M.E. v Refugee Appeals Tribunal

JurisdictionIreland
JudgeMs. Justice O'Regan
Judgment Date17 July 2017
Neutral Citation[2017] IEHC 464
Docket Number[2016 No. 725 J.R.]
CourtHigh Court
Date17 July 2017
BETWEEN
M.E.
APPLICANT
AND
THE REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENTS

[2017] IEHC 464

[2016 No. 725 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration & Nationality – Art. 17 of the Dublin III Regulation – Amendment of statement of grounds – Take back request – Entitlement to raise fresh issues in judicial review

Facts: The key issue in the present proceedings was the entitlement of the applicant to raise certain issues that had not been raised earlier before the prior decision makers. Another issue pertained to the application of the applicant for making substantial amendments to the statement of grounds. The applicant contended that the first respondent had the discretion to consider issues pertaining to art. 17 of the Dublin III Regulation even if those had not been presented for consideration before the Refugee Appeals Tribunal.

Ms. Justice O'Regan allowed the applicant's application for the amendment of initial statement of grounds. The Court held that the applicant did not have any right to raise the fresh issues in judicial review if those issues had not been raised by the first instance decision makers. The Court held that the applicant did not incorporate the art. 17 issues in his initial statement of grounds despite availing legal advice as the first respondent had taken the stance that it had no discretion to decide the art. 17 issues. The Court found that since the first respondent had corrected its approach and admitted that it had the discretion to consider the art. 17 issues even if those were not raised before the prior decision makers, it had been appropriate to allow the applicant's application for making the requisite amendments.

JUDGMENT of Ms. Justice O'Regan delivered on the 17th day of July, 2017
Issues
1

Leave was afforded by Humphreys J. in the within matter on 21st October, 2016 in enabling the applicant to apply for an order of certiorari against a decision of the first named respondent of 17th August, 2016 confirming the prior decision of the Refugee Applications Commissioner of the 11th March, 2016, that the applicant's application for asylum be transferred to the United Kingdom under the provisions of Dublin III. The applicant's claim is based on the Article 17 discretion within Dublin III. In this regard the applicant asserts that the first named respondent had jurisdiction in respect thereof, was obliged to exercise it and if such discretion is not exercised the applicant complains that he will be left without an effective remedy under Article 47 of the Charter of Fundamental Rights of the European Union.

2

It is common case that the applicant did not in fact raise the issue of Article 17 either before ORAC or before the Refugee Appeals Tribunal and therefore in the within proceedings the claim of the applicant in this regard is to the effect that regardless of whether or not the issue of Article 17 discretion was raised the first named respondent was obliged to consider whether or not to exercise Article 17 discretion. Further, the applicant asserts, notwithstanding that the issue was not raised as aforesaid, it is possible to raise the issue in a judicial review against the RAT.

3

A further issue arose at the trial of the action on the 28th June, 2017 namely the motion of the applicant of 18th May, 2017 seeking to substantially amend the statement of grounds herein.

4

Both issues identified aforesaid were contested by the respondent at the hearing.

Brief background
5

The applicant is a Libyan National and was born on the 3rd June, 1987. He left Libya in or about the 2nd August, 2010 and travelled to the UK where he stayed for approximately five years. On 24th September, 2012 he was issued with a UK office card. On 16th December, 2015 he arrived in this jurisdiction and applied for asylum.

6

It is in fact the case that on 21st October, 2012 the applicant had previously applied for asylum in the UK and was refused. He reapplied on 12th October, 2015 and was again refused.

7

His application for asylum in this State was made on 17th December, 2015 and ultimately culminated in the order of the ORAC of the 11th March, 2016 to the effect that the applicant should be transferred to the UK. The applicant appealed this order by appeal on 1st April, 2016. In this appeal the applicant's raised three points namely that rights pursuant to Article 4 of Dublin III and Article 29 of Regulation 603/2013 were breached and this was effectively a data protection issue. The applicant also complained that the take back request and reply was based on an incorrect Article within Chapter 3 of Dublin III and further states that the transfer decision incorrectly stated that Article 3 applied. In the events an order was made on appeal by the first named respondent bearing date 17th August, 2016 affirming ORAC's decision to transfer the applicant to the UK. None of the grounds of appeal to the first named respondent appear relevant in the within judicial review proceedings.

8

It should be noted that the applicant's then solicitor by letter of 26th August, 2016 communicated with the Minister indicating that the applicant required two operations – one to remove a blockage and one to fit a pacemaker. It is clear from the documents furnished that the applicant has had a heart issue since aged 3 and was treated for same prior to ever leaving Libya. In the letter a request was made that the transfer order should not be enforced for a period of time to allow the applicant to have his operation and to recover from same. A further request was made that based on the Refugee Appeals Tribunal's refusal to exercise jurisdiction under Article 17 of Dublin III that the Minister make a decision as to whether discretion will be exercised to accept in this jurisdiction the applicant's claim for asylum in view of his very serious medical issues which are currently being treated. The response of the Minister of the 29th August, 2016 was to the effect that all the applicant's medical data would be forwarded the UK prior to his transfer and there is no mention whatsoever of Article 17 in this response.

Moot
9

Following the decision in Un the applicant suggested the outstanding issue in the existing statement of grounds was rendered moot, nevertheless because this was listed as a test case and the respondent advises that there are several other cases raising the instant issue and it is in the interest of justice to deal with same. The position with regard to mootness was outlined by this Court in B.A. v. Minister for Justice [2017] IEHC 42:-

‘The respondent in fact made a decision on the 12th October, 2016. Therefore the issue of mandamus was rendered moot. The respondent sought, notwithstanding that the issue of mandamus was rendered moot, that the court would nevertheless deal with the issue of mandamus as same would be relevant to other cases in which Mandamus has been sought. In this regard the parties accepted the Supreme Court decision of 16th October, 2012 in Okunade v. Minister for Justice Equality & Law Reform [2012] I.R. 152 as being relevant and establishing the principle that notwithstanding that although the application before the Supreme Court on appeal had become moot, that the issues might nevertheless be dealt with if the appeal was relevant to a significant number of other cases. Reference was also made to the Supreme Court judgment of Lofinmakin v Minister for Justice, Equality and Law Reform [2013] 4 I.R. 274 to the effect that exceptional circumstances are required before a court will deal with a moot case. The parties also referred to the judgment of Humphreys J. of 29th July, 2016 in I.R.M. & Ors. v. the Minister for Justice and Equality [2016] IEHC 478 where at para. 101 of the judgment the Court summarised the principles including that a court can proceed to determine an issue that is strictly moot if the interests of justice so require.’

Entitlement of an applicant to raise in judicial review matters which were not raised before the relevant...

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3 cases
  • K.S. (Pakistan) v The International Protection Appeals Tribunal ; M.H.K. (Bangladesh) v The International Protection Appeals Tribunal
    • Ireland
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    • 25 March 2019
    ...that this is a fatal obstacle to his success in those judicial review proceedings, relying on M.E. v. Refugee Appeals Tribunal [2017] IEHC 464 (Unreported, O'Regan J., 17th July, 2017). The applicant was invited to discontinue his proceedings and the prospect is that if he does not do so, ......
  • Vaqar Un v Refugee Appeals Tribunal
    • Ireland
    • High Court
    • 24 October 2017
    ...between the parties without either following or rejecting the UK CoA decisions. 21 In the matter of M.E. v. Refugee Appeals Tribunal [2017] IEHC 464 Mr. Conlon sought to raise in the judicial review proceedings matters which were not raised before the relevant decision maker. In that case r......
  • M.E. (Libya) v The Refugee Appeals Tribunal No. 2
    • Ireland
    • High Court
    • 14 May 2018
    ...the proceedings in order to challenge the failure to consider the art. 17 discretion issue: M.E. v. Refugee Appeals Tribunal (No. 1) [2017] IEHC 464 (Unreported, High Court, 17th July, 2017). 5 Shortly thereafter on 24th July, 2017, the CSSO wrote stating that ‘ the respondent’ (unspecified......

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