D.W G. and Another v Minister for Justice, Equality and Law Reform

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 26 June 2007
• Neutral Citation: [2007] IEHC 231
• Court: High Court
• Docket Number: 686 JR/2007
• Date: 26 June 2007

[2007] IEHC 231

THE HIGH COURT

686 JR/2007

697JR/2007

G (DW) & O (MT) v MIN FOR JUSTICE

BETWEEN

D. W. G.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

AND

M. T. O.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

Abstract:

Imigration - Asylum - Subsidiary protection - Judicial review - Injunction - European Communities (Eligibility for Protection Regulations, 2006 (S.I. 518/2006) - Whether the conduct of the applicants was such as to disentitle them to challenge by way of judicial review the decision refusing to deal with their applications for subsidiary protection.

The applicants in both of these cases were failed asylum seekers and sought to submit and have considered an application for subsidiary protection. The Deportation Orders in relation to both applicants were made prior to the coming into effect of the regulations governing applications for subsidiary protection. Consequently, the Irish Naturalisation and Immigration Service of the Department of Justice, Equality and Law Reform (INIS) refused to deal with the applications for subsidiary protection, claiming that the regulations did not apply to cases where deportation orders were made prior to the coming into effect of the regulations. In these proceedings, the applicants sought leave to judicially review that decision of the INIS and also sought an injunction restraining their deportation. It was conceded on behalf of the respondent that there was an arguable case that the interpretation placed on the regulations by the Department was erroneous. However, it was submitted that notwithstanding the existence of an arguable case relief should be refused having regard to the conduct of each of the applicants.

Held by Birmingham J. in refusing both applications: That the first named applicant, by reason of his conduct and the circumstances surrounding this application for leave, disentitled himself to the relief sought, despite having succeeded in establishing an arguable case. Furthermore, the applicant was not entitled to an injunction restraining his deportation. The applicant never challenged the deportation order and therefore it remained in effect. The second named applicant remained in the State in contravention of a deportation order for more than five years. In that time, he never applied to have his deportation restrained on the basis that his deportation would render him liable to execution or torture. Consequently, the second named applicant, having regard to his conduct was not entitled to judicially review the decision of the INIS. Nor was he entitled to an order restraining his deportation.

Reporter: L.O’S.

JUDGMENT of

Mr. Justice Birmingham

1 delivered on the 26th day of June, 2007.

2 These two cases raise similar legal issues and were heard together. At issue in both cases is the desire on behalf of the applicants, both of whom are failed asylum seekers, to submit and have considered an application for subsidiary protection. The background to this is that Council Directive 2004/83/EC made provision for subsidiary protection for persons requiring such protection, but who did not the meet the requirements to be declared a refugee.

3 Provision in Irish law for subsidiary protection was made through the European Communities (Eligibility for Protection Regulations, 2006) S.I. 518/2006.

4 At the outset it is appropriate to observe that subsidiary protection is available to those facing "serious harm" consisting of:-

(a) Death penalty or execution

5 (b) Torture or inhuman or degrading treatment or punishment of an applicant in the country of origin.

6 (c) Serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict."

7 One recalls that Irish law has long prohibited refoulement. Accordingly it would seem that the effect of the regulations will not be so much that persons who would otherwise be excluded from the State would be permitted to remain, but rather that persons who would in any event have been permitted to remain will have their status and entitlements clarified.

The first named applicant

8 By letter dated 12^th June, 2007, solicitors on behalf of the first named applicant D. W. G. submitted a request that a claim for subsidiary protection be considered along with the request that their client be released from Cloverhill Prison where he was then, as now, detained awaiting deportation pursuant to s. 5 of the Immigration Act, 1999. On the same day, a letter was sent by fax from the Irish Naturalisation and Immigration Services of the Department of Justice, Equality and Law Reform which made the point that the regulations came into operation on 10^th October, 2006 and that the regulations were not applicable in cases where a deportation order was made before the coming into effect of the regulations. The deportation order in this case had been made on 21^st September, 2005.

The second applicant

9 As far as the second named applicant is concerned, his solicitor by letter dated the 7^th June, 2007 sought subsidiary protection and conditional release, he too being then and now detained at Cloverhill Prison. For completeness sake I should add that the solicitors also applied for the revocation of the deportation order. By letter of 12^th June, 2007 the Naturalisation and Immigration Service replied to the same effect as they had done in the case of the first applicant. In this case the deportation order is dated 20^th February, 2002.

10 Each applicant comes before the Court seeking to judicially review the decision not to consider their request for subsidiary protection and seeking an injunction to restrain their deportation

11 The question of whether the regulations apply to persons in respect of whom deportation orders were made prior to 10^th October, 2006 has been before the courts already and the issue has been fully argued before Feeney J. who has reserved judgment. In these circumstances Ms. Siobhan Stack, Barrister-at-Law on behalf on the Minister has properly conceded that there is an arguable case that the interpretation placed on the regulations by the Department is erroneous.

12 However, Ms. Stack argues that notwithstanding that an issue of substance has been identified, that in the particular circumstances of the case that leave to seek judicial review should be refused and that there should be no injunction. In essence she says that each applicant by his conduct has disentitled himself to any relief.

13 In these circumstances it is necessary to consider the factual background to each case in greater detail. I should say that in each case when the matter first came before the court the application was grounded on affidavits sworn by the respective solicitors and there was no direct evidence from either applicant. Given the severe criticisms that were being levelled at their clients conduct I invited Mr. Kenneth Willis, Barrister-at-Law on behalf of the first named applicant and Mr. Colm McCarville, Barrister-at-Law on behalf of the second named applicant to consider whether they wished to put further information on affidavit before the court. Each, availed of the opportunity and affidavits were submitted by each applicant. While putting the affidavits before the court both counsel were very firm in their submission that the court should not be concerned with prior conduct and should focus only on events since June, 2007.

The situation of D. W. G.

14 It seems that this applicant first arrived in the State on or about 21^st August, 1999 and was thereafter present in the State on foot of a succession of student visas, the last of which would seem to have expired on 6^th June, 2001. On 2^nd November, 2004 the applicant applied for asylum.

15 As is normal, he completed a questionnaire and attended for interview. Both the questionnaire and the responses at interview contain a number of blatant lies. Examples of these are as follows, in the questionnaire when asked for an educational history he claimed that between 1999 and 2002 he was studying business management at Liaoning University, when in fact he was in Ireland throughout the period. He claimed to have been employed in China as a clerk between November, 2002 and April, 2004 with a particular company. When asked if he had ever applied for an Irish visa, he replied no, contrary to the fact, and stated that he had not been issued with a student visa or work permit. He stated that he had left his country of origin on 15^th October, 2004 and had travelled to Ireland through South Korea and the United Kingdom. In the questionnaire he gives a dramatic account of an incident that was supposed to have occurred on 15^th August, 2004. He does so in these terms:

"I was sitting in mediation on the balcony of my home. Suddenly I heard someone kicking the door of my house and my uncle opened the door. Before I knew what was happening four policemen already rushed in, they were fully armed, holding guns and electronic sticks and rushed to cuff and kick. My uncle was kicked down by one policeman when he was intending to stop. Then I charged and struggled with them as well. I heard them shout 'Good boy, you dared to practice Falun Gong. I am beating you to death'. They rushed to hit me with three electronic sticks. In a moment I didn't know anything. When I awoke my body was covered in water and full of injuries."

16 When interviewed on 19^th January, 2003, he again gave a false education history. He claimed to have left China on 15^th October, 2004 saying that his travel arrangements were made by a trafficker, to whom he paid 100,000 yuan. He gives a detailed description of his journey involving a ship to South Korea, seven days in a basement in South Korea, being provided with a...