BI v Minister for Justice and Equality

 
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[2016] IEHC 761

THE HIGH COURT

JUDICIAL REVIEW

O'Regan J.

[2011 No. 121 J.R.]

BETWEEN
B.I.
APPLICANT
AND
MINISTER FOR JUSTICE & LAW REFORM
RESPONDENT

Asylum, Immigration & Nationality – S. 3 of the Immigration Act 1999 – Manner of decision making – Bias – Breach of fair procedures – Reg. 4(5) of the European Communities (Eligibility for Protection) Regulations, 2006

Facts: -The applicant sought an order of certiorari for quashing the decision of the respondent for making a deportation order against the applicant and refusing his application for subsidiary protection. The applicant contended that since the determination for refusing his application for subsidiary protection and making of deportation order were made on the same day, though the final approval was given on a different date, the said decisions were vitiated by bias. The respondent argued that the present application filed by the applicant could not be entertained as there was no challenge to any substantive finding made by the respondent.

Ms. Justice O'Regan refused to grant the desired relief to the applicant. The Court held that the preliminary work undertaken by the administration could not be equated to a decision taken by the respondent. The Court noted that unless it was clear that the executive officer in the present case was clearly purported to exercise the power of the Minister, it could not be said that the decision was vitiated by bias.

JUDGMENT of Ms. Justice O'Regan delivered on the 8th day of November, 2016
Introduction
1

The within matter came before the Court on 18th of October, 2016 by way of telescoped hearing wherein the applicant was seeking leave to apply for judicial review as well as judicial review by way of an order of certiorari quashing the decision refusing the application for subsidiary protection against the applicant made on 13th December, 2010 and quashing the deportation order made against the applicant on 16th December, 2010 together with an application for a necessary injunctive relief together with an application to extend the period within which the within application might be made.

2

The proceedings are based upon a notice of motion, statement grounding the application and affidavit of the applicant all dated 9th February, 2011.

Background
3

The applicant is a pharmacist and Bangladeshi national born in December, 1961. He is married with two sons and these two sons, together with his wife, continue to reside in Bangladesh.

4

The applicant arrived in the State on 24th December, 2007 and on same date applied for refugee status. The applicant gave a history of being attacked in 1990, 2006 and December 2006 as a result of political involvement and in 2007 of the threat to his family, who thereafter escaped.

5

By recommendation bearing date 12th July, 2008 it was recommended that the applicant would not be afforded refugee status and this recommendation was notified to the applicant under cover letter of 30th July, 2008.

6

The applicant appealed the refusal aforesaid on 11th August, 2008. On 29th October, 2009 the recommendation of the Commissioner was affirmed and this negative decision was notified to the applicant by a letter received on 20th November, 2009.

7

The applicant was advised by a letter of 30th December, 2009 as to his options including the possibility of applying for subsidiary protection. The said letter advised the applicant that should he apply for subsidiary protection the order in which his case would be dealt would be to the effect that the Minister would make a decision on eligibility for subsidiary protection first and if the application is not successful the Minister would decide on his representations to remain temporarily in the State. If the Minister decides that the applicant should not be allowed to remain temporarily in the State, the applicant will be made the subject of a deportation order.

8

The applicant lodged an application for subsidiary protection under cover letter of 7th January, 2010 and on the same date the applicant also applied under s.3 of the Immigration Act 1999 for leave to remain in the state.

9

By letter bearing date 13th December, 2010 the applicant was advised that he was not eligible for subsidiary protection and by further letter bearing date 22nd December, 2010 the applicant was advised that the respondent had made a decision to make a deportation order against the applicant (such decision made on 16th December, 2010).

10

The applicant effectively seeks to condemn the sequence of the decision making process in that he has complained that on 28th October, 2010 Ms. Merrigan, Executive Officer, prepared a determination for subsidiary protection and on the same day also prepared a determination on deportation. On 6th December, 2010 Ms. Lee, Higher Executive Officer, approved the determination in respect of subsidiary protection and further on the same day approved the determination in respect of the deportation. On 10th December, 2010 Mr. Carroll, Assistant Principal, made the final approval of the decision in respect of subsidiary protection and subsequently on 13th December, 2010 Mr. Carroll approved of the decision in respect of deportation. Ultimately, on 16th December, 2010, the Minister signed the deportation order.

11

It is asserted on behalf of the applicant that the decision of refusing him subsidiary protection was reached in breach of fair procedures and was tainted by bias and prejudgment or the appearance thereof. Further and in the alternative it is argued that the respondent acted in the breach of Regulation 4(5) of the 2006 regulations which provides:-

‘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 section 3(6) of the 1999 Act, whether a deportation order should be made in respect of the applicant.’

12

The respondent effectively argues that the entire process was fair and is valid on the basis that with regard to the application for subsidiary protection a recommendation was made on 28th October, 2010 which was agreed with by a Higher Executive Officer on 6th December, 2010 and the determination at Assistant Principal level was made on 10th December, 2010 agreeing with the recommendation. It is asserted that there was no decision to deport until the deportation order was signed by the Minister on 13th December, 2010. The respondent argues that this sequence is entirely consistent with the Minister's obligation under Article 4(5) aforesaid. The respondent further argues that the applicant has made no complaint concerning either the quality or reasonableness of either the subsidiary protection decision or the analysis of his s. 3 application of leave to remain in the State completed prior to the respondent's decision of 16th December, 2010.

Applicant's submissions
13

The applicant submits as follows:

a. The manner in which the subsidiary protection and the deportation matters were dealt with, in that considerations...

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