Kouaype v The Minister for Justice Equality and Law Reform and Another

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Clarke
Judgment Date09 November 2005
Neutral Citation[2005] IEHC 380
Docket Number[2004 No. 236 JR]
Date09 November 2005
KOUAYPE v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (EAMES)
JUDICIAL REVIEW
IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 5 OF THE ILLEGAL
IMMIGRANTS (TRAFFICKING) ACT 2000

BETWEEN

ERIC HYACINTHE KOUAYPE
APPLICANT

AND

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM AND AIDAN EAMES MEMBER OF THE REFUGEE APPEALS TRIBUNAL
RESPONDENTS

[2005] IEHC 380

[No. 236 J.R./2004]

THE HIGH COURT

IMMIGRATION AND ASYLUM

deportation

Asylum seeker - Refugee status refused - Whether respondent could take into account that applicant had been refused asylum status in considering whether deportation order was to be made - Grounds upon which decision of respondent to make deportation order in respect of failed asylum seeker could be reviewed - Certiorari refused (2004/236JR - Clarke - 9/11/2005) [2005] IEHC 380

KOUAYPE v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (EAMES)

Facts: the applicant was granted leave to apply for judicial review of, inter alia, a deportation order made by the respondent, having previously been refused asylum, following an appeal to the Refugee Appeals Tribunal. The applicant's challenge focused on the reasoning set out in the recommendation by the executive officer of the respondent which he contended had failed to consider representations that he would be at risk of refoulement should he be deported.

Held by Clarke J in refusing the relief sought that it was important that there be a like interpretation of the implementation of measures designed to protect persons covered by the Convention relating to the Status of Refugees in different jurisdictions and therefore the Courts regarded decisions in respect of like processes in like jurisdictions as being particularly persuasive. However, due to the different statutory regimes applicable to the Commissioner and the Tribunal on the one hand and to decisions of the respondent in relation to deportation orders on the other, that jurisprudence was of limited value when reviewing decisions of the respondent to deport.

The fact that the applicant had been refused asylum previously by quasi judicial bodies was a matter which the respondent could legitimately take into account when considering whether there was a risk of refoulement pursuant to section 5 of the Act of 1996 as the substance of the representations made on behalf of the applicant to the respondent thereunder were encompassed within the claims already made by the applicant in the course of his claim for asylum. Therefore, in the absence of unusual, special or changed circumstances or in the absence of there being evidence that the respondent did not consider the matters specified by section 5 of the Act of 1996 in coming to his opinion, it was not open to the Court to go behind the respondent's reasoning, in circumstances where the applicant had previously been refused refugee status.

Reporter: P.C.

REFUGEE ACT 1996 S5

IMMIGRATION ACT 1999 S3

REFUGEE ACT 1996 S5(1)

IMMIGRATION ACT 1999 S3(2)(f)

IMMIGRATION ACT 1999 S3(6)

IMMIGRATION ACT 1999 S3(3)(b)

P & L & B v MIN JUSTICE 2002 1 IR 164 2002 1 ILRM 38

LAURENTIU v MIN JUSTICE 1999 4 IR 42 2000 1 ILRM 1

IMMIGRATION ACT 1999 S3(6)(a)

IMMIGRATION ACT 1999 S3(6)(b)

IMMIGRATION ACT 1999 S3(6)(c)

IMMIGRATION ACT 1999 S3(6)(d)

IMMIGRATION ACT 1999 S3(6)(e)

IMMIGRATION ACT 1999 S3(6)(f)

IMMIGRATION ACT 1999 S3(6)(g)

IMMIGRATION ACT 1999 S3(6)(h)

CONVENTION ON THE STATUS OF REFUGEES & STATELESS PERSONS 1951

(GENEVA CONVENTION)

ZGNATEV v MIN FOR JUSTICE UNREP FINNEGAN 29.3.2001 2002/29/7601

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS

O v MIN FOR JUSTICE & ORS (BABY O CASE) 2002 2 IR 169 2003 1 ILRM 241

REFUGEE ACT 1996 S17(1)(a)

REFUGEE ACT 1996 S17(1)(b)

1

JUDGMENT of Mr. Justice Clarke delivered the 9th November, 2005.

1. Background Information
2

2 1.1 By order of MacMenamin J., made by consent on 8th March, 2005 the applicant ("Mr. Kouaype") was given leave to apply by way of judicial review for an order of certiorari quashing a deportation order made by the Minister for Justice Equality and Law Reform ("the Minister") on 5th January, 2004. The application for leave was out of time but an extension was given by MacMenamin J. Furthermore the original application for leave also sought to challenge by certiorari the decision of the second named respondent in his capacity as a member of the Refugee Appeals Tribunal ("RAT"). However no leave was given in that respect. The only challenge which, therefore, is now before me is in relation to the deportation order.

3

3 1.2 It is common case that the procedures followed in this case (and, it would appear, followed in most cases where consideration is being given to the making by the Minister of a deportation order) is that the matter is considered initially by a clerical officer in the Minister's department who sets out the factual position in a paper. That paper is then considered by a more senior executive officer who makes recommendations based on the facts. These recommendations and all relevant papers are in turn considered by the Minister who makes a decision. The recommendations of the executive officer are again, typically and in this case, reduced to writing. Both the report of the clerical officer and the recommendations of the executive officer in this case are available to the parties and have been proved in evidence.

2. Issues
4

2 2.1 The core of Mr. Kouaype's challenge focuses on what, it is contended, is the reasoning set out in the recommendation by the executive officer to the Minster from which, it is said, it is possible to infer the matters taken into account by the Minister in making his decision to make the deportation order. In analysing and challenging the recommendations made by the executive officer in this case the applicant has placed heavy reliance on a series of cases in this court where both at the leave and substantive hearing stages the court has considered the manner in which adverse decisions of the RAT have been arrived at. While it is necessary to consider, to some extent, the underlying reasons behind that jurisprudence in due course it is clear from a number of the relevant authorities that this court has been prepared to permit challenge to the decisions of the RAT in cases where it can be demonstrated that the reasoning by which the member of the RAT concerned arrived at important aspects of his or her determination (such as key reasons as to why the credibility of the applicant was doubted) was based either on no rational analysis or an erroneous rational analysis.

5

3 2.2 However a key legal difference between the parties in this case is as to the applicability of that jurisprudence to the separate decision making process in which the Minister is engaged when deciding whether to make a deportation order as opposed to the process which the Refugee Applications Commissioner ("RAC") or the RAT is engaged in when deciding whether to make a recommendation to the Minister as to the Refugee status of a party who has applied for it.

6

4 2.3 It therefore seems to me that it is necessary to turn first to the question of the differences between the statutory regimes applicable to both the RAC and the RAT on the one hand and to decisions of the Minister in relation to making a deportation order on the other hand.

3. The Decision to Make a Deportation Order
7

2 3.1 The relevant statutory restrictions on the power of the Minister to make a deportation order would appear to be contained in s. 5 of the Refugee Act 1996 ("the 1996 Act") and s. 3 of the Immigration Act 1999 ("the 1999 Act").

8

Section 5(1) of the 1996 Act provides as follows:-

9

2 "5(1) A person shall not be expelled from the State or returned in any manner whatsoever to the frontiers of territories where, in the opinion of the Minister, the life or freedom of that person would be threatened on account of his or her race, religion, nationality, membership of a particular social group of political opinion.

10

(2) Without prejudice to the generality of sub-s. (1), a person's freedom shall be regarded as being threatened if, inter alia, in the opinion of the Minister, the person is likely to be subject to a serious assault (including a serious assault of a sexual nature).

11

3 3.2 Section 3 of the 1999 Act permits the Minister, subject to the provisions of s. 5 of the 1996 Act, and subject to the other provisions of s. 3 to make a deportation order in a variety of cases including, (and of applicability here) in the case of a person whose application for asylum has been refused by the Minister (see s. 3(2)(f)). However s. 3(6) provides that in determining whether to make a deportation order in relation to, inter alia, such a person the Minister shall have regard to a range of factors including the age and family circumstances, length of time in and connection with the State and other humanitarian considerations "so far as they appear or are known to the Minister".

12

Subsection (3) requires the Minister, where he proposes to make a deportation order, to notify the person concerned of his proposal so that the person so notified can (under subs. 3(b)) make representations in writing to the Minister which the Minister is required, under that subsection, to take into consideration.

13

4 3.3 Thus in general terms there are two statutory prerequisites to the making of a deportation order.

14

(1) The Minister is required to be satisfied that none of the conditions set out in s. 5 of the 1996 Act are present; and

15

(2) The Minister is also required to consider the humanitarian and other factors set out in s. 3(6) of the 1999 Act insofar as they are known to him. In this latter context it obviously follows that the Minister is required, inter alia, to have regard to any representations on...

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