V.D. (Zimbabwe) v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 30 January 2018
• Neutral Citation: [2018] IEHC 56
• Docket Number: [2016 No. 480 J.R.]
• Court: High Court
• Date: 30 January 2018

BETWEEN

V.D. (ZIMBABWE)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

[2018] IEHC 56

[2016 No. 480 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Asylum Immigration & Nationality – Art.3 and art.8 of the European Convention on Human Rights ['ECHR'] – Order of certiorari – Medical care – Deportation order – Insufficient submission Unsettled migrant

Facts: The applicant sought an order of certiorari for quashing the deportation order of the respondent. Previously, the applicant had applied for asylum which was rejected by the Refugee Applications Commissioner and further by the Refugee Appeals Tribunal. The applicant sought relief under art.8 of the ECHR. The applicant contended that he required constant care, medication and rehabilitation, which would not be available in the country of origin ('Zimbabwe'). The applicant also contended that he had his mother and three siblings in Ireland and he had no one in Zimbabwe to look after him. The respondent contended that the risk of the health of the applicant was speculative as no expert reports regarding health were provided. The respondent contended that he had a brother to look after him in Zimbabwe.

Mr. Justice Richard Humphreys refused to grant the relief sought by the applicant and dismissed the proceedings. The Court also referred the case of Gayle v. Governor of the Dóchas Centre [2017] IEHC 753 to the effect that if the applicant wanted to avail the benefit under family reunification, he could apply from outside the State. The Court held that the submissions of the applicant were insufficient to preclude the deportation order made against him.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 30th day of January, 2018

1 The applicant is a national of Zimbabwe, born in 1985. He moved to South Africa and worked illegally there. He was assaulted and developed an illness and brain injury resulting in epilepsy and symptoms of memory loss, poor judgment and seizures. He contends that he requires ongoing care, medication and rehabilitation.

2 On 3rd November, 2013, he entered the State unlawfully. He applied for asylum, a claim which was rejected by the Refugee Applications Commissioner. An appeal to the Refugee Appeals Tribunal was also rejected. He did not make an application for subsidiary protection. He has family members in Ireland, his mother and three children. One of those family members is a citizen and the others have permission to be here. He also has a brother in Zimbabwe, although he avers that he has no one to look after him there. Needless to say, he does not explain on affidavit as to why his brother cannot assist him in Zimbabwe.

3 Particular reliance is placed on a report from his G.P. dated 24th June, 2014, which stated that ' there is no doubt that his life expectancy would be dramatically reduced by having to return to the vagaries of a crumbling third world healthcare system. The lack of family to care for him and the absence of a home for him in Zimbabwe would pose a significant risk to his safety and wellbeing'. These are highly generalised statements from a non-specialist. There is no basis to assume that the applicant's G.P. has any objective knowledge of the situation in Zimbabwe. Also, the reference to having no one to care for him appears to involve simply a regurgitation of the applicant's case. Merely finding a qualified person to state one's subjective position does not make it any weightier. It seems to me that the respondent is correct to contend in para. 4 of the written submissions that these reports ' are not grounded in objective knowledge of the position on the ground in Zimbabwe'. The applicant speculates that he would be homeless in Zimbabwe. That is accepted by the tribunal, but nonetheless that position still remains somewhat prospective and speculative.

4 A deportation order was made on 8th May, 2016, and a statement of grounds was filed, dated 30th June, 2016. An order was made by MacEochaidh J. giving leave on 18th July, 2016, and an injunction restraining deportation was granted. Due to some form of procedural or related confusion, it took until 15th December, 2017 to deliver a statement of opposition.

5 I received helpful submissions from Mr. Michael Conlon S.C. (with Mr. Ian Whelan B.L.) for the applicant, and from Ms. Denise Brett S.C. (with Mr. Tim O'Connor B.L.) for the respondent.

Relief sought

6 The substantive relief sought is an order of certiorari against the deportation order. An extension of time is also sought, but no contest appears to be made of that in the submissions on behalf of the respondent.

No art. 3 issue is pleaded

7 No issue under art. 3 of the ECHR (as implemented by the European Convention on Human Rights Act 2003) is pleaded. On his feet opening the case, Mr. Conlon suggested adding ' and/or Article 3' to the pleadings. No draft amended statement of grounds was furnished and no particular place for such an insertion was suggested; and it was clear that such an amendment at a late stage would have required an amended statement of opposition and amended submissions. The issue was not strongly pressed by Mr. Conlon, who rather fell back on an attempt to submit that ground 4 of the statement of grounds covered art. 3 of the ECHR. It seems to me such a major point would need to be pleaded specifically, having regard to O. 84 r. 20(3) and practice direction HC69 on asylum and immigration as in force at the time. Ground 4 must be read in the context of the rest of the claim, which relates to art. 8.

8 In any event, on the facts the threshold required to thrust the onus on the State to dispel doubts under art. 3 of the ECHR is not overcome, given the entirely nebulous and subjective nature of the information provided by the applicant. This would not be an appropriate case to grant the amendment in any event, even if it was properly before the court.

Assessment of the humanitarian factors is entirely a matter for the Minister

9 Insofar as the decision assessed the humanitarian factors, as distinct from art. 8, this is a matter for the Minister. The conclusion is perhaps somewhat blunt that 'having considered the humanitarian information on file in this case there is nothing to suggest that [V.D.] should not be returned to Zimbabwe'. However, we are dealing here with the sharp edge of executive discretion. The Minister's decision essentially amounts to saying that such humanitarian factors as were advanced were insufficient to outweigh the public interest in deportation. It clearly requires sufficient counter-considerations to persuade the Minister that such a public interest in deporting an illegal immigrant is outweighed. The Minister is not required to give any particular level of detail in finding an applicant's submissions to be insufficient. The reason for the deportation decision is thus essentially that the submissions were insufficient to preclude deportation, and it seems to me that is a lawful reason. As it was put by Clarke J. in Kouaype v. Minister for Justice, Equality and Law Reform [2011] 2 I.R. 1 [2005] IEHC 380, the weighing of s. 3 factors is 'entirely a matter for the...