Hamurari v Minister for Justice, Equality and Law Reform and Others
|Mr Justice Clarke
|09 November 2005
| IEHC 463
|[No. 1140 JR/2004]
|09 November 2005
 IEHC 463
THE HIGH COURT
REFUGEE ACT 1996 S5IMMIGRATION ACT 1999 S3(6)
KOUAYPE v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (EAMES) UNREP HIGH COURT CLARKE 9.11.2005
CRIMINAL JUSTICE (UNITED NATIONS CONVENTION AGAINST TORTURE) ACT 2000 S4
UN CONVENTION AGAINST TORTURE & OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT 1984 ART 3
O v MIN FOR JUSTICE & ORS [BABY O CASE]
LELIMO v MIN FOR JUSTICE UNREP HIGH COURT CLARKE 30.11.2004 2004/27/6351
O'KEEFFE v BORD PLEANALA
GASHI v MIN FOR JUSTICE & ORS UNREP HIGH COURT CLARKE 3.12.2004 2004/19/4277
BENSAID v UNITED KINGDOM 2001 33 EHRR 205SCC v SWEDEN 2000 29 EHRR CD 245
SIBIYA v MIN FOR JUSTICE & ORS UNREP HIGH COURT BUTLER 2.12.2004 2004/47/10694
Material considerations - Failure to consider- Medical consequences of deportation order- Failed application for asylum - Whether special or changed circumstances - Whether lack of medical facilities torture - Whether deportation order defective - Failure to specify country applicant to be deported to -K(EH) v Minister for Justice, Equality and Law Reform  IEHC 380 (Unrep, Clarke J, 9/11/2005); Baby O v Minister for Justice ; S(C) v Minister for Justice, Equality and Law Reform  IEHC371 (Unrep, Butler J, 2/12/2004) and Bensaid v United Kingdom (2001) 33 EHRR 205considered - Criminal Justice (United Nations Convention Against Torture) Act2000 (No 11), s 4 - Refugee Act 1996 (No17), s 5 - Immigration Act 1999 (No 22), s3(6) - European Convention on Human Rights, article 3 - Leave refused; certificateto appeal granted (2004/1140JR - Clarke J -9/11/2005)  IEHC 463
H(I) v Minister for Justice, Equality and Law Reform
The applicant sought leave to challenge by way of judicial review a deportation order made in relation to him on the basis that if he was deported to his country of origin there was a possibility he would be discriminated against on the basis of his Russian ethnic origin in relation to treatment for a serious medical condition, which he suffered from. The applicant challenged the respondent’s decision on a number of grounds, including but not limited to the ground that the deportation order itself was defective by reason of failure to specify the destination of deportation.
Held by Clarke J. in adjourning the matter pending appeal on a related issue: That the applicant failed to establish an arguable case that the Minister was legally wrong in concluding that a deportation order should be issued. The issue regarding whether the failure to state the destination of deportation was a valid ground for challenging a deportation order was currently under appeal to the Supreme Court in the case of Sabia, JR 2003 No. 771, and in the circumstances this case was adjourned to clarify the precise terms of the issue which was the subject of a certificate in the Sabia case in order to issue a certificate in the same terms in this case.
In these proceedings the applicant seeks leave to challenge by way of judicial review a deportation order made in relation to him. The applicant is a Moldovan national who has deposed on affidavit to the fact that he fled Moldova in fear of persecution and arrived in this State on the 21st September 2001. He further states that he remains fearful for his safety if returned to Moldova. He says that after arriving in this State he applied for recognition as a refugee and went through the usual procedures which are required of those seeking such refugee status. Ultimately his application was rejected by the Refugee Appeals Commissioner, and an appeal followed to the Refugee Appeals Tribunal. The decision of that tribunal was also against a recommendation to the effect that the applicant should be given refugee status.
On the 31st December 2002, the applicant was advised by letter from the Minister's Department, that it was the Minister's intention to make a deportation order. Subsequent to that, a deportation order was actually made, and it is in respect of that deportation order that these proceedings have been issued.
In substance, the factual matters set out in the applicant's grounding affidavit, concern his medical condition. He indicates that he suffers from a severe form of arthritic condition. He contends that there may be discrimination against him on the basis of his Russian ethnic origin in relation to treatment for that medical condition, if returned to Moldova. Against that factual background, it is necessary to consider the legal issues which arise in this case.
First, the applicant contends that the Minister, in deciding to make the deportation order under challenge did not properly consider the issues which arise under both section 5 of the Refugee Act,1996 and section 3 (6) of the Immigration Act, 1999. In a decision which I delivered this morning in the case of Kouaype v. The Minister for Justice, Equality and Law Reform, I set out the principles by reference to which it is open to a person to seek to challenge the decision of the Minister to make a deportation order, where that person was a failed asylum seeker.
Having regard to those principles, it does not seem to me that the grounds put forward in respect of either section 5 or section 3 (6) are made out. For the reasons indicated in that judgment, it seems to me that, in the absence of special or changed circumstances, it is very difficult for a person who has failed the asylum process to challenge the decision of the
There are also questions as to the extent of the application of that section in relation to cases where the source of any such potential torture came from non-state agents. I addressed this issue to some extent inLelimo v. the Minister for Justice. However, it seems to me that on the facts of this case, the nature of the complaint of the applicant being in respect of the disparity in medical treatment that might be available to him if he were to remain in this jurisdiction on the one...
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