L.H. v Minister for Justice

• Jurisdiction: Ireland
• Judgment Date: 28 October 2011
• Date: 28 October 2011
• Docket Number: [2008 No. 1183 JR]
• Court: High Court

[2011] IEHC 406,

High Court

[2008 No. 1183 JR]

L.H. v. Minister for Justice

L.H.

Applicant

and

The Minister for Justice, Equality and Law Reform

Respondent

Cases mentioned in this report:-

A.A. v. Minister for Justice [2009] IEHC 436, [2010] 4 I.R. 197.

East Donegal Co-Operative Livestock Mart Ltd. v. Attorney General [1970] I.R. 317; (1970) 104 I.L.T.R. 81.

European Commission v. Ireland (Case C-431/10)(Unreported, European Court of Justice, 7th April, 2011).

Reg. v. Home Secretary, Ex p. Onibiyo [1996] Q.B. 768; [1996] 2 W.L.R. 490; [1996] 2 All E.R. 901.

R. v. Secretary of State for the Home Department, Ex p. Manvinder Singh (Unreported, Court of Appeal, 8th December, 1995).

E.M.S. v. Minister for Justice, Equality and Law Reform [2004] IEHC 398, (Unreported, High Court, Clarke J., 21st December, 2004).

Immigration - Asylum - Further application - Consent of Minister - Discretion - Refoulement - Original application abandoned by applicant - No new evidence adduced by applicant - Consent to making of further application refused - Principles to be applied - Whether Minister erred in refusing consent to making of further application - Whether Minister obliged to consider prohibition on refoulement - European Communities (Asylum Procedures) Regulations 2011 (S.I. No. 51) - Refugee Act 1996 (No. 17), ss. 5 and 17 - Council Directive 2004/83/EC - Council Directive 2005/85/EC.

Application for leave to seek judicial review

The facts have been summarised in the headnote and are more fully set out in the judgment of Cooke J., infra.

By notice of motion dated the 24th October, 2008, the applicant sought leave to apply for an order of certiorari quashing the refusal of the respondent to consent to the applicant making a further application for asylum pursuant to s. 17(7) of the Refugee Act 1996.

The application for leave was heard by the High Court (Cooke J.) on the 19th October, 2011.

Section 17(7) of the Refugee Act 1996, prior to its amendment by the European Communities (Asylum Procedures) Regulations 2011, provided that:-

"A person to whom the Minister has refused to give a declaration may not make a further application for a declaration under this Act without the consent of the Minister."

The Regulations of 2011 transposed Council Directive 2005/85/EC (the "Procedures Directive") into Irish law. The Directive provides that it should be transposed into the laws of member states by the 1st December, 2007. The Regulations of 2011 came into operation on the 1st March, 2011.

The applicant was a Georgian national. He arrived in the State in January, 2001 and applied to the Refugee Applications Commissioner for a declaration of refugee status. He failed to reply to letters of November, 2001 and March, 2002 summoning him to interviews at the office of the commissioner. A letter of April, 2002 was sent to the applicant informing him that, due to his failure to attend the interviews or to provide a reasonable explanation for non-attendance, the Commissioner proposed to recommend to the Minister that he should not be declared a refugee. The application was deemed to have been withdrawn for failure by the applicant to attend the interviews. A deportation order was made in September, 2002, and the notification of November, 2002 to the applicant was returned. The applicant failed to present as required at the Garda National Immigration Bureau.

In September, 2008 the applicant visited the office of the commissioner, and in October, 2008 he requested that the Minister consent to him making another application for asylum pursuant to s. 17(7) of the Act of 1996 (prior to the subsection's amendment by the Regulations of 2011). The basis of the proposed application for asylum was identical to the claim originally made in 2001. No explanation was provided as to the applicant's whereabouts for the previous seven years. The Minister refused consent. The applicant sought leave to apply for an order of certiorari quashing the refusal. He submitted, inter alia, that the refusal and intention to deport him was, or had the potential to be, in breach of the prohibition on refoulement pursuant to s. 5 of the Act of 1996. He did not seek to rely on the direct effect of the Procedures Directive.

Held by the High Court (Cooke J.), in refusing the application for leave to apply for certiorari, 1, that when the Minister was asked to consider an application under s. 17(7) of the Act of 1996, the essential issue to be addressed was not the possible application of the prohibition on refoulement, but whether the material he was asked to examine as the basis for a further application contained potentially the ingredients required to establish that the applicant was a refugee.

2. That the applicant's request of October, 2008 adduced no new evidence that would have indicated that a favourable view of the further application might have been taken if remitted to the Commissioner for assessment. Whether the issue was approached on the basis of the case law or on the basis that the test of the Procedures Directive, as transposed by the Regulations of 2011, was applicable, the Minister was only required to decide whether what was adduced by the applicant was new. The Minister's obligation was not altered by the fact that the original application had not been fully processed but had been abandoned by the applicant and deemed withdrawn. The refusal of the declaration remained a definitive determination of the original application and the applicant was not entitled to exploit his own failure to prosecute his original application in order to compel the Minister to consent to what would be, in effect, a reopening of the original claim with no new evidence, arguments or findings.

• E.M.S. v. Minister for Justice [2004] IEHC 398 (Unreported, High Court, Clarke J., 21st December, 2004) andA.A. v. Minister for Justice [2009] IEHC 436, [2010] 4 I.R. 197 considered.

Obiter dictum: The amendments to s. 17(7) of the Act of 1996 were to be construed in the context of the minimum standards sought to be adopted for the Common European Asylum System and consistently with the objectives and principles of that system. Under s. 17(7), as amended, the Minister would only be compellable to grant his consent to a new asylum application being entertained and determined when two conditions had been fulfilled; firstly, that new elements or findings had arisen making it significantly more likely that the new application would be successful, and, secondly, that those new elements or findings could not have been presented for the earlier application through no fault of the applicant.

Cur. adv. vult.

Cooke J. 28th October, 2011

[1] In the motion before the court, the applicant seeks leave to apply for judicial review of a decision made by the respondent on the 17th October, 2008, refusing his consent to the making of a second application for asylum by the applicant.

[2] The applicant is a national of Georgia who arrived in the State on the 29th January, 2001 and applied for a declaration of refugee status. Having lodged his application with the Refugee Applications Commissioner, he was provided with accommodation at Hillcrest, Pembrokestown in Wexford. He was subsequently sent a letter dated the 27th November, 2001, at that address summoning him to an interview at the office of the Commissioner on the 10th January, 2002. He failed to attend. He was again written to at that address by letter dated the 11th March, 2002, summoning him to the interview on the 26th March, 2002. He again failed to attend. Both letters were apparently returned to the office of the Commissioner marked "gone away". On the 10th April, 2002, letters were sent to that address and to an address at Viking Lodge Hotel, 24/36 Francis Street, Dublin, an address at which he had apparently been lodged for a few days following his arrival and before being sent to Wexford, in which he was informed that in view of his failure to attend the interviews or to provide a reasonable explanation for non-attendance, the Commissioner proposed to recommend to the Minister that he should not be declared to be a refugee. Again, both letters were returned marked "gone away".

[3] By a report and recommendation dated the 10th April, 2002, under s. 13 of the Refugee Act 1996, as amended, the Commissioner recommended to the Minister that the applicant should not be declared to be a refugee. In accordance with s. 11(11) of the Refugee Act 1996, as amended, the application for a declaration of refugee status was deemed to have been withdrawn for failure to attend the interviews. On the 21st June, 2002, the applicant was written to, again at both above addresses, and given formal notice of the Minister's decision to refuse the declaration of refugee status pursuant to s. 17(1) of the Act of 1996. The letter also notified the applicant that the Minister was proposing to make a deportation order and he was advised that in accordance with s. 3 of the Immigration Act 1999, he might make written representations giving reasons as to why he should be allowed to remain temporarily in the State. No representations were received and a deportation order was subsequently made in respect of the applicant on the 9th September, 2002, and notified to the applicant at both addresses on the 1st November, 2002. The documents sent to the applicant by registered post were returned on the 6th November, 2002, and the applicant failed subsequently to present as required at the Garda National Immigration Bureau in Dublin on the 8th November, 2002.

[4] Insofar as the Minister and the Garda National Immigration Bureau were concerned, nothing further was known as to the whereabouts of the applicant until he was apprehended and detained in Cloverhill Prison on the 29th September, 2008, following a visit he made to the offices of the Commissioner. On the 9th October, 2008, Ivan Williams, solicitor, wrote to...