F.Z. (Pakistan) v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Richard Justice Humphreys
• Judgment Date: 12 April 2019
• Neutral Citation: [2019] IEHC 368
• Court: High Court
• Docket Number: [2018 No. 946 J.R.]
• Date: 12 April 2019

BETWEEN

F.Z. (PAKISTAN)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

[2019] IEHC 368

Humphreys J.

[2018 No. 946 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Deportation – International protection – Applicant seeking judicial review – Whether there was a lack of proper or adequate determination

Facts: The applicant, a national of Pakistan, came to the State illegally on 16th June, 2015. He then applied for asylum, which was refused on 23rd August, 2016. On 1st November, 2017, the International Protection Office issued an examination of file under s. 49(3) of the International Protection Act 2015 to the effect that the applicant should not be given permission to remain in the State. That was in conjunction with a refusal of international protection by that Office on 8th November, 2017. The applicant appealed the protection refusal to the International Protection Appeals Tribunal. The tribunal rejected the appeals on 19th April, 2018. The applicant then sought a review under s. 49(7) and (9) of the 2015 Act on 30th April, 2018. That review application consisted of a one-page handwritten s. 49 review form which made no reference to art. 8 of the ECHR (whether as applied by the European Convention of Human Rights Act 2003 or at all) or to family life either in the UK or Ireland, or indeed specifically to private life, although it did refer to his friends. It included some references as well as a strange document which purported to be a job offer, a document which the respondent, the Minister for Justice and Equality, suggested did not on its face command much confidence. It purported to be a job offer from Four Star Pizza, although it was headed “Four Star Pizz” and purported to be signed on behalf of “For (sic) star pizza Phisboro (sic)”. On 8th August, 2018 the International Protection Office decided pursuant to s. 49(9) of the 2015 Act that permission to remain should not be granted on review. On 9th November, 2018 leave to seek judicial review was granted, the primary reliefs being certiorari of the s. 49(7) review decision and of the deportation order when issued. That order was formally made on 19th November, 2018 and notified to the applicant on 29th November, 2018, along with a requirement to present for removal from the State on 9th January, 2019. The Statement of Grounds contended the following: 1) alleged lack of proper or adequate determination; 2) alleged inadequate regard to material submitted; 3) alleged unfairness of procedure; 4) alleged erroneous reliance on precarious nature of the applicant’s immigration status; 5) alleged failure to consider applicant’s private life under s. 49(3) of the 2015 Act; and 6) alleged error of law.

Held by the High Court (Humphreys J) that the case consisted of: (i) points made in written or oral submissions that were not pleaded; (ii) points advanced to the court that were never made to the decision-maker; (iii) points advanced that had previously been rejected in circulated judgments; and (iv) legalistic points which only arose tenuously if at all, on the facts and where the applicant had failed to put before the court highly material information and explanations. Humphreys J held that the case also featured questionable documents, in particular the alleged job offer from Four Star Pizza.

Humphreys J held that the proceedings would be dismissed and that the respondent would be released from his undertaking not to deport the applicant.

Proceedings dismissed.

JUDGMENT of Mr. Richard Justice Humphreys delivered on the 12th day of April, 2019

1 The applicant is a single 28-year-old national of Pakistan. His family live there and he has no familial connections to the State. According to the UK Border Agency he was issued with a tier 4 general student visa from 2nd August, 2010 to 23rd January, 2012. He apparently travelled to the UK on this visa in September, 2010.

2 He claims that in 2011 he ‘ met’ a Ms. S. online. He claims they met in person in 2012 and started a relationship and that he only later found out that she was married.

3 After January, 2012 he resided illegally in the UK and worked part-time during that period as a security guard in Manchester. He claims that in March, 2014, Ms. S. became pregnant. A child was allegedly born on 25th December, 2014 and the applicant claims to be the father.

4 On 28th March, 2015 Ms. S. asked the applicant by way of a Facebook message ‘ when are you going to Ireland?’ and the applicant replied ‘ IDK [I don't know] man, I will email you’.

5 He claims that after April, 2015 he was threatened by Ms. S.'s husband and so decided to go to Ireland. Unsurprisingly, the tribunal was to consider that this tale was inconsistent with the evidence that he had already been considering going to Ireland in March, 2015.

6 The applicant claims to have ceased contact with Ms. S. after April, 2015. He came to the State illegally on 16th June, 2015. He then applied for asylum, which was refused on 23rd August, 2016. On 1st November, 2017, the IPO issued an examination of file under s. 49(3) of the International Protection Act 2015 to the effect that the applicant should not be given permission to remain in the State. That was in conjunction with a refusal of international protection by that Office on 8th November, 2017.

7 The applicant appealed the protection refusal to the International Protection Appeals Tribunal. An oral hearing took place on 15th March, 2018 at which point Mr. Ciaran Doherty B.L. appeared for the applicant. The tribunal rejected the appeals on 19th April, 2018. The applicant then sought a review under s. 49(7) and (9) of the 2015 Act on 30th April, 2018. That review application consisted of a one-page handwritten s. 49 review form which made no reference to art. 8 of the ECHR (whether as applied by the European Convention of Human Rights Act 2003 or at all) or to family life either in the UK or Ireland, or indeed specifically to private life, although it did refer to his friends. It included some references as well as a strange document which purported to be a job offer, a document which the respondent suggests does not on its face command much confidence. It purports to be a job offer from Four Star Pizza, although it is headed ‘ Four Star Pizz’ and purports to be signed on behalf of ‘ For (sic) star pizza Phisboro (sic)’.

8 On 8th August, 2018 the International Protection Office decided pursuant to s. 49(9) of the 2015 Act that permission to remain should not be granted on review.

9 On 9th November, 2018 leave to seek judicial review was granted, the primary reliefs being certiorari of the s. 49(7) review decision and of the deportation order when issued. That order was formally made on 19th November, 2018 and notified to the applicant on 29th November, 2018, along with a requirement to present for removal from the State on 9th January, 2019. I have received helpful submissions from Mr. Eamonn Dornan B.L. for the applicant and from Mr. Alexander Caffrey B.L. for the respondent.

Alleged lack of proper or adequate determination

10 Ground 1(i) of the Statement of Grounds alleges that ‘ In making the Impugned Decision, the Respondent, his servants and agents erred in law and/or engaged in unfairness and irrationality in the consideration of the private and family rights of the Applicant and in the manner in which the review under s. 49 of the act was conducted: (i) No proper or adequate determination was made in relation to additional documentation submitted under the factors set out at Section 49(3) of the Act, namely, (a) the nature of the Applicant's connection with the State, (b) humanitarian considerations (c) the character and conduct of the Applicant (d) considerations of national security and public order, and (e) any other considerations of the common good’.

11 The decision states that the matters set out in s. 49(3) of the 2015 Act were considered and there is therefore an onus on an applicant to show that this is not so, an onus which has not been discharged here: see per Hardiman J. in G.K. v. Minister for Justice, Equality and Law Reform [2002] 2 I.R. 418 [2002] 1 I.L.R.M. 401. The argument made involves the classic error of confusing failure to engage in narrative discussion with failure to consider relevant matters (see e.g. A.B....