V.I.O. v Minister for Justice, Equality and Law Reform and Another
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barr |
| Judgment Date | 04 December 2014 |
| Neutral Citation | [2014] IEHC 562 |
| Court | High Court |
| Date | 04 December 2014 |
[2014] IEHC 562
THE HIGH COURT
AND
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)
IMMIGRATION ACT 1999 S3
EEC DIR 2004/83 ART 15
EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 2(1)
EEC DIR 2004/83 ART 15(B)
EEC DIR 2004/83 ART 15(C)
EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 2
N (FR) & ORS v MIN FOR JUSTICE 2009 1 IR 88 2008/45/9787 2008 IEHC 107
EEC DIR 2004/83 ART 15(A)
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3
ELGAFAJI v STAATSSECRETARIS VAN JUSTITIE 2009 1 WLR 2100 2009 ECR I-921 2009 2 CMLR 45 2009 AER (EC) 651 2009 INLR 235
BONDO v MIN FOR JUSTICE & ORS UNREP MAC EOCHAIDH 9.11.2012 2012/4/979 2012 IEHC 454
M v MIN FOR JUSTICE 2013 1 WLR 1259 2012 AER (D) 284 (NOV)
MEADOWS v MIN FOR JUSTICE & ORS 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 3
EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(3)
M (M) v MIN FOR JUSTICE & ORS (NO 3) 2013 1 IR 370 2013/31/9140 2013 IEHC 9
D-N (E) & ORS v MIN FOR JUSTICE UNREP MAC EOCHAIDH 20.9.2013 2013/12/3493 2013 IEHC 447
BARUA v MIN FOR JUSTICE UNREP MAC EOCHAIDH 9.11.2012 2012/4/884 2012 IEHC 456
A (A) [IRAQ] v MIN FOR JUSTICE & ORS UNREP COOKE 24.5.2012 2012/1/12 2012 IEHC 222
Deportation order – Order of certiorari – Subsidiary protection – Applicant seeking an order of certiorari quashing the decision of the respondent to refuse subsidiary protection – Whether the respondent gave sufficient reasons for the decision
Facts: The applicant is a Nigerian national. He arrived in Ireland and applied for asylum in 2006. The Office of the Refugee Applications Commissioner (ORAC) recommended that he be refused refugee status, and the Refugee Appeals Tribunal (the RAT) affirmed this recommendation. In 2009, the applicant submitted an application for leave to remain in the State pursuant to s. 3 of the Immigration Act 1999 and submitted an application for subsidiary protection in the State. The Minister for Justice, Equality and Law Reform (the respondent) refused this application in 2010. The applicant was then informed of the Minister”s decision to issue a deportation order in respect of him. The applicant applied by way of judicial review to the High Court for an order of certiorari quashing the decision of the Minister to refuse subsidiary protection and for an order of certiorari quashing the deportation order. The applicant claimed that as a result of his involvement in the Movement for the Actualisation of the Sovereign State of Biafra (MASSOB) he came to the attention of the Nigerian authorities and was the victim of a state-sponsored attack as part of their clampdown on MASSOB activities. He decided to leave Nigeria when the threats against him became more constant and MASSOB intelligence advised him that it was unwise for him to remain in the country. The applicant claimed: (1) that the Minister, in deciding his subsidiary protection application, failed to consider whether the applicant was at risk of serious harm, as defined in Article 15(b) of the Qualification Directive, by reason of his involvement with MASSOB, asserting that the Minister answered a question about medical treatment in Nigeria, which was a different question to that which was put to him; (2) that insufficient reasons were given for his decision; (3) that the Minister did not have sufficient grounds to reject the applicant”s credibility and that the Minister failed to identify the part of the applicant”s story unsupported by documentary evidence; and (4) that there cannot be a valid deportation order in the absence of a lawful determination of the subsidiary protection application. The respondent stated that if the applicant was correct in his submission that all that was needed to succeed in a subsidiary protection application was serious harm, then there may be a chance of success; however, the respondent submitted that it is in fact serious harm defined within a particular context that is needed for an entitlement to subsidiary protection to arise. The respondent submitted that the issue of credibility was not relevant to the Minister”s consideration of the Article 15(b) category of serious harm and that the applicant had not shown how it had affected the Minister”s consideration of the subsidiary protection application.
Held by Barr J that, in the course of her consideration of the country of origin information, the decision maker lost sight of the original question relevant to the applicant”s Article 15(b) and became side-tracked by the health care information. Barr J was satisfied that the applicant is entitled to an order of certiorari on this account. Barr J held that the terms of Article 15(b), and FN v Minister for Justice [2009] 1 IR 88, both support the view that the harm arising under Article 15(b) need not occur in a particular context. Barr J held that because the Minister”s subsidiary protection decision (1) failed to consider the applicant”s Article 15(b) claim at all, and (2) proceeded to reject it without giving reasons, the decision cannot be allowed to stand and must be quashed, referring to Meadows v Minister for Justice [2010] 2 IR 701. Barr J was satisfied that in relying completely on the RAT”s negative credibility findings in respect of the applicant, and in failing to carry out its own independent assessment of the applicant”s claims, the Minister did not afford the applicant an effective hearing at the subsidiary protection stage; for this reason, the decision of the Minister could not stand. Relying upon Barua v Minister for Justice and Equality [2012] IEHC 456, the Minister, by not giving reasons as to why documentation corroborative of an applicant”s account was rejected, fell short of the requisite standard.
Barr J held that he would make an order quashing the Minister”s subsidiary protection decision and remit the matter for fresh consideration. The deportation order in respect of the applicant would also be quashed.
Application granted.
1. This is a telescoped application by way of judicial review for an order of certiorari quashing the decision of the Minister refusing the applicant subsidiary protection, dated 11th January, 2010; and for an order of certiorari quashing the deportation order made in respect of the applicant, dated 19th January, 2010.
2. These proceedings were instituted on 24 th March, 2010. The first return date was 26 th April, 2010. However, the applicant left the State in January 2011, and is now back in Nigeria. He made his own travel arrangements rather than be deported from the State by the authorities. An injunction application in respect of the deportation order was made at the eleventh hour but this was refused by Birmingham J. due to the late nature of the application.
3. The applicant requires an extension of time to challenge the deportation order under s. 5(2) of the Illegal Immigrants (Trafficking) 2000 Act. He submits that there are good grounds for that extension. In an affidavit sworn on 24 th March, 2010, the applicant stated that he received the deportation order on 27 th January, 2010. He immediately contacted his solicitor and arranged to meet him soon thereafter. He stated that he informed his solicitor that he wished to challenge the validity of the deportation order and the file was sent to counsel for his opinion under cover of letter dated 9 th February, 2010. Further instructions relating to the applicant's case were sought and pleadings were settled and returned to the applicant's solicitor on 3 rd March, 2010. The applicant stated that further instructions had to be taken and unfortunately, due to his medical condition, the earliest he could attend to meet with his solicitor was 24 th March, 2010.
4. The applicant stated that he attended at the Adelaide and Meath Hospital on 10 th March, 2010, for an out patient appointment. However, he was kept overnight and was formally admitted to hospital on 11 th March, 2010. At that time he was suffering from a distal tibia wound site infection which was delaying bone healing. It was treated intravenously with antibiotics and the applicant underwent a surgical procedure to wash out the wound. He was advised that he would require treatment with the external fixater in place for at least a further six months.
5. I am satisfied that the applicant did form the opinion that he wished to challenge the deportation order within the time period allowed. I accept that, due to his health issues, he was not in a position to finally swear the affidavit until 24 th March, 2010. In the circumstances, where there is no obvious prejudice to the respondents, it is appropriate to extend the time within which the challenge to the deportation order may be made. I extend the time period up to and including 24 th March, 2010, being the date on which these proceedings were commenced.
6. The applicant was born on 9th September, 1966, and is a Nigerian national. He is a Christian and a member of the Igbo tribe. He arrived in Ireland and applied for asylum in December 2006. The Office of the Refugee Applications Commissioner ("ORAC") recommended that he be refused refugee status, and the Refugee Appeals Tribunal ("the RAT") affirmed this recommendation. On 25th June, 2009, the applicant submitted an application for leave to remain in the State pursuant to s. 3 of the...
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