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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> J.I. -v- Minister for Justice and Equality & ors [2015] IEHC 518 (31 July 2015)
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Cite as: [2015] IEHC 518
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Judgment
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Neutral Citation [2015] IEHC 518 THE HIGH COURT
JUDICIAL REVIEW [2012 No. 495 JR] BETWEEN J. I. APPLICANT AND
THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL RESPONDENTS JUDGMENT of Mr. Justice Mac Eochaidh delivered on the 31st day of July 2015 1. This is the judgment of the Court on an application for an interlocutory injunction to restrain deportation. It is necessary to set out some facts concerning the applicant and the procedural history of the proceedings. The applicant’s background: 3. The applicant challenged this decision by proceedings instituted on the 29th of May, 2007, but withdrew the proceedings on the 3rd of December, 2009. 4. She then pursued an appeal to the Refugee Appeals Tribunal which she had filed without prejudice to the (withdrawn) judicial review challenge to the decision of the Commissioner. 5. The Refugee Appeals Tribunal made a negative recommendation on the 22nd of July, 2010. Section 6 thereof is in the following terms:-
She said that her personal details, in her form 1, were correct but that the story which she recounted in her form 1 was untrue and that she was not persecuted by virtue of her membership of a social group or political opinion. The applicant said that she is a Christian and she was unhappy about the lies, which she had previously told and that she wanted to set the record straight. The Tribunal appreciates the fact that the applicant ultimately told the truth, albeit a bit late in the day… The Applicant’s evidence was quite clear in that she told the Tribunal that she is, effectively, an economic migrant. She said she was not earning enough in Nigeria and that she wanted to be with her sister. She gave no evidence of past persecution. While it is completely understandable that a human being would want to make a better and perhaps easier life for herself, this unfortunately does not bring an Applicant within the convention. It is well established that an Applicant’s failure to satisfy one of the criteria results is [sic] a failure to establish a claim for refugee status. The Applicant has not satisfied any of the criteria as set out in section 2. Thus, based on the evidence given on the Applicant’s part, this application for refugee status must be refused and the decision of the Refugee Application Commissioner is affirmed.” 7. On the 28th of April, 2011, her solicitors made a further submission in connection with the application for subsidiary protection saying that the applicant would not be able to obtain state protection and that she feared persecution if returned to Nigeria. It was not indicated what the source of persecution might be nor was it said why she needed state protection. It was stated that she feared her life would be at risk though no source of this risk was identified. It was also stated that “medical opportunities open to her and her family” would be significantly less than those available in Ireland. 8. The Minister refused the application on the 20th of April, 2012. In that decision the Minister’s official referred to the passages from the Refugee Appeals Tribunal quoted above and said:-
10. The Minister made a deportation order on the 9th of May, 2012. Procedural history:
The enmeshment of the subsidiary protection scheme operated in the State with the deportation/leave to remain procedure is in breach of European law and renders the refusal of subsidiary protection unlawful.” 13. After the first return date of the notice of motion, it appeared once or twice in the Monday lists during July 2012 and was eventually adjourned at the end of July 2012 to the list to fix dates, certified ready for hearing. (It was the practice to adjourn leave applications to the list to fix dates where a date would be fixed for the hearing of the application on notice to the respondents. The respondents might serve an affidavit in respect of the application but would only issue a notice of opposition if leave was granted. The practice has changed somewhat in the intervening time. Most applications are heard on a telescoped basis and affidavits and draft statements of opposition are issued prior to the determination of leave applications to facilitate a single hearing in the matter). The decision of Cooke J. in V. J. [Moldova] v. The Minister for Justice and Equality [unreported] 31st of July, 2012:
26. In typical if not all cases, the notification under s. 3(3) is given in what is referred to as the ‘three options letter’ in which the failed asylum seeker is informed that the Minister proposes to make a deportation order but offers the asylum seeker a choice between leaving the State voluntarily before any Order is made; agreeing to submit to the making of the Order and, alternatively, applying for temporary leave to remain and additionally making an application for subsidiary protection. It is argued that by placing the entitlement to apply for subsidiary protection within the context of the choice to be made between these options, the combined effect to Regulation 4(1) and s. 3 is to place an inhibition on the making of an application for subsidiary protection which is incompatible with the scheme of the Qualifications Directive and general principles of European Union law. 27. The Court will, accordingly, grant leave to the applicant to apply for judicial review upon a single ground directed towards this argument to be formulated as follows:- ‘By confining the right to apply for subsidiary protection to the circumstance in which the asylum seeker's entitlement to remain lawfully in the State pursuant to s. 9(2) of the Refugee Act 1996, has expired and a decision has been taken to propose the deportation of the applicant under s. 3(3) of the Immigration Act 1999, Regulation 4(1) of the 2006 Regulations in conjunction with s. 3 of the said Act of 1999, has the effect of imposing a precondition or disadvantage upon a subsidiary protection applicant which is ultra vires Council Directive 2004/83/EC of the 29th April, 2004, and is incompatible with general principles of European Union law.’” Ex parte application on the 12th of September, 2012: 17. The order which issued following the ex parte application records that an application was made for leave to apply for judicial review of the subsidiary protection decision of the 20th of April, of the deportation order of the 9th of May, 2012, and for various declarations. Critically, the order records that the applicant “do have leave to apply for judicial review for [those reliefs] on the ground [as formulated by Cooke J. in V.J. [Moldova]]. ( set out in para. 14 above) 18. The order of September 12th, as indicated, records that an interim injunction was granted until the 15th of October, 2012, restraining deportation and ordering that the applicant serve a notice of motion for an interlocutory injunction on the Chief State Solicitor to be returnable for the 15th of October, 2012. The order notes that the applicant is required to comply with order 84 rule 22 and rule 23 of the Rules of the Superior Courts and to notify the respondents of the provisions of o.84 r.22(4). This note in these rules refers to the obligation on the part of an applicant following the grant of leave to issue a notice of motion for the substantive judicial review proceedings. 19. No notice of motion was issued returnable for the 15th of October, 2012, in respect of an interlocutory application for injunctive relief. Therefore, the interim injunction lapsed. 20. No notice of motion for the substantive judicial review proceedings following the grant of leave was ever issued. 21. The applicant has never made any attempt to correct any errors in the order made by O’Keeffe J. on the 12th of September, 2012, and perfected on the 13th of September, 2012. 22. The applicant’s solicitor sought an undertaking not to deport the applicant until the determination of the proceedings by letter of the 8th of October, 2012, which enclosed a copy of the order of O’Keeffe J.. This was initially refused by a letter from the Chief State Solicitor of the 9th of October, 2012, but was later granted by letter of the 15th of November until the 17th of December, 2012, but was not extended after that time. Nothing happened for almost two years thereafter until the applicant’s counsel applied ex-parte to Barr J. on the 23rd of September, 2014, for a further interim injunction which was granted until the 20th of October, 2014. A notice of motion for an interlocutory injunction was made returnable for the same date and it is this motion which is the subject matter of this decision of the Court. Are there proceedings in being?: 24. Order 84 rule 22(3) of the Rules of the Superior Courts provides:-
Status of the original application for leave on notice:
28. If the applicant was of the view that the statement required to ground judicial review as issued had to be amended to reflect the wording formulated by Cooke J. in M.J. [Moldova] then the application should have been restricted to this matter. If the order made by O Keeffe J. on the 12th of September did not reflect what happened in court, some effort should have been made to correct it by appropriate application to O’Keeffe J. or to another judge of the High Court by speaking to the minutes of the order. 29. In accordance with the rule in Henderson and Henderson (1843) 3 Hare 100 as applied in A.A. v The Medical Council [2003] 4 IR 302 (which requires a party to litigate all complaints against another party arising from the same facts in a single set of proceedings) the respondents say that the applicant cannot apply, on successive occasions, for leave to seek judicial review of the same decision. The fact that this is what has happened and will happen (by ex parte application to O’Keefe J. and by an intended inter partes application now awaiting hearing) is not, according to the respondents, excused by the existence of one (amended) statement grounding application for judicial review with one record number. The respondents submitted that the effect of the order of O’Keeffe J. of the 12th of September, 2012, was to extinguish all grounds of judicial review other than the one in respect of which leave was granted. In view of the present procedural position (failure to serve a notice of motion following the grant of leave by O’Keeffe J.) the respondents submit that there are now no proceedings in being. That being so, there is no issue, much less a fair issue to be tried and, therefore, no injunctive relief can be granted. Application for interlocutory relief: 31. Clarke J. noted the possible injustice to an applicant who was deported but ultimately found to be entitled to a rehearing, or reconsideration, of their entitlement to remain in the State, but he concluded, at para. 109:-
[112] In that context it does need to be noted that counsel on behalf of the applicants placed reliance on the fact that the rights invoked on their part are fundamental human rights guaranteed both by the Irish Constitution, by the Charter of Fundamental Rights of the European Union, insofar as applicable to European Union measures such as subsidiary protection, and by the European Convention on Human Rights 1950. That the right to be protected from been deported to a situation where one is placed in significant danger is an important or fundamental right can hardly be doubted. However, regard has to be had, on the facts of any individual case, to the basis put forward for the suggestion that there is a real risk of harm should the person be deported. Where, as will frequently be the case, such a person has had the opportunity to have the facts underlying their claim to such a risk analysed by a serious of administrative and judicial bodies, then the court will, as the trial judge in this case was, be in a much better position to form a judgement on the question of whether there is a real risk of serious harm should a deportation order be implemented. Where, on an arguable grounds basis, the situation with which a judge of the High Court is faced when considering an interlocutory injunction application in this field is one where there is a credible basis for suggesting that a real risk of significant harm would attach to the applicant on deportation, then it would require very weighty considerations indeed to displace the balance of justice on the facts of that case, certainly if what was intended was a deportation back to the country in which the relevant applicant would face those risks… While, therefore, important and fundamental rights can be involved it does not necessarily follow that, in each case in which an interlocutory injunction is sought, there is any credible basis for suggesting that truly fundamental rights are, in fact, involved. Where such rights are involved a very heavy weight indeed needs to be attached to them.”(emphasis in the original)
35. The relevant averments in the affidavit grounding this application are as follows:-
37. The Court acknowledges that significant procedural confusion afflicts these proceedings. There may well be merit in the respondents’ procedural arguments that there are now no proceedings in being. If that is correct the Court might well be entitled to refuse interlocutory injunctive relief for that reason. However, the procedural irregularities are not necessarily beyond repair. A court provided with proper explanation and justification might restore those proceedings if they suffer the alleged frailties. That is a matter for another day. In view of the significance of the issues which are at play it seems appropriate to approach the application for an interlocutory injunction on the assumption that there exists a fair issue to be tried but that the applicant must overcome the default position, as described by Clarke J. in Okunade, either by establishing significant countervailing circumstances or a real risk of significant harm if returned. 38. Essentially two arguments were made as to why she should not now be deported. The first is that she might win her underlying proceedings (assuming they are still in being) and she would face the inconvenience, or the difficulty, of trying to return from Nigeria, to Ireland, to participate in an oral hearing for a fresh determination of her subsidiary protection application. In my view, the practical difficulties she might face trying to return to Ireland are not a reason to restrain deportation in accordance with the guidance given by the Supreme Court in Okunade. It will be recalled that in that case Clarke J. referred to the fact that the ordinary disruption caused by deportation could not justify granting an injunction. In so far as this inconvenience or difficulty is presented as a countervailing factor which would tip the balance in her favour, and away from the default position, I reject the argument. 39. Has the applicant established for the purposes of this application that she faces a real risk of significant harm if she is returned? Neither the Refugee Appeals Tribunal nor the decision maker on her application for subsidiary protection accepted that she faced any risk of harm. In so far as the applicant seeks to establish the existence of a real risk of significant harm befalling her, the best she can do is to refer to a very general assertion about problems in Nigeria, and how they affect some people there. There is no suggestion that she, herself, has ever been harmed in Nigeria. Indeed, the application refers to her fear of persecution without identifying any source. Her grounding affidavit repeats the essence of her case to the Refugee Appeals Tribunal and, indeed, to the subsidiary protection decision maker that life is very difficult in Nigeria and that she would much prefer to live in Ireland. Of course, on a human level the Court has sympathy with the difficulties of the applicant’s life. However, in accordance with the law, as explained by the Supreme Court, an injunction can only be granted where a credible basis for suggesting the existence of a real risk of significant harm is established to the satisfaction of the Court. I find that there is a complete failure to establish what is required to secure an injunction in this case. I have no hesitation in refusing the application for an interlocutory injunction |