High Court of Ireland Decisions

Judgment Title: O. & Anor -v- MJELR & Ors

Neutral Citation: [2011] IEHC 165


High Court Record Number: 2010 1336 JR

Date of Delivery: 03/16/2011

Court: High Court

JUDGMENT of Mr. Justice Cooke delivered the 16th day of March 2011

1. As originally constituted this proceeding was brought to seek judicial review of two decisions made by the respondent Minister. An order of certiorari was sought quashing his decision to make deportation orders in respect of the applicants on the 5th October, 2010 and a further order to quash his decision to refuse subsidiary protection to the second named applicant on the 23rd September, 2010. The matter comes before the Court on the application for leave to apply for those reliefs together with the other reliefs originally set forth in the notice of motion dated the 19th October, 2010.

2. Shortly before the application for leave was listed for hearing, a notice of motion on behalf of the first named applicant dated the 1st March, 2011, was issued seeking leave of the Court to amend the statement of grounds in order to include two additional reliefs, namely, an order of certiorari quashing a decision by the respondent on the 8th February, 2011, refusing to revoke the deportation orders and, secondly, a declaration that “the common law rules governing the remedy of judicial review in circumstances where no full appeal of the decision of the respondent is available, are contrary” to certain Articles of the Constitution. When this notice of motion was listed on the 7th March, 2011, the Court adjourned it until the hearing of the leave application on the following day.

3. Having heard the submissions of the parties in relation to the motion to amend the statement of grounds, the Court decided, in the interest of the economy of proceedings, to allow an amendment of the statement of grounds for the purpose of adding the claim to relief by way of order of certiorari in respect of the decision under s. 3(11) of the Act of 1999, together with the grounds set out in the draft amended statement numbered (after the Court’s renumbering of unnumbered paragraphs) set out at paragraphs 1B, 1C, 1D, 1E, 1G, and 1H. (Ground 1A is not a ground but an introduction and ground 1F is a variation on 1E.) The Court decided to postpone consideration of the amendments to the reliefs and grounds relating to the proposed claim that the common law rules governing the remedy of judicial review were unconstitutional. There were two reasons for the Court’s ruling. First, it appeared to the Court to be premature and possibly wasteful to consider an application in a judicial review proceeding to the effect that the judicial review proceeding did not provide an effective remedy prior to any decision being made as to whether substantial ground had been raised as to why the impugned ought to quashed by certiorari. Secondly, the Court was informed that the substantive issue in that regard was already under consideration in other cases already at hearing in the High Court.

4. In many cases the introduction of an application to revoke a deportation order under s. 3(11) of the Act of 1999, necessarily implies an acceptance on the part of the applicant that there exists a valid deportation which requires to be revoked. In such cases the Court would normally insist that the applicant choose between the contradictory reliefs and abandon the claim to quash the deportation decision in order to pursue the application to quash the refusal of revocation. In this case, however, the Court’s acceptance of the amendment directed at the revocation decision is explained by the chronology. Following the failure of an asylum application on behalf of both mother and son, a letter of the 15th February, 2007, was sent to the mother by the Minister notifying her of his proposal to make a deportation order and outlining the three options available, including the possibility of applying for subsidiary protection and/or making representations to remain temporarily in the State. The letter explained that in the event of this last option being taken:

“The Minister will make a decision on your eligibility for subsidiary protection first. If your application for subsidiary protection is successful, you will be allowed to remain in the State for three years (this will be reviewed at the end of the three years). If this happens it will not be necessary for your representations to remain temporarily in the State to be considered. If your application is not successful or you have not made an application for subsidiary protection, the Minister will decide on your representations to remain temporarily in the State.”

6. The application for subsidiary protection was refused in a decision sent under cover of a letter dated the 23rd September, 2010. This enclosed an analysis and narrative determination of the application set out in a memorandum which had been compiled and signed off by a series of officers within the Department on dates as follows:

- The conclusion to the analysis by an Executive Officer on the 24th June, 2010;

- A recommendation made by an officer on the 26th July, 2010;

- A determination on the part of an Assistant Principal dated the 22nd September, 2010.

7. Following receipt of the letter of the 23rd September, 2010, on the 10th October, 2010, the applicant’s solicitors forwarded representations under s. 3(3) (a) of the Immigration Act 1999, on the form CP/01 Part 2 with various attachments. Two particular points were emphasised in argument on their behalf in respect of the matters advanced on that form. First, it was stated that the mother “would not be a burden on the State as she has a job to step into if granted leave to remain from Gigshu Fashions, therefore if granted leave to remain, she has a job to immediately step into and it would be in the best interests of the applicant’s Irish born child, as the applicant would be able to enhance the quality of life of her child”. Secondly, a letter was enclosed from the “Maria Assumpta Pre-School” stating that the second named applicant “attends our pre-school five days a week from 12.30 pm to 4.00 pm” and that his “attendance is very good”.

8. As mentioned, the deportation order had already been made by the Minister on the 5th October, 2010, when these representations were received. As result, the Minister considered the representations upon the basis that they constituted an application for revocation of the existing order under s. 3(11) of the Act. It was on that basis that the separate decision refusing revocation was communicated to the applicants by letter of the 8th February, 2011, accompanied by a short memorandum in which the supplementary representations are considered.

9. It was in these circumstances that the Court considered it appropriate to treat the supplementary representations of 10th October 2010 as being, in reality, part of the overall justification for the making of the deportation order. When the supplementary submissions were made on behalf of the applicants, the fact that the order had already been signed was unknown and those representations were intended to be considered as part of the humanitarian considerations advanced under section 3(3)(a). The order having been made on the 5th October, 2010, the Minister could not retroactively include them in his consideration and he had therefore no option but to treat them under subsection (11).

The Subsidiary Protection Decision
10. The first challenge raised to the subsidiary protection decision is directed at the finding in the determination memorandum relating to the availability of State protection to the applicant in Nigeria. The conclusion reached on this aspect of the application was as follows:

“Overall and having regard to all of the facts on file, I am not satisfied that the applicant has demonstrated that he is without protection in Nigeria and I do not find that there are substantial grounds for believing the applicant would be at risk of serious harm by torture or inhuman or degrading treatment in Nigeria if he is returned there.”

12. Although it is true that some of the sources quoted record serious criticisms of security agencies in Nigeria, the main purpose of the exercise appears to be to support the more general proposition that in Nigeria “there is state protection in the forms of functioning police and security forces, a judicial/legal system and a mechanism of fair trial and avenues of complaint, as can be seen below. The allegations put forward by the applicant are serious crimes which are outlawed in Nigeria and redress is through those avenues which are available”. Thus, the point being made is that seriously imperfect though the system may be, the matters of which the applicant complains are crimes and that there are avenues of redress against such crimes and forces or agencies charged with responsibility for providing protection.

13. However, even if it was accepted that there is arguable substance in the submission raised in this regard, that would not, in the view of the Court, constitute a ground for grant of leave to seek judicial review of the subsidiary protection decision, because it is necessary to read the reasons for its refusal when taken as a whole. In fact, the predominant basis upon which the refusal decision was made does not relate to the availability of protection in Nigeria but to the fact that the fear expressed on behalf of the child was based upon the facts and events which constituted the basis of the mother’s fear of persecution throughout the stages of the asylum procedure and this was found to be incredible. It must be borne in mind that both the s. 13 report of the Commissioner and the appeal decision of the Tribunal found that the first named applicant was not to be believed in the account she gave. A series of discrepancies, implausibilities and inconsistencies were identified, including the following:-

- Starting in 2005, she claimed to have been under threat of serious harm as a result of her father’s political involvement but she was unable to identify who her father’s enemies were or what their particular grievances against her father were;

- She claimed to have been raped when the family were in a hideout arranged by the father, but notwithstanding the father’s important position, no report of the attack was made to the authorities;

- Her sister had been shot by unknown men when changing to another hideout, but nothing was known of the identity of those responsible;

- She claimed she left for the United Kingdom in January 2006, where she remained on her own for two weeks and then returned voluntarily to Nigeria - an action inconsistent with having a fear for her own life;

- In June 2006, she claimed to have escaped an attack in a house where she was hiding with two bodyguards and later heard that the bodyguards had been killed;

- She was sufficiently wealthy to have visited the USA in June 2004 and Dubai in April 2005, but there is no record of the trips because she said her passport was stolen;

- She claimed to have travelled to Ireland on a passport which had neither her name nor her photograph, never having been stopped or queried at immigration;

- She claimed to have arrived in Dublin and stayed on her own in a bed and breakfast until she went to Carlow and then to Kilkenny where she gave birth to the second named applicant on the 12th August, 2006. Until this point she had made no application for asylum.

“In essence, the applicant claims to be fearful of people unknown to her who she claims killed her father, as a result of decisions he allegedly made relating to the community. The applicant could not advance any further as to what these decisions were. The applicant’s account of her many escapes from unknown men defies belief. Unknown men came to the family home in 2005 and badly injured the security guard, necessitating the applicant having to go and live in their father’s office in Lagos where she was then raped by an unknown man. In June the following year, some unknown men came to her residence in Enegun and killed her two bodyguards; however, the applicant managed to jump out a window and made good her escape. The applicant travelled out of Nigeria with her family and alone on numerous occasions on her own account and returned there voluntarily on all of these occasions. These are not the acts of an individual who is fearful for her life and safety. The remainder of the applicant’s family continued to live safely in Mali. Nigeria is a vast country where the population is in excess of 120 million. The applicant has presented as a well educated and resourceful individual and it would not seem to the Tribunal that it would be unduly harsh that she should make a life for herself elsewhere there, should she choose to return there. The applicant throughout her hearing has not convinced me of the veracity of her claim.”

“It seemed unbelievable that the applicant’s mother, being fearful of her life and safety, left voluntarily to seek safety in another country and then voluntarily returned to the original country of origin a couple of weeks later, notwithstanding her express fear. The applicant’s mother asserted that at no point of immigration was she stopped and queried or questioned with regard to the passport she used when travelling. This in the light of the security situation that exists at all international airports was simply not believable and her account in this regard was not capable of being believed. (She) always had money available to finance her trips and that she would not be aware of the necessity of applying for asylum at the first instance, notwithstanding her pregnant state, was seriously suspect.”

The Deportation Order
17. The primary ground proposed to be raised as to the unlawfulness of the decision to make the deportation order (including, as explained above, the decision to reject the supplementary representations of the 10th October, 2010), is that the Minister has failed to comply with the requirement of Regulation 4(5) of the European Communities (Eligibility for Protection) Regulations 2006. That provision reads: “Where the Minister determines that an applicant is not a person eligible for subsidiary protection, the Minister shall proceed to consider, having regard to the matters referred to in s. 3(6) of the 1999 Act, whether a deportation order should be made in respect of the applicant”. The submission is made that having regard to the dates of the various steps taken in arriving at the two decisions, this “consideration” of the matters in s. 3(6) had taken place before the decision to refuse subsidiary protection was taken on 22nd September, 2010 (sent on 23rd September,) and not afterwards as required. It is pointed out that the provision in question and the sequence intended are reflected in the terms of the letter dated the 15th February, 2007 and quoted in para. 4 of this judgment above.

18. The argument is based upon the proposition that in the file note dated 21/1/2010 furnished with the letter of 8/2/2011 refusing the supplementary representations, the paragraph headed “Recommendation” contains the following:

“The submissions referred to above were read and considered. They do not raise any new issues that were not considered previously by the Minster in deciding to make the deportation orders in relation to the applicants. Consideration was previously given to the applicants rights under private and family rights under Article 8 of the European Convention on Human Rights (ECHR) on the 24/6/2010 and in view of the brief time frame since that consideration, no further consideration is due.”

20. In a manner similar to the file note referred to at para. 6 above for the subsidiary protection decision, the examination of file for the purpose of s. 3 of the Act was compiled first by an Executive Officer in the Repatriation Unit whose contribution is dated the 24th June, 2010. The first page of the memorandum is then annotated by a Higher Executive Officer on what appears to be the 26th July, 2010, agreeing that deportation orders should be signed and finally by an Assistant Principal on the 23rd September, 2010. The memorandum is then stamped “Approved by Minister” at the top of the first page. Thus the recommendation to the Minister on the making of the deportation order is signed off by the Assistant Principal on the 23rd September, 2010, which is the day after the Assistant Principal (who appears to have been the same officer) signed off the memorandum in respect of the subsidiary protection decision. It is thus in any event clear that the final “consideration” given to the deportation decision came 24 hours after the final consideration given to the subsidiary protection decision.

21. In the judgment of the Court the very literal construction of Regulation 4(5) which forms the basis for this argument is in any event inappropriate. Where the Regulation speaks of the Minister “proceeding to consider” the making of a deportation order, it is the personal consideration on the part of the Minister himself which is referred to. Neither the Regulation nor s. 3 of the Act of 1999 precludes efficient organisation of the work involved in preparing memoranda for the consideration of the Minister for these decisions, nor requires that it be undertaken in any particular sequence or order. It is clearly consistent with administrative efficiency and with consistency in reaching coherent decisions on related files involving interconnected applications by the same persons, that the preparatory work of collating and analysing all necessary information be carried out in or about the same time. When the results with recommendations are presented to the Minister for his decisions, what is required is that the Minister should make his decision on the application for subsidiary protection before making the decision on the deportation order. Provided the matter is addressed in that order, there is no reason why the Minister might not make the two decisions on the same day. In the present case, the recommendation that he should make the deportation was finally prepared on the 23rd September, 2010, but he clearly did not have it before him for the purpose of making the final decision until the 5th October, 2010. In the judgment of the Court, accordingly, there is no substance in this proposed ground. It follows that this criticism of the sequence in which the file notes were compiled does not constitute evidence of bias or prejudgment on the part of the respondent as alleged.

22. The next ground relied upon is that the representations made against the deportation order were inadequately considered. In particular, it is submitted that the Minister failed to consider two material changes in the personal circumstances of the first named applicant since representations had originally been made in that she had received an offer of employment and the second named applicant had now commenced education in the State. As indicated above, the memorandum supporting the refusal of the request for revocation stated that the additional submissions had been considered but did not raise any new issues not previously considered by the Minister in making the deportation orders.

23. Irrespective of whether this is treated as a ground directed at the adequacy of the assessment of the statutory consideration of representations under s. 3(6) (i) for the purpose of making the deportation order or at the consideration of matters put to the Minister as the basis for the revocation request, this Court is satisfied that no ground is made out.

24. Under s. 3(6) of the Act of 1999, subpara. (f) requires the Minister to consider the employment (including self employment) prospects of the person. The respondent clearly did so in this case. The handwritten letter on unheaded paper from a prospective employer who is “well known” to the applicant saying that he or she is “willing to offer an appointment to work in my store” without any reference to the terms upon which it would be made, could not be construed as a material change of circumstance such as require the serious consideration of the Minister. The fact that the Maria Assumpta pre-school confirmed the attendance of the second named applicant for five days a week could not be considered either as a material change of circumstance in relation to the child so far as concerns the balancing exercise involved in a deportation decision is concerned.

25. In the judgment of the Court it is quite clear that if the contents of the supplementary representations of the 10th October, 2010, had formed part of the original representations and been considered by the Minister before the deportation orders of the 5th October, 2010, had been made, no arguable case could be made that these two factors would have constituted a basis for setting aside the deportation orders upon the ground that they had not been adequately considered or weighed in the balance.

26. The Court does not consider that its conclusion in this regard can be altered by the reliance placed on the recent judgment of Hogan J. in the case of Efe v Minister for Justice, Equality and Law Reform (Unreported, High Court, 25th February, 2011). In that case the two letters of employment offer constituted only one of the three factors identified as the basis of a substantial ground for questioning the adequacy of the Minister’s assessment of the representation as “full and fair”. The other two factors namely, the failure to address the claimed Irish citizenship of a third child and the impact of the deportation on the older children, were clearly regarded as being the more serious of the alleged flaws. Having regard to the observation that the reference in the two letters to the absence of a work permit may have been a pretext for not offering employment, it appears unlikely that the existence of the two letters by themselves would have been of sufficient materiality to the Minister’s assessment to have constituted a substantial ground of unlawfulness.

27. It was also argued that there had been a denial of “fair procedures” in making the decision on the deportation orders because there had been a long delay since the original representations had been made under s. 3(3)(a) in March 2007 and the Minister had not given any warning of the impending decision so that updated representations might be submitted.

28. The Court considers this argument to be unfounded. First, there is clearly no statutory obligation on the Minister to given any such warning. It is true, of course, that in some instances the general principle of fair procedures may apply so as to require the Minister to invite comment on some information or the making of new representations. In the judgment of the Court, however, a mere lapse of time since the first response to the Minister’s letter under s.3(3)(a) does not create such an obligation. As counsel for the Minister in this case has correctly pointed out, the extent of the obligation of the Minster in this regard was stated by Denham J. in her judgment in Oguekwe and Ors. v. Minister for Justice, Equality and Law Reform [2008] IESC 25 as follows:

“Save for exceptional cases, the Minister is not required to inquire into matters other than those which have been sent to him by and on behalf of applicants and which are on the file of the department. The Minister is not required to inquire outside the documents furnished by and on behalf of the applicant, except in exceptional circumstances.”

30. Secondly, the sequence in which the decision on the application for leave to remain will follow the refusal of subsidiary protection was clearly stated in the letter of the 15th February, 2007, (see para. 4 above) and would in any event have been well known to the applicant’s experienced legal representatives. Indeed, it was because they appreciated the possibility and prudence of furnishing updated representations that they wrote on the 10th October, 2010, without having received any such warning or invitation.

31. Thirdly, this was not an instance in which there had been no contact or interaction between the applicants and the respondent throughout the entire period since 2007. The first named applicant had pursued an application for judicial review and an obvious opportunity to submit any updated representations considered appropriate arose in December 2009, when the application for subsidiary protection on behalf of the second named applicant was lodged. In this regard the circumstances of the present case are clearly distinguishable from the situation considered by Peart J. in Butusha v. Minister for Justice, Equality and Law Reform. There the applicant had genuinely been taken by surprise in that ten days prior to the issuing of the decision, updated submissions had been made with a clear indication that they were to be supported by a medical report which was to be available shortly. The breach of fair procedures found by Peart J. in that case, was based upon the fact that this prompt issuing of the decision without waiting for the medical report came after a period of some thirteen months during which correspondence on behalf of the applicant had gone unacknowledged and unanswered by the respondent.

32. Finally, it was sought to be argued that in the updated representations of 10th October 2010 the question of refoulement had been put in issue and that the Minister had wholly failed to address the issue in the rejection of those representations on 8 February 2011. It is true that under the heading “Prohibition of Refoulement” on the CP/01 form, a representation was made. However all that was said was this. “Her last remaining hope is that she will get protection from the Minister as she is in dire fear of the consequences of being returned to her country of origin as she feels that her life would be in danger..” It was claimed that the return would breach s.5 of the Act and Articles 3 and 8 ECHR “in that she would face a serious risk to her life and liberty if deported.” It is argued that in the alternative there would be a breach of Article 8 in that her right to “moral and physical integrity” would be threatened and that there would be breach of Article 3 which is absolute and not confined to refugees. This is followed by a quotation from the case of Selmouni v France. It was urged that she is a model citizen who has integrated, established friends and done educational courses and a plea was made for her as someone who has had a tragic life in Nigeria.

33. In the judgment of the Court the response given in the file note to the effect that the submissions raised no new issues not previously considered (see paragraph 18 above,) is fully correct in this regard also. This added representation advances no new fact or information relevant to the question of refoulement as compared with the consideration given to that issue in the file note of 23 September 2010. The points raised are matters of argument or plea. They provide no new ground or reason to consider that some new basis of threat had arisen which had not previously been advanced. Thus no substantial ground arises under this heading either.

34. It follows that the Court finds that no substantial ground justifying the grant of leave has been made out in respect of any of the grounds dealt with in the this part of the application. In the light of these findings, the Court will now hear the parties upon the application to amend the statement of grounds with a view to introducing the additional claims mentioned at the outset of this judgment.