A.M.Y. v Minister for Justice, Equality and Law Reform

• Jurisdiction: Ireland
• Judge: MR. JUSTICE HEDIGAN
• Judgment Date: 09 October 2008
• Neutral Citation: [2008] IEHC 306
• Court: High Court
• Date: 09 October 2008

Y (A M) v Min for Justice

BETWEEN

A.M.Y.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

[2008] IEHC 306

[No. 1013 JR/2008]

THE HIGH COURT

IMMIGRATION

Deportation

Judicial review - Leave - Interlocutory injunction restraining deportation - Turkish national - Fear of persecution - Conscientious objector to military service - Application for revocation - Newspaper articles detailing difficulties endured - Intention to marry Irish citizen - Whether failure to adequately consider newspaper articles - Whether failure to consider right to subsidiary protection - Need to show new circumstances - Whether failure to consider family rights under Constitution - Onus on applicant to present relevant facts - Whether irrational that denial of rights that would be available where wife national of another EU Member State - Obligation to comply with State - Credibility - Bona fides - G v DPP [1994] 1 IR 374 and GO v Minister for Justice, Equality and Law Reform (Unrep, Clarke J, 19/2/2008) applied - NH v Minister for Justice (Unrep, Feeney J, 27/7/2007), Metock v Minister for Justice (C-127/08) and Pok Sun Shum v Minister for Justice [1986] ILRM 593 considered - Council Directive 2004/83/EC - Immigration Act 1999 (No 22), s 3 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Criminal Justice (UN Convention Against Torture) Act 2000, s 4 - European Communities (Eligibility for Protection) Regulations (SI 518/2006) - Leave refused (2008/1013JR - Hedigan J - 9/10/2008) [2008] IEHC 306

Y(AM) v Minister for Justice, Equality and Law Reform

IMMIGRATION ACT 1999 S3

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8

EEC DIR 2004/83/EC

H (N) & D (T) v MIN FOR JUSTICE UNREP HIGH FEENEY 27.7.2007 2007/27/5589

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006

EEC REG 1612/68

EEC DIR 68/360/EEC

METOCK & ORS v MIN FOR JUSTICE 2008 3 FCR 425

IMMIGRATION ACT 1999 S3(11)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

G v DPP & KIRBY 1994 1 IR 374

O (G) & ORS v MIN FOR JUSTICE UNREP HIGH CLARK 19.2.2008 2008 IEHC 80

CRIMINAL JUSTICE (UNITED NATIONS CONVENTION AGAINST TORTURE) ACT 2000 S4

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 4(2)

SHUM & ORS v IRELAND, AG & MIN FOR JUSTICE 1986 ILRM 593

1 MR. JUSTICE HEDIGAN delivered on the 9thday of October. 2008

2 1. The applicant in the within proceedings is seeking an interlocutory injunction restraining his deportation pending the determination of his application for leave to seek judicial review of a recent decision of the Minister for Justice, Equality and Law Reform ("the Minister") not to revoke a deportation order that was made in respect of the applicant in 2005. It was suggested to me and I agree that in the circumstances, the most expeditious course of action is to consider the leave application at the same time as the application for interlocutory relief.

Background

3 2. The applicant is a national of Turkey and an ethnic Kurd. He arrived in the State in March, 2003 and applied for asylum in the ordinary way. His fear of persecution derives, he says, from the fact that he has resisted doing military service on grounds of conscientious objection. Further, he says that members of his family have received death threats, that they have been harassed, arrested, and tortured, and that their home has been watched. It is said that these difficulties arise from the applicant's affiliation with the PKK, although the precise nature of his involvement with that group is unclear.

4 3. The applicant's claim for asylum was rejected by the Office of the Refugee Applications Commissioner ("ORAC") in December, 2003, and an appeal to the Refugee Appeals Tribunal ("RAT") was also unsuccessful in April, 2004. His file was examined under section 3 of the Immigration Act 1999 in May, 2005, and a deportation order was made on 5 ^th September, 2005. Neither this decision, nor the decisions of ORAC and the RAT, was challenged. The deportation order is, therefore, valid and extant.

5 4. The applicant was directed to report to the Garda National Immigration Bureau (GNIB) in November, 2005, but he failed to do so and was classed as an evader. Thereafter, he failed to sign on with the GNIB for some 26 months. Although some confusion surrounds these events, it seems that he came to the attention of the Gardaí in January, 2008, and has been signing on with the GNIB since February, 2008.

The Application for Revocation

6 5. By letter dated 22 ^nd February, 2008, an application was made to the Minister seeking revocation of the deportation order. The primary basis for the application was that the applicant had obtained supporting documentation that was not previously available to him - in the form of newspaper articles published in July, 2006, by Turkish newspapers - detailing the difficulties endured by the applicant's family since his departure from Turkey. Translations of those articles were appended to the letter.

7 6. Reference was also made to the applicant's three-year relationship with his then-fiancée, Ms L.P. Appended to the letter was a notification to the Registrar of Marriages of their intention to marry. Both that document and the letter gave 28 ^th May, 2008 as the intended date of marriage, although it was noted that the date was not confirmed with the Registrar. In fact, the applicant did not marry Ms L.P. until 21 ^st August, 2008, but no attempt was made in the interim to inform the Minister of the change of plan.

8 7. The Minister's agents considered the application in June and July, 2008. I consider that the analysis conducted is quite elaborate, referring to the representations made on behalf of the applicant and the documentation submitted in support of the application. It refers to a substantial an amount of country of origin information and analyses the applicant's rights under Article 8 of the European Convention on Human Rights. The Minister decided not to revoke the deportation order, and this decision was notified to the applicant by letter dated 20 ^th August, 2008. The applicant was directed to present himself to the GNIB to make arrangements for his deportation.

9 8. The within proceedings were then initiated and an undertaking not to deport the applicant pending the determination of the proceedings was sought. No such undertaking was forthcoming, and an application was subsequently lodged seeking interlocutory injunctive relief. It is in these circumstances that the case came before the Court.

The Submissions

10 9. The applicant submits that the Minister's decision not to revoke the deportation order ought to be quashed on the basis of the following errors:-

11 a a. Failing to adequately consider the newspaper articles;

12 b b. Failing to consider the applicant's right to subsidiary protection;

13 c c. Failing to consider the applicant's family rights under the Constitution;

14 d d. Acting irrationally in light of the rights that would have been available to the applicant if he had married a national of an EU Member State other than Ireland.

(i) The Newspaper Articles

15 10. The applicant contends that the Minister failed to assess the information contained in the Turkish newspaper articles, and failed to explain why the information contained therein does not affect the Minister's decision to deport him. The respondent argues that on the contrary, the consideration given to the information contained in the newspaper articles was wholly sufficient, and the Minister was not obliged to give any further reasons for his decision.

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