Adegbuyi v Minister for Justice and Law Reform

• Jurisdiction: Ireland
• Judge: MS JUSTICE M. CLARK,
• Judgment Date: 01 November 2012
• Neutral Citation: [2012] IEHC 484
• Court: High Court
• Date: 01 November 2012

Adegbuyi v Min for Justice

IN THE MATTER OF SECTION 21(5) OF THE REFUGEE ACT 1996

Between:/

PATRICK ADEBISI OLUSEGUN ADEGBUYI

APPELLANT

-AND-

THE MINISTER FOR JUSTICE AND LAW REFORM

RESPONDENT

[2012] IEHC 484

Record No. 23 J.R./2011

THE HIGH COURT

IMMIGRATION LAW

Asylum

Revocation of refugee status - Appeal - Procedural steps for statutory appeals - Scope of court's appellant jurisdiction - Whether court could consider information not before Minister at time of decision - Whether court could substitute reasons for reasons of Minister - Full appeal - False and misleading information given to authorities - Travel during and after asylum process - Conflicting explanations for travel - Claim for derivative rights based on EU citizenship of daughter - Cessation and exclusion clauses - Whether link between false information given and grant of refugee status - Cessation of refugee status - Gashi v Minister for Justice, Equality and Law Reform [2010] IEHC 436, (Unrep, Cooke J, 1/12/2010); Abramov v Minister for Justice, Equality and Law Reform [2010] IEHC 458, (Unrep, Cooke J, 7/12/2010); Morris Ali v Minister for Justice, Equality and Law Reform [2012] IEHC 149, (Unrep, O'Keeffe J, 1/3/2012); Dunne v Minister for Fisheries and Forestry [1984] IR 230; Balkan Tours Ltd v Minister for Communications [1998] ILRM 101; Orange Communications Ltd v Director of Telecommunications Regulation (No 1) [2000] 4 IR 136; Orange Communications Ltd v Director of Telecommunications Regulation (No 2) [2000] 4 IR 159; Glancre Teo v Cafferkey [2004] 3 IR 401; Ulster Bank Investment Funds Ltd v Financial Services Ombudsman [2006] IEHC 323, (Unrep, Finnegan P, 1/11/2006); Murray v Trustees and Administrators of the Irish Airlines (General Employees) (Superannuation Scheme) [2007] ILRM 196 and Ruiz Zambrano v Office Nationale de l'Emploi (Case C-34/09) considered - Rules of the Superior Courts 1986 (SI 15/1986), O 84 - Refugee Act 1996 (No 17), s 21 - Revocation affirmed (2011/231JR - Clark J - 1/11/2012) [2012] IEHC 484

Adegbuyi v Minister for Justice and Equality

Facts:The appellant was a national of Nigeria who was granted refugee status in 2007. The appeal related to the decision of the Minister in 2010 to revoke his refugee status pursuant to s. 21 Refugee Act 1996, as amended. The Minister had learned that the appellant had travelled to Nigeria in 2007 through the UK, where he had not disclosed his Irish refugee status and had instead used a Nigerian passport with UK multiple entry visa which he had not mentioned when he sought asylum in Ireland. He had not availed of opportunities to respond to the decision to revoke his refugee status. He sought to rely on the decision of the Court of Justice in Case C34 -09 Ruiz Zambrano of 8 March 2011, claiming derivative rights in respect of a child living with his wife in Ireland. The Court considered whether it was entitled to consider information which was not before the Minister when he made his decision and whether the Court could confirm the Minister's decision for reasons other than those given by the Minister.

Held by Harding Clark J. that the Court was satisfied that the Minister was correct to revoke the appellant's refugee status. The revocation was affirmed and as the declaration of refugee status was void ab initio, no other grounds for the revocation were appropriate or necessary.

REFUGEE ACT 1996 S21(5)

REFUGEE ACT 1996 S21(A)

REFUGEE ACT 1996 S21(D)

REFUGEE ACT 1996 S21(E)

RSC O.84C

LUKOKI v MIN FOR JUSTICE UNREP HIGH 6.3.2008 (EX TEMPORE)

GASHI v MIN FOR JUSTICE UNREP COOKE 1.12.2010 2010/20/4978 2010 IEHC 436

ABRAMOV v MIN FOR JUSTICE UNREP COOKE 17.12.2010 2010/1/218 2010 IEHC 458

ALI v MIN FOR JUSTICE UNREP O'KEEFFE 1.3.2012 2012 IEHC 149

REFUGEE ACT 1996 S21(H)

DIR 83/2004

REFUGEE ACT 1996 S21(3)

REFUGEE ACT 1996 S21(4)

DODD v MIN FOR FISHERIES 1934 IR 291

DUNNE v MIN FOR FISHERIES 1984 IR 230

BALKAN TOURS LTD v MIN FOR COMMUNICATIONS 1988 ILRM 101

ORANGE COMMUNICATIONS LTD v DIRECTOR OF TELECOMMUNICATIONS REGULATION & ANOR (NO 1) 2000 4 IR 136 1999 2 ILRM 81 2004/40/9191

ORANGE COMMUNICATIONS LTD v DIRECTOR OF TELECOMMUNICATIONS REGULATION AND METEOR MOBILE COMMUNICATIONS LTD 2000 4 IR 159 2000/15/5538

GLANACRE TEO v CAFFERKEY 2004 3 IR 401 2004/19/4338

ULSTER BANK INVESTMENT FUNDS- LTD v FINANCIAL SERVICES OMBUDSMAN UNREP FINNEGAN 1.11.2006 2006 IEHC 323

MURRAY v TRUSTEES & ADMINISTRATORS OF IRISH AIRLINES (GENERAL EMPLOYEES) SUPERANNUATION SCHEME UNREP CLARKE 5.7.2007 2007 IEHC 27

REFUGEE ACT 1996 S2

TREATY FOUNDING EUROPEAN UNION ART 20

RUIZ ZAMBRANO C-34/09 UNREP ECJ 8.3.2011

REFUGEE ACT 1996 S21(1)G

REFUGEE CONVENTION 1951 ART 1C

REFUGEE CONVENTION 1951 ART 1F

SI 518/2006 REG 11(2)(B)

DIR 2004/83 ART 14(3)(B)

DIR 2004/83 S21(1)

DIR 2004/83 REG 11(2)

DIR 2004/83 ART 14(3)

SI 518/2006 REG 11(2)(A)

SI 518/2006 REG 11(2)(B)

REFUGEE CONVENTION 1951 ART 1C

DIR 83/2004 REG ART 11

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS PARA 118

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS PARA 133

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS PARA 134

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS PARA 121

REFUGEE CONVENTION 1951 ART 1C(5)

1 JUDGMENT OF MS JUSTICE M. CLARK, delivered on the 1st day of November 2012.

2 1. This is an appeal under s. 21(5) of the Refugee Act 1996 which was heard on the 1 ^st and 21 ^st May 2012. Mr Anthony Hanrahan B.L. appeared for the appellant and Ms Sinéad McGrath B.L. appeared for the respondent Minister. The appellant is a national of Nigeria who was granted refugee status in July 2007. The appeal relates to the decision of the Minister dated 9 ^th December 2010 to revoke the appellant's refugee status, relying on the grounds set out in ss. 21(a), (d) and (e) of the Refugee Act 1996.

Procedural Background

3 2. The proceedings were initially issued as a judicial review but at a later stage the parties agreed that an appeal was the statutory remedy provided. However, the appropriate procedural steps for statutory appeals as provided for in Order 84C of the Rules of the Superior Courts (RSC) have not been followed in this case nor, it appears, in any reported appeals under s. 21(5) to date. No directions were sought on the return date of the notice of motion and no issues were identified for discovery, submissions, further affidavits or otherwise. An explanation may lie in the fact that the procedures are not yet familiar as there have so far been relatively few revocation appeals. The only known decisions on revocation appeals are those of de Valera J. in Lukoki v. The Minister for Justice, Equality and Law Reform (Unreported, ex tempore, High Court, 6 ^th March 2008); Cooke J. in Gashi v. The Minister [2010] IEHC 436 (1 ^st December 2010) and Abramov v. The Minister [2010] IEHC 458 (17 ^th December 2010); and O'Keeffe J. in Morris Ali v. The Minister [2012] IEHC 149 (1 ^st March 2012).

4 3. Mr. Adegbuyi's appeal was conducted on affidavit because he is in Nigeria and since the revocation he has no entitlement to re-enter the State. The primary affidavits were sworn by Mr. Adegbuyi's solicitors in January 2011 and March 2011. Just before the hearing of the appeal in April 2012 the appellant swore an affidavit in Nigeria which together with an email from him was exhibited to a supplementary affidavit sworn and filed by the appellant's solicitor. No oral evidence was called on behalf of the appellant and no affidavit was filed by Mr. Adegbuyi's wife or any family member in relation to the appeal. The respondent called two witnesses, Mr Gerard Tucker of the Immigration Services Section of the Minister's Department and Mr Denis Byrne of the Ministerial Decisions Unit of the same Department. They were cross examined by the appellant's counsel.

Scope of the Court's Appellate Jurisdiction

5 4. It is common case that in exercising its appellate function, the Court is not restricted by the principles applicable to judicial review. The distinction is frequently drawn that on appeal, the Court is not reviewing whether the decision is lawful or unlawful, as it does when exercising its review jurisdiction; rather, it is concerned with determining whether the decision is right or wrong. In other words, the Court assesses the correctness of the decision under appeal, as distinct from its legality. That much is clear. However in the course of the appeal it emerged that the Court was required to contend with the following two mutually exclusive issues regarding the scope of its appellate jurisdiction under s. 21(5):

6 (1) May the Court consider information which was not before the Minister when he made his decision? and

7 (2) May the Court confirm the Minister's decision for reasons other than those given by the Minister?

8 5. Section 21 of the Refugee Act 1996 provides some assistance in determining those issues. The grounds on which refugee status may be revoked are set out in s. 21(1) (a) to (h). These sub-sections of the Refugee Act must be read together with the relevant provisions of Directive 2004/83/EC ("the Qualification Directive"). Sub-sections (3) and (4) of s. 21 of the Refugee Act 1996 make provision for the notification of intention to revoke and the requirement that the person is given an opportunity to make representations. Section 21(5) provides for a right of appeal from the Minister's revocation decision in the following terms:-

"A person concerned may appeal to the High Court against a decision of the Minister under this section and that Court may, as it thinks proper, on the hearing of the appeal confirm the decision of the Minister or direct the Minister to withdraw the revocation of the declaration." (Emphasis added).

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