A.A.A. v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 10 September 2013
• Neutral Citation: [2013] IEHC 422
• Court: High Court
• Docket Number: [2011 No. 1007 J.R.]
• Date: 10 September 2013

BETWEEN

A.A.A. AND J.A. (AN INFANT SUING BY HIS MOTHER AND NEXT FRIEND A.A.A.) AND E.A.A. (AN INFANT SUING BY HER MOTHER AND NEXT FRIEND A.A.A.) AND S.A.A. (AN INFANT SUING BY HIS MOTHER AND NEXT FRIEND A.A.A.)

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL

RESPONDENT

[2013] IEHC 422

[2011 No. 1007 J.R.]

THE HIGH COURT JUDICIAL REVIEW

Judicial Review - Applications for refugee status - Applications refused - Deportation orders - Certiorari - Non-refoulement - Refugee Act 1996 s. 5 - Carltona Principle

Facts: A mother and her two children (the first three named applicants) arrived in Ireland on 17 ^th July 2007. The first named applicant applied for refugee status on behalf of herself and her children, who were born in Nigeria. The fourth named applicant, another Nigerian national, was born in Ireland in December 2007. His mother also applied for refugee status on his behalf. All of the applications were refused by the Refugee Applications Commissioner. They were also refused on appeal by the Refugee Appeals Tribunal. The applicants then applied for subsidiary protection and humanitarian leave to remain in the state; both applications were refused. Deportation orders were signed in respect of the applicants. The applicants applied for judicial review regarding the refusal of subsidiary protection. Leave to apply for judicial review was refused on this ground. Leave however, was granted for the applicants to apply for certiorari to quash the deportation orders on the ground that the Minister for Justice and Equality failed to consider a possible breach of the non-refoulement obligations of the state.

The applicants claimed that, if retuned to Nigeria, they would be subjected to a risk of death, torture and inhuman or degrading treatment, and that the children would be at risk of trafficking. The risk arose largely from the militant activity in the Niger Delta and Port Harcourt areas. The first named applicant claimed that she was raped by militants who were also responsible for kidnapping her eldest son and husband, who she hadn”t seen since. The Refugee Appeals Tribunal rejected her application due to inconsistencies in her story which they stated made her lack credibility. The applicants were deported in accordance with the orders made.

The court noted that the Minister for Justice and Equality was not involved in the decision to deport the applicants. This lack of involvement in the decision formed the key consideration in this case, which turned on whether the ‘opinion of the Minister’ had to be formed by him personally under s.5 of the Refugee Act 1996 (the provision relating to prohibition of refoulement). The applicants submitted that the Minister, due to its significance within the immigration and asylum process, was required to personally form the opinion of whether expulsion led to a threat on account of that person”s ‘race, religion, nationality membership of a particular social group or political opinion’.

The court held, however, that it is well established that a Minister cannot personally carry out all statutory functions, and that such functions could be discharged by Civil Service members, even though the Minister remained responsible. This ‘Carltona principle’ principle was decided to apply to the current case. The court therefore held that the deportation decisions were made lawfully even though not personally made by the Minister for Justice and Equality.

The applications for judicial review were therefore refused.

Mr. Justice McDermott

JUDGMENT of Mr. Justice McDermott delivered on the 10th day of September, 2013

1 1. The first named applicant and her two children, the second and third named applicants, arrived in Ireland on 17th July, 2007; she applied for refugee status on her own behalf and on behalf of the children who were born on 12th March, 1998, and 1st June, 2001, respectively, in Nigeria. The fourth named applicant, also a Nigerian national, was born in Ireland on 1st December, 2007. An application was also made on his behalf for refugee status by his mother. These applications were all refused by the Refugee Applications Commissioner and on appeal by the Refugee Appeals Tribunal. Subsequently, the applicants applied for subsidiary protection which was refused on 5th June, 2011. They also applied for humanitarian leave to remain in the State pursuant to s. 3 of the Immigration Act 1999, which was also refused and deportation orders were signed in respect of each of the applicants on 27th September, 2011. No legal challenge by way of judicial review was made in respect of the decisions of the Refugee Applications Commissioner or the Refugee Appeals Tribunal. However, a wide ranging application for leave to apply for judicial review in respect of the refusal of subsidiary protection and the making of the deportation orders was mounted. In a reserved judgment, Cooke J., on 17th May, 2012, refused leave to apply for judicial review in respect of the subsidiary protection decision made by the first named respondent but granted leave to the applicants to apply for orders of certiorari to quash the deportation orders made against each of the applicants on the sole ground that:-

‘The deportation orders are invalid by reason of the first named respondent not having personally considered whether the State”s non-refoulement obligations would be breached by the deportation of the applicants.’

2 In the meantime, the applicants were deported in accordance with the orders made by the first named respondent following the refusal of an application for an interlocutory injunction restraining deportation on 13th December, 2011.

3 2. The reasons for granting leave to apply for judicial review were set out by Cooke J. at paras. 28 to 31 of the Court”s judgment as follows:-

‘28. Of the grounds raising general issues of law, there remains No. 4 in which two arguments are sought to be made namely, that the deportation orders have not been signed personally by the first named respondent and secondly, that the Minister has not personally addressed the issue as to whether the non-refoulement prohibition in s. 5 of the Refugee Act 1996, is applicable in these cases. The first limb of this ground has been considered by Hogan J. in a judgment of 2nd November, 2011, in LAT & Ors v. Minister for Justice in which he concluded in paras. 15 and 16 as follows:-

“(15) While I accept that the decision to deport is often a complex one which has significant implications for the individual who is the subject matter of the order, I am not satisfied that it is of such intrinsic importance to the community at large that the decision can be made only by the Minister personally. It must also be recalled that the Minister for Justice has many onerous obligations. It cannot be suggested that the Oireachtas must have intended that he alone should personally take the decision to deport a given individual in every single case, since that would mean that he had responsibility for potentially hundreds of such decisions in any given year.

(16) It follows therefore, that this is also a case governed by Carltona principles and that the nominated civil servant remains free to make the decision in question.”

29. The challenge to the deportation orders is governed by s. 5 of the Illegal Immigrants (Trafficking) Act 2000, so that a substantial ground for the grant of leave must be shown. A ground must in the words of Carroll J. in McNamara v. An Bord Pleanála [1995] 2 I.L.R.M. 125, be ‘arguable, weighty and must not be trivial or tenuous’. She added ‘a ground that does not stand any chance of being sustained (for example, where the point has already been decided in another case) could not be said to be substantial’. That is the position in relation to the first limb of this ground having regard to the above judgment of Hogan J.

30. Counsel for the applicants, on the other hand, argues that a distinct issue arises in relation to the prohibition of refoulement under s. 5. Relying particularly upon the judgment of Murray C.J. in the Meadows case above, he submits that the decision to be taken under s. 5 is arguably a personal one restricted to the Minister. He points particularly to the passage in which Murray C.J. refers to the Minister”s position when he has before him factual material suggesting that deportation would expose the individual concerned to one of the risks referred to in s. 5:-

“On the other hand if such material has been presented to him by or on behalf of the proposed deportee, as the case here, the Minister must specifically address that issue and form an opinion. Views or conclusions on such issues may have already been arrived at by officers who considered a proposed deportee”s application for asylum, at the initial or appeal stages, and their conclusions or views may be before the Minister, but it remains at this stage for the Minister and the Minister alone in the light of all the material before him to form an opinion in accordance with s. 5 as to the nature or extent of the risk, if any, to which a proposed deportee might be exposed. This position is underscored by the fact that s. 3 envisages that a proposed deportee be given an opportunity to make submissions directly to the Minister on his proposals to make a deportation order at that stage. The fact that certain decisions have been made by officers at an early stage in the course of the application for refugee status does not absolve him from making that decision himself.”

31. While this passage does not, as counsel for the Minister argues, exclude the application of the Carltona principle, the issue which is raised is undecided and clearly of considerable importance, particularly in view of the recent apparent change in practice within the Department to delegate to his officers entirely the functions of analysis and assessment,...