O.J (Nigeria) -v- Minister for Justice and Equality and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Kevin Cross
• Judgment Date: 03 February 2012
• Neutral Citation: [2012] IEHC 71
• Court: High Court
• Date: 03 February 2012

[2012] IEHC 71

THE HIGH COURT

[No. 656 J.R./2011]

J (O) [Nigeria] v Min for Justice & AG

[2012] IEHC 71

JUDICIAL REVIEW

BETWEEN

O.J. (NIGERIA)

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY AND THE ATTORNEY GENERAL

RESPONDENTS

EEC DIR 2004/83 ART 4.1

M (M) v MIN FOR JUSTICE & AG UNREP HOGAN 18.5.2011 [TRANSCRIPT NOT AVAILABLE]

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 47

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS SI 518/2006

AHMED v MIN FOR JUSTICE UNREP BIRMINGHAM 24.3.2011 [TRANSCRIPT NOT AVAILABLE]

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

I (P) v MIN FOR JUSTICE & ORS UNREP HOGAN 11.1.2012 2012 IEHC 7

REFUGEE ACT 1996

EEC DIR 2004/83 ART 3.3

L (S) [NIGERIA] v MIN FOR JUSTICE UNREP COOKE 6.10.2011 2011 IEHC 370

EFE v MIN FOR JUSTICE & AG (NO 2) UNREP HOGAN 7.6.2011 2011 IEHC 214

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

O'KEEFFE v BORD PLEANALA & O'BRIEN 1993 1 IR 39 1992 ILRM 237

KEEGAN & LYSAGHT, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642 1987 ILRM 202

F (ISO) & ORS v MIN FOR JUSTICE UNREP COOKE 17.12.2010 2010/19/4624 2010 IEHC 457

IMMIGRATION LAW

Subsidiary protection

Deportation - Substantive proceedings and leave to apply for judicial review on further grounds - Duty to cooperate with applicant - Effective remedy - Principle of equivalence - Treatment of information furnished - Whether State complied with requirements relating to cooperating with applicant in assessment of elements of claim - Whether case should be adjourned pending outcome of Court of Justice reference - Whether judicial review effective remedy - Whether breach of principle of equivalence between procedure for asylum and subsidiary protection - Whether legitimate expectation raised by respondents - Whether engagement by respondents with information furnished by applicant - Whether arguable case to challenge subsidiary protection decision - Whether substantial grounds to challenge deportation order - Meadows v Minister for Justice [2010] IESC 3, [2010] 2 IR 701; O'Keeffe v An Bord Pleanála [1993] 1 IR 39 and State (Keegan) v Stardust Compensation Tribunal [1986] IR 642 applied - M(M) v Minister for Justice, Equality and Law Reform [2011] IEHC 547, (Unrep, Hogan J, 18/5/2011); Ahmed v Minister for Justice, Equality and Law Reform (Unrep, Birmingham J, 24/3/2011) (ex tempore); A(BJS) (Sierra Leone) v Minister for Justice and Equality [2011] IEHC 381, (Unrep, Cooke J, 12/10/2011); I(P) v Minister for Justice and Law Reform [2012] IEHC 7, (Unrep, Hogan J, 11/1/2012); F(ISO) v Minister for Justice, Equality and Law Reform [2010] IEHC 457, (Unrep, Cooke J, 17/12/2010) and L(S) (Nigeria) v Minister for Justice and Law Reform [2011] IEHC 370, (Unrep, Cooke J, 6/10/2011) approved - Case No AWB 07/14734 and 07/14733, (Unrep, Netherlands, Raad van State, 12/7/2007); Dokie v DPP(Garda Morley) [2010] IEHC 110, [2011] 1 IR 805; D(HI) v Refugee Applications Commissioner [2011] IEHC 33, (Unrep, Cooke J, 9/2/2011) and Z(S)(Pakistan) v Minister for Justice [2012] IEHC 47, (Unrep, Hogan J, 31/1/2012) considered - Efe v Minister for Justice, Equality and Law Reform (No 2) [2011] IEHC 214, [2011] 2 ILRM 411 distinguished - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006) - Refugee Act 1996 (No 17), ss 8, 11, 16 - Immigration Act 1999 (No 22), s 3 - European Convention on Human Rights Act 2003 (No 20), s 3 - Council Directive 2004/83/EC, arts, 4, 15 - Council Directive 2005/85/EC, art 3 - Charter of Fundamental Rights of the European Union 18/12/2000 (2000/C 364/01), art 47 - European Convention on Human Rights 1950, art 13 - Constitution of Ireland 1937, Art 40.3 - Substantive relief refused; leave granted to seek judicial review (2011/656JR - Cross J - 3/2/2012) [2012] IEHC 71

J(O) (Nigeria) v Minister for Justice and Equality

1 JUDGMENT of Mr. Justice Kevin Cross delivered the 3rd day of February, 2012

Introduction

2 1. The applicant is seeking various reliefs against the failure of the respondent to grant subsidiary protection dated 3 ^rd March, 2011, and to quash a deportation order dated 25 ^th May, 2011. By order of this Court, dated 16 ^th August, 2011, Dunne J. granted the applicant leave to apply for judicial review on the ground set out in para. E(1) of the application. This ground was on the basis that the refusal of subsidiary protection was not arrived at in accordance with the procedures mandated by EU Directive 2004/83/EC of 24 ^th April, 2004, (the Qualification Directive) and in particular the requirement of Article 4.1 of the Qualification Directive which states:-

"Member States may consider it the duty of the applicant to submit as soon as possible all elements needed to substantiate the application for internal protection. In cooperation with the applicant and it is the duty of the Member States to assess the relevant elements of the claim."

3 2. Leave was granted in respect of the above application inter alia, as in the case of Mujyanama v. Minister for Justice, Equality and Law Reform and the Attorney General (18 ^th May, 2011) Hogan J. made a reference to the Court of Justice on the above point.

4 3. Counsel on behalf of the applicant urged that I should adjourn consideration of this ground until the European Court of Justice had given a decision on the matter. This application was opposed by the respondent.

5 4. The matter also came before me seeking leave for judicial review on a number of grounds which may be grouped together.

6 5. The first substantive further ground in which leave for judicial review was sought, was the alleged failure of the respondent to provide an effective remedy in accordance with the Constitution and/or Article 13 of the European Convention on Human Rights and/or Article 47 of the Charter of Fundamental Rights of the European Union.

7 6. The second ground, it was alleged, was a failure by the respondents to operate a system whereby a challenge to a refusal of subsidiary protection by way of judicial review is automatically suspensory of any proposed deportation and this was in breach with the principle of equivalence.

8 7. There are further, what may be termed, substantive challenges to the decision on the basis that the treatment of country of origin information was irrational and unreasonable and that the conclusions did not flow from the premises and the reasons given lack clarity and further, it is alleged that application in support of subsidiary protection was stated to have been made "without prejudice" to the case of Dokie and Ajibola which matters references are pending before the Court of Justice and there was an alleged breach of legitimate expectation that the decision for subsidiary protection be delayed or that the applicant will at least be informed whether that decision would be made and given an opportunity to respond.

9 8. The deportation decision was also challenged on similar grounds to the subsidiary protection decision and also on its merits.

10 9. Accordingly, this Court is faced with the somewhat complex position to having to determine:-

11 (a) By way of a substantive application, whether there was a failure properly to transpose the provisions of Article 4.1 of the Qualification Directive by an alleged failure to co-operate with the applicant.

12 (b) Whether a final decision on this point should be adjourned pending the conclusions of the Court of Justice in the Mujyanama case above.

13 (c) Whether the applicant should be granted leave on the points relating to effective remedy.

14 (d) Whether the applicant should be granted leave on the issue in relation to "equivalence".

15 (e) Whether the applicant should be granted leave in respect of the various substantive facts to the alleged, unreasonableness or irrationality of the decision.

16 (f) Whether the applicant should be granted leave in respect of the deportation decision.

17 10. It is also the case that any challenge to the subsidiary protection decisions by way of leave must show arguable grounds merely whereas challenges to the deportation decision must show substantial grounds.

Background

18 11. The applicant arrived in the State in August, 2008, and claimed asylum shortly thereafter. This claim was based on alleged fear of persecution at the hands of his then girlfriend's mother and upon religious grounds. (The applicant is Christian, having been attacked and threatened by an Islamic religious organisation and having suffered injury, including a broken leg as a result of assault by that group).

19 12. The applicant's claim was rejected by the RAT because the Tribunal did not accept that the behaviour of the girlfriend's mother would bring the applicant within the definition of a refugee and without accepting or rejecting the applicant's claim in relation to religions prosecution, it was deemed that the applicant could have enduringly relocated to avoid such persecution.

20 13. The applicant applied for subsidiary protection on 6 ^th September, 2010, and the same was refused on 3 ^rd March, 2011. The applicant has averred in his affidavit that he did not receive the subsidiary protection refusal, which had apparently been sent to him by letter of 5 ^th April, 2011, until 21 ^st July, 2011. The applicant therefore states that no extension is required and this is not disputed by the respondent.

21 14. The applicant applied for leave to remain on humanitarian grounds on 1 ^st September 2009, and that application was rejected and the notification received by the applicant on 11 ^th July, 2011.

22 15. The proceedings herein were initiated on 25 ^th July, 2011.

23 16. It is argued by the applicant and accepted by the...