped with leave to remain till expiry of his work permit on 4th March of that year.
The applicant states that he attended the Garda National Immigration Bureau on 13th February, 2003 and was given permission to remain on his visa until 4th March of that year this permission was under the style of Gabriel Okenla.
The applicant states that no mention was made to him of the deportation order on the date when he attended at the Garda National Immigration Bureau. It is claimed by the applicant that the Minister was aware he was outside the State on 14th January, 2003 as he made a visa application from outside the State. These assertions must be seen in the light of the fact that the names on the visa application and as registered in the asylum process appear significantly different. None of the names of the person against whom the deportation order was in force was identical to that on the passport or visa which was purportedly produced ultimately to the Garda National Immigration Bureau. At no time when the applicant was seeking a visa or work permit did he mention his asylum application under the name of Adegboyega Adesina.
On 4th March, 2003 the applicant was arrested. While the arrest took place in the context of an invalid passport, the applicant's identity was established and he was subsequently detained pursuant to the deportation order. When arrested, the applicant produced a passport with the name Olugboyega Gabriel Okenla date of birth 7th June, 1965. It will be seen that the dates of birth which are referred to in the work permit used by the applicant, in the passport and application for visa, and in the subsequent passport held in a different name all of which are 7th June, 1965 differ from the date of birth provided by the applicant for the purposes of his asylum claim which was 31st March, 1963.
It is not disputed in the course of the case that the applicant engaged in conduct which involved deliberate falsification of identity. Nor is it in dispute that he used a number of names interchangeably. The evidence as to his departure from the jurisdiction on 6th December, 2002 is not reflected in any of the identity documents which were identified as held by the applicant. While it is clear that an application was made to the Irish Embassy in Nigeria on 14th January, 2003 there is no extrinsic or objective evidence that the applicant himself was personally in the Embassy for this purpose.
While these background facts are both necessary and relevant in the context of credibility and onus of proof the essential case advanced by the applicant arises from a more focused consideration of the events between 4th and 8th March, 2003, that is from the time of his arrest onwards.
It is not disputed that prior to the applicant's re-entry to the State Mr. John Morris who previously had worked with PC Moore and Company and thereafter worked under the title of GM Legal was the applicant's solicitor and acted for him during the course of his asylum process. Despite this, the applicant decided to retain alternative solicitors and instructed Mr. Michael Farrell of Messrs Hanahoes who attended promptly on the applicant in Cloverhill Prison on 5th March, 2003, being a Wednesday, the applicant having been arrested on Tuesday 4th March, 2003.
On Thursday 6th March, the applicant's new solicitors sought to obtain a copy of the applicant's file to the Minister. It will be noted Messrs Hanahoe did not receive any instructions, apparently, on foot of which they could have obtained the files from the applicant's other solicitor Mr. Morris. The departmental authorities considered that they could not provide the file without the written authority of the applicant. On Friday 7th March, 2003 the Department replied to Mr. Farrell seeking authority to release the file. During the course of the late afternoon on that date Mr. Farrell spoke to a junior official in the Department. This official informed Mr. Farrell that she would leave a message that the file was being sought and that the relevant departmental officials would probably revert to him on Monday 10th March. That official Ms. Fiona Carroll read the message at 5.15 on Friday 7th March and telephoned Mr. Farrell after 5.15 on that date to inform him that the file was available.
The evidence discloses that in correspondence Mr. Farrell had intimated that his firm had been instructed by the applicant and that it wished to obtain further instructions with a view to advising him in relation to potential proceedings. However at 4 am on Saturday 8th March, 2003 the applicant was deported. By that time no application had been brought pursuant to Article 40.4 of the Constitution by way of declaration or injunction in judicial review proceedings. Understandably the applicant's solicitor was not aware of the availability of this file until after the weekend.
Ultimately, but only on 8th April, 2003 the judicial review proceedings herein were initiated. While at the outset a wide variety of reliefs were sought and claimed, counsel for the applicant Mr. Peter Finlay SC has quite properly conceded that the essential basis upon which this claim is now brought relates to a contention that the applicant was denied access to his legal advisors prior to the deportation, and that mala fide the deportation was effected in order to defeat such a right of access.
While this issue is the essential point relied upon by the applicant it is contended that such denial of access had the effect of preventing an application being made to the court in order to challenge the validity of the deportation order on the basis that it had been ultra vires and at a time when the applicant himself was out of the jurisdiction. The contention that he was out of the jurisdiction is based on his assertion in affidavit. But, as indicated earlier is not reflected in any of the travel or identity documents held and used by him. The applicant's case is that a deportation order (as opposed to exclusion) is ipso facto invalid if the applicant is at the time of making such order outside the jurisdiction.
Issues of Credit, and Onus of Proof
While there is no dispute in relation to the sequence of events between the 4th and 8th March, 2003 there are areas which are either entirely unexplained by the applicant or where a dispute arises.
It is clear that on 15th November, 2002 the applicant re-entered the State under the style of Gaberiel Okenla. No date has been provided as to when the applicant had previously allegedly left the State.
It is asserted that on 6th December, 2002 the applicant left the State. In the light of the history tendered by the applicant, and not disputed, I do not consider that the applicant has discharged the onus of proof that he had in fact left the State on that date.
As recited earlier on 14th January, 2003, the deportation order was sent to PC Moore and Company the applicant's solicitors. By coincidence apparently, on the same date an application was allegedly made by the applicant for a passport in Nigeria. There being no objective evidence apart from the existence of an application having been made, one may be forgiven for assessing this evidence also with a jaundiced eye.
While the conduct and credibility of the applicant in all other areas must be open to question, the issue as to the sequence of events between 4th and 8th March, 2003, and the legal consequences flowing therefrom must still be closely examined. The right of access to a lawyer and to legal advice is a fundamental one. Were it to be demonstrated that there arose an issue of violation of that right, the courts must be careful to ensure that such rights are upheld, even having regard to evidence which places the credibility of the applicant in question on other aspects of the case.
I am satisfied that in the instant case there are a number of other factors which should also be borne in mind. The first of these is that the applicant suffers from no linguistic disability whatsoever. The evidence discloses that he is highly educated and was involved in business and in politics in his native country. He accepts himself that his involvement in political activity led him into difficulty on foot of his support for former President Abacha of Nigeria. In the course of his application he says he had unrestricted access to the President and later was made the private secretary and special assistant to the Chief Security Officer of the President. His assignment was to use his political influence as a successful and well known politician to identify enemies or opponents of the regime to find out methods or ways of convincing such people to join or support that dignitary and to encourage support for him. He stated
"It is my responsibility to submit such names (of opposition members) to the Strike Force, a group of selected soldiers with a record of brutality and unmerciful attitude and what the Strike force simply does was to eliminate such opposition by killing them".
The evidence is that the applicant had amassed significant wealth in his native country. It need hardly be added that the highly complex and interwoven procedures to establish identity and the retention of separate ? are also evidence of considerable ingenuity.
It is in that context that one must then consider the issue. First the point of the applicant's contention is that the deportation order was invalid. In such circumstances it was open to the applicant to instruct his former solicitor to provide the relevant files and documentation to Mr. Farrell his solicitor who, I am satisfied at all stages acted entirely properly and bona fide. The difficulty which was created in the initiating of an inquiry under Article 40.4 with regard to the deportation order cannot be laid at the door of any of his advisers. It was the applicant himself who chose to instruct another solicitor, and who opted not to instruct solicitors who were well familiar with some aspects of his case and who had processed his asylum claim. The reason for this may well be attributable to the fact that the applicant had identified himself in a differing fashion in his interaction with his former solicitors Messrs PC Moore and Company, and in the instructions which he gave to Mr. Farrell. However, such difficulties would not have prevented the applicant from instructing Mr. Farrell from initiating an inquiry under Article 40.4 challenging the deportation order, which might, if the applicant had so instructed his solicitor had been effected by swearing a short affidavit for this purpose. Nor would any difficulties have prevented the initiation of proceedings by way of declaration or injunction, or by the initiation of judicial review proceedings on foot of which an injunction might have been sought. Instead, as a matter of fact, no proceedings of any type were in being at the time that the applicant was deported although the evidence discloses that such proceedings were clearly in contemplation. In fact no file would have been necessary to challenge the deportation order at all. All that would have been necessary were the applicant's oral instructions.
As matters transpired the judicial review proceedings on foot of which this application was brought were only ultimately issued on 8th April, 2003. As can be seen therefore the proceedings in question were clearly initiated well beyond the 14 day period from the date of the deportation order (10th January, 2003) or even the date of the applicant's arrest (4th March, 2003) at which point it could not be denied that the applicant was alive to the existence of the deportation order as it provided the basis for his continued detention.
There is a further factor which must be considered in this context of these rather unusual facts. It is asserted that the State through its organs or servants acted mala fide in the deportation of the applicant. The applicant's senior counsel says that such mala fides can be inferred from what occurred. However on the facts as adduced I am not satisfied that the applicant has discharged the onus of proof on this issue either. In particular no evidential nexus has been established between the activities of the members of the Garda National Immigration Bureau who initiated and processed the applicant's deportation on the one hand, and the officials who had charge of dealing with the correspondence from the applicant's solicitor on the other.
The submission of mala fides was made by way of assertion. The court is invited to make an inference. But no evidence has been adduced to demonstrate any conscious or deliberate act by any servant of the State in order to defeat a right of the applicant. Therefore, on the evidence as adduced the court will decline to make a finding of mala fides, absent any cogent evidence established objectively.
Legal Principles
No proceedings were actually in being by way of judicial review or under Article 40 of the Constitution or otherwise. It is accepted however that such were in active contemplation, and communication had occurred between the applicant's solicitor and the Minister's Department in this regard.
The issue of access to legal advice arose in the case of Adebayo v. Commissioner of An Garda Síochána and Minister for Justice Equality and Law Reform Unreported, Peart J., 27th October, 2004 wherein the Supreme Court delivered judgment on 2nd March, 2006.
In the course of Adebayo the Supreme Court dealt with appeals of four individual cases in a composite manner but highlighted individual differences between such cases. One important such distinction was whether or not a particular applicant had commenced judicial review proceedings challenging his deportation order made against them either inside or outside the 14 day statutory time limit provided for in s. 5 of the Illegal Immigrants (Trafficking) Act 2000.
The Court determined the appeal in Adebayo on Article 40 issues. However while the question of whether the institution of a judicial review proceedings challenging the validity of a deportation order had the automatic effect of staying the implementation of that order pending the outcome of proceedings did not therefore strictly "arise", consideration was given to that issue by Geoghegan J. and Fennelly J. Denham J. the other members of the court, considered the issue as to whether or not an application for leave within time to take judicial review proceedings challenging the validity of a deportation order had the automatic effect of staying such an order but specifically expressed no opinion on that issue awaiting an appropriate case.
In the course of his judgment Geoghegan J. was of the view that where an applicant failed to challenge the lawfulness of a deportation order within the statutory 14 day period such an applicant could be lawfully deported. He stated:
"The Act has to be given a reasonable workable interpretation which respects the rights of the proposed deportees on the one hand but also renders deportations provided for under the Act be possible and achievable. I would therefore hold, that if the 14 day period has expired, and therefore, time has to be extended, the State is entitled to go ahead with the deportation notwithstanding an application for leave to bring judicial review proceedings with the accompanying application for an extension of time unless an interim injunction has been obtained from the court preventing the deportation order.
However that judge tentatively took a different view relating to proposed deportees who had in fact brought an application for leave for judicial review proceedings within the statutory 14 day period. However he acknowledged that:
"It is quite true that in theory, and indeed practice the judicial review application can proceed normally in the applicant's absence. For that reason, I do not consider that any constitutional issue as to access to the courts arises. The applicant in such a case has not been deprived of his constitutional right of access to the courts" (at p. 19 of the judgment).
Later that judge stated:
"The person who has not applied within the 14 days has prima facie no right to remain in the State and the State is perfectly entitled to make appropriate arrangements for the implementation of his deportation. Nothing in the Act would lead an applicant to believe that if the time has not in fact been extended he cannot be deported. The court may, of course, grant him an interim injunction".
In the course of his judgment that judge expressed concern as to the need to invoke a chancery remedy such as an injunction in such a situation. However he stated:
"There is no alternative in a case where an extension of time has to be obtained … otherwise the Act would be potentially unworkable".
In the course of his judgment Fennelly J. differed somewhat from the views of Geoghegan J. concerning the position on the statutory time periods although that judge agreed with Geoghegan J. in relation to other substantive matters in the course of the judgment. Fennelly J. was not persuaded by the proposition that no deportation could be implemented during the currency of the 14 day period set out in the statute. He stated:
"It has never been the law that the mere institution of proceedings would operate with the same effect as a court order".
Having analysed the provisions of s. 5 of the Act of 2000 together with those of Order 84 Rule 20(7) he emphasised:
"The effect of the legislation is that the only express statutory provision for a prima facia automatic stay does not take effect until leave is actually granted. A fortoiori I am not convinced that there is an automatic stay during the 14 day period when no application for leave has yet been made. On the other hand I entirely agree that, where the application for leave itself is made outside the 14 day period, so that an extension of time is essential, there cannot be any question of an implied stay."
Denham J. stated that she was in agreement with the views of Geoghegan J. save on the issue as to whether or not the institution of judicial review proceedings had the automatic effect of staying the implementation of the order for deportation. Having considered the statutory regime set out in s. 5 of the Illegal Immigrants (Trafficking) Act 2000 together with the determination of the Supreme Court in Re The Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360 in which Keane C.J. considered an applicant's constitutional right of access to the courts, Denham J. stated that it was necessary to consider both the constitutional right and statutory rights as relevant … in considering the statutory regime, which is bedded on the procedure under Order 84 of the Rules of the Superior Courts. As with Fennelly J. she found:
"There is no explicit provision for a stay prior to the court order on the application for leave to apply for judicial review".
While noting that the practice of judicial review proceedings had changed recently Denham J. stated:
"However constitution and statutory rights, if they exist, may not be nullified by procedural rules".
She then quoted from the determination of the Supreme Court in the Illegal Immigrants Trafficking 1999 and emphasised:
"Whether a person is entitled to remain within the State for a minimum period in order to exercise a constitutional right to bring judicial review proceedings, is a matter to be determined in appropriate proceedings in the High Court concerning the powers of deportation deriving from the Act of 1999".
As that judge did not believe Adebayo was such an appropriate case she declined to offer any opinion other than to acknowledge its significance and potential.
In the instant case the deportation order was served upon the applicant at his last notified address as well as copied to his then known solicitors on 14th January, 2003. The applicant states for the purpose of these proceedings that he is unaware of this deportation order until he was arrested on 4th March, 2003. This court is prepared to proceed upon that assumption. The applicant was deported on 8th March, 2003. The papers in the within proceedings were issued on 8th April, 2003 a date outside the 14 day time period from the date of service of the deportation order and outside the 14 days from the 4th March, 2003, the date upon which the applicant and his legal advisors could not but have been aware that any challenge to the lawfulness of his deportation order should be commenced with due urgency and expediency. In this context the court will conclude that the applicant falls into the second category of applicants considered by the Supreme Court in Adebayo i.e. those who commenced their challenge outside the 14 day time limit provided for by statute.
In this connection the observations of Finlay Geoghegan J. in the case of Margine v. The Minister for Justice Equality and Law Reform and Others (14th January, 2004, (Unreported) is apposite. At page 5 of that judgment that judge stated
"In such cases, whether there is an immediate threat of deportation it is inevitable that an application is made ex parte for an interim injunction restraining deportation. Thereafter, if the interim injunction is granted, in such cases it becomes necessary for the applicant to issue a notice of motion seeking interlocutory relief, seeking also an order restraining the deportation pending the hearing of the application for leave, and if successful, the application for judicial review."
It should be added that Keane C.J. In Re Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360 stated that service of any notice under the statutory scheme is good if it is sent to the last known address which has been supplied to the relevant State authorities by the applicant for asylum as the applicant is an active participant in the process.
It is not in dispute that the applicant realised the reasons for his arrest and thereafter the reasons for his detention. The unchallenged evidence on affidavit of the second named respondent sets out that the applicant was in no doubt that the basis of his arrest of 4th March, 2003 was on foot of a deportation order and for the purposes of removing him imminently from the State. The applicant consulted with his legal advisors the next morning. Despite being advised by a highly experienced firm of solicitors expert in this area the applicant did not instruct such solicitors to challenge the lawfulness of his detention based on the deportation order which he now seeks to impugn.
At any point during the period of his detention up to the time of the act of deportation it was open to the applicant to consult further with his solicitors for the purposes of an alternative application to the court to prevent his removal from the State. Equally the applicant might himself have made such an application. However no such application was made in fact.
I am not persuaded as a matter of law that the communication from the solicitor Messrs Hanahoe and Company with the Minister's Department operated or could be seen as operating as a stay or prohibition on the Minister's right to execute the deportation order. According to the file with the first named respondent's department such solicitors were not those who are recorded as acting in relation to the asylum application. No authorisation was available from the applicant to correspondence with Messrs Hanahoe.
While undoubtedly an informal courtesy practice may exist whereby the Minister's Department has furnished a copy of an asylum applicant's file to new solicitors when instructed to do so by an applicant, neither the applicant nor his solicitors derive any rights to receive such documentation from the Minister, nor can any alleged delay in furnishing documents be laid at the foot of the first named respondent when such documentation was always available from the applicant's previous legal advisors or were in his own possession. No evidence has been adduced that his file was sought elsewhere.
In the circumstances can an assertion be made that the applicant was denied access to the courts? I do not believe that such a contention can be made especially having regard to the fact that proceedings were ultimately initiated by judicial review albeit in circumstances where the applicant was by then outside the jurisdiction.
For completeness it is necessary to deal with the challenge to the deportation order. The applicant submits that it should not have been made when the respondents were informed when the applicant was leaving the State. For the reasons which have been outlined earlier this court does not accept that the applicant has discharged the onus of proof on this question.
However in this context the court must conclude that such communications as were made were in any case insufficient to constitute compliance under s. 3(4)(b) of the Act of 1999. While by letter of 3rd December, 2002 the State was informed that the applicant intended leaving the jurisdiction a requirement of notice under that section goes further. Such a person must:
"Inform the Minister in writing and (to) furnish him with information concerning his arrangements for leaving" (emphasis added).
The test applicable pursuant to this subsection is both twofold and cumulative. The normal rules of statutory interpretation require that words should be given their normal and natural meaning. The use of the word "and" is conjunctive.
Thus a person exercising a voluntary option to leave the State must not only inform the first named respondent in writing of such intention but must also supply the Minister with information concerning his or her arrangements for leaving the jurisdiction. It is clear that the purpose and the intent of the Oireachtas was to ensure that the State should be in a position to be satisfied that the intended deportee has in fact left the country voluntarily rather than accepting a mere assertion that he or she has such intention.
The letter despatched on the applicant's behalf of 3rd December does not satisfy such statutory requirements. First, it purported to be from solicitors then unknown to the first named respondent that is GM Legal. The firm of solicitors known to be acting on behalf of the applicant were PC Moore and Company. Second no authorisation to communicate with any other solicitor or legal representative had been received from the applicant. It would be inappropriate for the Minister to communicate with any person other than the applicant without due authorisation, confidentiality being an inherent element of the asylum system. Third no indication had been given that the signatory of the letter Mr. John Morris Solicitor was one and the same solicitor as had previously acted for the applicant before the Refugee Appeals Tribunal then as a member of the firm of PC Moore and Company. Fourth while the letter is dated 3rd December, 2002 there was no evidence provided as to the date upon which it was posted. The evidence before the court is that it was received on 11th December in the following week. In the normal course of post a letter would be received within two to three days of posting. Moreover the letter in question states that the applicant was purporting to leave the State on "Friday". In context therefore it was entirely ambiguous as to whether the meaning was that the applicant intended to leave the State on Friday 6th December, 2002 or the 13th December. No confirming evidence by way of travel ticket or itinerary was referred to or accompanied the letter, nor did it provide any information regarding the applicant's arrangements for leaving the country. It might be added that the latter refers to the applicant's name under the name of Adegboyega Adesina and no other version of his name was recited. No reference made in the letter to the fact that the applicant's documentation necessary for foreign travel (i.e. his passport in the name of Okenla) was at the time in the possession of the Garda National Immigration Bureau.
At no time in the year 2002 is there evidence that the respondents were made aware that the applicant as Adegboyega Adesina was one of the same person as Gabriel Okenla whose documents were in the possession of the State authorities, thereby placing the State on notice that the applicant could not as a matter of law leave the State voluntarily. Had the respondents known of the applicant's various aliases they could have questioned the validity of the letter of 3rd December, 2002 and its claim that the applicant was leaving the country as in fact his passports were in the possession of the Garda National Immigration Bureau since his re-entry on 15th October of that year.
It is noteworthy that at all stages the communications which took place between the applicant's present solicitors (Messrs Hanahoe) and members of the Garda National Immigration Bureau took place under the rubric of the applicant's identity being Gabriel Okenla. Having regard to the circumstances it may be inferred that the applicant's solicitors had not been apprised of the various guises under which the applicant had interacted with the State authorities.
Were it necessary to so find this court would conclude that the applicant had by his conduct disentitled himself to the reliefs which were sought. It may be added that in the light of the evidence the applicant has failed in the areas identified earlier to establish his case as a matter of probability on the evidence. Serious doubts must arise as to his credit in relation to the dishonesty of his interaction with the immigration authorities. In the absence of objective evidence the court is not prepared to accept mere assertion. In the premises the court must conclude that the applicant has acted not only in bad faith but that also his interactions with the various organs of the State were designed to mislead and deceive the State in such a way as to endeavour rights and benefits to which he was not lawfully entitled. It is unavoidable that the court should conclude that these actions were deliberate and cannot be condoned. The case fails for want of credit also.
The court as has been indicated earlier considers that the facts place the evidence as to time outside the categories as envisaged in Adebayo. Consequently it cannot be considered that any stay may be implied on the effect of the deportation order. It has not been established that the servants or organs of the State acted mala fides, a proposition which could only be established by cogent evidence and, which it maybe thought must be seen as ironic in the circumstances.
In the circumstances the court concludes that the applicant was not denied access to legal advice for the purposes of challenging the deportation order. The sequence of events shows that had such instructions been received by the applicant's solicitors steps could have been taken prior to his deportation in order to restrain it. It is not submitted or tendered in evidence that any such instructions were given by the applicant. It follows that the applicant's solicitors were under no duty to act on foot thereof.
In the circumstances therefore the court will conclude that there was no denial of the right of access to legal advisors as asserted.
For the reasons outlined the court will decline the application for judicial review.
Approved: MacMenamin J.