H. M. v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Ms. Justice Faherty
• Judgment Date: 25 August 2015
• Neutral Citation: [2015] IEHC 799
• Docket Number: [2012 No. 771 J.R.]
• Court: High Court
• Date: 25 August 2015

[2015] IEHC 799

THE HIGH COURT

JUDICIAL REVIEW

Faherty J.

[2012 No. 771 J.R.]

BETWEEN

H. M.

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

Asylum, Immigration & Nationality – Refugee Appeals Tribunal – Judicial review – Order of certiorari – Deportation order – Failed asylum seeker – S. 5 of the Refugee Act, 1996 – Whether the applicant made out appropriate challenge.

Facts: The applicant sought an order of certiorari quashing the deportation decision of the respondent made against the applicant. The respondent considered s. 3(6) of the Immigration Act, 1999 and s. 5 of the Refugee Act 1996. The respondent stated that the applicant had failed to prove the existence of refoulement in the present case. The applicant argued that the conclusion of the respondent would be unreasonable and/or irrational. The applicant contended that the respondent had failed to analyze the content of the country of origin information.

Ms. Justice Faherty held that the application for an order of certiorari would be granted. The Court quashed the deportation decision of the respondent. The Court observed that the respondent had failed to “take into account” the country of origin information of the applicant. The Court found that the substantial grounds for the granting of such an order had been made out.

JUDGMENT of Ms. Justice Faherty delivered on the 25th day of August 2015

1 This is a telescoped application for judicial review of the decision of the Minister and in respect of which an order of certiorari is sought quashing the deportation order made against the applicant.

Background

2 The applicant is an Iranian national who claims to have left Iran in 2002. On his account, he travelled to Greece where he claimed asylum which was refused in 2005. He claims that he left Greece in 2006 and travelled to France where he remained for two months. He arrived in this state in June, 2006 and made an application for asylum on 27th June, 2006. He completed a questionnaire which was received by ORAC on 6th July, 2006. An English translation of that document was obtained by ORAC on 21st July, 2006. The applicant did not remain in the state and in August 2006 he entered the UK using a forged Greek passport. He was subsequently arrested at Luton airport attempting to check-in for a flight to Canada. He was duly sentenced in the UK to ten months imprisonment for possession of a false document. He was released on 2nd February, 2007. He attempted to claim asylum in the UK on 19th March, 2007 but was returned to this state on 30th July, 2007.

3 On 2nd August, 2007, the applicant received correspondence from ORAC advising that his application for asylum was deemed withdrawn. Following his request for a ‘status letter’, he was written to on 11th July, 2008 by the Irish Naturalisation and Immigration Service and advised that ‘[his] application for asylum in the State has been refused’ and that ‘[c]onsideration is being given at present under Section 3 of the Immigration Act, 1999, as to whether [the applicant] should be given Leave to Remain in the State or returned to [his] country of origin.’

4 According to an affidavit sworn on 4th September, 2012 by the applicant's present solicitor, at the time the applicant's asylum application was deemed withdrawn, he was issued with a s.3 ‘proposal to deport’ letter, although the file furnished to the applicant's solicitor from the applicant's erstwhile legal representatives, the Refugee Legal Service, did not contain a copy of that letter. In any event, by letter of 14th August, 2009, the applicant's present solicitor made an application on his behalf for subsidiary protection and leave to remain, duly enclosing forms CP/01 Part 1 and 2 as completed and signed by the applicant.

5 Appended to the application was country of origin information, including two reports on the general human rights situation in Iran and two which referred to the risks posed to failed asylum seekers. Extracts from the said information were quoted in the applicant's solicitor's letter of 14th August, 2009.

The case made by the applicant was synopsised in the body of the letter, as follows:-‘[We] refer you to the appalling human rights situation in Iran which, it is submitted, constitutes both compelling humanitarian considerations in favour of granting leave to remain and also shows that deportation of our client would be in breach of section 5 of the Refugee Act, 1996.’

6 On 5th May, 2011, the applicant withdrew his subsidiary protection application and, through his solicitors, advised that he wished to rely on his application for leave to remain and further advised that the information forwarded with the previous letter of 14th August, 2009 was being relied on for the leave to remain application. Enclosed with the 5th May, 2011 letter were a number of country of origin information reports, an identification document for the applicant, a number of references and educational certificates in support of the leave to remain application and a short medical report from the applicant's general practitioner detailing the medical treatment being afforded to him for depression. The 5th May, 2011 letter referred to the ‘ongoing pattern of serious human rights violations in Iran’ and quoted extracts from the three country of origin information reports furnished with the letter. The letter requested confirmation of the applicant's leave to remain in the state ‘on stamp 4 terms’ and stated that ‘having regard to the very poor human rights situation in Iran and … the information previously submitted that any deportation of [the applicant] would be in breach of the State's obligations under Section 5 of the Refugee Act 1996 as well as [the applicant's] rights [sic.] the European Convention on Human Rights, in particular Articles 3 and 8 thereof.’

7 The Minister signed the deportation order on 2nd August, 2012, following the preparation and submission of an examination of the applicant's file under s.3 of the 1999 Act, completed on 19th July, 2012 by an Executive Officer in the Minister's department which was reviewed on the same date by a Higher Executive Officer. The examination of file recommended a deportation order in respect of the applicant. It recorded that the applicant's case ‘was considered under Section 3(6) of the Immigration Act, 1999 and Section 5 of the Refugee Act 1996, as amended. Refoulement was not found to be an issue in this case.’ In addition, no issue was found to arise under s. 4 of the Criminal Justice (UN Convention against Torture) Act, 2000. Consideration was also given to private and family rights under Article 8 of the European Convention on Human Rights.

Grounds of challenge

8 In summary, the grounds of challenge as set out in the statement of grounds are as follows:-

i. With respect to the conclusions contained in the analysis of filed document with regard to s.5 of the Refugee Act, 1996 – that refoulement was not found to be an issue in the applicant's case and that deporting him would not be contrary to s.5, and that the applicant would not be at risk pursuant to s.5 because he was not involved in political parties in Iran, these conclusions are unreasonable and/or irrational and are not supported by the content of the country of origin information reports that were considered by, and extracted from, in the analysis document, nor are they supported by the content of the available country information;

ii. With respect to the conclusions contained in the analysis of the filed document with regard to s.4 of the Criminal Justice (UN Convention against Torture) Act, 2000 – that repatriating the applicant would not be contrary to that section and that no issue arises under s.4 of that Act, such conclusions are unreasonable and/or irrational and are not supported by the content of the country reports that were before, and were considered by, the respondent;

iii. The conclusion reached with respect to risk as a failed asylum seeker in the analysis document pursuant to s.5 of the Refugee Act, 1996, and with respect to torture – that no issue arises in respect of these risks- is unreasonable and irrational and is not supported by the content of the country of origin information and is internally illogical having regard to the conclusion with respect to failed asylum seekers reached elsewhere in the analysis document. The country of origin information before and considered by the respondent with respect to failed asylum seekers supports the view that those having claimed asylum abroad on political grounds and/or on the basis of being opposed to the regime, do face a risk to life and freedom and/or of torture, as acknowledged in the examination file;

iv. With respect to s.3 (6) (h) of the Immigration Act, 1999 and in failing to expressly consider whether humanitarian issues outside of the availability of medical treatment are such as to warrant the granting of leave to remain as against the making of a deportation order, the respondent has acted ultra vires s.3 (6) (h) of the Immigration Act, 1999 and/or has failed to consider directly relevant matters and factors. It is clear that a decision to deport to Iran given the deteriorating and ongoing human rights crisis there involves significant humanitarian issues including issues related to Iran's failure to observe its obligations under international human rights protection instruments and this state's obligation under those same instruments if deporting a non national to a country that engages in gross and endemic human rights abuses and violations. In purporting to adopt in respect of s. 3 (6) (h) of the Immigration Act, 1999 the subsequent findings in the analysis document concerning s.5 of the Refugee Act, 1996 and s.4 of the Criminal Justice (UN Convention against Torture) Act, 2000 (which are absolute prohibitions in respect of repatriation) and in failing...