H (L) Georgia v Minister for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 28 October 2011
• Neutral Citation: [2011] IEHC 406
• Date: 28 October 2011
• Court: High Court

[2011] IEHC 406

THE HIGH COURT

[No. 1183 J.R./2008]

H (L) [Georgia] v Min for Justice

MR JUSTICE COOKE

APPROVED TEXT

JUDICIAL REVIEW

BETWEEN

L. H. [Georgia]

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

Abstract:

Immigration - Asylum - Judicial review - Georgia - Deportation - Refusal of consent - No new convincing evidence - Whether refusal of consent to second asylum application was amenable to review

Facts: The applicant sought leave for judicial review of a decision to refuse consent to the making of a second asylum application. The applicant was from Georgia and had been in Ireland since 2001. The Minister had concluded that there was no new convincing evidence to lead to a favourable view being taken of the case and refused consent. The applicant alleged inter alia that the refusal was irrational and unlawful as no proper consideration had taken place at any stage of the application, that the refusal and intention to deport were in breach of the prohibition on non-refoulement and that the refusal was in disregard of Article 13 of Council Directive 2004/83/EC, the Qualifications Directive.

Held by Cooke J. that the application for leave would be refused. It was consistent with the scheme of Article 32 of the Procedures Directive that the preliminary examination procedure envisaged in para. 3 could be applied in a case where refugee status has previously been refused because of the original asylum application has been deemed withdrawn as a result of the asylum seeker's failure to cooperate with it. The central argument did not raise any substantial ground as to the validity of the refusal of consent by the Minister.

Reporter: E.F.

1 1. In the motion before the Court, the applicant seeks leave to apply for judicial review of a decision made by the respondent on the 17 ^th October, 2008, refusing his consent to the making of a second application for asylum by the applicant.

2 2. The applicant is a national of Georgia who arrived in the State on the 29 ^th January, 2001, and applied for a declaration of refugee status. Having lodged his application with the Refugee Applications Commissioner, he was provided with accommodation at Hillcrest, Pembrokestown in Wexford. He was subsequently sent a letter dated the 27 ^th November, 2001 at that address summoning him to an interview at the office of the Commissioner on the 10 ^th January, 2002. He failed to attend. He was again written to at that address by letter dated the 11 ^th March, 2002, summoning him to the interview on the 26 ^th March, 2002. He again failed to attend. Both letters were apparently returned to the office of the Commissioner marked "Gone Away". On the 10 ^th April, 2002, letters were sent to that address and to an address at Viking Lodge Hotel, 24/36 Francis Street, Dublin, (an address at which he had apparently been lodged for a few days following his arrival and before being sent to Wexford) in which he was informed that in view of his failure to attend the interviews or to provide a reasonable explanation for non-attendance, the Commissioner proposed to recommend to the Minister that he should not be declared to be a refugee. Again, both letters were returned marked "Gone Away".

3 3. By a report and recommendation dated the 10 ^th April, 2002, under s. 13 of the Refugee Act 1996, (as amended) the Commissioner recommended to the Minister that the applicant should not be declared to be a refugee. In accordance with s. 11(11) of the Refugee Act 1996, (as amended) the application for a declaration of refugee status was deemed to have been withdrawn for failure to attend the interviews. On the 21 ^st June, 2002, the applicant was written to (again at both above addresses,) and given formal notice of the respondent's decision to refuse the declaration of refugee status pursuant to s. 17(1) of the Act of 1996. The letter also notified the applicant that the Minister was proposing to make a deportation order and he was advised that in accordance with s. 3 of the Immigration Act 1999, he might make written representations giving reasons as to why he should be allowed to remain temporarily in the State. No representations were received and a deportation order was subsequently made in respect of the applicant on the 9 ^th September, 2002, and notified to the applicant at both addresses on the 1 ^st November, 2002. The documents sent to the applicant by registered post were returned on the 6 ^th November, 2002, and the applicant failed subsequently to present as required at the Garda National Immigration Bureau in Dublin on the 8 ^th November, 2002.

4 4. Insofar as the Minister and the GNIB were concerned, nothing further was known as to the whereabouts of the applicant until he was apprehended and detained in Cloverhill Prison on the 29 ^th September, 2008, following a visit he made to the offices of the Commissioner. On the 9 ^th October, 2008, Ivan Williams, solicitor, wrote to the Department on the applicant's behalf, requesting that the applicant be permitted to make another application for asylum pursuant to s. 17(7) of the 1996 Act. In the letter Mr. Williams explained that the applicant had stayed at the Wexford address until October 2001, but then moved to Dublin because, it was said, he needed medical treatment and the house in Wexford was 8km away from a hospital and he had no means of getting to the hospital otherwise than on foot. As a result, he was no longer at the Wexford address when summoned for interview. In that letter the basis of the proposed application for asylum if consent was forthcoming was given as follows:

"Our client is from the Akmeta region of Georgia which is close to the Chechen border. He left Georgia in late 2000, in order to escape local militia who were insisting that he fight in the war against Russia. The reason pressure was being applied to him was that his mother is Chechen, although our client considers himself to be Georgian, and we enclose herewith a copy of his birth certificate and RAC identity card. In view of the urgency of this matter we have not been able to get a translation of the birth certificate but our client advises that the fourth line of the right hand column sets out his mother's name … which is Chechen. Out client lives in fear that, if returned, to Georgia, he will be imprisoned or tortured as a result of his failure to engage in the war against Russia."

5 5. Although the documentation relating to the original asylum application has not been put before the Court, it does not appear to be disputed that the claim thus outlined is identical to the claim originally made in January 2001.

6 6. In the memorandum setting out the analysis of the application for consent and the recommendation of the Ministerial Decisions Unit of the Department, the basis for the application is set out, followed by a summary of the outcome of the original asylum application. The "Examination of Application" is then as follows:-

"I have examined the case put forward by the applicant. He states that he was taken to his accommodation centre in Wexford by bus, he left there and went to live in Dublin to be near a hospital as he was suffering from a medical condition. He failed to inform the ORAC of his change of address at this time. He subsequently arrived in ORAC on the 29 ^th September, 2008, asking at what stage his asylum case was at. This was some seven years after he first applied for asylum, no explanation has been provided to ORAC or (the Unit) as to (the applicant's) whereabouts for the past seven years."

7 7. The material supplied to the applicant in January 2001, is then listed, including the information leaflet outlining the procedures for processing applications for refugee status. The officer then gives the following conclusion and recommendation:

"No new convincing evidence has been supplied to indicate that a favourable view might be taken if L. H. was readmitted to the process. Therefore, I recommend that L. H.'s application for readmission under s. 17(7) of the Refugee Act 1996, be refused."

8 8. It is in the context of that history and those circumstances that leave is sought to apply for an order of certiorari quashing the Minister's refusal of consent. The four grounds upon which it is proposed to seek such relief can be summarised as follows:-

1 The refusal is irrational and thereby unlawful in that no proper consideration has taken place at any stage of the applicant's application.

2 The refusal and the intention of the respondent to deport the applicant are, or have the potential to be in breach of the prohibition of non-refoulement in s. 5 of the Act of 1996.

3 The refusal was made in disregard of Article 13 of Council Directive 2004/83/EC of the 29 ^th April, 2004.

4 Inadequate or insufficient or no consideration of the applicant's refugee claim.

9 9. On foot of those grounds, the central argument advanced on behalf of the applicant at the hearing of the motion could be expressed as follows. The fundamental obligation of the Minister under the Geneva Convention, under the Act of 1996, and in compliance with the standards required by the above Council Directive is to ensure that an application for asylum is fully investigated, assessed and determined. Because the original application in this case was deemed withdrawn, there has been no such investigation or assessment and the Minister is accordingly obliged to give his consent to the application being made even at this remove from the date of the original claim. It is argued that the Minister applied a wrong test in basing his refusal on the fact that "no new convincing evidence" had been supplied which could lead to a favourable view being taken of the asylum claim. There is no such criterion or condition in s. 17(7) and the scope of that...