KAS v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 14 November 2016
• Neutral Citation: [2016] IEHC 657
• Court: High Court
• Docket Number: [2016 No. 694 J.R.]
• Date: 14 November 2016

[2016] IEHC 657

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2016 No. 694 J.R.]

BETWEEN

K.A.S.

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY

AND

THE REFUGEE APPLICATIONS COMMISSIONER

RESPONDENT

Asylum, Immigration & Nationality – S. 5 of the Illegal Immigrants (Trafficking) Act 2000 – Expiration of student visa – Delay in filing asylum claim – Fear of persecution for imputed political opinion – Failure to serve proposal to deport letter – Validity of deportation order

Facts: The applicant sought leave to seek judicial review in relation to a deportation order made against him by the first named respondent. The applicant primarily contended that since he was not notified about the proposal to deport letter, the deportation order made against him was invalid.

Mr. Justice Richard Humphreys refused to grant leave to the applicant. The Court held that the applicant himself had frustrated the purpose of the immigration law as he did not provide the address of service to the first named respondent. The Court held that while exercising the discretion under judicial review, the conduct of the applicant had played a crucial role. The Court criticized the conduct of the applicant in not providing his address for service, fleeing to another country secretly and attempting to travel to a third country on fake passport.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 14th day of November, 2016

1 In this judicial review leave application, the applicant seeks leave to challenge his interaction with the immigration and asylum system by reference to a series of objections that are technical, elaborate, lengthy and in some respects mutually conflicting. Before coming to the details of his application it is relevant to set out his immigration history.

2 The applicant came to the State from Pakistan on a student visa on 17th March, 2005. The visa expired on 5th October, 2005, and the applicant then remained illegally in the State for a seven year period.

3 On 10th September, 2012, seven and a half years after his arrival, the notion of making an asylum claim first occurred to the applicant. The details of the asylum claim are sparse and consist essentially of one paragraph in his asylum questionnaire in which he alleges persecution by an entity in Pakistan known as M.Q.M. (see questionnaire dated 18th September, 2012). He claims that his brother was killed as a result of differences with this group.

4 While one might have the impression from the claim that M.Q.M. is some form of criminal organisation, Mr. Michael Lynn S.C. (with Mr. Anthony Hanrahan B.L.) in a very able submission for the applicant accepts that it is a political party, as appears from a letter dated 1st July, 2016, from the research and information unit of the legal aid board to the Refugee Legal Service. That letter notes that information about the group is ‘ extremely scarce’ and the limited information that could be obtained was only minimally supportive of the applicant's claim.

5 On 25th October, 2015, the Minister drafted a proposal to deport, but did not send it to any address. When the applicant's solicitors complained about this problem, the Department replied by letter dated 5th August, 2016, as follows: ‘ The proposal to deport letter was retained on file as we had been made aware by RIA that the applicant had left the last notified address provided to us and provided no further address. It would be completely illogical to issue a letter to an address that we were fully aware that your client was no longer residing at and I do not see any way that it would have benefitted your client to have us send a letter to an address that he no longer resided at, only for it to be returned to us undelivered. By not providing a new address, your client was also guilty of an offence under the Refugee Act 1996.’

6 A deportation order was made on 20th February, 2014. The Minister wrote to an address for the applicant in Cork on 5th March, 2014, with a notification that the order had been made.

7 In January, 2016, the applicant left the State and was detained in Hungary while using the passport of another person, en route to Italy.

8 On 18th April, 2016, he was transferred back to the State from Hungary after a request under the Dublin III regulation (regulation (EU) No. 604/2013). The commissioner's letter of 10th March, 2016, accepting the applicant back relied on Article 18(1)(b) of the Dublin III regulation, which refers to an applicant whose application is ‘ under examination’. When the applicant returned, however, the papers exhibited indicate that he was not actually transferred under the Dublin regulation but came of his own volition after the procedures for transfer had been initiated.

9 On 2nd September, 2016, Faherty J. granted an interim injunction restraining deportation of the applicant and adjourned the leave application to 17th October, 2016.

10 As I held in X.X. v. Minister for Justice and Equality [2016] IEHC 377 (Unreported, High Court, 24th June, 2016), it is not open to an applicant to circumvent s. 5 of the Illegal Immigrants (Trafficking) Act 2000 by seeking declarations which cannot co-exist with the validity of a decision subject to that section (see e.g. paras. 65, 72 and 78 to 80 of X.X.). In terms of relief sought in the present case, relief 4(a) is an order of certiorari quashing the deportation order. That is clearly subject to s. 5 of the Illegal Immigrants (Trafficking) Act 2000. All of the remaining reliefs (4(b) to 4(g)) if granted would have the effect of undermining the validity and enforceability of the deportation order. For that reason they are also subject to s. 5 of the 2000 Act. To hold otherwise would allow the validity of the order to be collaterally challenged as a result of creative legal complexity and confection.

11 The substantial grounds test applies by virtue of s. 5 of the Illegal Immigrants (Trafficking) Act 2000, and I have had regard to the law in relation to that test including McNamara v. An Bord Pleanála [1995] 2 I.L.R.M. 125 as approved in In re Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 I.R. 360 at 395.

Are there substantial grounds to contend that the failure to serve the proposal to deport letter entitles the applicant to relief?

12 The applicant's complaint that the proposal to deport letter was not served on him is an exercise in empty technical point-scoring. The Minister's inability to serve it was due to the applicant's own failure in his duty to notify the Minister of his address.

13 Hogan J. granted leave in relation to a failure to prove service of such a letter in M.M. v. Minister for Justice, Equality and Law Reform [2011] IEHC 529 (unreported, High Court, 19th September, 2011), but that was in the quite different situation where the whereabouts of the applicant were known. Hogan J. says at para. 16 that failure to...