Khaled Islam Khattak v Refugees Appeals Tribunal and Others
| Jurisdiction | Ireland |
| Judge | MS JUSTICE M. H. CLARK, |
| Judgment Date | 27 June 2012 |
| Neutral Citation | [2012] IEHC 569 |
| Court | High Court |
| Date | 27 June 2012 |
[2012] IEHC 569
THE HIGH COURT
D (HI) & A (B) v REFUGEE APPLICATIONS CMSR & ORS 2013 2 CMLR 31 2013 AER (D) 74 (FEB)
EEC DIR 2005/85 ART 39
Q (NX) v REFUGEE APPLICATIONS CMSR & MIN FOR JUSTICE UNREP COOKE 6.5.2009 2009/47/11726 2009 IEHC 218
DONEGAN v DUBLIN CITY COUNCIL & ORS 2012 2 ILRM 233 2012 IESC 18
B (M) (A MINOR) & ORS [NIGERIA] v MIN FOR JUSTICE UNREP CLARK 30.7.2010 2010/3/745 2010 IEHC 320
B (J)(A MINOR) & ORS v MIN FOR JUSTICE UNREP COOKE 14.7.2010 2010/3/736 2010 IEHC 296
LOFINMAKIN & AMONUSI v MIN FOR JUSTICE & ORS UNREP COOKE 1.2.2011 2011/31/8618 2011 IEHC 38
F (ISO) & ORS v MIN FOR JUSTICE UNREP COOKE 17.12.2010 2010/19/4624 2010 IEHC 457
N (V) [CAMEROON] v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP COOKE 16.2.2012 2012 IEHC 62
EFE & OLUKAYODE (MINORS) v MIN FOR JUSTICE & ORS (NO 2) 2011 2 IR 798 2011 2 ILRM 411 2011/20/4992 2011 IEHC 214
I (P) & ORS v MIN FOR JUSTICE & ORS UNREP HOGAN 11.1.2012 2012 IEHC 7
Z (S) [PAKISTAN] v MIN FOR JUSTICE & ORS UNREP HOGAN 31.1.2012 2011/50/14251 2012 IEHC 47
DIOUF v MINISTRE DU TRAVAIL 2012 1 CMLR 8
K (EK) v REFUGEE APPLICATIONS CMSR UNREP COOKE 5.3.2012 (CASE NO 2011/1030JR)
M (P) [BOTSWANA] v MIN FOR JUSTICE & ORS (NO 2) UNREP HOGAN 31.1.2012 2012 IEHC 34
HOUSING ACT 1966 S62
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8
EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006
KHATTACK v REFUGEE APPEALS TRIBUNAL & ORS UNREP CLARK 27.6.2012 2012 IEHC 569
LUKOMBO v MIN FOR JUSTICE & ORS UNREP CROSS 27.3.2012 2012 IEHC 129
OKUNADE v MIN FOR JUSTICE & ORS UNREP CROSS 30.3.2012 2012 IEHC 134
OSAGHE v MIN FOR JUSTICE & ORS UNREP CROSS 20.4.2012 2012 IEHC 153
IMMIGRATION LAW
Leave
Refugee status refused - Subsequent application for subsidiary protection refused - Deportation order against applicant - Whether first respondent providing effective remedy - Whether applicant prejudiced - Whether judicial review providing effective remedy - Donegan v Dublin City Council [2012] IESC 18, (Unrep, 27/2/2012) distinguished - Diouf v Ministre du Travail (Case C-69/10) (Unrep, CJEU, 28/7/2011) and K(EK) v Minister for Justice and Equality (Unrep, Cooke J, 5/3/2012) considered - Leave refused (2011/1005JR - Clark J - 27/6/2012) [2012] IEHC 569
Khattak v Refugee Appeals Tribunal
Facts: The applicant sought subsidiary protection and humanitarian leave to remain which he was refused and a deportation order was made against him. He sought an injunction to prevent his deportation and sought to challenge the validity of the decision of decision, the subsidiary protection decision and the decision to make a deportation order. The applicant made an alternative argument as to whether judicial review was an effective remedy.
Held by Clark J in refusing the application, that substantial grounds had not been established to warrant the grant of leave nor had arguable grounds been established to challenge subsidiary protection decision. The application was refused.
When the applicant in this case was informed in August 2010 that his claim for refugee status had been refused, he sought subsidiary protection and humanitarian leave to remain. It was subsequently determined that he did not qualify for subsidiary protection and a deportation order was made against him. An application for an injunction to prevent his deportation was refused but the applicant remains in the jurisdiction. In November 2011 he issued proceedings seeking to challenge the validity of the decision of the Refugee Appeals Tribunal, the subsidiary protection decision and the decision to make a deportation order. However, challenging the Tribunal decision at this stage would involve impermissible procedural backtracking and setting at nought the normal time limits for challenging a Tribunal decision and the setting aside of the applicant's informed election to seek subsidiary protection which can only be done if one has been refused refugee status.
The Court notes that the applicant was legally represented at all stages of his asylum claim and the subsidiary protection application was prepared by his legal advisors. Such an application represents an implicit acceptance of the determination of the Tribunal. The applicant made no attempt to explain why a challenge to jurisdiction or to the legality of the Tribunal decision should be entertained by the Court apart from stating on affidavit that he did not know until he consulted different solicitors that he had a right to an effective remedy and that the Tribunal was incapable of providing such a remedy.
Relying on the preliminary reference to the Court of Justice of the EU in H.I.D. and B.A. v. The Minister for Justice, Equality and Law Reform (see O.J., 2001/C 204/26, Vol. 54, 9 th July 2011) the applicant argues that that his asylum application has never been properly assessed because the procedures followed in Ireland do not satisfy the requirements of Council Directive 2005/85/EC, the Procedures Directive. This, he contends, is because the Refugee Appeals Tribunal lacks institutional guarantees in respect of independence and impartiality and consequently does not constitute an "effective remedy" for the purposes of Article 39 of the Directive. When these identical arguments were argued before Cooke J. in H.I.D. and B.A. they were rejected. It was in the context of an application for leave to appeal to the Supreme Court in that case that Cooke J. made a referral to the CJEU.
When the applicant was first notified of the Tribunal decision in July 2010 the H.I. A. and B.A. leave decision had been delivered and all the "effective remedy" arguments were available to the applicant. The substantive application in H.I.D. and B.A. was refused in February 2011 and the referral to the Court of Justice was made in April 2011 at a time when the Minister was still considering the subsidiary protection and leave to remain applications of the applicant herein. No step was taken even at that stage to apply for a stay on the consideration of those applications or for an extension of time to challenge the Tribunal decision so as to join the growing number of cases backing up the CJEU decision. No new facts have arisen since he applied for subsidiary protection which might justify the court in now considering this unmeritorious application.
The applicant has not identified any prejudice to him arising from the alleged absence of institutional guarantees at the Tribunal stage nor has he related his particular circumstances to this apparently opportunistic challenge and reliance on the preliminary ruling sought in the H.I.D. and B.A. case. The fact that the fundamentals of his claim for international protection were found not credible and that it was found that in any event, relocation was a viable option to flight, have been totally disregarded in the context of these proceedings. The Court is asked to simply ignore the undoubted acts of approbation in seeking subsidiary protection instead of challenging the Tribunal decision at the appropriate time. As Cooke J. found in N.X.Q. v. Refugee Applications Commissioner & Anor [2009] I.E.H.C. 218, the...
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