H.I. v The Minister for Justice and Equality, A.I. v The Minister for Justice and Equality

JurisdictionIreland
JudgeMs. Justice Máire Whelan
Judgment Date05 February 2020
Neutral Citation[2020] IECA 20
Date05 February 2020
CourtCourt of Appeal (Ireland)
Docket NumberAppeal No: 2018/216
BETWEEN/
H.I. AND H.I. (ALBANIA)
APPELLANTS
-AND-
THE MINISTER FOR JUSTICE AND EQUALITY, THE ATTORNEY GENERAL

AND

IRELAND
RESPONDENTS
AND
BETWEEN/
A.I., B.I. AND H.I. (A MINOR SUING BY HIS FATHER AND NEXT FRIEND, A.I.)
APPELLANTS
-AND-
THE MINISTER FOR JUSTICE AND EQUALITY, THE ATTORNEY GENERAL

AND

IRELAND
RESPONDENTS

[2020] IECA 20

Baker J.

Whelan J.

McGovern J.

Appeal No: 2018/216

Appeal No: 2018/217

THE COURT OF APPEAL

Judicial review – Subsidiary protection – Deportation orders – Appellant seeking to quash the decisions of the respondent refusing subsidiary protection – Whether the High Court was correct in finding that the respondent’s conclusion on state protection was rational/lawful

Facts: The High Court (Humphreys J), on the 19th April, 2018, refused the appellants’ applications for certiorari seeking to quash the decisions of the first respondent, the Minister for Justice and Equality, to refuse subsidiary protection. The Minister made consequent deportation orders in respect of the five appellants. The appellants appealed to the Court of Appeal from those High Court judgments and orders. The appellants primarily relied on two grounds: (i) whether the High Court was correct in finding that the Minister’s conclusion on state protection was rational/lawful; and (ii) whether the High Court was correct in finding that the decisions could be sustained on a finding of lack of credibility. The respondents, the Minister, the Attorney General and Ireland, opposed the appeals in their entirety.

Held by Whelan J that the substance of the decision in each case refusing subsidiary protection was based primarily on country of origin information (COI) and the trial judge was correct in his conclusions that the Refugee Appeals Tribunal findings of lack of credibility were an additional distinct material ground in each case which supported the Minister’s decision in refusing the applications for subsidiary protection. Whelan J held that it was clear from COI information quoted extensively by the Minister in the subsidiary protection decisions which the trial judge refused to quash that there was ample evidence before the Minister to which he had regard and which was referred to in the decisions, which entitled him to reasonably conclude that state protection was available to the appellants and that they would be adequately protected by the police upon their return to Albania. Whelan J held that it was evident that the reasoning of the Minister involved reliance on COI from credible sources in each case and a careful calibration of the various competing and countervailing factors before arriving at the conclusion which he did in refusing subsidiary protection. Whelan J held that no decision was based on departmental or ministerial knowledge alone as to the availability of state protection. It did not appear to Whelan J to be appropriate that the Court of Appeal should refer any question for a preliminary ruling since to do so would be predicated on an unduly artificial and distorted construction of the succinct judgment of the High Court in the first place. Whelan J held that no stateable ground was identified for contending that the determination of the High Court judge refusing judicial review was irrational or otherwise unreasonable. Whelan J held that no basis had been established which would warrant interfering with the decision of the High Court.

Whelan J held that the appeals would be dismissed.

Appeals dismissed.

JUDGMENT of Ms. Justice Máire Whelan delivered on the 5th day of February 2020
1

These appeals arise from the orders made in the High Court on the 19th April, 2018 following a judgment ( H.I. and H.I. (Albania) v The Minister for Justice and Equality, The Attorney General and Ireland and A.I. and B.I. and H.I. (a minor suing by his father and next friend H.I.) v The Minister for Justice and Equality, The Attorney General and Ireland [2018] I.E.H.C. 275) of Humphreys J. delivered on the said date refusing the appellants' applications for certiorari seeking to quash the decisions of the Minister to refuse subsidiary protection. The Minister made consequent deportation orders in respect of the five appellants.

Background and Procedural History
2

The appellants are five members of an Albanian family who identify as members of the Gabel ethnic community. Appeal No. 2018/216 relates to a husband and wife, H.I. and H.I. (hereafter the “first appellant” and “second appellant” respectively). Appeal No. 2018/217 relates to their son A.I., his wife B.I. and their minor son H.I. (hereafter the “third appellant”, “fourth appellant” and “fifth appellant” respectively). The first and second appellants arrived in the State in August, 2005. The third, fourth and fifth appellants arrived in July, 2008.

3

Asylum applications were submitted by the appellants pursuant to s. 17 of the Refugee Act, 1996 (as amended) with the underlying protection claim in each case relating to persecution as a result of their Gabel ethnicity claimed to be suffered by the appellants at the hands of the Albanian authorities or at the hands of third parties operating with relative impunity in that state. The applications of the first and second appellants for asylum were made on the 31st August, 2005, almost fourteen and a half years ago.

4

The third, fourth and fifth appellants travelled to Ireland on foot of false Czech passports which they had acquired in Bologna, Italy in the days prior to their travelling to this jurisdiction in July 2008. The third appellant's application was made on the 18th July, 2008 with a further application made by him on the 5th August, 2008, over eleven years ago. An application for asylum on behalf of the fourth appellant and her child the fifth appellant was made on the 21st July, 2008, approximately eleven and a half years ago. Accordingly, the decision made in relation to her asylum application also extended to the fifth appellant.

Decisions on asylum applications
5

Each application was determined at first instance by the Refugee Applications Commissioner (“ORAC”) which recommended that the applications be refused.

6

Each decision was the subject of an appeal to the Refugee Appeals Tribunal (“RAT”). In each case the RAT concluded that the account presented did not serve to advance the well-foundedness of a fear based on alleged experiences undergone in Albania. The Tribunal went on to conclude also that the accounts given were implausible. Even if credible, they did not of itself go to the essence or the core of the individual applicant's application. The RAT concluded in respect of each application that the account given failed to demonstrate that the appellants had presented a subjectively or objectively well-founded fear of persecution.

7

In each case the RAT concluded that the recommendation made by the ORAC in the first place ought to be upheld and the appeals dismissed.

Notification of options/Three options letters
8

Following conclusion of the RAT process details of the procedure and the sequence to be followed were furnished to each appellant by letter.

The options included: -

i. Option 1 – leave the State before the Minister decides on a deportation order

ii. Option 2 – consent to a deportation order, or

iii. Option 3 – apply for subsidiary protection and/make representations to remain temporarily in the State.

The appellants elected for Option 3.

Applications for subsidiary protection
9

The appellants thereafter each applied for subsidiary protection pursuant to European Communities (Eligibility for Protection) Regulations 2006 ( S.I. 518/2006) (the “2006 Regulations”). Each relied on essentially identical grounds to those which had been advanced and rejected in relation to their applications for asylum status in the first instance.

10

Consideration of the subsidiary protection claims was made within the Department of Justice originally by an Executive Officer and thereafter considered and approved by a Higher Executive Officer, and then determined by an Assistant Principal for ministerial approval. The assessment in each case considered extensive country of origin information (“COI”) and concluded on the basis of same that whilst problems existed in the Albanian police force with regards to unprofessional behaviour and corruption there was a functioning police force in Albania. An ombudsman was in place who processed and determined complaints against the police. Statistical data in relation to the ombudsman was referred to. The determinations concluded that there were structures in place for making complaints against members of the police force and that the ombudsman was willing to investigate such cases.

Subsidiary protection decisions
11

It was asserted in each application that, if returned, the appellant faced a real risk of “serious harm” within the meaning of Article 2 of Directive 2004/83/EC (the Qualification Directive).

12

In deciding each subsidiary protection application, the Minister considered the key issue to be: -

“… whether substantial grounds have been shown for believing that [the applicant], if returned to Albania, would face a risk of ‘death penalty or execution’ or ‘torture or inhuman or degrading treatment or punishment’ and critically, whether protection is available to and accessible by the applicant.”

13

In determining the availability and adequacy of state protection, the assessments by the Minister included a consideration of COI obtained from the US Department of State Report for Albania, published on 11th March, 2010 which was cited in detail.

14

The Minister concluded that the COI: -

“… shows that there is a functioning police force in Albania which the Applicant could seek protection from should [the applicant] encounter problems because of … ethnicity. While it is acknowledged that problems exist in the Albanian police force with regards to unprofessional behaviour and...

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