HK v The Minister for Justice
| Jurisdiction | Ireland |
| Judge | Ms Justice Tara Burns |
| Judgment Date | 12 January 2021 |
| Neutral Citation | [2021] IEHC 40 |
| Docket Number | RECORD NO. 2019/642/JR |
| Court | High Court |
| Date | 12 January 2021 |
In the Matter of Section 5 of the Illegal Immigrants (Trafficking) Act 2000 (As Amended)
[2021] IEHC 40
RECORD NO. 2019/642/JR
HIGH COURT
JUDICIAL REVIEW
JUDGMENT of Ms Justice Tara Burns delivered on the 12th day of January, 2021
The Applicant is a national of Western Sahara, born on 24 April 1997. He entered the State on 24 June 2015 and applied for asylum on that date on the basis that he would face persecution in Western Sahara because of his political opposition to Morocco's control of large parts of that territory. He completed an asylum questionnaire on 4 July 2015 and was interviewed by the Office of the Refugee Applications Commissioner (hereinafter referred to as “ORAC” on 20 October 2015 and 4 May 2016. ORAC issued its report pursuant to s.13 of the Refugee Act 1996 on 10 May 2016, recommending that he not be granted refugee status. He appealed to the Refugee Appeals Tribunal on the 6th September 2016.
Before his appeal was processed, the Applicant left the State. He was arrested on 1 July 2017 when he returned to the State through Dublin Airport travelling on a false Spanish passport. He indicated that after leaving the State, he travelled through several other EU jurisdictions before arriving in Iceland where he applied for asylum which application was refused.
The Applicant applied for international protection in this jurisdiction and filed an International Protection Questionnaire in December 2017. On the 29 June 2018, he was interviewed under s. 35 of the International Protection Act 2015 (hereinafter referred to as “the 2015 Act”). On 18 July 2018, his international subsidiary protection application was refused by the International Protection Office. He appealed the refusal of international protection to the International Protection Appeals Tribunal on 16 August 2018.
On the 19 July 2018, the Respondent refused the Applicant permission to remain in the State pursuant to s. 49(4)(b) of the 2015 Act.
On the 22 January 2019, the International Protection Appeals Tribunal refused the Applicant's appeal of his international protection application.
On 29 January 2019, the Applicant made further representations to the Respondent in support of his application for permission to remain pursuant to s. 49(7) of the 2015 Act. He furnished a s. 49 Review Form, solicitor's representations, various character references and a medico-legal report together with supporting photographs.
On 8 July 2019, the Respondent refused the Applicant's s. 49(7) application. The review decision states that all “ representations and correspondence received from or on behalf of the applicant” which included “ the Section 35 interview report/record and Matters to be considered for PTR review arising from Section 35 Interview record” were considered.
On 2 August 2019, the Respondent issued a deportation order against the Applicant.
Leave to apply by way of Judicial Review seeking orders of Certiorari of the Respondent's review decision pursuant to s. 49(7) of the 2015 Act and the deportation order was granted by the High Court on 8 October 2019.
On 8 July 2020, following an application by the Applicant to amend his Statement of Grounds, leave was granted to the Applicant (without prejudice to whatever objections' the Respondent might make at the hearing) to seek a further relief, namely an order of Certiorari of the s. 35 report dated 29 June 2018 but asserted to be completed by way of a further document dated 16 May 2019 and entitled “ Matters to be considered for PTR review arising from Section 35 interview record (to be read with and as part of the Section 35 reports(s) dated 29/06/18”, and any other ensuing decision including the s. 39 Report and the s. 49(4) decision.
This Court is left in the unhappy position of now having to deal with an amendment application in the course of the hearing. It is unfortunate that the application to amend was not finalised when it was made before in the Court in light of the fact that the application was on notice and that each side had the opportunity to make their submissions with respect to the proposed amendment at that stage. It is preferable that hearings are reserved for determining what the actual issues are in a case rather than unnecessarily complicating what must be determined.
In summary, the Applicant makes the following contentions regarding the s. 35 and s. 39 report, the s. 49(4) and s. 49(7) decisions, and the deportation order which he seeks to challenge:-
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a) the s. 35 Report is void or voidable arising from the Respondent's failure to comply with s. 35(12) and/or s. 35(13)(b) of the 2015 Act. This invalidates all decisions which flow from the s. 35 Report, including the s. 39 Report, the s. 49(4)(b) permission to remain decision, and s. 49(7) review decision;
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b) the Respondent failed to take into account or properly evaluate representations made under s. 49(3)(a) and “humanitarian considerations” under s. 49(3)(b) in the s. 49(7) review decision;
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c) the Respondent erred under s. 50(2) of the 2015 Act in his assessment of the Applicant's medical condition for the purposes of non- refoulement;
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d) the Respondent failed to give cogent reasons for the decisions made pursuant to s. 49(3) and/or s. 50 of the 2015 Act and/or Article 8(1) of the European Convention of Human Rights (hereinafter referred to as “the ECHR”.
Section 35 of the 2015 Act provides that a personal interview of an applicant for international protection shall take place, except in certain defined circumstances which do not arise in the instant matter. It is envisaged that such an interview will be carried out by an interviewer rather than an international protection officer, although this is not mandatory. Section 35(12) and (13) of the 2015 Act provides as follows:-
“(12) Following the conclusion of a personal interview, the interviewer shall prepare a report in writing of the interview.
(13) The report prepared under subsection (12) shall comprise two parts—
(a) one of which shall include anything that is, in the opinion of the international protection officer, relevant to the application, and
(b) the other of which shall include anything that would, in the opinion of the international protection officer, be relevant to the Minister's decision under section 48 or 49, in the event that the section concerned were to apply to the applicant.”
The s. 35 report in this matter was compiled on 29 June 2019 by the interviewer Mr Tommy O'Donoghue. It did not include either of the parts referred to at s. 35(13) of the 2015 Act. Apparently, this was not an unusual omission with respect to s. 35 reports at that time. The legality of such an omission was considered by Barrett J. in IX v. CIPO [2019] IEHC 21 when considering the NY case and the legality of a permission to remain decision taken pursuant to s. 49(4) of the 2015 Act. He stated at paragraph 11 of his judgment:-
“[B]y requiring the inclusion in a separate part of a s. 35 report of… “anything that would, in the opinion of the international protection officer, be relevant to the Minister's decision under section 48 or 49” the Oireachtas clearly intended to confer a protection on applicants in the form of (a) specific consideration by the IPO of whether there is anything relevant, and (b) reduction to writing of any such thing in a separate part of the report (effectively highlighting that “thing” for future reference). The inclusion of the relevant information elsewhere in the s. 35 report neither (i) meets the express requirements of s. 35(13) nor (ii) yields the protection which the Oireachtas appears to have been desirous to confer on application…. [I]t seems to the Court that the Oireachtas, having elected to confer the protection just described, could fairly be taken to have intended that an ensuring s. 48/s. 49 process would be viewed as fundamentally flawed where it was preceded by a deprivation of that protection.”
Having made the above determination, Mr Justice Barrett thereupon quashed the s. 49(4) decision and remitted it to the Respondent for fresh consideration. While the IX decision was appealed by the Respondents, this finding of the High Court was not.
Subsequent to the decision of the High Court in IX, the Respondent sought to rectify the s. 35 report in the instant case by creating an additional document on 16 May 2019 entitled “ Matters to be considered for PTR review arising from Section 35 interview record (to be read with and as part of the Section 35 reports(s) dated 29/06/18”, which reflected the requirements of s.35(13)(b). This document was completed by Ms Yvonne Delaney, an International Protection Officer (hereinafter referred to as an “IPO”) who is a different IPO to the IPO (Ms Orla Moran) who carried out the examination of the Applicant's protection claim and issued the s. 39 report.
Another IPO (Mr Eamon Foley), acting on behalf of the Respondent, carried out the s. 49(7) review and considered all “ representations and correspondence received from or on behalf of the applicant relating to permission to remain and permission to remain (review)…., including the Section 35 interview report/record and Matters to be considered for PTR review arising from Section 35 Interview record”. In the course of the hearing, Counsel on behalf of the Applicant raised a query as to whether the document created by Ms Delaney had in fact been considered by Mr Foley. It is clear that Mr Foley's reference to “ Matters to be considered for PTR review arising from Section 35 Interview record” is Ms Delaney's document in light of the use of the capital M within the middle of his sentence.
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