K v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 24 June 2022
• Neutral Citation: [2022] IECA 141
• Court: Court of Appeal (Ireland)
• Docket Number: Record No.: 2021/57

Between/

H.K. (Western Sahara)

Appellant

and

The Minister for Justice and Equality

Respondent

[2022] IECA 141

Murray J.

Donnelly J.

Ní Raifeartaigh J.

Record No.: 2021/57

THE COURT OF APPEAL

CIVIL

Permission to remain – Procedure – International Protection Act 2015 s. 49 – Appellant seeking permission to remain in the State – Whether the trial judge erred in failing to allow the amendments to the statement of grounds and/or an extension of time

Facts: The appellant was refused permission to remain in the State following a review pursuant to s. 49(7) of the International Protection Act 2015 by the respondent, the Minister for Justice and Equality. The appellant brought judicial review proceedings in which he sought orders of certiorari of the review made under s. 49(7) of the 2015 Act and the deportation order. The trial judge gave leave to appeal the decision of the High Court and certified four questions for determination by the Court of Appeal (a) Is a report of interview under s. 35 of the 2015 Act, which consists of a complete transcript of what was said at the interview, invalid because it does not comply with s. 35(13)(b) of the Act at the time of issuance of the s. 35 report? (b) If so, does the later addition of the s. 35(13)(b) portion by way of an addendum remedy such a deficiency? (c) If so, may an international protection officer other than the international protection officer who made the s. 39(3)(c) recommendation prepare the said addendum in relation to the s. 35(13)(b) section? (d) If the answer to (a) above is yes but the answer to (b) and/or (c) is no, is a decision not to grant permission to remain on a review under s. 49(7) of the Act invalid because of the deficiency in the s. 35 report, in the absence of any prejudice to the appellant? The appellant put forward eleven grounds of appeal in his notice of appeal. At hearing, the issues before the Court were netted down to four broad grounds: (1) that the trial judge erred in failing to allow the amendments to the statement of grounds and/or an extension of time; (2) that the trial judge erred in finding that the s. 35 report was not void or voidable; (3) that the trial judge erred in failing to properly evaluate humanitarian considerations under s. 49(3)(b) of the 2015 Act; and (4) that the trial judge erred in finding that the Minister had given a proper assessment of non-refoulement under s. 50(2) of the 2015 Act and provided adequate reasons therefrom.

Held by Donnelly J that the claims of the appellant which were based on a direct challenge to the validity of the s. 35 report, the s. 39 recommendation and the s. 49(4) decision, were made by way of an application for an amendment to the statement of grounds. Donnelly J held that they were brought significantly out of time and no good (or any) reason was put before the High Court as to why an extension of time should be brought. Donnelly J held that the High Court judge was correct in holding that those claims were time-barred. Donnelly J held that the appellant’s claim that the s. 49(7) review was tainted by the failure to have a s. 35 report that was complete in accordance with the provisions of s. 39(13)(b) was a collateral attack on the s. 35 report and could not be entertained by the Court where he was out of time to challenge the said report. Donnelly J held that the fact that the Addendum was considered by the Minister under the s. 49(7) procedure without the appellant having sight of that Addendum was not, on the facts of the case, a breach of audi alteram partem or any other fair procedure. Donnelly J found that the appellant never demonstrated what, if any, prejudice he had suffered in relation to the Addendum.

Donnelly J found that an analysis of the s. 49(7) review revealed that the reviewer did not address humanitarian considerations that did not reach the standard of a breach of Article 3 and Article 8 of the European Convention on Human Rights (ECHR) rights. Donnelly J held that the appellant was entitled to an order of certiorari of the s. 49(7) review on that ground. Donnelly J held that the Minister addressed the principle of non-refoulement as set out in s. 50 of the Act sufficiently in the s. 49(7) review.

Appeal allowed.

JUDGMENT of Ms. Justice Donnelly delivered ( via electronic delivery) the 24th day of June, 2022

Introduction

1 . This appeal addresses two separate aspects of the decision-making process by which the appellant was refused permission to remain (“PTR”) in the State following a review pursuant to s. 49(7) of the International Protection Act 2015 (“the 2015 Act”) by the Minister for Justice and Equality (“the Minister”). The first aspect raises matters of procedure which have relevance to a large number of pending judicial review proceedings concerning applications for international protection and, more particularly, for PTR. This issue depends on the effect, if any, of a late Addendum to a s. 35 personal (or protection) interview Report on the PTR Review (under s. 49(7)). The second aspect concerns how the humanitarian considerations under s. 49(3) and the refoulement provisions under s. 50 of the 2015 Act were dealt with in the s. 49(7) PTR Review.

Background

2 . The appellant is a national of Western Sahara. He left his home country in 2011. He was then 14 years of age. He entered the State on the 24th June, 2015 and applied for asylum here on that date on the grounds that he was in fear of persecution due to his political opposition to Morocco's control of large parts of Western Sahara. He spent the intervening years in other EU countries including a long period of homelessness in Italy where he was arrested for minor drugs and shoplifting offences. After his first application for asylum in this jurisdiction he left the State and was refused asylum in another jurisdiction. He re-entered the system in this State and, ultimately, his application for refugee status was refused as was his application for subsidiary protection and for PTR.

3 . The above is a short sketch of the background. A more detailed description of the procedural history of his claims for a refugee declaration and for subsidiary protection is required. It is appropriate to interweave the relevant legal provisions which form the basis of this appeal while describing the procedural history. Of note is that the 2015 Act introduced a streamlined process for deciding on refugee status, subsidiary international protection and PTR matters. This contrasts with the previous bifurcated (perhaps more properly trifurcated) process. Prior to that entering into that more detailed description, it may be helpful to refer to a brief chronology of relevant events.

A timeline

24 June 2015	Appellant enters State and applies for asylum.
10 May 2016	ORAC issue s. 13 report refusing asylum application.
29 June 2018	Appellant interviewed by IPO leading to original s. 35 Report.
18 July 2018	Section 39 recommendation/report.
19 July 2018	Decision on initial s. 49(3) PTR.
25 July 2018	Letter to appellant notifying him of decisions and providing copy of s. 39 recommendation, s. 49 decision and s. 35 Report.
14 January 2019	IX (NY) v. CIPO [2019] IEHC 21 judgment of High Court (Barrett J.).
23 January 2019	IPAT decision plus letter notifying appellant.
16 May 2019	Addendum “ Matters to be considered for PTR review arising from Section 35 Interview record”.
8 July 2019	PTR Review.
11 July 2019	Letter to appellant stating Minister refusing international protection under s.47(5) and enclosing PTR Review and Addendum.
2 August 2019	Deportation order made.
16 August 2019	Letter in relation to deportation order plus deportation order of 2nd August 2019.
8 October 2019	Leave to apply for judicial review – challenging PTR Review, refoulement and deportation order.
13 December 2019	First statement of opposition delivered pleading collateral attack.
2 June 2020	On consent amendment to statement of grounds to challenge Addendum i.e. grounds e(1) (iii) to (v) added.
8 July 2020	Appellant seeks to amend the claim to challenge the s. 35 Report and “ any other ensuing decision … including the section 39 Report and the initial s.49(4) PTR decision”. Amendment allowed without prejudice to the Minister's entitlement to object at the trial of the judicial review.

The processing of the appellant's claims

4 . The appellant completed an asylum questionnaire and was interviewed by the Office of the Refugee Applications Commission (“ORAC”) pursuant to s. 11 of the Refugee Act, 1996. ORAC issued its report on the 10th May, 2016. This was compiled pursuant to s. 13 of the same Act. It recommended that the appellant ought to be refused a declaration of refugee status. It is not necessary to deal with the ground for refusal.

5 . The appellant then appealed this decision to the Refugee Appeals Tribunal (“the RAT”) on the 6th September, 2016. On the 1st July, 2017, before his appeal was processed, the appellant left the State. He was arrested upon his return to the State through Dublin Airport as he was travelling on a false passport. He also indicated that he had travelled to other jurisdictions, including Iceland, where he was refused his application for asylum. He re-engaged with the asylum process.

6 . In light of the entry into force of the 2015 Act, the appellant was provided with a questionnaire pursuant to that Act. He submitted the questionnaire in December 2017 seeking international protection. Thereafter all procedures and decisions were taken pursuant to the 2015 Act.

7 . Section 34 of the 2015 Act provides that an international protection officer (“IPO”) shall examine each application for international protection,

“ for the purpose of deciding whether to recommend, under s. 39(2)(b), that–

• a)...