Neutral Citation:  IEHC 124
THE HIGH COURT
[No. 2012/957 J.R.]
[No. 2013/292 J.R.]
P.B.N. (DR CONGO)
MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND ATTORNEY GENERAL
JUDGMENT of Mr. Justice Barr delivered on the 25th day of February, 2015
2. The applicant worked for an admiral who, like the former leader Mr. Mobutu, came from Equateur province. In 2006, differences arose between her employer and the generals from the east of the country who were supported by President Kabila. The applicant was asked by the Minister for the Interior, also a general from the east, to come and work for him, and to administer poison to the admiral. When she refused, she was arrested, detained and ill-treated. She was released on the order of another general and fled to Congo-Brazzaville. After 50 days there, she came to Ireland.
3. Both the Refugee Applications Commissioner and the Refugee Appeals Tribunal made negative credibility findings in relation to her account and she was informed in June 2009 that the Minister had decided not to grant her refugee status. She did not challenge that decision by way of judicial review.
4. The applicant was subsequently refused subsidiary protection in June 2011 and was refused leave to remain on humanitarian grounds. A deportation order was made in respect of the applicant on 27th September, 2011.
5. Subsequently, in November 2011, a report entitled “Unsafe Return-Refoulement of Congolese Asylum Seekers” was published. The applicant submitted that this report was prima facie new material relevant to the safety of returnees to the DRC.
6. In July 2012, applications were made by the applicant’s present solicitors for consent to re-enter the asylum process pursuant to s. 17(7) of the Refugee Act 1996, as amended, and for the revocation of the deportation order, pursuant to s. 3(11) of the Immigration Act 1999. These applications were largely based on the then recent findings of the “Unsafe Return” report. Both applications were refused and the refusals were each challenged in the two sets of proceedings which are now before the court.
7. It should also be noted that an application for an interlocutory injunction restraining the deportation of the applicant pending the determination of these proceedings, was refused in a judgment of the High Court of 16th September, 2013. An appeal to the Supreme Court in respect of the refusal of interlocutory relief by the High Court was allowed and judgment was delivered by the Supreme Court on 21st February, 2014.
The Present Proceedings
9. In the letter submitting the application for readmission to the asylum process, the applicant’s solicitors maintained that the determination to refuse the applicant refugee status was fundamentally flawed in that it was based on outdated and inaccurate country of origin information (COI). The applicant’s solicitors enclosed further “new” documentation as follows:-
Article taken from the Guardian newspaper dated Friday, 11th November, 2011 - Congo Civilians Beaten for Supporting Opponents of President, says UN Report.”
2. Refugee Documentation Centre (Ireland) 3rd June, 2010 - information on the treatment of MLC Members. Whether they continue to be persecuted.”
12. The application pursuant to s. 3(11) of the Immigration Act 1999, was an application to revoke the deportation order based on changed circumstances. In a letter dated 23rd July, 2012, the applicant submitted that there had been a deterioration in the DRC and a deterioration in the treatment faced by failed asylum seekers. The applicant’s solicitors advised that the DRC was extremely dangerous especially in relation to refoulement of Congolese asylum seekers. They enclosed the following up to date COI:-
• Article taken from the Guardian newspaper dated Friday, 11th November, 2011 - Congo Civilians Beaten for Supporting Opponents of President, says UN Report.
• Access to healthcare, mortality and violence in Democratic Republic of Congo - results of five epidemiological surveys: Kilwa, Inonogo, Basankusu, Lubutu, Bunkeya March to May 2005.
• Article from BBC News - DR Congo’s Child Minor Shame.
• Article from the Guardian newspaper dated Monday 29th September, 2008 - Congo Child’s Soldiers Re-enlisted
• Refugee Documentation Centre (Ireland) 15/7/2010 - information regarding the dangers for failed asylum seekers returning to the DRC.
• Refugee Documentation Centre (Ireland) 3/6/2010 - information on the treatment of MLC members; whether they continued to be persecuted.
14. The s. 17(7) application was initially considered by Ms. Martina Ennis of the Ministerial Decisions Unit on 17th August, 2012. She formed the opinion that the submissions and documentation submitted by the applicant did not represent new evidence which would merit her readmission to the asylum process. The applicant’s claims in relation to mistreatment of returned failed asylum seekers to the Congo, would be considered in the context of the s. 3(11) application.
15. By letter dated 25th October, 2012, the applicant through her solicitor sought a review of that decision. That review was carried out by Mr. Dennis Byrne of the Ministerial Decisions Unit on 8th November, 2012. Having reviewed the background to the applicant’s application, he came to the conclusion that no new evidence had been furnished and that her application for readmission under s. 17(7) of the Refugee Act 1996 (as amended) should be refused.
16. In the s. 3(11) application, an examination of the file was carried out by Mr. Mark Dunne, Executive Officer in the Repatriation Unit on 5th February, 2013. He had the following to say in relation to the Unsafe Return report:-
18. The examiner noted that since the submissions had been received from the applicant in July 2012, a report of relevance had been released by the United Kingdom Border Agency being a “Report of a fact finding mission to Kinshasa conducted between 18th - 24th June, 2012.” It contained information about the procedure for and treatment of Congolese nationals returning to the Democratic Republic of Congo from the United Kingdom and western Europe, and was dated November 2012. Mr. Dunne noted that this report was available on the internet.
19. The examiner was satisfied that the information producer had established knowledge in the area of country of origin research; the information was provided in an objective manner, the methodology of the research was clearly and transparently set out. In addition, he was satisfied that the information provided was current. Overall, he was satisfied that the UKBA report met the principles set out by the UNCHR as quoted by ACCORD.
20. Mr. Dunne looked at the findings of the report in some detail. He noted that on the whole, the majority of the agencies considered that, at least in the normal course, there would not be a serious threat of mistreatment to returnees beyond some incidents of extortion and/or theft by corrupt airport officials.
21. The examiner noted that the report indicated that in certain circumstances, returnees may be detained, such detention following on from the returnees having been identified in some way as being liable for detention. The reason for such detentions fell into three broad categories. Firstly, if the returnee had a contagious disease, they would be likely to be detained. Secondly, if the returnee had a criminal record or outstanding arrest warrants, they would likely be detained. Thirdly, if the returnee was perceived to be against the government. The examiner came to the following conclusion in relation to the likelihood of the applicant being detained:-
23. He came to the conclusion that although some organisations suggest that being identified as a failed asylum seeker may give rise to some suspicion in the minds of airport officials, other organisations suggest that there was an understanding of the complexities of irregular migration. The examiner also noted that Ireland does not identify failed asylum seekers when they are returned to their country of origin.
24. It was noted that there was assistance available to returnees who encountered difficulties. There were a number of NGOs who would provide the assistance required. The examiner concluded this part of the examination of the file in the following manner:-
The Applicable Legal Threshold
27. The question arises as to what is the correct threshold for the application to quash the decision not to revoke the deportation order since that application has been put on notice to the respondent. The applicant submits that the issue is governed by the decision of the Supreme Court in G. v. Director of Public Prosecutions  1 I.R. 374, where Finlay C.J. stated at p. 377-378:-
(a) That he has a sufficient interest in the matter to which the application relates to comply with rule 20 (4).
(b) That the facts averred in the affidavit would be sufficient, if proved, to support a stateable ground for the form of relief sought by way of judicial review.
(c) That on those facts an arguable case in law can be made that the applicant is entitled to the relief which he seeks.
(d) That the application has been made promptly and in any event within the three months or six months time limits provided for in O. 84, r. 21 (1), or that the Court is satisfied that there is a good reason for extending the time limit.
(e) That the only effective remedy, on the facts established by the applicant, which the applicant could obtain would be an order by way of judicial review or, if there be an alternative remedy, that the application by way of judicial review is, on all the facts of the case, a more appropriate method of procedure.”
"Reference was made in the High Court to a different standard of proof in cases where the respondent is on notice of the application. However, I do not apply such an approach in this appeal. It appears to me that there is a real danger of developing a multiplicity of different approaches, that of G. v. Director of Public Prosecutions , the test applied in specific statutory schemes, and that governing the position where a respondent is on notice in a particular area of litigation. Not only may there be legal difficulties in identifying and applying each different standard, but such an approach would take up further valuable court time. In voicing this opinion I note that in Gorman v. Minister for the Environment  1 IR 306 and other cases cited reliance was placed on English caselaw. However, it appears to me that the appropriate law is that which has been well established in this jurisdiction based on G. v. Director of Public Prosecutions . It is that law which I apply to this application."
62. The application of the G. v. Director of Public Prosecutions  1 I.R. 374 standard in cases such as the present gives rise to the following observations:-
(a) it is self evidently a lower standard than the substantial grounds test;
(b) it is to be applied in circumstances where it has been suggested elsewhere the standard applicable should be that of substantial grounds;
(c) it arises in circumstances where the discretion of the court has been exercised, to direct the application should be heard on notice;
(d) the facts and legal issues herein may demonstrate that whereas, ex parte , arguable grounds might have been established, inter partes they may not have been;
(e) it arises where the position of the applicant is weaker than in a review of a decision under s. 5 of the Act of 2000.
63. These observations beg the question as to the circumstances, save under a statutory regime, as to when an application of this kind should be heard on notice. Unless the court is to adopt a different standard from simple arguability it may be suggested, the exercise is otiose. In an application on notice, should a court engage in weighing or analysis of all the evidence, or should it accept the applicant's case on arguability? By implication, also, the issue arises as to the test to be applied in an application to set aside leave.
64. An application ex parte herein would necessarily have been heard without notice on the basis of evidence established by affidavit, but would not have been on all the relevant facts or those within the procurement of the applicant. It would certainly be open to being set aside on the basis of the evidence and legal submissions which have now been made available to the court in this inter partes hearing. But this process is hardly the "quick perusal" identified in R. v. Inland Rev Commissioners, ex parte, National Federation of Self-Employed and Small Businesses Limited  AC 617.
65. It may be said the respondent not on notice may of course apply to have a grant of leave to seek judicial review subsequently set aside. But this in turn still may raise questions as to the standard applicable, the purpose of the court's discretion to direct notice be served on an intended respondent, the effect thereof, and the fact that, in certain circumstances, an applicant might achieve an unwarranted advantage, such as critical delay, by a grant of leave and a consequent interim injunction when there may be no such entitlement at law.
66. These observations are necessarily obiter. On the basis of the decision and authority of D.C. v. Director of Public Prosecutions  IESC 77,  4 IR 281 this court concludes that it should apply the lower test of "arguable grounds", but in any case should exercise its discretion to grant or refuse leave having taken into account relevant matters which include:-
"(b) That the facts averred in the affidavit would be sufficient, if proved, to support a stateable ground for the form of relief sought by way of judicial review.
(c) That on those facts an arguable case in law can be made that the applicant is entitled to the relief which he seeks." (per Finlay C.J. in G. v. Director of Public Prosecutions  1 I.R. 374 - emphasis added).
In an application for leave on notice, however having heard both sides, a court must be in a better position to establish whether in law on the facts by then established, an applicant has made out arguable grounds.
The United Kingdom Border Agency Report of a Fact Finding Mission to Kinshasa, 18-24 June, 2012
32. Thirdly, the applicant submitted that the views of the UNHCR had been misrepresented in the UKBA report and Policy Bulletin when read together. The applicant maintains that it was necessary to draw a distinction between failed asylum seekers returning from the UK and Europe generally on the one hand, and the mass movement of asylum seekers throughout various countries in Africa on the other hand. Paragraph 6.2.3 of the Policy Bulletin refers to what is in effect such a comparison and the conclusion as “a clear indication that they (the UNHCR/UN) have no concerns about the general treatment of refugees” is on the face of it a highly consequential conclusion that appears to be misapplied to the situation regarding returned failed asylum seekers from Europe and perhaps imputing knowledge to the UNHCR which it never claimed to have relating to such failed asylum seekers returning from Europe.
33. The applicant submitted that the failure to directly obtain the views of the UNHCR in the context of the inquiries being undertaken was notable. There appeared to be a willingness to treat the absence of evidence of an asserted fear (which is unlikely ever to be forthcoming) as evidence that such fear was not well founded. The applicant was of the view that there was no real suggestion that it would be expected that the bodies or groups to whom queries were raised for the UKBA report, would in fact have, or would come into possession of, the evidence required to confirm or refute the conclusions of the “Unsafe Return” report.
34. Fourthly, the applicant complained that perhaps the most important shortcoming of the UKBA report was the fact that almost all of the people consulted by the researchers in the report, acknowledged that they did not monitor failed asylum seekers after return to Kinshasa. The applicant pointed out that this was in stark contrast to the efforts of Justice First who had commissioned the Catherine Ramos report. The applicant submitted that it was fundamentally flawed in the UKBA report to address a core question such as “are returned asylum seekers from Europe likely to be ill-treated at Kinshasa airport or elsewhere after arrival, on account of their status?” to persons who have no means of knowledge of the answer. The applicant noted that the answer provided by the Policy Bulletin, purportedly relying on the findings in the FFM report, rely almost entirely on those bodies/organisations that were questioned “not having any evidence of ill treatment of such persons” in circumstances where there would appear to be very little opportunity for such bodies or organisations (in the complete absence of any monitoring) to ever have such evidence, when no monitoring is taking place. The applicant submitted that the only way that those bodies/organisations might acquire such “evidence” would be based on the pure happenstance of any victim of such treatment being ready, able, and willing to make a complaint to that body in the aftermath of such mistreatment. It was submitted that it is an entirely unsatisfactory basis to effectively unseat the findings of the “Unsafe Return” report. Unsafe Returns should in any event have (and did) place countries intending to deport failed asylum seekers to DR Congo “on inquiry” in relation to its contents and their non-refoulement obligations and the necessary inquiry has simply not been adequately undertaken - at least not in the applicant’s view by the UK documentation, giving rise to the possibility of a very real danger of unlawful refoulement taking place.
35. The applicant pointed out that at para. 11.7 of the Policy Bulletin is contained the “Conclusion” which merely refers to a “consensus within the FFM” that returnees per se do not face a risk of detention (subject to stated exceptions) - the difficulty is there is no such “consensus” evident from the FFM itself. The applicant submitted that the FFM report is a lengthy document and it would be extremely difficult to say that there is a consensus of any sort contained therein and certainly no direct evidence countering the content of the “Unsafe Return” report.
The Applicant’s Supplemental Submissions
37. The applicant referred to the following passage from the judgment of Hogan J. in T.K. v. Minister for Justice, Equality and Law Reform  IEHC 99, which it was submitted sets out the conclusions which clearly reflect the post-Meadows position:-
40. The applicant submitted that at the leave stage, it would be wholly inappropriate to delve into the findings of the UK Court in the P&R v. Secretary of State for the Home Department case  EWHC 3879, whatever about what regard should be had to it at the substantive stage. It was submitted that its only relevance at the leave stage was that it illustrated that a similarly situated applicant as the applicant herein apparently had no difficulty in our neighbouring jurisdiction of having a similar decision examined and weighed by an independent Tribunal - that is all that a grant of leave will entitle the applicant to in this case.
41. The applicant also submitted that concern must arise as to the delays already had in the consideration of the applicant’s need for international protection. Leave was sought on all grounds. As the Supreme Court stated in this case, “it is obviously in the interest of both parties that the leave applications be expedited”. It was submitted that the Supreme Court dealt in their judgment in the interlocutory matter with points concerning “an arguable case” in the context of injunctive relief, and it was misleading of the respondent to characterise any findings in that case as intended to become the grounds/reliefs that ought to be granted in these applications. The opposite was emphasised by the Supreme Court. It was submitted that it is crucial that the fullest consideration be given to the Minister’s refusal to revoke, not only from a reasonableness/rationality/proportionality standpoint but also from a procedural and fairness aspect.
42. The applicant submitted that in a matter such as this, involving, prima facie, a possibility of serious harm, it would be better that the court hearing the substantive application was not deprived of jurisdiction in any way by unnecessary confinement of the leave grounds.
43. The applicant pointed out that at para. 1.10 of the respondent’s submissions, case law was mentioned which supported the view that failed asylum seekers were not per se members of a particular social group. That is not something that the applicant ever asserted. What is not mentioned however, is that in the F.V. case put forward by the respondent, Irvine J. at para. 7 of the judgment states:-
45. The applicant submitted that the present case was almost indistinguishable from the previous decisions in Meadows and in T.K. v. Minister for Justice, Equality and Law Reform  IEHC 99. It was submitted that in all three cases, previous applications for asylum had been rejected by the equivalent of the Refugee Applications Commissioner and the Refugee Appeals Tribunal on, inter alia, credibility grounds. In all three cases, a similar form of wording had been used in rejecting the notion that the return of the applicants to their countries of origin would not breach the State’s non-refoulement obligations.
46. It was submitted that the judgments of the Supreme Court in Meadows and the High Court in T.K. obliged this Court to grant leave in the instant case. Reference was made to the decision of K.I. v. Minister for Justice, Equality and Law Reform  IEHC 66 where the law in this regard was summarised and quoted by the High Court (Hogan J.) as follows:-
‘It is well established that, as a matter of judicial comity, a judge of first instance ought usually follow the decision of another judge of the same court unless there are substantial reasons for believing that the initial judgment was wrong. …Amongst the circumstances where it may be appropriate for a court to come to a different view would be where it was clear that the initial decision was not based upon a review of significant relevant authority, where there is a clear error in the judgment, or where the judgment sought to be revisited was delivered a sufficiently lengthy period in the past so that the jurisprudence of the court in the relevant area might be said to have advanced in the intervening period. In the absence of such additional circumstances it seems to me that the virtue of consistency requires that a judge of this court should not seek to second guess a recent determination of the court which was clearly arrived at after a thorough review of all of the relevant authorities and which was, as was noted by Kearns J., based on forming a judgment between evenly balanced argument. If each time such a point were to arise again a judge were free to form his or her own view without proper regard to the fact that the point had already been determined, the level of uncertainty that would be introduced would be disproportionate to any perceived advantage in the matter being reconsidered.’
37. None of the special considerations identified by Clarke J. are present here. Quite the contrary, the decisions which I consider that I am bound to follow are all recent decisions where the issues were fully argued and the authorities fully considered. In these circumstances, I would not be justified in departing from the formidable weight of authority and I consider that I ought to apply the principles so forcefully adumbrated by Clark J. and Cooke J. in these cases.”
49. Secondly, the applicant submitted that the quality of the representations/country information should not be considered in depth at the leave stage, all that is necessary is to establish that they were sufficient to engage s. 5 which is clearly the position in these two cases.
50. Lastly, it was submitted that as Hogan J. made clear at paras. 26-30 of his judgment in T.K., he was constrained by Meadows to quash the decision and it was not in fact a matter for the discretion of the court, a fortiori leave should be granted in this case.
The Respondent’s Submissions
52. The respondent further argued that there were different standards applicable depending on whether the applicant was seeking an injunctive procedure or was proceeding at the leave stage of a judicial review application. In this case, it was submitted that the Supreme Court decision in the interlocutory injunction proceedings did not mean that the applicant should be give leave to proceed by way of judicial review. It was submitted that when one was looking at the interlocutory injunction proceedings, one was dealing with a very low threshold. In this regard, the applicant was allowed to proceed on two grounds which were sufficient to amount to an “arguable case” which would allow the applicant to seek an interlocutory injunction. It was submitted that the mere fact that the applicant had been granted an interlocutory injunction, did not mean that the applicant was therefore entitled to obtain leave to proceed by way of judicial review. The respondent submitted that there were two different tests and that the fact that the applicant succeeded at the interlocutory application stage, did not mean that ipso facto the applicant was entitled to leave to proceed by way of judicial review.
53. The respondent relied on the decision in Re Worldport Limited  IEHC 189, which sets out the circumstances in which a High Court decision might not be followed. These were set out at p. 5 of the judgment. However, in the absence of any of these criteria, it was submitted that the court should follow the earlier High Court judgment at the interlocutory application stage as given by Clark J. In that judgment, Clark J. had held that the applicant had submitted nothing new in the course of her application. She may have had a new report, but the risk to failed asylum seekers returning to the DRC, was already before the Minister at the time of review of the deportation order. It was submitted that the court should take the same approach as had been adopted by Clark J. in her judgment and should hold that the applicant had, in fact, not submitted any new evidence sufficient to bring her within the provisions of s. 17(7A) and (7D).
54. It was submitted that where the applicant had gone through the whole panoply of immigration procedure, she had all the relevant issues looked at in depth by the various decision makers. It was submitted that the applicant had to clear the test as set out in s. 17(7A) and (7D), which set out the level of the new evidence which an applicant must adduce in order to comply with the provisions of section 17(7). It was submitted that the case law established that the country of origin information must be “cogent, authoritative and objective”. In this case, the only COI relied upon was the Unsafe Return report of November 2011. It was submitted that the Unsafe Return report did not meet this standard, especially when looked at the in the light of other known COI at the time. It was submitted that under s. 17(7) the new evidence must be likely to lead to a different outcome on the decision. The respondent submitted that the Unsafe Return report was not sufficient to lead to a different outcome on the decision.
55. In relation to the application to revoke the deportation order, it was submitted that the examination of the file which was carried out under s. 3(11) of the 1999 Act, was very detailed in this case. The decision maker considered the Unsafe Return report and was guided by the guidelines of ACCORD. The Unsafe Return report was looked at closely. The decision maker did not dismiss this report out of hand, but looked at other documentation submitted by the applicant. The decision maker looked for corroboration of the content of the report from other known COI. The decision maker considered the documentation submitted by the applicant. On balance, the decision maker preferred one set of documentation which had been submitted by the applicant. He considered all the documentation which had been submitted by the applicant. The decision maker set out clearly why he came to the decision that he did. It was submitted that this was in accordance with the ACCORD guidelines. It was further submitted that this was sufficient to deny the applicant leave in this case. All the documentation had been considered by the decision maker who made his decision and said why he came to the conclusion that he did.
56. The decision maker held that at the time he came to make his decision that the documentation submitted by the applicant was not up to date, so he looked at the Fact Finding Mission report from 2012. This report was drawn up by the UK Border Agency and was available on the internet. The document satisfied the criteria of ACCORD. The decision maker decided that the preponderance of the documentation established that after interview, returnees to DRC are free to go. The decision maker goes on to deal with the low level mistreatment of such returnees at the airport.
57. It was submitted that the decision maker had looked at the documentation fairly, had looked at both the positive and negative aspects, and on the whole came to the view that the majority of agencies held that there was no serious threat of mistreatment to failed asylum seekers.
58. It was submitted that the Unsafe Return report was significantly at variance with other COI that was before the decision maker at that time. Many NGOs were not aware of serious mistreatment of returned failed asylum seekers. The decision maker looked at all the available documentation and came to the view that the preponderance thereof established that there was no serious mistreatment of returnees at the airport other than low level extortion and theft. He noted that the persons detained fell into one of three categories: (i) if they had a contagious disease; (ii) if they had a criminal record; and (iii) if they were suspected of being against the government or have come to government attention previously. This was set out in reputable COI. The decision maker had looked at all the documentation and had complied with all the legal requirements set out in the case law.
59. It was submitted that the applicant wanted to focus exclusively on the Unsafe Return report. However, the decision maker had looked at the applicant’s circumstances and came to the conclusion that she has not shown that she was at a higher risk of mistreatment than other returnees to DRC. The decision maker found that the applicant was in the category of failed asylum seeker, but that the authorities in Ireland do not tell the DRC authorities that the person was a failed asylum seeker. The Frontex flights repatriate people who have a deportation order made against them, but this does not mean that the person is a failed asylum seeker. When the asylum process comes to an end then a deportation process begins. The respondent submitted that deportation is not confined to failed asylum seekers.
60. The decision maker looked at the UK Border Agency Fact Finding Mission report and concluded that returnees, including failed asylum seekers do not face mistreatment on return to the DRC.
61. It was conceded that some NGOs said that failed asylum seekers face mistreatment on return to the DRC. It was submitted that the applicant must show why she would be identified as a failed asylum seeker on return. The applicant says that being on a Frontex flight would establish this, but such a person could be a returned economic migrant and not a failed asylum seeker.
62. It was submitted that the decision maker had considered objective COI and then applied the applicant’s subjective circumstances to that background. The decision maker looked at all the representations and COI and applied it to the applicant’s particular circumstances. In these circumstances, it was submitted that there was no valid criticism to be made of the decision reached in the applicant’s case.
63. The respondent submitted that in F.N., Charleton J. held that the decision maker was not obliged to go through multiple stages in considering COI. It was alleged that there should be seven stages. The judge held that this procedure assumed a complete lack of trust and it was not necessary for the decision maker to go through all these stages. In this case, the Supreme Court had held that it was not an audi alteram partem type case.
64. The respondent submitted that in this case, the decision maker found that there was no breach of s. 5 in returning the applicant to the DRC. It was submitted that the decision maker was very thorough in his consideration of all the relevant matters.
The Section 17(7) Application
67. The provisions of s. 17 of the Refugee Act 1996 (as amended) are relevant to this ground of challenge. Regulation 8 of the European Communities (Asylum Procedures) Regulations 2011 (S.I. 51/2011) substituted the following subsection for subs. 7 in the 1996 Act:-
(a) may only be given following a preliminary examination as to whether new elements or findings relating to the examination of whether the person qualifies as a refugee have arisen or been presented by the person, and
(b) shall be given if, following the preliminary examination referred to in paragraph (a), new elements or findings arise or are presented by the applicant which significantly add to the likelihood of the applicant qualifying as a refugee.
(7D) Pursuant to an application under subsection (7B), and subject to subsection (7E), the Minister shall consent to a subsequent application for a declaration being made where he or she is satisfied that -
(a) since his or her previous application for a declaration was the subject of a notice under subsection (5), new elements or findings have arisen or have been presented by the person concerned which makes it significantly more likely that the person will be declared to be a refugee, and
(b) the person was, through no fault of the person, incapable of presenting those elements or findings for the purposes of his or her previous application for a declaration (including, as the case may be, any appeal under section 16).”
70. Ground (iii) was in the following terms:-
73. Ground (iv) in the statement of grounds was in the following terms:-
75. Ground (v) was in the following terms;-
77. Ground (vi) was in the following terms:-
79. Article 10(d) provides:-
(d) a group shall be considered to form a particular social group where in particular:
— members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and
— that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society.”
81. Ground (vii) was in the following terms:-
Despite this reasonable request further and other country information was relied upon against the applicant’s interests in breach of natural justice and fair procedures and the applicant’s right to be heard.”
‘[4.9] In Baby O. v. Minister for Justice  2 IR 169, the Supreme Court again had to consider the statutory regime in respect of deportation orders. While many of the issues which were relevant in that case do not arise here, the court did consider grounds raised by the applicant in Baby O. based upon s. 5 of the Act of 1996. The decision of the Minister in that case (insofar as it was concerned with s. 5) was the same as in this case i.e. ('the Minister has satisfied himself that the provisions of s. 5 (Prohibition on Refoulement) of the Refugee Act 1996 are complied with in your case'. In respect of that decision of the Minister, Keane C.J. said the following at p. 183:-
 Similarly, and based on similar reasoning, Feeney J. rejected the same proposition in E.P.I. v. Minister for Justice,  IEHC 23, (Unreported, High Court, Feeney J., 30th January, 2008). Feeney J. stated as follows:-
‘[4.7] The narrow view as to the scope of review available in respect of a decision by the Minister to make a deportation order subsequent to a failed asylum application, recognises that the decision making process carried out by the Minister is not an inquisitorial process. An inquisitorial body has obligations in relation to fair procedures and a requirement to bring to the attention of a party, whose rights may be affected, matters of substance and importance which the inquisitorial body may regard as having the potential to affect its judgment. However, the Minister is not carrying out an inquisitorial process. In this case his decision does take place subsequent to a failed asylum application. The claim that there was reliance on undisclosed materials in breach of fair procedures does not arise herein. The requirement to disclose relevant documentation to asylum seekers and their legal representatives extends to bodies such as the Office of the Refugee Applications Commissioner and the Refugee Appeals Tribunal but does not extend to the exercise of a ministerial discretion. There is no requirement for the Minister to enter into correspondence based on country of origin information and this is clear from the judgment of Keane C.J. in Baby O. (see p. 183). The court is satisfied that there was no obligation on the Minister either in a general way or in any way to identify any reasons giving rise to his decision to deport. The claim that the Minister had such obligation is rejected.’”
 It was further argued on behalf of the applicants that to fail to engage in the seven stage process contended for, would leave an applicant for judicial review without a reasoned decision and in circumstances where the respondent might unreasonably decide an application on the basis of one piece of country of origin information, or set of reports, in contra-distinction to another. In my view, the respondent is under a duty to act carefully and honestly in considering an applicant's entitlement to subsidiary protection. An applicant will, no doubt, make the best possible case that is available on the basis of country of origin information. That case may assist the respondent, it may be real in terms of what it puts forward, or it may be exaggerated. Any submission may be checked against what the respondent already has available to him and supplemented by any reliable additional reports. The receipt of submissions may assist in the process, but it does not relieve the respondent of his responsibility to make a fair decision.”
86. Ground (viii) was in the following terms:-
88. Ground (ix) was in the following terms:-
91. Ground (x) was in the following terms:-
94. Ground (xi) was in the following terms:-
96. Grounds (xii), (xiii) and (xiv) were taken together by the applicant in her submissions. These are in the following terms:-
(xiii) The respondent erred in law in failing to exercise his discretion in a manner consistent with the objective of the Refugee Act 1996, as amended, and the Procedures Directive and in a manner consistent with constitutional justice.
(xiv) The respondent erred in law and/or in fact in failing to apply the provisions of the Procedures Directive (Directive 2005/85/EU) and statutory instrument 51 of 2011 properly to the decision.”
The Section 3(11) Challenge
100. The respondent also referred to the judgment in EAI v. Minister for Justice  IEHC 334, where the post-deportation order phase in relation to a s. 3(11) decision was specifically under consideration. Cooke J. in describing the limited scope for judicial review stated:-
8. No conditions or criteria are stipulated in the section for the exercise of the Minister’s power. Clearly however, it follows from first principles that the Minister must consider fairly the reasons put forward by an applicant for the request to revoke and he must also satisfy himself that no new circumstances are shown to have arisen since the making of the deportation order which would bring into play any of the statutory impediments to the execution of a deportation order at that point such as, for example, a change of conditions in the country of origin which would attract the application of the prohibition against refoulement in section 5 of the 1996 Act.
9. The Minister is not however obliged to embark on any new investigation or to engage in any debate with the applicant or even to provide any extensive statement of reasons for a refusal to revoke. Once it is clear to the Court that the Minister has considered the representations made to him and has otherwise exercised his power to decide under section 3(11) in accordance with all applicable law, the Minister’s decision is not amenable to judicial review by this Court.”
102. As already noted, it is clear on the authorities cited by the respondent that the Minister is not obliged to engage in correspondence with the applicant once his submissions have been submitted to the Minister. In the circumstances, the applicant has not established arguable grounds to challenge the Minister’s decision on this ground.
103. Ground 2 is in the following terms:-
105. The applicant grouped grounds 3, 4 and 5 together as follows:-
4. The weight placed upon the UKBA report as compared to that placed upon the information furnished by the applicant was irrational. The UKBA is no more independent than the organisation responsible for the compilation of the information furnished by the applicant.
5. No regard was had to the fact that Article 3 is absolute in nature and permits of no exceptions. Article 4 of the Charter of Fundamental Rights of the European Union is similar in this regard. It appears that the first respondent considered the risks on a ‘reasonable likelihood’ basis which is incorrect in law. A higher standard of proof must apply than that which might be applicable to the rights, for example family or private life rights which are not absolute in nature. Such higher standard was not applied thus rendering the decision invalid.”
108. The applicant submitted that it would appear to be unnecessary and inappropriate for this court on this leave application to concern itself with further and more up to date information. She stated that the position may well be different in respect of the substantive hearing should leave be granted. I am satisfied that the applicant has made out an arguable case for the grounds set out at No’s 3, 4 and 5 of the statement of grounds herein.
109. The applicant did not proceed with the matters set out at Ground 6 in the Statement of Grounds.
110. Ground 7 was in the following terms:-
115. I will allow the applicant to seek certiorari of the said decision by means of judicial review on grounds (ii), (v), (viii), (x), (xi), and (xii) in the applicant’s statement of grounds.
116. For the reasons set out in this judgment, in proceedings bearing record No. 2013/292 J.R., being the decision not to revoke the deportation order, which decision was taken on 5th February, 2013, I am satisfied that the applicant has made out arguable grounds for contending that the impugned decision is invalid or ought to be quashed.
117. Accordingly, I will allow the applicant to seek certiorari of the said decision by means of judicial review on grounds 2, 3, 4, 5 and 7 in the statement of grounds.