Hanna Irfan v Minister for Justice, Equality and Law Reform

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 23 November 2010
• Neutral Citation: [2010] IEHC 422
• Court: High Court
• Date: 23 November 2010

Irfan v Min for Justice

MR JUSTICE COOKE

APPROVED TEXT

JUDICIAL REVIEW

BETWEEN

HANNA IRFAN

APPLICANT

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

[2010] IEHC 422

[No. 51 J.R./2010]

THE HIGH COURT

IMMIGRATION

Deportation

Revocation- Earthquake in Pakistan - New material submitted - Revocation refused - Prohibition on refoulement - Whether adequate reasons why prohibition did not apply - Whether decision irrational in light of country of origin information - Limited grounds to challenge valid deportation order - Continuation of prohibition after order made - Respondent under obligation to ensure prohibition not infringed on implementation of order - Limited obligation to state reasons for rejection of request for revocation - Whether new material constituted evidence of material change in circumstances - Whether change of circumstances amounting to risk prohibition infringed on implementation of order - Dada v Minister for Justice [2006] IEHC 140 (Unrep, Ó Néill J, 3/5/2006), Akujobi v Minister for Justice [2007] IEHC 19 [2007] 3 IR 603, O v Minister for Justice [2008] IEHC 325 (Unrep, Hedigan J, 22/10/2008), A v Minister for Justice (Unrep, Cooke J, 17/12/2009) and Mishra v Minister for Justice [1996] 1 IR 189 applied; Meadows v Minister for Justice [2010] IESC 3 (Unrep, SC, 21/1/2010) considered - Immigration Act 1999 (No 22), s 3(11) - Council Directive 2004/83/EC - Refugee Act 1996 (No 17), s 5 - Application refused - (2010/51JR - Cooke J - 23/11/2010) [2010] IEHC 422

Irfan v Minister for Justice

Facts The applicant sought an order of certiorari by way of judicial review, quashing the decision of the respondent refusing to revoke a deportation order which had been made in respect of the applicant on 20 January 2006. It was submitted on behalf of the applicant that the respondent's decision gave no adequate reason why the prohibition on refoulement did not apply to the applicant, given the clear evidence of persecution of Christians and lack of protection for them by the police authorities, in the information on which the decision was based. It was also argued that insofar as the decision could be read as containing any reasons for rejecting the claim that the prohibition on refoulement was applicable, the decision was irrational and contained internal inconsistencies.

Held by Cooke J. in refusing the application: That having read the decision of the respondent, that decision could not be quashed upon the ground that there was a failure to give reasons. The issue faced by the respondent when making the relevant decision was whether the fresh information being put before him was evidence of such a material change of circumstances as to give rise to a risk of infringement of the prohibition on refoulement if the existing deportation order was implemented. The information put before the applicant herein did not relate to any new or different risk of persecution or any altered circumstance. Furthermore, the decision of the respondent was not so flawed as to be condemned as irrational or unreasonable having regard to the fact that the respondent was considering an application to revoke an existing deportation.

Reporter: L.O'S.

REFUGEE ACT 1996 S5

MEADOWS v MIN FOR JUSTICE & ORS UNREP SUPREME 21.1.2010 2010 IESC 3

IMMIGRATION ACT 1999 S3(11)

DADA v MIN FOR JUSTICE UNREP O'NEILL 3.5.2006 2006/14/2921 2006 IEHC 140

AKUJOBI v MIN FOR JUSTICE 2007 3 IR 603 2007 IEHC 19

O (O) (AN INFANT) & ORS v MIN FOR JUSTICE UNREP HEDIGAN 22.10.2008 2008/47/10244 2008 IEHC 325

A (M) v MIN FOR JUSTICE UNREP HIGH 17.12.2009 (EX TEMPORE)

MISHRA v MIN FOR JUSTICE & ORS 1996 1 IR 189 1996/13/4227

IMMIGRATION ACT 1999 S3

EEC DIR 2004/83 RECITAL 26

1 1. By order of the 25 ^th January, 2010, the Court granted leave for the present application for judicial review of the respondent's decision of 1 ^st December, 2009, refusing revocation of a deportation order which had been made in respect of the applicant on the 20 ^th January, 2006. The applicant seeks to have that refusal ("the Refusal Decision") quashed.

2 2. The background to the case is as follows. The applicant is a married woman from Pakistan who arrived in the State in 2004. She is a Christian. She claimed asylum on the basis of fearing persecution if returned on account of her Christian faith. She gave an account of having worked for a Muslim employer who had insisted that she work on Sundays and that she convert to Islam in order to enable her to do so. She says that she was then threatened by that employer and his son and was forced to quit her job when she said she would report her mistreatment to the police. She claimed that the employer's family said that they had bribed the police and that they would kill her.

3 3. Her asylum claim was unsuccessful before the Refugee Applications Commissioner and her appeal before the Refugee Appeals Tribunal was rejected. She made representations against the proposal to deport her and sought permission to remain in the State on humanitarian grounds. This was refused and the deportation order was made. The consideration of the making of a deportation order coincided with the devastating consequences of an earthquake in Pakistan in the autumn of 2005 and the Minister was asked on that basis to reconsider returning her to Pakistan in the light of those changed circumstances. The Minister agreed to do so and appears to have treated the request as an application to revoke the deportation order.

4 4. For some unexplained reason no decision on the application to revoke was taken for almost four years and during that time six further sets of representations were made to the Minister accompanied by additional documents which had been received from Pakistan. For the most part, these were not related to the consequences of the earthquake but to new information as to the basis of the original fear of persecution, namely the alleged risk she would face of severe harm on account of her religion if returned to Pakistan. This new material consisted primarily of letters and documents received from Pakistan and was directed at showing the continuing and enhanced instances of violence against the Christian minority in the Gujranwala district from which the applicant came, but included also reports of complaints made formally to the police in respect of incidents involving attacks and false accusations made against members of the applicant's family.

5 5. The challenge to the Refusal Decision is directed at two facets of the Minister's decision as explained by him in the memorandum entitled "Consideration of Application for Revocation of Deportation Order in respect of Hanna Irfan" (hereinafter "the memorandum"). This had been written by the Repatriation Unit of the Department on the 28 ^th October, 2009 and finally signed off as the recommendation to the Minister for his decision by an assistant principal of the Department on the 6 ^th November, 2009.

6 6. It is first submitted that, by analogy with the similar assessment of the s. 5 prohibition on refoulement in Meadows v Minister for Justice, Equality and Law Reform [2010] IESC 3, the memorandum gives no adequate reason why the prohibition did not apply, given the clear evidence of persecution of Christians and lack of protection for them by the police authorities, in the information on which the refusal is based. Secondly, it is argued that insofar as the memorandum can be read as containing any reasons for rejecting the claim that the s. 5 prohibition is applicable, the Refusal Decision is irrational because not only is it contradicted by the information submitted by the applicant, but it is internally inconsistent because its own country of origin information contradicts its conclusion.

7 7. A twofold legal problem is posed by this challenge. In the first place, the matters relied upon relate in effect to the same essential source of persecution or harm which had been addressed and rejected throughout the asylum process and in the making of the deportation order. It is settled law that the grounds upon which a failed asylum seeker can challenge a refusal to revoke an extant and valid deportation order are extremely limited. In effect the power of the Minister under s. 3(11) to revoke an order exists in order to permit the Minister to accommodate circumstances which have arisen since the making of the order and which give rise to a material change such that it becomes either illegal (by reason of the intervention of one of the prohibitions on refoulement) or inappropriate on humanitarian grounds or otherwise to implement the valid order. The obligation of the Minister in dealing with an application to revoke an order has been dealt with in a number of cases and is well settled at this stage. (See for example the judgment of O'Neill J. in Dada v. Minister for Justice, Equality and Law Reform (Unreported, High Court, 3 ^rd May, 2006); of MacMenamin J. in Akujobi and Anor v. Minister for Justice, Equality and Law Reform [2007] I.E.H.C. 19; and O.O and Anor v. Minister for Justice, Equality and Law Reform [2008]...