Okunade v Min for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Kevin Cross
• Judgment Date: 30 March 2012
• Neutral Citation: [2012] IEHC 134
• Court: High Court
• Date: 30 March 2012

[2012] IEHC 134

THE HIGH COURT

[No. 739 J.R./2011]

Okunade v Min for Justice & Ors

JUDICIAL REVIEW

BETWEEN

OLUWASEUN COMFORT OKUNADE AND DANIEL DEMILOLUWA OKUNADE (AN INFANT SUING BY HIS MOTHER AND NEXT FRIEND OLUWASEUN COMFORT OKUNADE)

APPLICANTS

AND

MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND ATTORNEY GENERAL

RESPONDENTS

AHMED v MIN FOR JUSTICE UNREP BIRMINGHAM 24.3.2011 (EX TEMPORE)

M (M) v MIN FOR JUSTICE & ORS (NO 1) UNREP HOGAN 18.5.2011 (EX TEMPORE)

A (BJS) [SIERRA LEONE] v MIN FOR JUSTICE & ORS UNREP COOKE 12.10.2011 2011/1/84 2011 IEHC 381

J (O) [NIGERIA] v MIN FOR JUSTICE & AG UNREP CROSS 3.2.2012 2012 IEHC 71

N (V) [CAMEROON] v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP COOKE 16.2.2012 2012 IEHC 62

L (S) [NIGERIA] v MIN FOR JUSTICE & ORS UNREP COOKE 6.10.2011 2011/31/8496 2011 IEHC 370

A (MA) v MIN FOR JUSTICE UNREP BIRMINGHAM 24.3.2011 (EX TEMPORE)

O (N) v MIN FOR JUSTICE & ORS UNREP RYAN 14.12.2011 2011/13/12250 2011 IEHC 472

I (P) & ORS v MIN FOR JUSTICE & ORS UNREP HOGAN 11.1.2012 2012 IEHC 7

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 47

EEC DIR 2005/85 ART 39

EEC DIR 2005/85 ANNEX I

EEC DIR 2005/85 ART 3(3)

PAQUAY v SOCIETE D'ARCHITECTES HOET + MINNE SPRL 2007 ECR I-8511 2008 1 CMLR 12 2008 ICR 420

M (P) v MIN FOR JUSTICE & ORS UNREP HOGAN 28.10.2011 2011/34/9389 2011 IEHC 409

F (ISO) & ORS v MIN FOR JUSTICE (NO 2) UNREP COOKE 17.12.2010 2010/19/4624 2010 IEHC 457

EFE & OLUKAYODE v MIN FOR JUSTICE & ORS (NO 2) 2011 2 IR 798 2011 2 ILRM 411 2011/20/4992 2011 IEHC 214

DONEGAN v DUBLIN CITY COUNCIL & ORS; DUBLIN CITY COUNCIL v GALLAGHER 2012 2 ILRM 233 2012 IESC 18

HOUSING ACT 1966 S62

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

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

IMMIGRATION ACT 1999 S3(11)

IMMIGRATION LAW

Subsidiary protection

Effective remedy - Adequacy of judicial review - Fair procedures - Cooperation - Principle of equivalence - Right of appeal - Arguable grounds -Prejudice - Proportionality - Whether arguable grounds - Whether Qualifications Directive incorrectly transposed into Irish law - Whether breach of principle of equivalence - Whether right of appeal - Whether effective remedy - Whether prejudice suffered by alleged failure - Whether remedy of judicial review sufficient to vindicate rights - Ahmed v MJELR (Unrep, Birmingham J, 24/3/2011); Mujyanama v MJELR (Unrep, Hogan J, 18/5/2011); A(BJS)(Sierra Leone) v MJELR [2011] IEHC 381, (Unrep, Cooke J, 12/10/2011); Jayeola v Minister for Justice and Equality (Unrep, Cross J, 3/2/2012); Nendah v MJELR (Unrep, Cooke J, 16/2/2012); L(S) v MJELR (Unrep, Cooke J, 6/10/2011); O(N) v MJELR (Unrep, Ryan J, 14/12/2011); I v MJELR (Unrep, Hogan J, 11/1/2011); Paquay (C-460/06) [2007] ECR I-8511; M(P) v MJELR [2011] IEHC 409, (Unrep, Hogan J, 28/10/2011); Efe v MJELR [2011] IEHC 214, [2011] 2 IR 798 and Donegan v Dublin City Council [2012] IESC 18, (Unrep, SC, 27/2/2012) considered - Refugee Act 1996 (No 17) - Housing Act 1966 (No 21), s 62 - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006) - European Charter of Fundamental Rights, art 47 - Procedures Directive, art 39 - Application refused (2011/739JR - Cross J - 30/3/2012) [2012] IEHC 134

Okunade v Minister for Justice and Equality

Background

1 1. The first named applicant is a Nigerian national who fetched up in the State in May 2008 and the second named applicant is her infant son born in the State on 23 ^rd June, 2008 and is a Nigerian national. The applicants made application before the Refugee Commissioner (ORAC) and the Refugee Appeals Tribunal (RAT) and following the above applications both of which were rejected, the applicants made applications for subsidiary protection to the first named respondent which also were unsuccessful and deportation orders were made in respect of both applicants.

2 2. It is in respect of the above decisions that the applicants commenced these proceedings on 16 ^th August, 2011 and seek leave to challenge by way of judicial review, the validity of (a) the decision of the first named respondent to refuse subsidiary protection; and (b) the deportation orders made against them. The appropriate standard in relation to judicial review for the subsidiary protection application is that of arguable grounds and in respect of the deportation order it is substantial grounds. It is accepted by both sides that in the event of any finding in favour of the applicant on the subsidiary protection that the deportation order cannot take effect.

3 3. In addition to the reliefs of certiorari sought, the applicant is also seeking various declarations, however, the applicant is clearly out of time (three months) in respect of the declarations sought arising from the subsidiary protection decision. In any event, the court fails to see why the applicant or other applicants in cases such as this, seeks wide declaratory relief when in most circumstances, if they are entitled to relief of certiorari the declarations are superfluous and if the applicant should fail in their quest for certiorari, they must also fail in the declaratory relief.

The Applicants' Claims

4 4. The first claim of the applicants is that the claim for subsidiary protection and non-refoulement are subject to the principles of fair procedure, autonomy, effectiveness and equivalence.

5 5. It is submitted by the applicants that the Qualifications Directive has been incorrectly transposed so that the applicant for subsidiary protection is "enmeshed in the deportation process". It was also formally submitted that Qualifications Directive was incorrectly transposed into Irish law whereby the implementing measures did not require the first named respondent to cooperate with the applicants.

6 6. The issue of "cooperation" was first considered by Birmingham J. in Ahmed v. Minister for Justice, Equality and Law Reform (Unreported, High Court, 24 ^th March, 2011) which comprehensively rejected this ground:-

"In my view the argument ignores the fact that an application for subsidiary protection is not made in isolation but is ordinarily made, and this was the situation in the present case by someone who was applying for asylum, and has had that application considered and been refused refugee status.

Even before the stage of submitting an application for subsidiary protection is reached, there has already been a considerable degree of interaction between an applicant and the authorities...."

7 7. The matter was further considered in M.M. v. Minister for Justice, Equality and Law Reform & Ors (the Mujyanama case) (Unreported, Hogan J., 18 ^th May, 2011) in which case though he expressed severe doubts about the proposition, Hogan J. did make a reference to the Court of Justice but notwithstanding this reference, the High Court has further rejected the argument in a large number of cases: BJSA (Sierra Leone) (Akhiele) v. Minister for Justice, Equality and Law Reform [2011] 1IEHC and by myself in Jayeola v. Minister for Justice and Equality [2011] 656 J.R. and in the view of this Court as stated in Jayeola, this proposition is without merit.

8 8. The second submission on behalf of the applicant is that there was breach in the principle of equivalence notwithstanding the views I expressed in Jayeola (above) in relation to equivalence and notwithstanding the fact that Cooke J. has held in the comprehensive judgment of Nendah v. Minister for Justice, Equality and Law Reform (Unreported, High Court, 16 ^th February, 2012), counsel for the applicant maintained that the applicant on this occasion was advancing a new and previously unconsidered argument based upon equivalence.

9 9. I do not find any new argument having been advanced on this point.

10 10. To quote Cooke J. in Nendah (above):-

"In the judgment of this Court all possible nuances of the arguments upon which this ground is advanced have been thoroughly considered in those judgments and nothing has been submitted in the hearing of the present application which could justify this Court departing from the conclusions that have been reached in those judgments."

11 11. Cooke J. referred to the judgments of the High Court in S.L. v. MJELR of 6 ^th October, 2011 and BJSA (Sierra Leone) v. MJELR, 12 ^th October, 2011 and Birmingham J's judgment in M.A.A. v. MJELR (24 ^th March, 2011) and Ryan J. in N.O. v. MJELR (14 ^th December, 2011) and Hogan J. in P.I. and E.I. v. MJELR (11 ^th January, 2012).

12 12. In addition there have been a number of further judgments on the same point by this Court.

13 13. The argument briefly put is that a failed asylum seeker who has been ineligible for subsidiary protection by determination of the Minister is entitled in law to a right of appeal against this decision it is submitted the principle of equivalence in European law requires that the remedy in relation to subsidiary protection be equivalent to that available in national law in a procedure prescribed by national law for the protection of a comparable right or indeed equivalent to comparable EU rights.

14 14. It is submitted that as there is a right to an appeal from a determination in an asylum claim by the ORAC to the RAT that this facility under national law (the Refugee Act 1986) must replicated by a corresponding appeal against a determination made in a procedure for subsidiary protection as this procedure determines a right derived from European law namely the Qualification Directive.

15 15. In the manner in which a subsidiary protection has been implemented in the 2006 Regulations in this State an application is made and examined after the issue of refugee status as being determined a proposal to deport has been notified. The Minister as the decision maker must take into...