Marie Pamela Chevathyan v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 10 March 2021
• Neutral Citation: [2021] IEHC 223
• Docket Number: (1) [2020 No. 152 JR]
• Date: 10 March 2021
• Court: High Court

Between

Marie Pamela Chevathyan

Applicant

and

The Minister for Justice and Equality

Respondent

Between

Kamini Pemsing

Applicant

and

The Minister for Justice and Equality

Respondent

[2021] IEHC 223

(1) [2020 No. 152 JR]

(2) [2020 No. 345 JR]

THE HIGH COURT

Immigration and asylum – Judicial review – Preliminary reference – Applicant seeking a declaration as a refugee and subsidiary protection status – Whether the applicant was wrongly denied the benefit of the doubt by the respondent

Facts: The applicant, by notice of motion of 7th April 2019, applied to the High Court seeking the following reliefs: (a) an order of certiorari quashing the decision of the first respondent, the International Protection Appeals Tribunal (IPAT), pursuant to s. 46(3)(a) of the International Protection Act 2015, dated the 7th February 2019, affirming the recommendation of the International Protection Office that the applicant should be refused a declaration as a refugee, and refused subsidiary protection status; (b) such declarations of the legal rights and/or legal position of the applicant and/or persons similarly situated as the court considers appropriate; (c) such further or other order as to the court may seem fit including an extension of time; and (d) an order providing for an award of the costs of the proceedings to the applicant. The applicant submitted that the order of certiorari should be granted on the following bases: (1) a failure by the IPAT to consider up-to-date country of origin information; (2) the delays encountered in the assessment of the applicant’s claim; (3) a failure by the IPAT to obtain other evidence, e.g., a SPIRASI report; and (4) the applicant was wrongly denied the benefit of the doubt by the IPAT.

Held by Barrett J that a reference to the European Court of Justice on the precise ambit and effect of the duty of cooperation was necessary before the court could give judgment as regards the consequences of the alleged breach of the duty of cooperation presenting and the claimed prejudice arising therefrom (to the extent that such prejudice is relevant, if it is relevant, as a matter of European Union law). The court considered it necessary to give judgment in the case to seek a preliminary ruling of the European Court of Justice whether the effecting of change to the applicable asylum protection framework operates to excuse the respondents from operating an asylum scheme which would have provided a decision to the applicant for asylum, within a reasonable time. The court considered it necessary for it to give judgment that it obtain a preliminary ruling as to what the duty of cooperation mandates of the IPAT. The court considered it necessary for it to give judgment in the proceedings that it seek a preliminary ruling of the European Court of Justice on the interaction between lie-telling and any implications for the extension of the benefit of the doubt. The court would hear the parties further on the proposed preliminary reference.

Barrett J held that given (i) the court’s intention to make a preliminary reference to the European Court of Justice, and that (ii) the court would hear the parties further in this regard, (iii) counsel for the applicant considered that any reference to be made by the court should be wider than was mooted in court when the court raised the possibility of a reference at the hearing, (iv) the court would only settle on the form of any such reference after hearing the parties, and (v) one cannot contemplate precisely what the European Court of Justice might indicate by way of its preliminary ruling, the court elected to issue this judgment as an interim judgment only and to defer reaching any final conclusions on the matters raised, including as to the reliefs sought by the applicant, pending such preliminary ruling as may issue from the European Court of Justice following upon the intended referral.

Interim judgment.

JUDGMENT of Mr Justice Max Barrett delivered on 10th March 2021.

I

Facts

1 Pamela and David hail from beautiful blue-skied Mauritius. They fell in love there, came to Ireland together on student visas in 2009 and have lived here since. They have been a couple for about 20 years.

2 After their student visas expired, both Pamela and David stayed on illegally in Ireland. Then they got lucky, or at least David did. Following the Minister's defeat in the Luximon and Balchand student overstay cases back in 2018 (see [2018] IESC 24; [2018] 2 IR 542), a ‘Special Student Scheme’ was introduced that aimed to regularise the position of various non-EEA nationals who had held a student permission in the State during a prescribed period.

3 Pamela and David made application under this Scheme. However, neither of them had been a student over the period of time required under the Scheme. So their applications were correctly refused. They each then applied for a review of their respective refusals.

4 Unbeknown to them, Pamela and David had now embarked down a path which would see a very strange sequence of events unfold.

5 Following their applications for a review of their respective initial refusals, both David and Pamela received letters (the letter to Pamela is dated 30th July 2019) affirming the initial refusal under the Scheme. So far, so good: they were undoubtedly ineligible under the Scheme. Now came the strange bit:

• – the civil servant who did David's review, and who was acting at all times in the name of the Minister, exercised a discretionary power to send David's case forward for consideration for exercise of the Minister's freestanding discretionary power to let someone stay in Ireland. The civil servant did this, his letter to David states, because of David's “ longstanding and currently precarious immigration status” in Ireland. Four days after sending this letter, another letter issued to David indicating that the Minister had exercised his freestanding discretionary power in David's favour to allow David to remain in Ireland, with the result that David was now fully free to live and settle here.

• – the civil servant who did Pamela's review, and who was acting at all times in the name of Minister, did not send Pamela's case forward for consideration for exercise of the Minister's freestanding discretionary power to let someone stay in Ireland. Instead Pamela, whose case was in all material respects identical to David's, and who had precisely the same “ longstanding and currently precarious immigration status”, was sent a letter dated 17th October 2019, affirming the initial refusal, and told, “Your review request is now closed”.

6 So things ended well for David and dreadfully for Pamela. Though their respective cases were in all material respects identical, they found themselves treated in a radically different manner and to have arrived at diametrically opposed end-situations. No good explanation has ever been offered as to why matters proceeded so differently in Pamela's case from how they proceeded in David's case. As one would expect, Pamela is considerably perplexed as to how David (whose case is in all material respects the same as hers) could end up with a ‘golden ticket’ to settle in Ireland, while she has in effect been told ‘You lose’.

II

Eight Suggested Reasons Why All is in Order

7 Unsurprisingly, Pamela has brought the within proceedings challenging the review decision. The respondents have, remarkably, come up with, by the court's reckoning, eight reasons as to why the invidious and nonsensical position in which Pamela currently finds herself placed (as the hapless recipient of a negative immigration decision in a situation where her partner, whose case is in all material respects identical to hers, has been treated in a diametrically opposite manner) should be allowed to stand. These eight reasons are as follows:

• (1) The first reason is that Pamela was ineligible under the Special Student Scheme. She got a ‘no’ under the Scheme. She got a further ‘no’ on review. So what is she complaining about? There is some sense to this reasoning. Thus, to the extent that it was contended (and it was contended) for Pamela that the Minister should have exercised a contended-for discretion to dis-apply elements of the Scheme even as the Minister was applying the Scheme, the court does not consider such a discretion to present: that would in effect be a lawless scenario in which, Magritte-like, a scheme would simultaneously be a scheme and not-a-scheme, a proposition which need only be stated to see that it could not present in any system constructed on the rule of law. However, that aside, this first reason offered by the Minister does not make sense. Why so? Because as part of the review process, there was clearly a discretion vested in the civil servants doing the reviews to send a file forward for consideration for exercise of the Minister's freestanding discretionary power to let someone stay in Ireland. That discretion was exercised in David's favour. Yet it was not considered and/or not exercised in Pamela's case even though their two cases are for all intents and purposes identical. How could that be? To this last question the Minister's sole answer to date has been, ‘Ah you see, I exercised my freestanding discretion to let David stay’. That is not a complete answer (it is, with respect, scarcely an answer at all) as to how two cases which in all material respects were identical could be and were treated in such a manner as to arrive at diametrically opposite ends.

• (2) The second reason is that Pamela is engaged in what counsel for the Minister described as ‘whataboutery’. By this counsel meant that Pamela is asking ‘What about David's case?’ when in fact she should focus on her own case and not trouble herself with how David was treated. But that, with respect, is to misdescribe what Pamela is doing in these proceedings. She has not come to court saying, ‘What about...