SM (Pakistan) v Minister for Justice and Equality and Another

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Stewart
• Judgment Date: 28 July 2015
• Neutral Citation: [2015] IEHC 508
• Date: 28 July 2015
• Docket Number: [2014 No. 333 J.R.]

[2015] IEHC 508

THE HIGH COURT

JUDICIAL REVIEW

Stewart J.

[2014 No. 333 J.R.]

IN THE MATTER OF THE CONSTITUTION, AND

IN THE MATTER OF THE REFUGEE ACT 1996 (AS AMENDED), AND

IN THE MATTER OF THE IMMIGRATON ACT, 1999 (AS AMENDED)

BETWEEN

S.M. (PAKISTAN)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

ATTORNEY GENERAL

RESPONDENTS

Asylum, Immigration & Nationality – S.9 of the Refugee Act 1996 (as amended) – S. 17 (7) of the Refugee Act, 1996 – Procedures Directive (2005/85/EC) – Fear of persecution – Conduct of asylum seeker

Facts: Following the applicant's departure from the country of origin to Ireland, transit onto Belgium, return to Ireland, transit to Germany and then subsequent arrival in Ireland, the first named respondent made a deportation order of the applicant in lieu of her absence for scheduled interview before the office of the refugee applications commissioner. The applicant now sought leave to apply for judicial review and also an order of certiorari for quashing the decision of the first named respondent refusing to readmit the applicant to refugee status. The applicant contended that the first named respondent had failed to consider the documentary evidence supporting that she belonged to the Ahmadiyya community, whose persecution and harassment was well known in the country of origin. The respondent contended that the applicant should have first exhausted the alternative remedy available to her before coming to the Court, which provided for the review of the impugned decision from some senior official of the first named respondent.

Ms. Justice Stewart refused to grant leave for judicial review to the applicant. The Court held that it was open to the applicant to either avail the administrative remedy or litigate the matter by way of judicial review. The Court held that under s. 17 (7) of the Refugee Act, 1996, there must be two things that needed to be satisfied for the first named respondent to readmit any person into the asylum process, which were the existence for new elements or findings that would more likely end up admitting the applicant and that the failure to present those findings at the first instance must not be due to the fault of the applicant. The Court found that in the subject case, the information in relation to the Ahmadi faith of the applicant was available to her since inception and she was at fault by hiding that information and that it was available to her at all relevant times.

JUDGMENT of Ms. Justice Stewart delivered on the 28th day of July, 2015

1 This is a telescoped application for leave to apply for judicial review together with an application for an order for certiorari quashing the decision of the first named respondents to refuse the application to readmit the applicant to the refugee status determination process, pursuant to s.17(7) of the Refugee Act 1996 (as amended).

BACKGROUND

2 The applicant is a national of Pakistan and was born on the 22nd September, 1973, and states that she is a member of the Ahmadiyya community. She alleges that she has suffered persecution as a result of her Ahmadi status in Pakistan, as has her family. In May, 2007 she married a fellow Pakistani, an Ahmadi man living and working in Germany. The applicant left Pakistan on the 18th August, 2010, with a view to travelling to Germany. The route chosen by the smuggler was to fly to Bahrain, from there to Turkey, from there to Ireland, from there to Belgium and to cross over to Germany by land. The applicant transited through Dublin and arrived in Belgium on the 20th August, 2010, whereupon the false passport documents with which she was travelling were detected. The applicant explained that she was a refugee fleeing persecution in Pakistan and that her destination was Germany. She was taken to a centre for asylum seekers and detained there until the 18th November, 2010, when she was sent to Ireland. Upon arrival in Dublin airport she was taken to the Dóchas Centre and imprisoned there for six days. Following the procurement by her husband of legal representation in Dublin, she was accommodated by the Reception and Integration Agency (RIA) in a direct provision centre and submitted an application seeking a declaration of refugee status. On attendance at Offices of the Refugee Applications Commissioner (ORAC) she was informed that ORAC would inform the Belgian authorities and there would be a three-month wait before the Belgian authorities would inform her if they were to take her back to Belgium. The applicant alleges that she was scared of being returned to Belgium as she had been locked up there previously and had found the atmosphere very frightening, that there was a lot of fighting and attempted suicides on an ongoing basis. A roommate in her accommodation in Ireland advised her that it would be possible to organise a smuggler to take her to Germany; she travelled to Germany in early January, 2011. She, with the assistance of a lawyer, attempted to make an asylum application in Germany and said application was made on 10th March, 2011. She also sought and was granted permission to remain residing with her husband in Germany while the application was being determined. She was interviewed in respect of her asylum application in Germany in October, 2011 and on 5th September, 2012, she was returned to Ireland, it would appear, pursuant to the Dublin Regulations (Dublin II).

3 Upon her arrival at Dublin airport she was given a letter to present to ORAC, which she so did on Monday, 10th September, 2012, and asked that her application for a declaration of refugee status be re-opened. I should point out at this juncture that in her absence and given that she had failed to attend for her scheduled interview before ORAC for the purpose of her initial asylum application, the application had been determined on the basis of a recommendation to the minister to refuse refugee status. The next day, on 11th September, 2012, she returned to her solicitors for assistance. On 21st September, 2012, she received a letter from the ministerial decisions unit informing her that the application seeking permission to be readmitted to the asylum process pursuant to s.17(7) of the Refugee Act 1996 (as amended) was receiving attention. She subsequently approached the Refugee Legal Services for assistance and on 1st March, 2013, the RLS sought her file from the INIS (Irish Naturalisation and Immigration Service). She received no further information until letter dated 21st August, 2013, when she was informed that a deportation order had been made in respect of her. The applicant then engaged her current solicitors on 26th August, 2013. On procurement of her file from the INIS, the solicitor could not find any copy of the s.17(7) application which, she had been informed by letter of the 21st September, 2012, was under consideration. In the circumstances, where it was unclear what evidence, if any, had already been submitted or considered, her current solicitors asked if she could procure a letter from the Ahmadiyya community confirming her Ahmadi status. She procured the letter from the Ahmadiyya community and an application seeking readmission into the asylum process was made by letter of 19th September, 2013.

4 The applicant was informed by the Garda National Immigration Bureau on 9th October, 2013, that a deportation was arranged for 11th October, 2013. An undertaking not to proceed was refused and shortly before an injunction application was due to be heard on 10th October, 2013, before the High Court, the decision on the s.17(7) application was faxed to the applicant's solicitor which held: 'No new convincing evidence has been supplied to indicate that a favourable view might be taken if S[...] M[...] was readmitted to the process' (p.57 of the booklet).

5 The proceedings were redrafted and the injunction application proceeded on notice to the minister and was opposed. An interim injunction was granted and the interlocutory injunction was made returnable for 14th October, 2013. On 11th October, 2013, an open offer was made by the minister stating that an undertaking was being given thereby disposing of the need to seek an interlocutory injunction and proposing a compromise of the proceedings on the basis that the s.17(7) decision would be reviewed, and that review submissions would be sent to the minister within 28 days of the agreement.

6 The first set of judicial review proceedings were struck out on the 3rd February, 2014. An extensive and detailed letter dated the 26th March, 2014, was furnished by the applicant's solicitor to the ministerial decisions unit at the INIS, requesting that the applicant be readmitted to the asylum process. The letter is very extensive. It goes into the background of the application to readmit the applicant to the asylum process in short detail and, in great detail, goes into the legal context of the application and quotes extensively from the relevant UNHCR Handbook, Procedures Directive and regulations. It further refers to ECHR case law and the Qualification Directive.

7 The penultimate paragraph of that letter, which is contained from pp.60-66 of the booklet of pleadings before the Court, states as follows:

'Please note that whilst this application addresses the Minister in terms of issues of law, it is our intention to provide by the end of the week further representations addressing the Minister in terms of issues of fact, as they relate to our client's application.'

8 It does not appear that any such follow up letter was sent which addressed, in detail, the factual matters relevant to the applicant's application for readmission to the asylum process.

IMPUGNED DECISION

9 By letter dated the 27th June, 2014, the applicant was advised that the application was refused and the applicant was furnished with the letter of...