A (A) [Iraq] v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 24 May 2012
• Neutral Citation: [2012] IEHC 222
• Court: High Court
• Date: 24 May 2012

[2012] IEHC 222

THE HIGH COURT

[No. 762 J.R./2011]

[No. 783 J.R./2011]

A (A) [Iraq] v Min for Justice & Ors

MR JUSTICE COOKE

APPROVED TEXT

JUDICIAL REVIEW

BETWEEN

A. A. [Iraq]

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

IMMIGRATION ACT 1999 S3

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 47

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 51

WAFULA v MIN FOR JUSTICE UNREP COOKE 30.3.2012 (EX TEMPORE)

D (N) [NIGERIA] v MIN FOR JUSTICE (NO 2) UNREP COOKE 28.2.2012 2012 IEHC 86

REFUGEE ACT 1996 S11

ELGAFAJI v STAATSSECRETARIS VAN JUSTITIE 2009 1 WLR 2100 2009 AER (EC) 651 2009 ECR I-921 2009 2 CMLR 45

EEC DIR 2005/85 ART 39

EEC DIR 2005/85 ART 39(3)

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 51(1)

EEC DIR 2005/85 ART 39(1)

L (S) [NIGERIA] v MIN FOR JUSTICE & ORS UNREP COOKE 6.10.2011 2011/31/8496 2011 IEHC 370

A (BJS) [SIERRA LEONE] v MIN FOR JUSTICE & ORS UNREP COOKE 12.10.2011 2011/1/84 2011 IEHC 381

EEC DIR 2005/85 ART 3(3)

M v MIN FOR JUSTICE & ORS UNREP ECJ 26.4.2012 (ADVOCATE GENERALS OPINION)

REFUGEE ACT 1996 S5

MEADOWS v MIN FOR JUSTICE & ORS 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 3

IMMIGRATION

Asylum

Judicial review - Certiorari - Refusal to grant subsidiary protection - Application for leave to apply for judicial review in respect of deportation order - Real risk of suffering harm - Country of origin information - Necessity for public oral hearing - Application for subsidiary protection based on same information as application for asylum - New material - State of security of country of origin - Fear of persecution - Right to an effective remedy - Implementation of European Union law - Inadequacy of ministerial assessment of risk - Prohibition of refoulement - Prevailing violence - Whether assessment inadequate - Wafula v Minister for Justice (Unrep, Cooke J, 30/3/2012); ND (Nigeria) v Minister for Justice (Unrep, Cooke J, 28/2/2012); Elgafaji Case C-465/07 [2009] ECR I-921; SL [Nigeria] v Minister for Justice (Unrep, Cooke J, 6/10/2011); BJSA [Sierra Leone] v Minister for Justice (Unrep, Cooke J, 12/102011) and Meadows v Minister for Justice [2010] IESC 3, [2010] 2 IR 701 considered - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006) - Immigration Act 1999 (No 22), s 3 - Refugee Act 1996 (No 17), s 5 - Council Directive 2005/85/EC, art 39 - Charter of Fundamental Rights of the European Union 1950, arts 47 and 51 - Applications refused (2011/762JR & 2011/783JR - Cooke J - 24/5/2012) [2012] IEHC 222

A(A)(Iraq) v Minister for Justice and Equality

Facts: The applicant, an Iraqi national, had applied for subsidiary protection. The first respondent had refused his application in 2011. The applicant had then applied for leave to apply for an order of certiorari in respect of that decision and subsequent decisions leading to his deportation. However, the applicant had also then applied for judicial review of the decision.

Held by Cooke J, that having decided to make a fresh application for judicial review meant that the applicant would be confined to the ground pleaded therein in regards of his challenge to the subsidiary protection, and would not be able to rely on the grounds pleaded in relation to the application for an order of certiorari in respect of that decision

Taking the application for judicial review first, the Court found that the submission the applicant had been denied a public hearing had not been made out. The Minister's determination and the process did not offend article 47 of the Charter of Fundamental Rights of the European Union as contended by the applicant.

In terms of the application for an order of certiorari in regards of the deportation decision, the Court considered the assessment and determination by the Minister could not be deemed to be incorrect or unreasonable, and the application in this regard would also be refused.

1 1. For reasons which are not entirely clear to the Court, these applications for judicial review of decisions made by the respondent come before it in two separate proceedings although the first relief sought in each is in respect of the same decision of the Minister refusing the applicant's application for subsidiary protection on the 12 ^th July, 2011, under the European Communities (Eligibility for Protection) Regulations 2006. The first of the two cases, No. 762 J.R., is before the Court as an ex parte application for leave to apply for an order of certiorari in respect of that decision and on notice to the respondents insofar as it seeks to apply for an order for certiorari quashing the Minister's decision of 14 ^th July, 2011, to refuse humanitarian leave to remain under s. 3 of the Immigration Act 1999 and the consequent deportation order dated 15 ^th July 2011. In the second case, No. 783 J.R., an ex parte application for leave to seek judicial review of the subsidiary protection decision wasmade to and granted by Hogan J. on the 29 ^th August, 2011. In these circumstances the hearing before the Court has proceeded as the substantive application for judicial review of the refusal of subsidiary protection in case No. 783 J.R. and as an application for leave to seek judicial review and the other reliefs sought in respect of the decision to make the deportation order dated the 15 ^th July, 2011, which was communicated to the applicant under cover of a letter dated the 9 ^th August, 2011.

2 2. The above order of the Court in case No. 783 J.R. granted leave to apply for an order of certiorari in respect of the subsidiary protection decision of the 14 ^th July, 2011, upon the grounds set out in section E of the statement of grounds, at paragraphs 1 - 5. In effect, the legal basis for the challenge to the decision is that stated in para. 4 as follows:-

"The respondents and each of them, their servants or agents failed to provide the applicant with a public hearing of the applicant's claim for subsidiary protection before an independent and impartial tribunal previously established by law as is required by Articles 47 and 51 of the Charter of Fundamental Rights of the European Union and by the principle of equivalence in European Union law."

3 3. In the statement of grounds dated the 23 ^rd August, 2011, in case No. 762 J.R., on the other hand, a total of twenty grounds are set forth in section E and they are formulated as directed at both of the decisions sought to be quashed namely the refusal of subsidiary protection and the decision to deport. On the 24 ^th August, 2011, an application was made to the Court (Hedigan J.) in case No. 762 J.R. but the order made on that occasion was confined to the grant of an injunction restraining the respondents from deporting the applicant. Counsel for the applicant confirmed that while the ex parte application for leave to seek judicial review of the subsidiaryprotection decision was moved on that occasion, no order had been made in that regard.

4 4. In these circumstances the Court is satisfied that it is not open to the applicant now to seek to rely upon any of the grounds set out in section E of the statement of grounds in case No. 762 J.R. in challenging the subsidiary protection decision. Having decided, following the moving of the ex parte application on the 24 ^th August, 2011, to embark upon an entirely new proceeding by way of judicial review of the same decision and having obtained leave on the 29 ^th August, 2011, the applicant is, in the view of the Court, confined to the ground quoted above in case No. 783 J.R. so far as concerns the challenge to the subsidiary protection decision.

5 5. It is appropriate, therefore, to deal first with case No. 783 J.R. given that the lawfulness of a deportation order is dependent upon an application for subsidiary protection having been validly rejected before the deportation order is made.

6 6. As expanded upon in argument at the hearing by counsel on behalf of the applicant, the essential ground advanced here is that because there is said to be a contradiction between the conclusion reached by the Minister that the applicant would not face a real risk of suffering serious harm if returned to Iraq on the one hand, and passages quoted by the Minister from the country of origin information relied upon to the effect that levels of violence in Iraq are unacceptably high on the other, there was a factual dispute which can only be resolved by means of an appeal against the determination including the opportunity for a public hearing. When it was pointed out that this was not, on the face to it, an issue involving the personal credibility of the applicant, but a matter for the Minister's assessment as to current security conditions prevailing in Iraq, counsel accepted that the applicant might not be in a position at an oral hearing to provide direct testimony as to conditions in Iraq given that he had beenliving in this country for several years. It was said, however, that he should be entitled to call other unspecified witnesses who might be in a position to give...