S.A. v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 29 July 2016
• Neutral Citation: [2016] IEHC 462
• Court: High Court
• Docket Number: [2015 No. 233 J.R.]
• Date: 29 July 2016

[2016] IEHC 462

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2015 No. 233 J.R.]

BETWEEN

S.A.

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

Asylum, Immigration & Nationality – Deportation order – Criminal offence – Application for revocation of deportation order – Judicial review – Injunction.

Facts: Following the refusal to quash the deportation order, the applicant claimed that there had been no settled intention to deport the applicant. The applicant claimed that there had been delay in deporting the applicant and challenged the s. 3(11) decision of the Immigration Act, 1999. The applicant argued that a deportation order required concluded intention to deport an applicant and that the concluded intention required to be existed at the time of affirming a deportation order by refusing s. 3(11) application.

Mr. Justice Richard Humphreys held that the application to quash the refusal of the revocation of the deportation order would be dismissed. The Court further held that the injunction restraining the deportation of the applicant be discharged with effect from the oral pronouncement of the judgment. The Court ordered that the matter be adjourned to enable any application for leave to appeal.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 29th day of July, 2016

1 The applicant was born in Algeria in 1971. He was engaged in military service there in the years 1996 to 1998. He claimed that this included anti-terrorist work in contact with an organisation known as G.I.A. He then left the army and returned home, where he says he encountered difficulty with Islamists, for which there was a lack of State protection.

2 He left Algeria in 2000, and ultimately arrived in the State in or around 23rd July, 2001, when he sought asylum.

3 His asylum application was refused by the Refugee Applications Commissioner on 7th May, 2002. This refusal was not appealed. A deportation order was made against him in March, 2004 (shortly after the commencement of the European Convention on Human Rights Act 2003 on 31st December, 2003).

4 Five months after the making of the deportation order, we have the wearyingly predictable feature of the applicant's marriage to a young Hungarian woman. The woman concerned left the State in 2008 and has no contact with the applicant. There are no children of the marriage. I have been told very little about that marriage. The marriage certificate does not record the presence of any relative of the bride as a witness and she appears to have been given away by an associate of the applicant's.

5 On 8th January, 2007, the applicant made a claim for residence based on his marriage to an EU national. This was refused on 16th October, 2008. He appears to have applied for a review of this decision in May, 2010, which was also rejected.

6 In December, 2011, the applicant was charged with a criminal offence and it was deemed appropriate not to execute the deportation order pending the outcome of the criminal process, he was convicted of this offence in May, 2012. The respondent wrote to the applicant on the 23rd March, 2012, referring to the applicant's failure to comply with the deportation order and offering to pay for his flight to his country of origin.

7 On 12th June, 2012, he applied for revocation of the deportation order under s. 3(11) of the Immigration Act 1999.

8 Various submissions were made in support of this application on 31st January, 2013, 20th January, 2014 and 4th December, 2014.

9 On 15th December, 2014, the applicant brought a first set of judicial review proceedings in which he claimed a declaration and an injunction that he should be permitted to remain in the State pending a decision on his s. 3(11) application. On that date, Mac Eochaidh J. granted leave and an injunction to that effect. A notice of motion seeking these reliefs was issued on 18th December, 2014. Those proceedings were compromised and the Minister appears to have agreed to make a decision on the application. On 23rd March, 2015, an officer of the Minister recommended that the application for revocation be refused. This was duly approved by more senior officers and notified to the applicant on 20th April, 2015. This development led to the institution of the present, second, set of judicial review proceedings on 7th May, 2015.

10 On 11th May, 2015, an order was made by Mac Eochaidh J. granting leave in this case and granting an injunction up to 6th July, 2015, which I am was informed was subsequently to continue, by agreement, until the determination of the proceedings.

Procedural Issues

11 During the hearing, Mr. Colm O'Dwyer S.C. (with Mr. Ian Whelan B.L.) for the applicant sought leave to amend his statement of grounds to include a claim that there was no settled intention to deport the applicant. Mr. Karl Monahan B.L. (with Mr. David Conlan Smyth S.C., who also addressed the court on the issue of the delay in executing the deportation order) for the respondent helpfully indicated that there was consent to that amendment which I, therefore, permitted.

12 The respondent has delivered a statement of opposition but as of the opening of the hearing this contained positive factual assertions but had not been verified by affidavit. Without objection from the applicant, I gave Mr. Monahan liberty to file a verifying affidavit for the statement of opposition as required. The form of the affidavit ultimately filed, sworn by Mr. Conor Nelson, an officer of the Minister, is fairly formulaic. It verifies that the averments insofar as they concern the deponent are true and other averments, he believes to be true. However, it is opaque from the statement as to which averments actually concern Mr. Nelson. The value of a formulaic affidavit of this kind (if any) is significantly less than the value to be attached to a more narrative affidavit that makes clear the precise evidential status of each of the propositions being advanced in a particular pleading. In fairness to the respondent, the primary inspiration for the use of such formulaic one-line pleadings may lie with the wording of the amendments introduced by the Rules of the Superior Courts (Judicial Review) 2011, which I might venture to suggest are not altogether satisfactory in this respect, but those rules should be taken as laying down a bare-bones minimum and do not prevent parties from doing better than a one-line formula. Judicial review pleadings (including a statement of opposition) should preferably be verified by a narrative affidavit rather than by a ‘one-line’ affidavit of verification.

13 I also permitted a further affidavit from the respondent about the delay in deporting the applicant, and permitted further submissions on this issue in the interests of fairness to all parties and having regard to the fact that I allowed the applicant to amend his pleadings on this issue during the hearing itself.

14 Mr. O'Dwyer in a very able argument has challenged the s. 3(11) decision under a number headings which I will deal with in sequence.

Is the decision invalid by reason of a lack of reference to country of origin information on which the applicant relies?

15 In submissions of 4th December, 2014, the Minister's attention was drawn to information from the Immigration and Refugee Board of Canada contained in a publication on the ‘Refworld’ website (a UNHCR online database of asylum-related materials) on 11th August, 2014. The applicant now complains that this material was not adequately considered.

16 Reference to country of origin information either expressly or impliedly by referring to an applicant's submissions, which include such information, constitutes adequate consideration, in the absence of positive evidence, to show that the matter was not, in fact, considered; see my decision in R.A. v. Refugee Appeals Tribunal [2015] IEHC 686 (Unreported, High Court, 4th November, 2015) and G.K. v. Minister for Justice, Equality and Law Reform [2002] 2 I.R. 418 (Hardiman J.).

17 The Canadian material is mentioned on p. 3 of the Minister's considerations in this case. This constitutes adequate consideration for the purposes of judicial review.

Is there a factual error regarding the Minister's consideration of the most up-to-date information?

18 Having referred to the Canadian material, the official preparing the Minister's consideration of the application then goes on to say that she has had regard to the ‘ most up to date’ country of origin information, which is specified as material from the U.K. Border Agency, the U.S. State Department and the International Organization for Migration (I.O.M.).

19 Having done so, she then states that this material constitutes ‘ some of’ the most up to date information on the subject.

20 It would seem that on one view, the Canadian material is more up to date than the material relied on by the Minister if only in the limited sense that the Canadian report includes an academic letter dated 21st July, 2014, although that letter does not appear to add very much, if anything, to a statement of the law in Algeria as of 2009. It does not purport to give an account of practice since then. Therefore, even if the Canadian material was technically more up to date, no real error has been demonstrated.

21 In any event, taking the document as a whole, I do not read it as an assertion that the U.K., U.S. and I.O.M. material is an exclusive statement of the most up to date information.

22 Furthermore, the Minister is under no obligation to give priority to information based on the date of its generation. Important matters such as the source of the information are also potentially decisive. Taking the material as a whole there is no error in the phrase ‘ some of the most up to date information’, which I take to be the operative phrase but if I am wrong about that, any error is...