G (J) & M (W) (Czech Republic) v Refugee Applications Commissioner and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 17 April 2013
• Neutral Citation: [2013] IEHC 248
• Court: High Court
• Date: 17 April 2013

[2013] IEHC 248

THE HIGH COURT

[No. 148 J.R./2009]

[No. 1029 J.R./2008]

G (J) & M (W) (Czech Republic) v Refugee Applications Commissioner & Ors

JUDICIAL REVIEW

BETWEEN

J. G. AND W. M. (CZECH REPUBLIC)

APPLICANTS

AND

THE REFUGEE APPLICATIONS COMMISSIONER AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

REFUGEE ACT 1996 S17(4)

REFUGEE ACT 1996 S11

RSC O.84

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

IMMIGRATION ACT 1999 S3(11)

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, IN RE 2000 2 IR 360

A (F) & A (B) v REFUGEE APPEALS TRIBUNAL & ORS UNREP PEART 27.7.2007 2007/1/188 2007 IEHC 290

F (MM) v MIN FOR JUSTICE UNREP IRVINE 14.4.2011 2011/22/5698 2011 IEHC 166

DE ROSSA v MIN FOR DEFENCE & ORS 2001 1 IR 190

S (C) v MIN FOR JUSTICE 2005 1 IR 343

K (G) v MIN FOR JUSTICE 2002 2 IR 418

REFUGEE ACT 1996 S2

REFUGEE ACT 1996 S8

REFUGEE ACT 1996 S8(2)

REFUGEE ACT 1996 S8(3)

REFUGEE ACT 1996 S8(1)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS SI 518/2006 REG 9(1)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS SI 518/2006 REG 10

EEC DIR 2005/85 ART 25

Y (S) & Y (R)(A MINOR) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP MCMAHON 13.1.2009 2009/58/14870 2009 IEHC 18

Q (AQ) & K (KI) v OFFICE OF THE REFUGEE APPLICATIONS COMMISSIONER & ORS UNREP HOGAN 23.11.2010 2010/3/516 2010 IEHC 421

REFUGEE ACT 1996 S17

Judicial Review - Asylum - Racial discrimination - Risk of serious harm - Refugee status - Eviction - Persecution - Deportation - Extension of time - Refugee Act 1996 - Illegal Immigrants (Trafficking) Act 2000

Facts: These proceedings concerned two applicants of Angolan and Congolese origin respectively whose applications for asylum were refused to be admitted by the Refugee Applications Commissioner (the ‘Commissioner’) pursuant to s. 17(4) of the Refugee Act 1996 (as amended) on the basis that they had already acquired refugee status in the Czech Republic. The applicants sought orders to compel the Commissioner to admit and examine their claims as well as orders quashing deportation orders made against them. It was the applicants” assertions that they had been forced to leave the Czech Republic due to the conditions they had faced there. They claimed that they had lived in various asylum centres provided by the Czech authorities since refugee status was granted in 1991, but that from 2001, the authorities had attempted to withdraw this status. They also claimed that electricity and hot water boilers were disconnected for lengthy periods of time in their accommodation, and that they had been excluded from the asylum centres on more than one occasion. The applicants also argued that they had twice been attacked by gangs of ‘skinheads’. The applicants claimed that they had been subjected to such treatment due to racial prejudice against them.

As a result, the basis of the applicants” applications was that they both had a fear of persecution in the Czech Republic because of alleged discrimination against them by officials of that State by reason of their colour and/or race. In regards to the decisions to make deportation orders, it was argued that this was tainted by the prior decisions of the Commissioner and so should also be quashed. It was recognised by the applicants that their application for leave to apply for judicial review of the decision to make deportation orders was made out of time, therefore, they also applied for an extension of time in order to do so.

It was the respondents” case that the substantial basis for the applicants” claims was their dissatisfaction with the accommodation they had been provided by the Czech Republic following the grant of refugee status. They argued that it was not a function of the Commissioner to consider an application on such a basis. Even if it was established that the applicants had a genuine fear of persecution if returned to the Czech Republic, it was argued that it was for them to demonstrate that they had already sought state protection and that that protection was inadequate.

Held by McDermott J that the court”s discretion to extend time to allow the applicants to make their applications for leave to apply for judicial review in respect of the deportation orders could only be exercised where there was ‘good and sufficient reason’ for doing so pursuant to s. 5 of the Illegal Immigrants (Trafficking) Act 2000. However, it seemed that the applicants had not offered a reasonable explanation for failing to apply for judicial review within the set timeframe. On that basis, the applicants could only challenge the decision to make the deportation orders if it was shown that there were stateable grounds to grant leave to apply for judicial review in respect of the Commissioner”s refusal to admit the applicants” claims, due to the fact that the decision to make the deportation orders may have been tainted by that reasoning.

In relation to the Commissioner”s decision refusing admittance of the applicants” asylum applications, it was held that the claims were indeed substantially based on their dissatisfaction with the accommodation they had been provided by the Czech authorities once refugee status was granted. This was not held to be a relevant consideration in relation to an asylum application. In relation to the assaults on the applicants, it was held that these had been committed by gangs of ‘skinheads’, and could not be said to be examples of discriminatory action against the applicants by Czech authorities. It was also noted that the applicants had failed to highlight any Czech legislation that discriminated against them and that the claims of eviction were not backed up of with a full account of those proceedings.

It was further held that the applicants had failed to demonstrate that they had taken any steps to avail of protection from the Czech Republic. As a consequence of these reasons, it was held there were no stateable grounds upon which to grant leave to apply for judicial review of the decision pursuant to s. 17(4) of the Refugee Act 1996 (as amended). As the deportation order was very much dependant on that decision, it was held that the applicants had failed to establish substantial grounds to challenge these. Finally, it was held that because no stateable grounds were found in relation to the Commissioner”s decisions, an extension of time to bring the applications for leave to apply for judicial review was also refused.

Leave to apply for judicial review refused.

1 JUDGMENT of Mr. Justice McDermott delivered on the 17th day of April, 2013

2 1. This judgment is in respect of applications on behalf of both applicants in separate proceedings relating to the same issue and the same events which, though initiated separately, were heard together as a matter of procedural convenience. The applicants are friends who both obtained refugee status in the Czech Republic and came to Ireland together on 5 ^th February, 2007, and applied for asylum. The Refugee Applications Commissioner in both cases refused to admit the claims pursuant to s. 17(4) of the Refugee Act 1996, as amended. Both applicants challenge the first named respondent's interpretation and application of that provision.

The Case of J. G.

3 2. By notice of motion dated 11 ^th February, 2009, the applicant, an Angolan national, applied for leave to apply by way of judicial review for an order of mandamus directing the respondents to examine or continue to examine the applicant's claim for asylum in the state and/or orders of certiorari quashing the first named respondent's decision not to carry out an assessment of the applicant's asylum application pursuant to the Refugee Act 1996, as amended, and/or an order quashing the decision of the second named respondent to make a deportation order against the applicant.

4 3. The applicant arrived in Ireland on 5 ^th February, 2007. He applied for asylum on 8 ^th February, 2007, and completed the ASY1 form and a questionnaire in furtherance of the application. He is a person who has been granted international protection by way of refugee status in the Czech Republic. In his grounding affidavit he claimed that he came to Ireland because he could no longer live in the Czech Republic because "conditions there were terrible" for him. He furnished his Geneva Convention travel documents to the respondents. However, he was never called for a s. 11 interview.

5 4. Instead, by letter dated 12 ^th June, 2007, the first named respondent informed the applicant that it would not admit his application. The letter stated:-

"On examination of the documents you have produced in relation to your status it has come to our notice that you were granted asylum in the Czech Republic."

6 Issues raised in relation to accommodation provided by the Czech Republic as outlined in the correspondence as submitted by you are not matters for consideration by this office.

7 In the circumstances and in accordance with s. 17(4) of the Refugee Act 1996, the Minister is precluded from giving a declaration that you are a refugee.

8 No purpose would be served by investigating your claim, and accordingly, your application is not being admitted for processing.

9 The file in this case is now being furnished to INIS who will be in contact with you in due course."

Extension of Time in the Case of J. G.

10 5. Following the receipt of the letter dated 12 ^th June, 2007, the second named respondent issued a letter indicating a proposal to deport Mr. G. dated 3 ^rd April, 2008. Representations were made on behalf of Mr. G. pursuant to s. 3 of the Immigration Act 1999, on 22 ^nd April, 2008, seeking liberty to remain in the State on humanitarian grounds. A deportation order was signed by the Minister personally on 18 ^th...