Judgment Title: O. & Anor -v- MJE & Ors
Composition of Court:
Judgment by: Cooke J.
Status of Judgment: Approved
Neutral Citation Number:  IEHC 441
THE HIGH COURT
2011 739 JR
O. C. O. AND D. T. O. (AN INFANT SUING BY HIS MOTHER
AND NEXT FRIEND, O. C. O.)
MINISTER FOR JUSTICE AND EQUALITY,
IRELAND AND THE ATTORNEY GENERAL
JUDGMENT of Mr. Justice Cooke delivered the 22nd day of November 2011.
1. In this application for judicial review the applicants seek leave to apply for orders of certiorari to quash, first, a decision of the first named respondent refusing an application for subsidiary protection dated the 7th April, 2011; and secondly, deportation orders issued in respect of them dated the 15th July, 2011. The notice of motion of application for leave included notice of an intention to apply for an interlocutory injunction to restrain deportation of the applicants pending the determination of the proceedings. When the proceedings were commenced on the 16th August, 2011, the respondent Minister gave an undertaking not to implement the deportation orders prior to the return date of the notice of motion on the 3rd October, 2011, but has since refused to continue that undertaking. It is in these circumstances that the applicants now apply for interlocutory orders restraining their deportation pending, at least, the determination of their applications for leave to apply for judicial review.
2. The first argument raised on behalf of the applicants is one which goes to the approach which should be adopted by the Court in these particular circumstances, that is, in cases where it is sought to restrain deportation when the application for judicial review has been commenced within the fourteen day time limit imposed by s. 5 of the Illegal Immigrants (Trafficking) Act 2000, and the application for leave has yet to be determined.
3. It is submitted that, as a matter of law, an applicant for judicial review who is seeking leave to apply for an order of certiorari to quash a deportation order is entitled, as of right, to an interlocutory injunction restraining implementation of the order until the application for leave can be determined.
4. This argument relies particularly on observations made, obiter in the judgment of Geoghegan J. in the Supreme Court in Adebayo v. Commissioner of An Garda Síochána  2 IR 298, and on the approach of Hogan J. in his judgments in L.A. v. Minister for Justice, Equality and Law Reform and P.J & Ors v Minister for Justice Equality & Law Reform [Unreported, Hogan J, 19th October 2011.] This proposition is argued to be at variance with the view expressed in Adebayo by Fennelly J. and, to some extent at least, with the view expressed by this Court in its judgment in A.P.A. and Others v. Minister for Justice, Equality and Law Reform and Others (Unreported, High Court, Cooke J. 20th July, 2010).
5. The essential question which arises on that argument is this; in these cases where it is sought to restrain deportation pending the hearing of the leave application, is the applicant, as Hogan J. concluded “entitled to a stay absent special circumstances” or is there some criterion, principle or test which the High Court should apply, and, if so, is that test the Campus Oil test or some other one? It is appropriate, however, to deal first with the more particular circumstances of the present application for injunctive relief.
6. This case is one of a large number in which the Minister has declined to continue an undertaking not to deport beyond the return date of the motion for leave under s. 5, of the Illegal Immigrants (Trafficking) Act, in which no separate ex parte application for leave has been made in respect of the proposed challenge to the refusal of subsidiary protection. Instead, because the deportation order has been made before the expiry of the six month time limit for seeking an order of certiorari in accordance with O. 84 of the Rules of the Superior Courts, a single judicial review proceeding has been commenced in which relief in respect of both decisions is sought on notice to the respondents. Because there have been a large number of these cases, the Court has been unable to hear separate ex parte applications for leave on the return date of that motion. It has been necessary to treat the application for leave to challenge the subsidiary protection determination as having been moved and then adjourned with the motion so that, in the interests of economy of time and procedure both applications for leave can be heard together at an adjourned date.
7. The present case differs from those considered in the A.P.A. and P.J. judgments in that it has been argued primarily (at the suggestion of the Court,) by reference to the pending challenge to the subsidiary protection determination. In effect, a valid refusal of an application for subsidiary protection is a necessary pre-condition to the making of a valid deportation order. Furthermore, the application for leave to seek an order of certiorari quashing the refusal of subsidiary protection does not come within the scope of s. 5 of the Act of 2000 and is thus made ex parte and then assessed by reference to the lower threshold for leave under O. 84, rather than that of demonstrating “substantial grounds” under s. 5 of the Act of 2000.
8. This then is a judicial review proceeding, in which relief by way of certiorari is sought quashing the Minister’s refusal of subsidiary protection. Accordingly, if, upon the hearing of the application, leave is granted, the Court will be entitled under O. 84, r. 20(7(a) to direct that the order will operate as a stay of proceedings. By contrast with the situation considered in the A.P.A. and P.J. cases, however, there is no procedure which can be stayed in the circumstances of the present case. The Minister has refused the application, so that consideration of the applicants’ position under the European Communities (Eligibility for Protection) Regulations 2006, (the “2006 Regulations”) is at an end. Where leave is granted to apply to quash a deportation order, there is at least in being an administrative process for removal of the applicant from the State which is under the continuing control of the Minister and which can, therefore, be interrupted and restrained. There is no equivalent underlying and continuing process in the case of a subsidiary protection application once it is refused. There cannot, accordingly, be any automatic stay of any proceeding. The only continuing process which can be the subject of restraint is the distinct procedure under s. 3 of the Immigration Act 1999 namely, the deportation procedure.
9. It follows in the view of the Court that where a challenge is sought to be made to the validity of a subsidiary protection determination and the applicant seeks to preserve the status quo, it can only be done by means of an application to injunct the Minister from taking any steps to advance the proposal to deport or, if the deportation order has already been made, by applying to injunct implementation of the order. Because such an application is directed at a different procedure and is not the “proceedings” in which subsidiary protection has been considered, there can be no question of the Court directing a stay under para. 7(a) of Rule 20, much less of there being any automatic stay by virtue of the grant of leave. As a result, the entitlement to an injunction to restrain deportation when made on foot of a proposed challenge to the validity of a refusal of subsidiary protection must depend upon the Court being satisfied that the established criteria of the Campus Oil case are fulfilled and this must be so whether the injunction is sought before or after leave has been granted.
10. It is necessary therefore, to consider first whether in the present case a fair issue has been raised as to the entitlement of the applicants to the remedy which is to be sought at the end of the period during which the restraint is to operate. This means in the circumstances of the present case, whether the applicants have raised a fair issue as to an entitlement to obtain leave to apply for an order quashing the subsidiary protection determination as unlawful. Because s. 5 of the 2000 Act does not apply, that entitlement turns upon there being a stateable case to the effect that the facts averred to in the grounding affidavit together with the legal submissions advanced will be sufficient, if accepted as established at the leave hearing, for the grant of the leave claimed, namely liberty to apply for that judicial review. (See the judgment of Finlay C.J. in G. v. DPP  1 I.R. 374).
11. The Court would draw attention to the requirement that the fair issue raised must be one which will entitle the applicant, if it is established as correct, to the relief sought, namely the quashing of the challenged decision. In the view of the Court it is not sufficient for this purpose in a judicial review proceeding for an applicant, even an applicant with the necessary locus standi, to point to some interesting but academic issue of law as the fair issue to be tried, unless the determination of that issue in the applicant’s favour will necessarily render the challenged decision unlawful and liable to be quashed.
12. An applicant with the appropriate locus standi is always entitled to litigate general issues of law affecting his or her interest by a plenary action seeking declaratory relief. By contrast the Court is not obliged to entertain such exercises in judicial review proceedings and, a fortiori, to acquiesce in the proceeding being utilised as the vehicle for interlocutory relief in respect of measures the validity of which will not necessarily be affected by the outcome of the proceedings.
13. This point is mentioned because in the present case thirteen grounds are advanced in support of the challenges to the two decisions of which three (Nos. 4, 5 and 11 in the Statement of Grounds), are directed at the alleged failure of the State in transposing the provisions of Council Directive 2004/83/EC of 29 April 2004 ( the “Qualifications Directive”,) to provide an effective remedy in the form of an appeal against the Minister’s determination of the application.
14. Even if these grounds should be substantiated they will not lead to the annulment of the subsidiary protection determination. At most they may lay the ground to a challenge to the validity of the subsequent deportation order but by claiming an entitlement to such an appeal there is an implicit acknowledgment of the existence of a measure against which an appeal can be claimed to lie in law. The absence of an appeal mechanism does not of itself render the decision which is sought to be appealed, unlawful. Furthermore, the assertion that only an appeal by way of de novo re-examination or rehearing can provide an effective remedy necessarily implies that an examination of the legal validity of the determination will not provide the required remedy as indeed is explicitly the basis of ground number 11.
15. Of the other grounds advanced in the Statement of Grounds, Nos. 1, 2, and 3 are directed at the proposition that the Minister has not arrived at the decision in the determination “in cooperation” with the first named applicant as allegedly required by Article 4.1 of the Qualifications Directive. In particular, it is argued that this Article requires the respondent to furnish a draft of the determination to the applicant for comment or rebuttal prior to its adoption. These grounds raise no stateable basis for relief by way of certiorari for two reasons. First, the point is made as a purely theoretical one in the circumstances. No specific error of fact, mistake of understanding or other flaw in the content of the determination is identified as an element which would have been determined differently had the alleged cooperation with the first named applicant, in the form of furnishing a draft of the determination for comment prior to its adoption, been employed.
16. Secondly, for the reasons given in more detail in the Court’s judgment in B.J.S.A. (Sierra Leone) v. Minister for Justice, Equality and Law Reform (Unreported, Cooke J. High Court, 12th October, 2011), this Court indicated why in its judgment this reliance upon Article 4.1 of the Qualifications Directive was in any event unfounded. In the judgment of the Court, insofar as this element of cooperation may have some residual effect at this final stage of an application for international protection (that is, after the personal interview of the asylum seeker and the two stage examination of the asylum application,) it does no more than reflect the general principle audi alterum partem namely, the obligation of the decision maker, before reaching a decision, to put to an applicant for comment or rebuttal any new information which is to be relied upon and which contradicts some asserted fact material to the applicant’s claim.
17. It must be borne in mind that an application for subsidiary protection is not a process of adversarial adjudication. It is a matter in which the decision maker is required to assess whether the conditions of entitlement are made out by the applicant. The Minister is not obliged to enter into a debate.
18. In the judgment of the Court the remaining grounds in the Statement of Grounds are either clearly unfounded or so lacking in identification of specific flaws or illegalities in the determination, as to be incapable of constituting the basis of a stateable case for the grant of leave to apply for an order of certiorari.
19. In grounds 6 and 10, it is alleged that the respondent failed to have regard to representations made. Insofar as this relates to the subsidiary protection determination, it is clearly contradicted by the content of that decision. In argument, emphasis was placed upon the claim made in the application that the first named applicant was at risk of serious harm because of her membership of a particular social group comprising her family or, alternatively, young single mothers with no family support or means of protection. This particular claim is repeated in several places in the determination and is answered by recourse to extensive country of origin information on the status of women, mothers and children. It is also pointed out that the applicant claims to have received sixteen years of formal education and to have worked as a teacher in Nigeria. It is thus concluded that she should be able to support herself and could obtain protection as an adult woman by relocating away from the particular source of the alleged serious harm.
20. Ground 7, alleges that the refusal of subsidiary protection was not “proportionate or reasonable” but no particular basis has been advanced in argument as to why the determination should be unlawful in that regard. It is by no means clear how a determination that the qualifying conditions for subsidiary protection have not been met could be condemned as disproportionate. A decision is disproportionate in the legal sense when the measure adopted exceeds what is necessary to achieve the relevant objective. In an application for subsidiary protection the statutory criteria are either present or absent.
21. In ground 8, it is asserted that country of origin information consulted was “read selectively against the applicant’s interest” and the conclusions reached were irrational. Again, the Court does not consider that any basis has been laid for this assertion. All of the country of origin information recited in the determination is clearly relevant to the claims being made, and while it has been “selective” it has been selected for the purpose of answering those claims. The conclusions reached could not, in the judgment of the Court, be said to be irrational in the sense of lacking any reasonable relation to the claims advanced. The conclusions were clearly open to the respondent Minister having regard to the claims made.
22. Ground 9, claims generally that the Minister “had insufficient regard to the best interests of the child”. In the application for subsidiary protection of the 27th October, 2009, no specific case was in fact put forward on behalf of the child in this regard. The second named applicant is a child slightly over three years of age. The best interest of the child clearly lies with remaining in the care of the first named applicant. In ground 12 it is alleged that the country of origin information relied upon was insufficient in that it was not up to date and was not made available until after the decision. The application was made in October 2009 and the determination was given in April 2011. The information consulted in relation to the matters raised in the application is for the most part drawn from reports dating from late 2009 and mid-2010. Furthermore the material in question is largely of a general character relating to general social conditions and the position of women and children, the status and effectiveness of the police and structures for avenues of complaint. This is not a case which raised issues related to events susceptible of rapid change such as the rise or fall of specific political regimes, groups or leaders. Given that there is always a necessary time lag between the compilation and the circulation of such reports, the Court does not consider that the consultation of that information was in any way vitiated by anachronism. Furthermore, if it to be complained that there was some failure to consult the applicants in relation to the information and that this has led the Minister to reach a false conclusion, it is necessary in the judgment of the Court for an applicant to exhibit the contradicting information which would have been produced had the opportunity been given. That has not been done.
23. For all of these reasons the Court is satisfied that no fair issue has been raised in this case as to the entitlement of the applicant to seek leave to quash the determination refusing subsidiary protection. No interlocutory injunction could therefore be granted on that basis.
24. As already mentioned, the present application was argued primarily by reference to the challenge to the subsidiary protection determination. The Court has not therefore been addressed on the issue as to whether an interlocutory injunction to restrain deportation can be maintained on the basis of the challenge proposed to be made to the deportation order itself. The Court will therefore hear counsel further on this issue. With a view to giving focus to that issue, the Court will make the following observations.
25. First, as pointed out above, of the thirteen grounds advanced in the statement of grounds, it would appear that at least those at paras. 1, 2, 3 and 12 are directed exclusively at the validity of the subsidiary protection determination. So far as the remaining grounds may apply to both decisions, the observations already made above in relation to the lack of identified illegalities, may also be relevant in the context of the deportation order.
26. In its judgment in the A.P.A. case, referred to above, the Court expressed the view that the obligations of both the Minister and the Court to ensure that powers are exercised consistently with the requirements of the European Convention on Human Rights Act 2003, required that s. 5 of the Act of 2000, be interpreted and applied in a manner which precludes implementation of a deportation order before the expiry of the fourteen day period fixed by s. 5 and thereafter, until an applicant has been able to bring an application for judicial review before the Court, at least in cases where it is asserted that deportation would expose an applicant to a credible risk of irreversible harm.
27. Once the matter is before the Court, however, the right of access to the Court under s. 5 (or under the Constitution,) has been secured and any continuing restraint to be imposed upon the respondent in implementing what must otherwise be considered to be prima facie a valid deportation order, must necessarily depend upon the intervention of the Court to grant interlocutory relief or impose a stay.
28. In the P.J. judgment, Hogan J. expressed the view that “absent special circumstances” an applicant in such cases would be entitled to a stay once leave was granted and, as a result, should equally be entitled to a stay in the event that the issue arises in the period between the return date of the motion for the leave application and any adjourned hearing of that application.
29. Insofar as there may be said to be a difference of approach in those two judgments, the Court feels obliged until such time as the matter is resolved by definitive judgment of the Supreme Court, to maintain the approach it suggested in the A.P.A. case.
30. It is undoubtedly the case that in the majority of instances where a risk of serious irreversible harm is asserted should a deportation take place, the Court will preserve the actual status quo by intervening to postpone expulsion of an applicant from the State. There will also no doubt be cases where the continued presence in the State of the applicant is necessary in order to ensure the effectiveness of the right of access to the court but this is not necessarily so in every case.
31. The Court doubts, however, that the entitlement to an injunction can be said to be “automatic” by reason only of the bringing of an application for judicial review in which relief by way of an order of certiorari is claimed. Even where the leave issue is decided and leave is granted, the exercise of the Court’s jurisdiction to “so direct” is required if the grant is to operate as a stay. There may well be many cases where no stay is possible, appropriate or necessary.
32. It must be borne in mind that even in challenges to deportation orders, there may be no issue of risk of irreversible harm to an applicant if expelled. A deportation order may be made, not only against a failed asylum seeker, but against any of the persons listed in paras. (a) – (i) of s. 3(2) of the Immigration Act 1999 and thus come within the scope of s. 5 of the Act of 2000.
33. Take for example, the case of a third country national (not an EU citizen,) who enters the State illegally, commits a serious crime and serves a term of imprisonment and who at, or prior to, release from prison is the subject of a deportation order to return the person to, say, a non-EU Contracting State of the ECHR. No question of refoulement arises. The individual does not have and never has had permission to be present in the State. It could not be said, in the view of the Court, that the commencement of a judicial review proceeding seeking to quash such a deportation order could create any automatic entitlement to remain in the State pending the determination of an adjourned leave application, nor that it creates any presumption in the applicant’s favour to that effect. A technical issue could be raised as to whether for example, the signatory of the order had been duly authorised to make it. Even the success of that ground would not establish an entitlement to remain in the State but only the need for a new order. In such an instance the Court might well refuse to grant an injunction before leave is decided or direct a stay even when leave is granted.
34. It may well be that such would be one of the “special circumstances” contemplated by the judgment in the P.J. case. But even if that is so, it remains the case that it is only by the intervention of the Court in directing a stay of the deportation process or by way of interim or interlocutory injunction, that a threatened implementation of the deportation order can be interrupted. If the issue is disputed by the respondent and the application for an injunction is challenged, the Court must have recourse to some criterion or test in deciding the issue. In the judgment of the Court the only test to be applied is the well settled test of the Campus Oil case.