L.I. v Minister for Justice, Equality and Law Reform
| Jurisdiction | Ireland |
| Judge | MR JUSTICE HEDIGAN |
| Judgment Date | 10 December 2008 |
| Neutral Citation | [2008] IEHC 388 |
| Court | High Court |
| Date | 10 December 2008 |
[2008] IEHC 388
THE HIGH COURT
BETWEEN
AND
REFUGEE ACT 1996 S17(7)
REFUGEE ACT 1996 S13(1)
REFUGEE ACT 1996 S11(10)
REFUGEE ACT 1996 S17(1A)
EC DIR 2005/85/EC ART 20
EC DIR 2005/85/EC ART 20.1
EC DIR 2005/85/EC ART 20.2
EC DIR 2005/85/EC RECITAL 15
OGUEKWE & ORS v MIN FOR JUSTICE UNREP DENHAM 1.5.2008 2008 IESC 25
R v SECRETARY OF STATE FOR THE HOME DEPARTMENT (EX PARTE ONIBIYO) 1996 2 WLR 490
I (CO) v MIN FOR JUSTICE 2008 1 IR 208
MARGINE v MIN JUSTICE & ORS UNREP PEART 14.7.2004 2004/30/6912
R (RAZGAR) v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2004 2 AC 368
S (BI) & ORS v MIN FOR JUSTICE UNREP DUNNE 30.11.2007 2007/54/11584
SHUM & ORS v IRELAND & ORS 1986 ILRM 593
FITZPATRICK v MIN FOR JUSTICE UNREP RYAN 26.1.2005 2005/25/5246
CONVENTION ON THE STATUS OF REFUGEES & STATELESS PERSONS 1951 (GENEVA CONVENTION) ART 33.1
IMMIGRATION ACT 1999 S3
REFUGEE ACT 1996 S5
CRIMINAL JUSTICE (UNITED NATIONS CONVENTION AGAINST TORTURE) ACT 2000 S4
EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3
EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006
HUANG v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2007 2 AC 167
IMMIGRATION
Asylum
Judicial review - Leave - Re-admission to asylum process refused - Failed to attend interview or offer explanation within statutory period - Applicant asserting non-receipt of notice of interview - Leave to challenge decision refusing asylum already refused - Whether applicant could rely on unimplemented directive - Whether directive of direct effect - Whether respondent unlawfully fettered his discretion - Whether failure to take into account all relevant matters - Whether necessary to consider whether applicant had prima facie case for asylum - Whether necessary to consider matters outside scope of request to re-admit applicant to asylum process - Whether obligation on applicant to put further matters before respondent - COI v Minister for Justice [2007] IEHC 180 [2008] 1 IR 208 and Oguekwa v Minister for Justice [2008] IESC 25 [2008] 3 IR 795 applied; R v Secretary of State for the Home Department, ex parte Onibiyo [1996] 2 WLR 490 followed; Margine v Minister for Justice [2004] IEHC 416, (Unrep, Peart J, 14/07/2004), R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368, Huang v Secretary of State for the Home Department [2007] 2 AC 167, Sanni v Minister for Justice [2007] IEHC 398 (Unrep, Dunne J, 30/11/2007), Pok Sun Shum v Minister for Justice [1986] ILRM 593, Fitzpatrick v Minister for Justice [2005] IEHC 9 (Unrep, Ryan J, 26/01/2005) considered - Refugee Act 1996 (No 17), ss 11 and 17(7) - Immigration Act 1999 (No 22), s 3 - Criminal Justice (UN Convention Against Torture) Act 2000 (No 11), s 4 - European Convention on Human Rights Act 2003 (No 20), s 3 - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006) - Council Directive 2005/85/EC, art 20 and recital 15 - Geneva Convention relating to the Status of Refugees 1951 Art 33 - Leave refused (2006/133JR - Hedigan J - 10/12/2008) [2008] IEHC 388
I(L) v Minister for Justice, Equality and Law Reform
Facts: The application sought to review the decision of the Minister to refuse consent to the readmission of the applicant to the asylum process under s. 17(7) of the Refugee Act 1996, as amended. The applicant was a national of Mondova and a Jehovah’s Witness and alleged a fear of persecution in the event of her being returned to Moldova. A considerable amount of relevant correspondence with ORAC and the Minister had not been received by the applicant on the grounds of an inaccurate postal address. The applicant alleged inter alia that the decision of the Minister was in breach of national and constitutional justice and that the Minister had unlawfully fettered his discretion, had failed to take all relevant material into consideration and had thus reached a disproportionate decision.
Held by Hedigan J. that the Minister had not acted in breach of natural and constitutional justice or in breach of fair procedures and no error had been made in reaching the decision made. The Minister had not fettered his discretion and had taken only relevant matters into consideration. It was appropriate for the Minister to consider only the reasons put forward by the applicant in support of her s. 17(7) request. The reliefs sought would be refused.
Reporter: E.F.
This is an application for judicial review of the decision of the Minister for Justice, Equality and Law Reform ("the Minister"), dated 6 th January, 2006, to refuse consent to the re-admission of the applicant to the asylum process under section 17(7) of the Refugee Act 1996, as amended. Leave to apply for judicial review was granted by de Valera J. on 13 th June, 2007.
The applicant is a national of Moldova and a Jehovah's Witness. She arrived in the State on 29 th May, 2005. She did not apply for asylum at that point. Some six weeks later, on 11 th July, 2005, her son arrived at Dublin airport. The applicant presented herself to receive her son and thereby came to the attention of the Garda National Immigration Bureau. She and her son thereafter applied for asylum.
The Office of the Refugee Applications Commissioner (ORAC) provided the applicant with a questionnaire, which she completed on 20 th July, 2005, citing her religion as the basis of her fear of persecution if returned to Moldova. I do not propose to set out the details of the claim as they are not strictly relevant to the present challenge. The applicant gave an address at 25 Cherry Park, Swords.
The applicant was told that she would be invited for interview with ORAC within roughly three months. As advised, a letter dated 1 st September, 2005 was sent to her address in Cherry Park, inviting her for interview on 13 th September, 2005. She did not attend for interview and the letter was returned to ORAC on 22 nd September, 2005, marked "not called for". It is agreed between the parties that this means that a note was left at the applicant's house indicating that she had received a letter by registered post and should attend at the nearest post office to collect it within a certain number of days, but that she did not call for the letter, as directed.
On 4 th October, 2005, the applicant instructed her current solicitors to assist her in her asylum claim. On the same date, her solicitors wrote to ORAC, requesting her file. A reply from ORAC, dated 6 th October, 2005, requested a signed authority from the applicant before furnishing the file. On 19 th October, 2005, the applicant's solicitors wrote to her at her address at Cherry Park, requesting that she sign an enclosed consent form. The applicant's evidence is that she was experiencing difficulties receiving her post, and did not receive the letter from her solicitors until 10 th November, 2005. She returned the signed consent form to her solicitors the following day and on 17 th November, 2005, they forwarded the form to ORAC.
A report was compiled by an ORAC officer in compliance with section 13(1) of the Refugee Act 1996, deeming the applicant's asylum application to be withdrawn; the report noted that the applicant had failed to attend for interview and had not furnished an explanation within three working days of the date of the interview as is required under section 11(10) of the Refugee Act 1996, as amended. It was therefore recommended that the applicant should not be declared a refugee and it was noted that there would be no appeal against this recommendation.
The ORAC decision was notified to the applicant by letter dated 24 th November, 2005. That letter, which was sent to her address in Cherry Park, was returned to ORAC on 8 th December, 2005, marked "not called for". The Minister's decision to refuse the applicant's claim for asylum, dated 5 th December, 2005, was also sent by registered post to that address by letter dated 6 th December, 2005 and a copy thereof was sent to the applicant's solicitors. The applicant has been refused leave to challenge the ORAC decision or the Minister's decision in that regard.
The decision in respect of which leave has been granted emanated from an request made by the applicant's solicitors by letter dated 21 st December, 2005, that the Minister exercise his discretion under section 17(7) of the Act of 1996, as amended, to consent to the applicant making a further application for a declaration of refugee status. This request did not relate to the applicant's son. The basis for the request was that the applicant did not receive the letter notifying her of the date and time of her ORAC interview. It was not disputed the said letter was sent to her home address. Rather, it was suggested that the applicant had been experiencing difficulties with her post. The section 17(7) request did not address the substantive nature of the applicant's asylum claim and no information was appended in that respect.
The applicant's solicitors were informed by letter dated 6 th January, 2006 that the applicant's section 17(7) request had been refused. That letter stated that in cases such as the applicant's, the deciding officer (i.e. an officer of the Minister's department) looks at the reasons given by the applicant for her failure to attend for interview, bearing in mind that the applicant is not a passive participant in the process and has a statutory obligation to notify ORAC of any change of address.
Although it is not strictly relevant, it is nevertheless noteworthy that on 10 th January, 2006, the applicant's solicitors informed the Minister that she had been living at a new address since 24 th December, 2005. It is common case, however, that at all material...
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