H.A. (Chad) v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 29 January 2019
• Neutral Citation: [2019] IEHC 57
• Docket Number: [2018 No. 993 J.R.]
• Court: High Court
• Date: 29 January 2019

BETWEEN

H.A. (CHAD)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY, THE ATTORNEY GENERAL

AND

IRELAND

RESPONDENTS

[2019] IEHC 57

[2018 No. 993 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Immigration and asylum – Subsidiary protection – Revocation application – Applicant seeking revocation – Whether the decision of the respondent to affirm the deportation order was disproportionate

Facts: The applicant, a national of Chad, came to Ireland via Cameroon and the UK. He arrived in the State on 16th November, 2007. He applied for asylum. That was rejected by the Refugee Applications Commissioner. He appealed to the Refugee Appeals Tribunal. That appeal was also rejected. He was notified on 11th September, 2009 that the first respondent, the Minister for Justice and Equality, proposed making a deportation order and on 1st October, 2009 he applied for subsidiary protection and for leave to remain. The Minister rejected the subsidiary protection application on 3rd July, 2012 and made a deportation order against the applicant at the same time. In June, 2015 the McMahon report on direct provision and related issues was published. A revocation application was then made by the applicant on 1st March, 2016. That s. 3(11) application was refused by the Minister on 23rd March, 2017. A second revocation application was made by the applicant on 7th August, 2018. That was refused on 15th October, 2018. Proceedings were filed on 28th November, 2018 seeking certiorari of that refusal, and the High Court (Humphreys J) granted leave on 3rd December, 2018. The applicant alleged that: 1) the decision of the Minister to affirm the deportation order was disproportionate due to the failure to strike a fair balance when assessing the relative weight of the competing factors, including the six-year time lapse since the making of the deportation order, the McMahon Working Group Report and the interference with the applicant’s private life; 2) the Minister erred in law in confining the analysis to the parameters of 2007 High Court case law without any regard to subsequent decisions of the Supreme Court and Court of Appeal; 3) the Minister erred in law in failing to vindicate the principle of non-refoulement; and 4) the Minister erred in law in failing to consider the principle of refoulement beyond making the bland finding that the parallel decisions of ORAT, RAT and the Minister ‘remain valid in law’.

Held by Humphreys J that, insofar as proportionality was concerned, the weighing of factors was primarily a matter for the Minister. Humphreys J held that the error in the wording of the decision, insofar as it suggested that the applicant might have met condition C but not condition B, was harmless because what was clear was that the applicant did evade and that evaders are not covered by the McMahon approach. Humphreys J held that in the absence of demonstrating an unreasonable failure to address changed circumstances an applicant is not entitled to certiorari of a refusal to revoke a deportation order. Humphreys J held that, in the absence of anything significantly new, the Minister was entitled to follow the logic of the previous decisions adverse to the applicant.

Humphreys J held that the application would be dismissed and that the stay on deportation would be discharged.

Application dismissed.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 29th day of January, 2019

1 The applicant is a national of Chad and was born in 1984. He was in possession of a passport from his own country issued on 5th September, 2005. On 14th July, 2007 he was issued with a visa to enter the U.K. That visa was issued on his presentation in person at the U.K. diplomatic and consular mission in Yaoundé, Cameroon. In his asylum application he later denied having travelled outside his country of origin and denied having a visa. Instead he claimed he left Chad in October, 2007 via Libya with a dramatic story involving groups of prisoners, not having a passport and smugglers taking over. However, the documentary material makes clear he came to Ireland via Cameroon and the U.K.

2 The applicant arrived in the State on 16th November, 2007. He applied for asylum. That was rejected by the Refugee Applications Commissioner. He appealed to the Refugee Appeals Tribunal. That appeal was also rejected, although the decisions have not been produced by either party. It is clear from the subsidiary protection decision, which was produced, that the commissioner raised many issues of credibility and plausibility and the tribunal concluded that ‘ the appellant was not credible in relation to core aspects of his evidence’. He was notified on 11th September, 2009 that the Minister proposed making a deportation order and on 1st October, 2009 he applied for subsidiary protection and for leave to remain.

3 On 20th January, 2012 the U.K. border agency confirmed to the Department of Justice and Equality that the applicant had been issued with a U.K. visa. On 10th February, 2012 in a response to this revelation, his solicitors at the time, the Legal Aid Board, wrote to the Department stating that ‘ our client instructs his expression of regret to the Minister for providing false information in relation to his asylum application’. The applicant then further abused the protection system by improperly leaving the State without permission and going to the U.K. That put his protestations of remorse into some context. There he applied for asylum on 23rd May, 2012. It was then decided on 26th June, 2012 to return him to the State under the Dublin system. The Minister then rejected the subsidiary protection application on 3rd July, 2012 and made a deportation order against the applicant at the same time. The analysis discussed the issue of refoulement and notes that the documents submitted by the applicant had been dealt with ‘ comprehensively’ by the commissioner. It concludes in the light of the applicant's false statements that ‘it is reasonable to consider that the applicant's...