In v The Minister for Justice, Ireland and The Attorney General
| Jurisdiction | Ireland |
| Judge | Ms Justice Tara Burns |
| Judgment Date | 09 September 2021 |
| Neutral Citation | [2021] IEHC 586 |
| Court | High Court |
| Docket Number | RECORD NO. 2019/657JR |
[2021] IEHC 586
RECORD NO. 2019/657JR
THE HIGH COURT
JUDICIAL REVIEW
Judicial review – International Protection Act 2015 s. 49(7) – Deportation – Applicant seeking judicial review – Whether the first respondent erred in law in its consideration of s. 50(1)(b) of the International Protection Act 2015
Facts: The applicant, a national of Georgia, entered the State on 13 December 2015. She applied for asylum on 21 December 2015. The Office of the Refugee Applications Commissioner made a recommendation on 8 June 2016 that she be refused refugee status. On 2 May 2018, an International Protection Officer (IPO) made a recommendation that she be refused subsidiary protection. On 2 May 2018, the first respondent, the Minister for Justice, refused to grant her permission to remain pursuant to s. 49(4) of the International Protection Act 2015. An appeal was made to the International Protection Appeals Tribunal (IPAT). On 19 December 2018, the IPAT affirmed the first instance decisions. On 15 January 2019, the applicant sought a review of the s. 49(4) decision. On 1 August 2019, the first respondent affirmed the s. 49(4) decision and refused the applicant permission to remain on foot of the s. 49(7) review. On foot of that decision, the first respondent issued a deportation order in respect of the applicant pursuant to s. 51 of the 2015 Act on 26 August 2019. Leave to apply by way of judicial review seeking an order of certiorari of the s. 49(7) review decision and the deportation order was granted by the High Court on 14 October 2019. The grounds of challenge to the decisions were as follows: “1. The s. 49(7) Review Decision (and the s. 49(4) decision) was vitiated by the absence of a valid and lawful Section 35 Report and the failure to provide a report of the Applicant’s interview under s. 35(12) of the Act which was in compliance with s. 35(13)(b) of the Act, prior to making the PTR decision. The Respondents have not given proper regard or effect to the decision of Barrett J., in IX v. IPAT [2019] IEHC 21. 2. The First Named Respondent erred in law and failed to comply with natural and constitutional justice by failing to furnish the Applicant with the completed Section 35 Report in advance of the s. 49(4) decision. The First Named Respondent remains in breach of s. 35(13) of the 2015 Act. 3. The Minister erred in law in its consideration of section 50(1)(b) of the [2015 Act], insofar as he purports to rely on the prior determination of the IPO and the [IPAT], which are decisions predicated on a standard of proof as determined by O’Regan J. in ON v. Refugee Appeals Tribunal & Ors [2017] IEHC 13 with that Court determining that the standard of proof applicable to the assessment of the history of events as disclosed by an individual applicant, which is a fact-finding exercise, is that of the balance of probabilities, coupled with affording the applicant the benefit of the doubt in appropriate circumstances. In so doing, the Minister’s determination pursuant to section 50(1)(b) of the [2015 Act], cannot in so far as it is based on the prior determination of the IPO and the IPAT, without any further comment or qualification, be deemed to be a determination that comports with this State’s obligations under the European Convention of Human Rights, and by extension section 3 of the European Court of Human Rights Act 2003 (and the Schedule thereto). In so far as the Minister did make such a determination, the Applicant contends the decision is irrational, and/or illegal and/or tainted by procedural impropriety.”
Held by Burns J that the applicant had not established that a “serious risk” test was not applied by the first respondent. Burns J held that an incompatibility with Article 3 of the European Convention of Human Rights had not been established in terms of the manner in which the first respondent had determined the refoulement issue. Burns J held that the applicant had failed to establish an invalidity with respect to the s. 49(7) decision and the consequent deportation order.
Burns J held that in light of the appeal before the Court of Appeal in HK v Minister for Justice [2021] IEHC 40, and the agreement between the parties that the determination of that Court would determine the outcome of the grounds of challenge at e(1) and (2), the Court would refuse the relief sought with respect to grounds e(3) and would adjourn the proceedings into the HK holding list in relation to grounds e(1) and (2).
Proceedings adjourned.
JUDGMENT of Ms Justice Tara Burns delivered on 9th September 2021
The Applicant is a national of Georgia who entered the State on 13 December 2015. She applied for asylum on 21 December 2015.
The Applicant's application was made to and processed by the Office of the Refugee Applications Commissioner (hereinafter referred to as “ORAC”) which, having found that the Applicant's claim lacked credibility in respect of two core aspects, and noting that the Applicant had lied with respect to her entry into the State, made a recommendation on 8 June 2016 that she be refused refugee status.
The Applicant's subsidiary protection claim was assessed pursuant to the International Protection Act 2015 (hereinafter referred to as “the 2015 Act”). On 2 May 2018, an International Protection Officer (hereinafter referred to as an “IPO”) found that some material aspects of the Applicant's claim lacked credibility. On the basis of the aspects of the Applicant's claim which were accepted, the IPO determined that the Applicant did not face a real risk of serious harm if returned to Georgia and made a recommendation that she be refused subsidiary protection.
On 2 May 2018, the First Respondent refused to grant the Applicant permission to remain pursuant to s. 49(4) of the 2015 Act.
An appeal of the negative international protection recommendations was made to the International Protection Appeals Tribunal (hereinafter referred to as “IPAT”). On 19 December 2018, the IPAT affirmed the first instance decisions and recommended that the Applicant should be granted neither a refugee nor subsidiary protection declaration.
On 15 January 2019, the Applicant sought a review of the s. 49(4) decision. Further information was submitted on 24 January 2019. The information submitted for the purpose of the review did not include any further submissions on behalf of the Applicant regarding the issue of refoulement.
On 1 August 2019, the First Respondent affirmed the earlier s. 49(4) decision and refused the Applicant permission to remain on foot of the s. 49(7) review. The First Respondent found that “there had been no material change in your personal circumstances or country of origin circumstances concerning the prohibition of refoulement under section 50” of the 2015 Act.
On foot of that decision, the First Respondent issued a Deportation Order in respect of the Applicant pursuant to s. 51 of the 2015 Act on 26 August 2019.
Leave to apply by way Judicial Review seeking an order of Certiorari of the s. 49(7) review decision and the Deportation Order was granted by the High Court on 14 October 2019. The grounds of challenge to the decisions, after several amendments were made to the Statement of Grounds, can be summarised as follows:-
In so doing, the Minister's determination pursuant to section 50(1)(b) of the [2015 Act], cannot in so far as it is based on the prior determination of the IPO and the IPAT, without any further comment or qualification, be deemed to be a determination that comports with this State's obligations under the European Convention of Human Rights, and by extension section 3 of the European Court of Human Rights Act 2003 (and the Schedule thereto). In so far as the Minister did make such a determination, the Applicant contends the decision is irrational, and/or illegal and/or tainted by procedural impropriety.”
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“1. The s. 49(7) Review Decision (and the s. 49(4) decision) was vitiated by the absence of a valid and lawful Section 35 Report and the failure to provide a report of the Applicant's interview under s. 35(12) of the Act which was in compliance with s. 35(13)(b) of the Act, prior to making the PTR decision. The Respondents have not given proper regard or effect to the decision of Barrett J., in IX v. IPAT [2019] IEHC 21.
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2. The First Named Respondent erred in law and failed to comply with natural and constitutional justice by failing to furnish the Applicant with the completed Section 35 Report in advance of the s. 49(4) decision. The First Named Respondent remains in breach of s. 35(13) of the 2015 Act.
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3. The Minister erred in law in its consideration of section 50(1)(b) of the [2015 Act], insofar as he purports to rely on the prior determination of the IPO and the [IPAT], which are decisions predicated on a standard of proof as determined by O'Regan J. in ON v. Refugee Appeals Tribunal & Ors [2017] IEHC 13 with that Court determining that the standard of proof applicable to the assessment of the history of events as disclosed by an individual applicant, which is a fact-finding exercise, is that of the balance of probabilities, coupled with affording the applicant the benefit of the doubt in appropriate circumstances.
The Applicant claimed that she feared persecution or serious harm from a particular named family with whom, she asserted, her husband and extended family had a long running significant dispute. The IPAT accepted that the Applicant was, as claimed, an internally displaced person (hereinafter referred to as an “IDP”) within Georgia, however it found that the Applicant was not credible with respect to other material aspects of her claim regarding this asserted dispute.
On the basis of the facts which were accepted by it, the IPAT...
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