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

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...

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