R.A. (Pakistan) v The Minister for Justice and Equaltiy

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 10 May 2019
• Neutral Citation: [2019] IEHC 319
• Court: High Court
• Docket Number: [2018 No. 802 J.R.]
• Date: 10 May 2019

BETWEEN

R.A. (PAKISTAN)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

[2019] IEHC 319

Humphreys J.

[2018 No. 802 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Permission to remain – Deportation – Applicant seeking an order of certiorari of the respondent’s decision – Whether there was a lack of proper determination

Facts: The applicant, on 16th June, 2015, arrived in the State via Belfast. On 17th June, 2015, he applied to the Refugee Applications Commissioner for asylum. His claim was refused on 6th May, 2016. On 5th August, 2016, he appealed that decision to the Refugee Appeals Tribunal. Following the commencement of the International Protection Act 2015, he applied for subsidiary protection on 1st April, 2017. That was refused on 17th November, 2017, and he also received a decision by the International Protection Office (IPO) that he should not be given permission to remain in the State under s. 49(4)(b) of the 2015 Act. On 17th January, 2017, he appealed to the International Protection Appeals Tribunal. On 15th May, 2018 the tribunal rejected the appeals. On 21st May, 2018, the applicant made representations to the respondent, the Minister for Justice and Equality, seeking a review of the permission to remain decision under s. 49(9) of the 2015 Act. On 14th August, 2018, the IPO rejected the applicant’s request for a review of the permission to remain decision and on 18th September, 2018 the applicant was given notice of that decision and notice that if he did not return to Pakistan voluntarily a deportation order would be made. On 19th October, 2018, the applicant was notified that the Minister had issued a deportation order. The High Court (Humphreys J) granted leave on 8th October, 2018, the primary relief sought being an order of certiorari of the Minister’s decision on the review dated 14th August, 2018. An amendment was subsequently made to the proceedings to also seek to quash an addendum to the review decision dated 9th April, 2019. Also sought was an order of certiorari of the deportation order. The grounds of appeal were: (i) the lack of proper determination; (ii) the failure to make a proper determination under art. 8 of the European Convention on Human Rights (ECHR); (iii) the alleged confusion between arts. 3 and 8 of the ECHR; (iv) an error in respect of reference to Ghana; (v) an error in application of caselaw; and (vi) a ground regarding lack of consideration added by amendment.

Held by Humphreys J that: (i) the decision was lawfully worded even if the concluding section could have alternatively used the language of s. 49(3) more explicitly; (ii) failure to make a proper assessment is not, without at least some particularisation, a ground for judicial review as such; (iii) if the Minister had stopped at consideration of art. 3, the applicant might have had a legitimate complaint, but the Minister was perfectly entitled to consider art. 3 as part of the overall consideration of the application, as long as he did not stop there, which he did not; (iv) he remitted the matter back to the Minister to give him an opportunity to issue an addendum or correction, which has been done; (v) a medical letter worded in the general manner such as that submitted does not come near, let alone surmount, the high threshold that would make the deportation unlawful; and (vi) failure to consider the matters referred to in the ground at all had not been made out, because the issues referred to in s. 49(3) and all material in the case was expressly cited in the decision.

Humphreys J made an interim order remitting the matter back to the Minister for clarification. Following an addendum having been made to the decision, Humphreys J held that the final order would be to dismiss the proceedings.

Proceedings dismissed.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 10th day of May, 2019

1 The applicant claims that he left Pakistan in 2005. He appears to have been in the UK with a six-month visa on a passport that expired in 2009. When the visa expired he lived in the UK illegally and was served with papers from the Home Office as an over-stayer. He applied for leave to remain in the UK on 21st June, 2012 and then made an application on the basis of his family and private life on 20th January, 2013. The leave to remain claim was refused on 12th August, 2013 and the family and private life claim was refused on 28th January, 2014.

2 As regards the applicant's whereabouts in the meantime, he claims that he returned to Pakistan in 2013, remaining there for two years, and that he was exposed to persecution in the 2013 to 2015 period. However, the Minister's belief is that this is a cock-and-bull story and that the applicant never went back to Pakistan but remained in the UK. No evidence was provided that he returned to Pakistan and he gave contradictory accounts of what passport was used. He originally said that he travelled on the passport that expired in 2009 and when asked how he was able to board a plane on an expired passport he said that officials ‘ did not check it, they only looked at the ticket’ (s. 11 interview, question 72).

3 The UK authorities indicated that he made a second application regarding his private life entitling him to remain on 3rd February, 2014, which was refused on 22nd March, 2014. As regards what happened then in the context of the applicant's claim to have been in Pakistan at that time, he asserted that he travelled from Pakistan to the UK in 2015 where he remained from March to June of that year. It doesn't ever appear to have occurred to him to apply for international protection in the UK.

4 On 16th June, 2015 he arrived in the State via Belfast. On 17th June, 2015, he applied to the Refugee Applications Commissioner for asylum and completed a questionnaire on 16th February, 2015. His application form and interview under s. 8 of the Refugee Act 1996 record that he suffered from a heart condition and depression. The applicant's claim for asylum was refused on 6th May, 2016 and the Commissioner found on the balance of probabilities that the applicant did not leave the UK for Pakistan in 2013 to 2015. On 5th August, 2016 the applicant appealed this decision to the Refugee Appeals Tribunal. Following the commencement of the International Protection Act 2015, the applicant applied for subsidiary protection on 1st April, 2017. That was refused on 17th November, 2017, and the applicant also received a decision by the International Protection Office that he should not be given permission to remain in the State under s. 49(4)(b) of the 2015 Act.

5 On 17th January, 2017 the applicant appealed to the International Protection Appeals Tribunal. An oral hearing took place on 12th April, 2018. Ms. Nóra Ní Loinsigh B.L. appeared for the applicant. On 15th May, 2018 the tribunal rejected the appeals. That decision was not challenged. At paras. 4.3 to 4.12 of the tribunal decision, the tribunal member also rejected the applicant's claim that he returned to Pakistan in 2013 to 2015.

6 The tribunal accepted as a material fact that the applicant had open-heart surgery and was on heart medication but noted that he had had access to heart medication in Pakistan in the past and found that a risk of serious harm there had not been demonstrated. Again, such finding is unchallenged.

7 On 21st May, 2018, the applicant made representations to the Minister seeking a review of the permission to remain decision under s. 49(9) of the 2015 Act and supplied the Minister with further material regarding his circumstances, including a medical letter from his doctor, Dr. Glen Lecky, dated 23rd May, 2018. This letter made reference to the applicant's history of heart disease, symptoms of that condition, medications, symptoms of depression, aches and pains, suicidal ideation and that the applicant was awaiting counselling.

8 On 14th August, 2018 the IPO rejected the applicant's request for a review of the permission to remain decision and on 18th September, 2018 the applicant was given notice of that decision and notice that if he did not return to Pakistan voluntarily a deportation order would be made.

9 On 19th October, 2018 the applicant was notified that the Minister had issued a deportation order. He was required to leave the State on or before 18th September, 2018 or to present for removal on 21st November, 2018.

10 I granted leave in the present proceedings on 8th October, 2018, the primary relief sought being an order of certiorari of the Minister's decision on the review dated 14th August, 2018. An amendment was subsequently made to the proceedings to also seek to quash an addendum to the review decision dated 9th April, 2019. Also sought was an order of certiorari of the deportation order. A statement of opposition was filed on 17th December, 2018.

11 At the hearing on 5th April, 2019, I made an order by consent that the substantive challenge to the review decision be adjourned and in the interim, without prejudice to that challenge, the decision be remitted back to the Minister for any clerical or other amendments that the Minister considered appropriate, on the basis that, subject to any application to amend the proceedings, any reissued decision was to be treated as encompassed by the existing statement of grounds and statement of opposition. The decision-maker then issued an addendum dated 9th April, 2019 correcting para. 6 of the original decision, explaining that the reference to an incorrect country of origin (Ghana rather than Pakistan) was a ‘ simple typographical error’, and substituting a new para. 6.

12 The matter then came back before the court on 12th April, 2019 at which stage counsel for the applicant submitted that the addendum raised new issues and sought an amendment to the proceedings. A proposed amended statement of grounds was furnished on 3rd May, 2019. After further discussion,...