M.R (Albania) v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 17 August 2020
• Neutral Citation: [2020] IEHC 402
• Court: High Court
• Docket Number: [2019 No. 830 JR]
• Date: 17 August 2020

BETWEEN

M.R. (ALBANIA)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY, THE INTERNATIONAL PROTECTION OFFICER, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

[2020] IEHC 402

Richard Humphreys J.

[2019 No. 830 JR]

THE HIGH COURT

JUDICIAL REVIEW

Order of mandamus – Declaratory relief – Injunctive relief – Applicant seeking an order of mandamus requiring the establishment of a panel under s. 23 of the International Protection Act 2015 – Whether the applicant had standing

Facts: The applicant instituted proceedings on 22nd November, 2019, the primary reliefs sought being an order of mandamus requiring the establishment of a panel under s. 23 of the International Protection Act 2015, with other declarations and injunctive relief also sought. On 25th November, 2019 the proceedings were put on notice to the respondents, the Minister for Justice and Equality, the International Protection Officer, Ireland and the Attorney General. Leave was granted on 2nd December, 2019 and the respondents provided an undertaking not to progress the applicant’s application which was continued in due course. The respondents did not comply with the time limits for opposition papers and had to seek a number of extensions of time, resulting in a series of adjournments including peremptory adjournment and ultimately the statement of opposition was filed on 16th June, 2020.

Held by the High Court (Humphreys J) that it was not appropriate that the respondents were unwilling to admit to a central factual proposition, especially coming after an obfuscatory failure to answer direct questions by the applicant before the proceedings were instituted. Applying the logic of Gillen v Commissioner of an Garda Síochána [2012] IESC 3, Humphreys J held that the applicant had a clear and present entitlement to request to have the IPO consider the invocation of s. 23, and the clear intention of the legislation was that the IPO’s consideration of whether to invoke s. 23 should be in the context of the prior existence of s. 23 panel. He held that it was a legally unsound approach where the legislature has provided parameters for the assessment of mental health of applicants for the IPO to have sought a consultant’s report outside that process before deciding on the issue. He held that a similar logic applied in relation to the s. 35 application. He held that the applicant had raised sufficient grounds to give rise to an entitlement to have the IPO give due and proper consideration to whether s. 23 should be invoked. He held that the complaint of delay in advancing the claim was misconceived. He held that merely submitting a questionnaire was not acquiescence and nor did it impose any detriment, unjust or otherwise, on the respondents. He held that no basis had been made out for any discretion to be exercised against the applicant.

Accordingly, the order Humphreys J made on 31st July 2020 was as follows: (i) an order of mandamus that the first respondent shall establish a panel under s. 23 of the 2015 Act on or before 1st December, 2020; (ii) a declaration that any steps by the second respondent to carry out an interview with the applicant pursuant to s. 35 of the 2015 Act without consideration of the exercise of its powers under s. 35(8)(c) would be unlawful and that the second respondent is required to give reasons for any refusal to exercise its powers under s. 35(8)(c); (iii) a stay on further processing of the applicant’s application until 28 days following both of the following conditions being met: (a) the second respondent has considered whether to exercise its power under s. 35(8)(c), made an express decision thereon and notified the applicant of that, and provided reasons; (b) a panel under s. 23 of the 2015 Act has been established, the second respondent has given due consideration to operating s. 23 in the applicant’s case, has made an express decision thereon, has notified the applicant of that decision and has provided reasons; and (iv) liberty to apply regarding any refinements to the form of the order, with the matter to be listed on the 25th August, 2020.

Order of mandamus granted.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 17 ^th day of August, 2020

Introduction

1 Where, following the enactment of legislation, a Government Department has second thoughts about the desirability or wording of that legislation, the Department has a number of options. It can seek to amend or repeal the legislation before commencement. Alternatively, it can implement the legislation pending such amendment or repeal. Both of those options are totally unproblematic. Other options that, conversely, undermine the rule of law to a greater or lesser extent would be to leave the legislation uncommenced for an indefinite if not permanent period (which while possibly theoretically lawful on conventional jurisprudence, nonetheless undermines the integrity of the statute book), or to provide perfunctory implementation that would not pass legal muster, or to commence the legislation, but simply do nothing to implement it. The last is the least acceptable of the options, but unfortunately it's the one chosen by the Department of Justice and Equality here.

Facts

2 The applicant is an Albanian national born in 1988. He alleges that as a member of the Albanian Police in 2011-2013 he suffered targeting and abuse at the hands of criminals in Albania arising out of being associated with demolition of certain illegal buildings.

3 He says that on 17th August, 2013 there was an assassination attempt. A truck drove into him when he was on a motorbike, as a result of which he suffered severe physical injuries which are ongoing and which, at the time, left him in a coma for 22 days. He says that in January 2015 he received a further threat of harm.

4 The applicant arrived in the State on 21st January, 2016 shortly after the enactment of the International Protection Act 2015 on 30th December, 2015. He sought refugee status on the day of his arrival and in the s. 8 interview referred to his injuries. He completed a questionnaire on 2nd February, 2016.

5 In the meantime, correspondence and activity was ongoing in the Department in anticipation of the commencement of the 2015 Act. The relevant provision for present purposes is s. 23 of the Act which provides for medical assessment of applicants. The Department of Justice and Equality wrote to the Refugee Applications Commissioner asking when and how often it was envisaged that the provision of a panel of medical practitioners in s. 23 of the 2015 Act would be used and the Commissioner replied on 23rd May, 2016 that “[w]e would only see the panel being used by us in one scenario namely we might us (sic - presumably should be “use”) them for medical examinations where applicants do not turn up for interviews and claim to be ill”.

6 The Asylum Policy Division of the Department held a meeting on 5th April, 2016 and the minutes of that meeting under the heading “Action” stated that the division would follow up with HR to progress recruitment/sanctions and “progress matters re: panel member/medical practitioner fees”. That was repeated on 17th May, 2016.

7 The minute of the meeting of 25th May, 2016 makes the obvious point that sanction from the Department of Public Expenditure and Reform would be required for medical practitioner fees and goes on to say that the division would conduct research in relation to the establishment of the panel, fees, an ad campaign, locations and other matters.

8 On 3rd June, 2016 the procurement strategy group of the Department sought information on whether there were any existing medical panels they could avail of. The reply was in the negative.

9 On 7th July, 2016 a similar request was made to the Legal Aid Board and a positive reply was furnished on the same day that “the Board does not have a panel, rather there are practitioners that will do reports for clients of the Board at the agreed Board rates”. That was an encouraging response and the Department naturally enough then sought a list of those members. That promising process fizzled out for some reason which is not altogether clear to me.

10 A similar query was sent to the HSE on 21st June, 2016. A minute of 22nd June, 2016 said scoping work was well under way.

11 A minute of 11th August, 2016 says it was proposed to operate an ad hoc arrangement to begin with, and subject to demand a formal panel may be established. This gave rise to a document setting out a “proposed approach” that if the IPO decided to get a report, “a small panel will be set up for each case at the time”. It wasn't possible to find an existing panel and it was considered that it didn't make sense to advertise for a panel that in most cases would not receive a single case a year. There was no obvious consideration as to whether this complied with the 2015 Act.

12 Meanwhile, the applicant completed his s. 11 interview on 23rd September, 2016. A section 13 report in relation to the applicant's case was completed on 30th November, 2016. The applicant was refused refugee status on 7th December, 2016. He submitted a notice of appeal to the Refugee Appeals Tribunal on 22nd December, 2016.

13 The 2015 Act was commenced on 31st December, 2016 and the applicant's case was returned to the IPO. The applicant was sent an international protection questionnaire on 6th February, 2017.

14 On 7th March, 2017 the applicant's solicitor wrote asking that due to medical, psychological and mental health issues, the applicant should not be compelled to provide further information until an appropriate medical report was obtained under s. 23(1) of the 2015 Act.

15 On 11th April, 2017 the IPO replied stating that medical claims on file were not consistent with the position that they were of such gravity to prevent completion of a questionnaire and noted that the applicant had already provided a questionnaire. The...