Gavrylyuk & Bensaada v Min for Justice

• Jurisdiction: Ireland
• Judge: MR JUSTICE BIRMINGHAM
• Judgment Date: 14 October 2008
• Neutral Citation: [2008] IEHC 321
• Court: High Court
• Docket Number: [2008 Nos. 336 and 458 JR]
• Date: 14 October 2008

[2008] IEHC 321

THE HIGH COURT

336 JR/2008

2008 458 JR

Gavrylyuk & Bensaada v Min for Justice

BETWEEN

GEORGIY GAVRYLYUK AND LYUDMILA GAVRYLYUK

AND

ADBELHAFID BENSAADA

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

REFUGEE ACT 1996 S5

H (N) & D (T) v MIN FOR JUSTICE UNREP FEENEY 27.7.2007 2007/27/5589

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS SI 518/2006 REG 4(2)

IMMIGRATION ACT 1999 S3

REFUGEE ACT 1999 S13

EUROPEAN COMMUNITIES ACT 1972 S3

EEC DIR 2004/83/EC ART 18

EEC DIR 2004/83/EC ART 2(e)

EEC DIR 2004/83/EC ART 15

IMMIGRATION ACT 1999 S3(2)(f)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS SI 518/2006 REG 4(1)(b)

WESTON v BORD PLEANÁLA UNREP MACMENAMIN 14.3.2008 2008 IEHC 71

MISHRA v MIN FOR JUSTICE 1996 1 IR 189

BRITISH OXYGEN CO LTD v MIN OF TECHNOLOGY 1971 AC 610

IRISH NATIONALITY AND CITIZENSHIP ACT 1956 S15(d)

INDUSTRIAL DEVELOPMENT ACT 1966 (UK) S1

Y (AM) v MIN FOR JUSTICE UNREP HEDIGAN 9.10.2008 2008 IEHC 306

IRISH TRUST BANK LTD v CENTRAL BANK OF IRELAND 1976-7 ILRM 50

BODE v MIN FOR JUSTICE UNREP SUPREME 20.12.2007 2007/6/1033

NICOLAU, STATE v BORD UCHTÁLA 1966 IR 567

O'BRIEN v KEOGH & O'BRIEN 1972 IR 144

DE B ÚRCA & ANDERSON v AG 1976 IR 38

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 3

REFUGEE ACT 1996 S5(1)

CRIMINAL JUSTICE (UNITED NATIONS CONVENTION AGAINST TORTURE) ACT 2000 S4(1)

CRIMINAL JUSTICE (UNITED NATIONS CONVENTION AGAINST TORTURE) ACT 2000 S1(1)

CRIMINAL JUSTICE ACT 2006 S186

CRIMINAL JUSTICE ACT 2006 (COMMENCEMENT ORDER) 2006 SI 390/2006

LELIMO v MIN FOR JUSTICE UNREP CLARKE 30.11.2004 2004/27/6351

IMMIGRATION

Subsidiary protection

Deportation - Deportation orders made - Application for subsidiary protection under Qualification Directive - Minister's discretion to consider application for subsidiary protection where deportation order made prior to entry into force of Regulations of 2006 - Whether new facts or circumstances shown - Whether decision to refuse to consider application for subsidiary protection discriminatory - NH v Minister for Justice [2007] IEHC 277 (Unrep, Feeney J, 27/7/2007) followed; The State (Nicolaou) v An Bord Uchtála [1966] IR 567, O'Brien v Keogh & O'Brien [1972] IR 144 and De Burca v Attorney General [1976] I.R. 38 applied; Lelimo v Minister for Justice [2004] IEHC 390 (Unrep, Clarke J, 30/11/2004), Weston v An Bord Pleanála [2008] IEHC 71 (Unrep, MacMenamin J, 14/3/2008), Mishra v Minister for Justice [1996] 1 IR 189, British Oxygen Co v Bd of Trade[1971] AC 610 and Yesilova v Minister for Justice (Unrep, Hedigan J, 9/10/2008) considered - Council Directive 2004/83/EC, articles 2(e) and 15 - European Communities (Eligibility for Protection Regulations) 2006 (SI 518/2006), reg 4(2) - 3rd applicant granted relief (2008/336 & 458JR - Birmingham J - 14/10/2008) [2008] IEHC 321

Gavrylyuk v Minister for Justice, Equality and Law Reform

Facts: the applicants had been served with deportation orders by the respondent. Subsequent to that, the European Communities (Eligibility for Protection) Regulations 2006 were implemented. They introduced a system whereby unsuccessful asylum seekers could make applications for subsidiary protection to the respondent. The High Court in

H. v. Minister for Justice

[2007] IEHC 277 declared that the respondent had a discretion to receive such applications, notwithstanding that they had been made subsequent to the service of a deportation order on the applicants in question if fresh facts or circumstances had arisen since the making of the deportation order. Following that decision, the applicants re-submitted their applications for subsidiary protection to the respondent. The respondent refused to consider those applications on the basis that no new facts or circumstances had been established. They sought leave to apply for judicial review of the decision. They contended that the respondent had unlawfully fettered the exercise of his discretion under regulation 4(2) of the Regulations of 2006 by refusing to exercise that discretion unless they had demonstrated altered circumstances and/or that he was wrong to suggest that there were no grounds for the exercise of his discretion. In addition, the second applicant contended that the respondent had failed to exercise his discretion on the basis of a wider definition of "serious harm" than had previously been the situation which had been introduced by the Regulations of 2006.

Held by Birmingham J in refusing the relief sought by the first applicants and granting the second applicant the relief sought that there was a ministerial discretion under regulation 4(2) in cases where the grounds upon which the subsidiary protection application was made were not the same or identical to the matters already considered at the deportation order stage. The respondent was entitled to require applicants to establish changed circumstances and there was nothing unfair in requiring that of the applicants when no similar requirement had been made of those individuals who had not been notified that deportation orders had been already made.

That the first applicants had not pointed to a change in their personal circumstances of such significance that the respondent was obliged to consider exercising his discretion under regulation 4(2). In a situation where it was accepted that the second applicant had been the victim of torture in the past, the wider definition of "serious harm" introduced by the Regulations of 2006 amounted to changed circumstances entitling him to the relief sought.

Reporter: P.C.

1 Each of the applicants in these cases is a person who is seeking subsidiary protection and has sought to have an application for subsidiary protection under the European Communities (Eligibility for Protection) Regulations ( S.I. No. 518 of 2006) considered on a substantive basis by the Minister for Justice, Equality and Law Reform ("the Minister") and has failed in that regard. Both of these cases give rise to similar legal issues and, indeed, it is understood that similar issues arise in a number of other cases. These cases have been selected by Finlay Geoghegan J., the Judge having charge of the asylum list, as 'test cases'.

2 At the outset, it is of assistance to refer to the basis on which the claim for subsidiary protection is advanced in each case, and to say something of the prior procedural history of each case.

I. The case of Georgiy Gavrylyuk and Lyudmila Gavrylyuk.

3 These applicants, who are husband and wife, are nationals of Ukraine, although the first named applicant is of Romanian ethnicity. The applicants state that they are at risk of imprisonment in Ukraine as a result of difficulties that they are experiencing with the Ukrainian tax authorities and, more specifically, the Ukrainian tax police. They say that if imprisoned, the conditions to which they would be subjected would amount to cruel, inhuman and degrading treatment.

The first named applicant - Georgiy Gavrylyuk

4 The first named applicant arrived in this State in October, 2000. It appears that he was in possession of a false Lithuanian passport. Thereafter, he applied for asylum in the normal way. In his interview with the Office of the Refugee Applications Commissioner (ORAC), he explained that he was seeking asylum for the following reasons:

"Because of harsh economic situation and low standards of living, it is not possible to support a family. I had my own business but everyone demanded bribes and did not allow me to work in peace. Corruption is everywhere and without connections in high places, you are nobody. This happened to me. They started persecuting me, demanding money. They threatened me and my family. I had to come to your country and seek asylum. I earnestly request you to give me asylum as at home I have no life."

5 In the course of the ORAC questionnaire and interview, he also refers to the fact that he was incorrectly fined and threatened to be put in prison if he did not pay the fine, and he explains that the maximum penalty for the offence with which he could be charged is five years imprisonment.

6 In the section 13 report and decision/recommendation, the ORAC officer formed the view that the first named applicant was seeking to avoid prosecution and not persecution. The officer points out that in Ireland, a person may be required, under law, to repay unpaid taxes, to meet any fines accruing on unpaid taxes, and ultimately to go to prison for continued failure to meet such payments. The ORAC officer raises no issues about the credibility of the applicant or his account of what had occurred in the Ukraine. Essentially, the basis for the recommendation is that there is no Convention nexus for his fear of being imprisoned.

7 The first named applicant exercised his right of appeal, referring in particular to his concerns about the relevance of his Romanian origin and his reluctance to pay bribes to the police. The RAT refused his appeal on the express basis that there was no Convention ground for his fear of being imprisoned in the Ukraine. Again, the Tribunal Member did not raise any issues as to his credibility.

8 Representations made on his behalf seeking humanitarian leave to remain reiterated the first named applicant's fears of being returned to Ukraine and a recurrence of the problems he had experienced there. These representations requested that Ireland honour its humanitarian obligations by not returning persons to countries in which those persons do not enjoy full rights, liberty, security and access to necessary medical care. It was also stated that the first named applicant believed that he should be recognised as a refugee and that to return him to Ukraine would amount to a breach of the prohibition of refoulement.

The second named...