Jersey Unreported Judgments

Judicial Review - application for judicial review of a decision taken by the Minister for Home Affairs on 22nd August, 2018.

[2019]JRC017

Royal Court

(Samedi)

7 February 2019

Before     :		T. J. Le Cocq, Esq., Deputy Bailiff, sitting alone.
Between	A		Applicant
And	Minister for Home Affairs		Respondent

IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW

Advocate R. D. J. Holden for the Applicant.

Advocate S A Meiklejohn for the Respondent

judgment

the deputy bailiff:

1.        This is an application by A ("the Applicant") for leave to bring an application for judicial review of a decision taken by the Minister for Home Affairs ("the Minister") on 22^nd August, 2018, to refuse the applicant's application for asylum ("the Decision").  The matter was presented as is usual by ex parte application dated 30^th November, 2018, and I directed that it should be served upon the Minister and that leave should be considered on an inter partes basis. 

2.        The test that I should apply in considering whether or not leave should be granted is not in dispute.  It has been most recently stated in the case of X -v- Minister for Home Affairs [2018] JRC 222, in which, at paragraph 3, I said:-

"At this stage I am considering whether or not leave should be granted to the Applicant to apply for judicial review.  The test that I should apply is not in dispute.  It is the test set out by the Privy Council in Sharma -v- Browne-Antoine (6) [2007] 1 WLR 780 as applied by this Court in Warren -v- Lieutenant Governor [2017] (1) JLR 291 where, at paragraphs 3 and 4, Beloff Commissioner said:-

"3. The test for such leave in this jurisdiction, as applied in Welsh -v- Deputy Judicial Greffier (7), is that set out by the Privy Council in Sharma -v- Browne-Antoine (6) [2007] 1 WLR 780, at para 14(4):

"The ordinary rule now is that the court will refuse leave to claim judicial review unless satisfied and there is an arguable ground for judicial review having a realistic prospect of success and not subject to a discretionary bar such as delay or an alternative remedy: see R -v- Legal Aid Board, Ex p Hughes (1992) 5 Admin LR 623, 628 and Fordham, Judicial Review Handbook 4th ed (2004), p426.  But arguability cannot be judged without reference to the nature and gravity of the issued to be argued.  It is a test which is flexible in its application."

4. For an application for judicial review to succeed, the Royal Court would have to be satisfied that His Excellency's decision was unlawful, irrational or flawed by procedural impropriety (Planning & Environment Cttee. -v- Lesquende Ltd. (4)) and for present purposes I must be satisfied that one or more of those grounds is arguably established on the material before me.""

3.        I then went on to quote an extract from J -v- His Excellency the Lieutenant Governor of Jersey [2018] JRC 072A in which Sir William Bailhache, Bailiff, said this:-

"1. On 23rd October 2017 the Applicant sought leave to apply for judicial review in relation to the decision of the Respondent on 24th July 2017 to deport the Applicant from the Bailiwick of Jersey.  On 24th October, the Court granted the Applicant leave. Affidavits have been filed in accordance with the Royal Court Rules and a date fixed for hearing.  Although the issue is arguably one of law, I decided to sit with Jurats because, as will be apparent from this judgment, the case raises questions of proportionality and human rights - see Edore v Secretary of State for the Home Department [2003] EWCA Civ 716 at paragraph 23. Indeed, the parties were agreed that it was appropriate that the Court be so constituted."

4.        Then, at paragraphs 2 to 5 inclusive, the Court went on to analyse the approach to deportation in the following terms:-

2. There is no right of appeal against the decision of the Lieutenant Governor and judicial review is therefore the only basis upon which the Applicant can have the decision examined by an independent tribunal.  That being so, although it is a question of judicial review, the ambit of the examination is wider because the Human Rights (Jersey) Law 2000 requires that a decision affecting the human rights of the Applicant must ultimately be taken by a human rights compliant tribunal.  See also De Gouveia v Lieutenant Governor and Minister for Home Affairs [2012] (1) JLR 291 at paragraph 23.  The Court on judicial review, as it were, fills the gap which otherwise exists from having no human rights compliant tribunal to which the Applicant can appeal from the Respondent's decision.  Although these statements are of direct relevance to judicial review in deportation cases, they have a wider significance. On occasion the courts have to consider the reasonableness of a decision by a minister that may expressly have been considered by the States.  Where, for example, a minister has delegated power under a piece of primary legislation to make an order, which is tabled before the States and may in some cases be debated, the fact that the order has been approved by the States is no bar to an examination by the court of its compatibility with the Human Rights Law and indeed it is the duty of the Court in such a case to apply a full Human Rights review to what the minister has set out in his or her order, just indeed as there would be a full review as to whether the order fell within the vires of the primary legislation. The fact that the same process would apply where Regulations, also secondary legislation, are challenged in court, demonstrates that the approval by the States of a piece of secondary legislation does not inhibit the duty of the courts to investigate the lawfulness of such legislation. This is consistent with the comments of Lord Phillips of Worth Matravers MR in R v Secretary of State for the Home Department ex parte Brind 2 AC 696 when he said:-

"'The wider principle' of common law must accommodate the right and the duty of the court to review the legality of subordinate legislation.  The fact that, in the course of debate, the Secretary of State or others make statements of fact that support the legitimacy of the subordinate legislation, and that the house thereafter approves the subordinate legislation, cannot render it unconstitutional for the court to review the material facts and form its own judgment, even if the result is discordant with statements made in parliamentary debate."

3. In Wang v Secretary of State for the Home Department [2007] UKHL 11, the House of Lords took the same approach in relation to the submission of the Secretary of State that the decision taker and the court should assume that the immigration rules adopted by the responsible minister and laid before parliament "had the imprimatur of democratic approval and should be taken to strike the right balance between the interests of the individual and those of the community".  Political and legal authority are to be distinguished, and the doctrine of judicial deference does not mean that the courts should surrender their own fundamental responsibility to determine the lawfulness of what is in question in the case.  We make these comments because the powers and duties of the Lieutenant Governor in relation to deportation have been passed to the Minister for Home Affairs, and we make it plain that the identity of the decision taker makes no difference to the approach which the Courts will take in relation to these matters.

4. It is for these reasons that the traditional Wednesbury standard of unreasonableness - was the decision of the decision maker so unreasonable that no reasonable decision maker could reach it? - is inappropriate where the decision under review engaged a fundamental right or important interest. Where that is the position, the decision does indeed engage the most anxious scrutiny of the courts - see Bugday Cay v Secretary of State for the Home Department [1987] AC 514 at 531 per Lord Bridge.  As Sir Thomas Bingham MR (as he then was) put it in R v Ministry of Defence ex parte Smith [1996] 1 All ER 257, the more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable.  In R v Lord Saville of Newdigate ex parte A [2000] 1 WLR 1855 at paragraph 37, the Court of Appeal said that:-

"It is not open to the decision maker to risk interfering with fundamental rights in the absence of compelling justification".

5. There are nonetheless constraints upon the Court's powers to intervene.  First of all, the Court is not a fact finding body in this exercise.  It takes a given set of facts and applies the relevant legal tests to them.  Of course, one such legal test may involve consideration of a submission that the decision taker has proceeded on the wrong facts, but it seems to us that it would be very rare and highly exceptional that any evidence other than affidavit evidence would be considered by the Court on such applications.  Secondly, it is not correct to say that there is no deference to the decision taker.  A higher degree of scrutiny on human rights grounds is still not a full merits review. What is needed is that the Court examine what reasons have been given, whether they comply with the fundamental rights of the applicant and in particular whether the lawfulness of what has been done meets the structured proportionality test that the Courts now apply, recognising that the decision taker has a discretionary area of judgment."

5.        I have repeated the extract once again for the same reason as I did in X, specifically because in my judgement if it is arguable that the applicant's case involves fundamental issues of human rights or an assessment of proportionality arises then the principles set out in J will apply.  In my judgment the approach of the Court on the matter of deportation should also apply when considering asylum. 

6.        The Applicant is from Bangladesh.  He had previously left that country and had entered the United Kingdom on a student visa which expired in June 2012.  On his case, he fled Bangladesh and feared to return and remained in the British Isles and ultimately was arrested in Jersey in August 2017.  He first claimed asylum on 20^th October, 2017. 

7.        His asylum application was based on his having been a member of the Bangladesh National Party ("BNP") which was and is in opposition to the Awami League ("Awami") who are currently in power in Bangladesh. 

8.        The Applicant alleges that Awami has victimised those who oppose it including members of the BNP and that the security services in Bangladesh are complicit in such victimisation which extends to the murder of political opponents. 

9.        The Applicant states that he had attended two demonstrations organised by the BNP in 2007 and 2008 at which there had been violence and following which he, together with others, had been falsely charged with offences. 

10.      Following the Applicant's asylum application, he was further interviewed and a report was prepared for the Assistant Minister of Home Affairs dated 11^th January, 2018 ("the Report").  The application for asylum was rejected. 

11.      The Applicant obtained leave to judicially review that rejection but in the event that judicial review did not proceed because the Assistant Minister had revoked her rejection in the light of and following the decision in J above. 

12.      The Applicant was thereafter provided with a copy of the Report, which he had not previously seen, and an addendum Report dated 30^th May, 2018, ("the Addendum").  He made submissions on those documents through his legal representatives by letter dated 13^th August, 2018, ("the Letter"). 

13.      The Applicant's application for asylum together with the Report, the Addendum and the Letter were provided to the Minister on 17^th August.  

14.      On 22^nd August, the Minister took the Decision. 

15.      Two days later, on 24^th August, 2018, the Minister indicated his initial reasons to the Customs and Immigration Service which suggested there were inconsistencies in the Applicant's evidence and certain parts of the Applicant's case had not been accepted. 

16.      Subsequently it was indicated that the Minister would draw together various points from the Report and Addendum that he had considered and provide a rationale for the Decision and, five days thereafter, the Minister provided informal reasons on 29^th August, 2018. 

17.      Subsequently, on 31st August, 2018, the Applicant was notified of the Decision and on 7^th September, 2018, final formal reasons were provided for that refusal. 

18.      The claim for asylum is based on the Applicant's fear that if he is returned to Bangladesh his life and liberty will be in danger and he will otherwise face acts of persecution by agents of the state or by non-state agents acting with the aid or explicit approval of the state.  Accordingly, so it is argued, the Applicant's asylum application engages Article 2, the right to life, of the European Convention on Human Rights as enshrined in the Human Rights (Jersey) Law 2000 and the Article 3 of the Geneva Convention of Human Rights in respect of a person's right to life and liberty. 

19.      The specific grounds relating to this application for leave are that:-

(i)        there has been a retrospective rationalisation by the Minister for the Decision;

(ii)       the reasons given by the Minister are inadequate and/or unintelligible;

(iii)      the Decision was irrational in that it failed to determine and/or drew incorrect and illogical conclusions from the material provided to the Minister;

(iv)      The Minister wrongly took into account irrelevant considerations - specifically the screening interview that the Applicant underwent;   

(v)       The Minister failed to take into account guidance and country of origin information regarding enforced disappearances and internal bias;

(vi)      The Minister failed to take into account a relevant consideration, namely the requirements of Rule 334 of the Jersey Immigration Rules.  

20.      Rule 334 of the Immigration Jersey Rules at paragraph (v) states:-

"An asylum applicant will be granted refugee status in Jersey if the Minister is satisfied that: ...

(v) refusing his application would result in the applicant being required to go (whether immediately or after the time limited by any existing leave to enter or remain) in breach of the Geneva Convention, to a country in which his life or freedom would be threatened on account of his race, religion, nationality, political opinion or membership of a particular social group."  

21.      Rule 328 of the Immigration Rules provides:-

"All asylum applications will be determined by the Minister in accordance with the Geneva Convention on recommendations made by the Minister.  Every asylum application made by a person at a port of airport in Jersey, other than one refused under paragraph 345 will be referred by the Immigration Officer for determination in accordance with these rules."

22.      Rule 336 of the Immigration Rules provides:-

"An application which does not meet the criteria set out at paragraph 334 will be refused.  Where an application for asylum is refused, the reasons in fact in law shall be stated in the decision and information provided in writing on how to challenge the decision."

23.      A number of cases have been put before me, the principles from which are said to underpin the various grounds of appeal. 

24.      In South Bucks District Council and another -v- Porter [2004] 1 WLR 1953: Lord Browne says:-

"The reasons for a decision must be intelligible and they must be adequate.  They must enable the reader to understand why the matter was decided was it was and what conclusions were reached on the "principle important controversial issues", disclosing how any issue of law or fact was resolved.  Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision."  

25.      That case related to a planning application.  On the matter of an immigration case, however, in R (Bahrami) -v- The Immigration Appeal Tribunal [2003] EWHC 1453 the Court at paragraph 8 said:-

"What is essential is not that an adjudicator should deal with every point at length, but that the determination should be sufficiently reasoned to enable a claimant, his advisers, and any appellate or reviewing body, to see why the claimant lost on a particular issue.  If that determination satisfies that test, it will usually be the case that the more schematic approach, formulated by Schiemann J in Amin, does not need to be considered.  In considering the determination of the adjudicator, it is appropriate for the court to read it as a whole, analytically but without pedantry¸ in a common sense way.  At the same time, the court must resist the temptation to engage in any conscious or subconscious rewriting of the adjudicator's determination."

26.      It is clear from the Amin case referred to in Bahrami above that adjudicators should indicate in their decisions what evidence they accept, what evidence they reject, whether there is evidence as to which they cannot make up their mind whether or not they accepted and what, if any, evidence the regard as irrelevant. 

27.      The Minister's reasons, articulated first orally, then informally and then formally, are roundly attacked by the Applicant and criticised as is apparent on the grounds of the application referred to above.  This is not the application for judicial review itself and therefore I do not need to consider the criticisms in detail and, indeed, it is apparent that a number of the grounds argued for by the Applicant overlap. 

28.      It is also right to note that the Minister robustly defends those attacks and resists the application for leave. 

29.      However, applying the tests that I have referred to above, it seems to me that the consequences to the Applicant of the decision are profound and in my judgment there is an arguable ground for judicial review having a realistic prospect of success.  Naturally, I do not pre-judge the strength of such an argument.   

30.      In my view, there is no alternate remedy and there is no discretionary bar such as delay because the application for leave was brought within three months of the preparation of the final reasons. 

31.      Accordingly I grant the Applicant leave to seek judicial review of the Decision on all grounds and set out therein.  The effect of the Decision is stayed until that judicial review shall have been determined. 

Authorities

X -v- Minister for Home Affairs [2018] JRC 222.

J -v- His Excellency the Lieutenant Governor of Jersey [2018] JRC 072A.

Human Rights (Jersey) Law 2000.

Immigration Jersey Rules

South Bucks District Council and another -v- Porter [2004] 1 WLR 1953

R (Bahrami) -v- The Immigration Appeal Tribunal [2003] EWHC 1453