Jamali (A Minor) v Min for Justice

• Jurisdiction: Ireland
• Judge: MS JUSTICE M. H. CLARK,
• Judgment Date: 24 January 2013
• Neutral Citation: [2013] IEHC 27
• Court: High Court
• Docket Number: [2012 No. 786 JR]
• Date: 24 January 2013

[2013] IEHC 27

THE HIGH COURT

Record No. / 786 J.R./2012

Jamali (A Minor) v Min for Justice

JUDICIAL REVIEW

BETWEEN/

ABDULLAH JAMALI, KHADIJA JAMALI, ZAKRIA JAMALI (A MINOR SUING BY HIS FATHER AND NEXT FRIEND ABDULLAH JAMALI), RAZIA JAMALI (A MINOR SUING BY HER FATHER AND NEXT FRIEND ABDULLAH JAMALI)

APPLICANTS

-AND-

THE MINISTER FOR JUSTICE AND LAW REFORM

RESPONDENT

REFUGEE ACT 1996 S5

IMMIGRATION ACT 2004 S4

IMMIGRATION ACT 1999 S3(6)

IMMIGRATION ACT 1999 S3(3)(B)(II)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(1)

IMMIGRATION ACT 1999 S3(3)

IMMIGRATION ACT 1999 S3(5)

RSC O.84 r21(1)

IMMIGRATION ACT 1999 S3

IMMIGRATION ACT 1999 S3(1)

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, IN RE 2000 2 IR 360

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

SULAIMON (AN INFANT) v MIN FOR JUSTICE UNREP SUPREME 21.12.2012 2012 IESC 63

IMMIGRATION ACT 1999 S3(3)(B)

IMMIGRATION ACT 1999 S3(9)(A)

RSC O.84

IMMIGRATION ACT 2004 S4(1)

IMMIGRATION LAW

Judicial review

Leave to apply - On notice or ex parte - Positive decision not to deport - Whether application for leave to apply should have been made on notice - The Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 IR 360 and Sulaimon v. Minister for Justice [2012] IESC 63, (Unrep, SC, 21/12/2012) considered - Immigration Act 1999 (No 22), s 3(3) - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Immigration Act 2004 (No 1), s 4 - Rules of the Superior Courts, 1986 (SI 15/1986), O 84, r 21(1) - Motion to set aside grant of leave refused (2012/786JR - Clark J - 24/1/2013) [2013] IEHC 27

Jamali v Minister for Justice

Facts: The applicant, who was originally from Afghanistan, arrived in Ireland in 2005. He claimed that he had been a member of the Hizb i Islami, then the Taliban and then was involved in the ongoing conflict against the Northern Alliance from which he suffered substantial physical and psychological injuries. He claimed that because he was a former member of the Taliban, he was now in fear of death or serious harm from that group if returned to his native country. His application for refugee status was refused at first instance and then on appeal. The applicant then made an application for subsidiary protection in tandem with an application for leave to remain in the country on humanitarian grounds. Subsidiary protection was refused but temporary permission was granted to allow the applicant to remain in the state until the 22 ^nd December 2010. The applicant applied for leave to apply for judicial review challenging the adequacy of the reasons for the decision to gran leave to remain on an ex parte basis. This was successful.

The respondent then brought a motion to challenge the decision to grant leave to apply for judicial review. It was their contention that the grant of leave to remain was clearly made on humanitarian grounds pursuant to s. 3(6) of the Immigration Act 1999 and so the application should not have been made on an ex parte basis as the circumstances came under s. 5(2) of the Illegal Immigrants (Trafficking) Act 2000. It was further claimed that the application was only made ex parte in an attempt to circumvent the applicable time limit of the 2000 Act which had long since expired. The respondent further contended that the applicant was actually seeking declaratory relief and that the correct course of action therefore was for him to issue a plenary summons.

The applicant claimed that an ex parte application was permissible as the leave to remain derived from the principle of non-refoulement and that the specific permission granted to him actually came under s. 4 of the Immigration Act 2004.

Held by Clark J that there was no case law available that concerned similar circumstances to the present application, namely that judicial review was sought challenging a positive decision of the respondent. On examination of s. 5 of the Illegal Immigrants (Trafficking) Act 2000, it was apparent that the procedures outlined concerned negative decisions exclusively. Following the grant of leave to remain in Ireland, the applicant was obligated to report to immigration authorities on a regular basis to regulate his status within the country. This procedure was specifically mentioned in s. 4 (1) of the Immigration Act 2004, therefore his permission to remain within the country was pursuant to that section.

There had therefore been no legal error in the applicant making his application for leave to apply for judicial review on an ex parte basis.

Motion refused..

1 DECISION OF MS JUSTICE M. H. CLARK,delivered on the 24th day of January 2013.

2 1. By order of Ryan J. dated 17 ^th September 2012, the applicants were granted leave to apply for two of three reliefs sought. The application for leave was moved on an ex parte basis and Ryan J. directed that the respondent should be put on notice of the application in relation to the third relief sought. The respondent has brought a motion seeking an order setting aside the order of Ryan J. granting leave. He contends that:-

3 (i) The said matters fall within section 5 of the Illegal Immigrants (Trafficking) Act, 2000 and accordingly the applicants are required to bring an application for judicial review on notice to the respondent; and

4 (ii) The application for leave was brought beyond the time limits contained in either Section 5 or Order 84 of the Rules of the Superior Courts.

5 2. This decision relates solely to that motion.

6 3. Abdullah Jamali is a failed asylum seeker from Afghanistan who has been living in Ireland since 2005. The negative decisions of the Refugee Applications Commissioner and the Refugee Appeal Tribunal in relation to his asylum application were never challenged. He applied unsuccessfully for leave to re-enter the asylum system and then for subsidiary protection which was refused. Those decisions were not challenged. In parallel with his subsidiary protection application he also applied for leave to remain on humanitarian grounds as an alternative to subsidiary protection.

7 4. It is not disputed that Mr. Jamali suffered significant physical and psychological injuries in the very complex and long standing conflict in Afghanistan. The complexities of the wars make it difficult to understand which particular group Mr. Jamali fears as he claimed to have fought first for Hizb i Islami and then the Taliban and then was in conflict with the Northern Alliance. Later documents suggest that he currently fears the Taliban. His wife and two children also fled Afghanistan and they now live as undocumented externally displaced people in Iran. Mr. Jamali was granted leave to remain in the State in December 2007 and he has been living under that permission ever since. He has what is known as a Stamp 4 permission to remain.

8 5. The notification that the applicant had been refused subsidiary protection was made by letter dated 22 ^nd December 2008 which also stated:-

"The Minister has also considered whether a deportation order should be made in respect of you, having regard to the matters referred to in Section 3(6) of the Immigration Act, 1999. In that regard, I am directed to inform you that as an exceptional measure, the Minister has decided to grant you temporary permission to remain in the State for two (2) years until 22 ^nd December 2010". 1

9 6. The applicant issued these proceedings to challenge to the adequacy of the reasons given by the Minister for that decision. He maintains that his leave to remain derives from the prohibition against refoulement set out in s. 5 of the Refugee Act 1996 as amended and is a "permission" to be in the State within the meaning of s. 4 of the Immigration Act 2004. The respondent maintains that the grant of leave to remain was made on humanitarian grounds pursuant to s. 3(6) of the Immigration Act 1999 and is a decision notified to the applicant within the meaning of s. 3(3) (b) (ii) of the Immigration Act 1999. This is significant because if the applicant is correct, the application for leave to apply for judicial review is not captured by s. 5(2) of the Illegal Immigrants (Trafficking) Act 2000 and it was correct to proceed ex parte. However, if the respondent is correct, the application for leave ought to have been made on notice.

10 7. The facts leading to the challenge are that shortly after Mr. Jamali registered as a person with leave to remain with the GNIB, he applied for long stay visas for his wife and two children in Iran to join him in the State. The process was protracted and visas were eventually refused on public policy grounds and Mr. Jamali was reminded

11 that a person with leave to remain in the State under s. 3(6) Immigration Act 1999 is specifically informed that "there is no provision for family reunification" associated with such permission. No challenge was brought to the visa refusals.

12 8. When those visas were first refused to Mr. Jamali's family, his solicitor obtained a copy of his entire asylum file from the respondent through a Freedom of Information request. She then wrote to the respondent seeking the precise reasons for the grant of leave to remain. The reasons given to date are not fact specific. They include:-

"Your client submitted representations and these were considered having regard to the various headings set out in Section 3(6) of the Immigration Act, 1999 (as amended). These headings include an applicant's family and domestic circumstances, the length of time an applicant has been in the State, the character and conduct of the applicant since their arrival in the State, their employment record and employment prospects as well as any humanitarian considerations advanced by the applicant in support of their application to remain in the State.

Specifically, in...