V.J v Minister for Justice and Equality and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 31 July 2012
• Neutral Citation: [2012] IEHC 337
• Docket Number: [No. 562 J.R./2012]
• Court: High Court
• Date: 31 July 2012

[2012] IEHC 337

THE HIGH COURT

[No. 562 J.R./2012]

J (V) [Moldova] v Min for Justice & Ors

MR JUSTICE COOKE

APPROVED TEXT

JUDICIAL REVIEW

BETWEEN

V. J. [Moldova]

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY AND THE REFUGEE APPLICATIONS COMMISSIONER IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

THE HUMAN RIGHTS COMMISSION

NOTICE PARTY

REFUGEE ACT 1996 S17(1)

IMMIGRATION ACT 1999 S3

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 4(1)

IMMIGRATION ACT 1999 S3(3)

IMMIGRATION ACT 1999 S3(3)(B)

IMMIGRATION LAW

Leave

Subsidiary protection - Credibility of applicant - Opportunity to apply for subsidiary protection incorporated into procedure leading to deportation order - Whether precondition or disadvantage imposed upon applicant - Whether ultra vires Qualifications Directive - Council Directive 2004/83/EC - Leave granted (2012/562JR - Cooke J - 31/7/2012) [2012] IEHC 337

J(V) (Moldova) v Minister for Justice and Equality

Facts: The applicant, a Moldovan national, had applied for asylum upon arrival in the State in 2008. The asylum application suggested he was at risk of persecution because of his political opinions and that of his wife. These opinions were said to be critical of the activities of the son of the then President of Moldova.

The application for asylum was refused due to the lack of credibility of the claims, and the vagueness of his wife”s role in the matter. The applicant”s subsequent application for subsidiary protection was made on the grounds as the failed application for asylum. This was also refused by a decision of the first respondent, which the applicant now sought leave to seek judicial review of.

Held by Cooke J, that the refusal of the application was a decision which the first respondent was compelled to come to. The lack of coherence in the grounds submitted, as well as the lack of evidence meant the decision reached was fundamentally sound and in accordance with common sense.

In respect of the other matters pleaded, only one was sufficient for granting leave to seek review. This related to how the subsidiary protection scheme was ‘enmeshed’ into the procedure under which deportation orders were issued. On that basis only, leave would therefore be granted.

Mr. Justice Cooke

1 This matter comes before the Court as an application madeex parte for leave to seek judicial review (including an order for certiorari) in respect of a decision of the respondent Minister made on the 3^rd April, 2012, refusing the applicant's application for subsidiary protection under the European Communities (Eligibility for Protection) Regulations 2006 (the "2006 Regulations").

2 It is brought in conjunction with a judicial review application made on notice for leave to seek judicial review of a later deportation order of the 5^th May, 2012, made in respect of the applicant. This ruling is confined to the ex parte application and the reliefs sought as against the subsidiary protection refusal. In that regard the statement of grounds presents a total of 26 grounds of which 13 are directed at the decision on subsidiary protection.

3 The background can be briefly summarised. The applicant is national of Moldova who arrived in the State in 2008, leaving his children behind. He applied unsuccessfully for asylum. His wife had arrived in the State in 2006.

4 His asylum claim was based on a fear of persecution for reasons of political opinion or political activity. More precisely it was a claim of imputed political opinion or activity because it was based upon his account of his wife having attempted in 2002/2003 as a member of the Democratic Party in Moldova to publish a newspaper article which implicated the son of the then President of Moldova in illegal cross-border trading in drugs and alcohol. He claimed that as result he had been assaulted by men he believed had been sent by the President and his son and his family began to receive threatening phone calls. At Easter 2003, the same people attempted to abduct his wife while holding a knife to the applicant's throat. His wife is said to have managed to escape. The phone calls continued and threats were again made at the house in June 2006.

5 He fled to Russia, but on two occasions returned to Moldova subsequently because, he said, his mother was ill. He claimed to fear both the police and the Mafia if he returned to Moldova.

6 The claim was rejected in the asylum process largely on grounds of lack of credibility. The Tribunal member found his account vague. He had little information as to his wife's activities or her role in the Democratic Party or as to the claims she is said to have made in the alleged newspaper article which he attempted to publish. The article does not appear to have actually been published and it is said that its content was leaked by the newspaper to the President and/or his son.

7 The application for subsidiary protection was based on the same facts and events, including the threats associated with his wife's alleged activities. He claimed that it was only when he returned to Moldova in 2008 that he first learned that his wife had fled to Ireland in 2006.

8 In the application for subsidiary protection it was claimed that the applicant was exposed to a risk of serious harm under two of the defined forms namely (i) death penalty or execution and (ii) torture or inhuman or degrading treatment.

9 The determination of the subsidiary protection application first sets out almost verbatim the basis of the claim as made on behalf of the applicant. The analysis deals immediately with the issue of general credibility as required under Regulation 5(3) of the 2006 Regulations.

10 It cites extensively the conclusion reached by the Tribunal member on this issue based especially on the applicant's vagueness about his wife's role and activities. The determination reaches the conclusion that the claim to a fear of persecution or serious harm if returned it Moldova was simply not credible.

11 In the judgment of the Court, that was a conclusion which the Minister was entitled and even obliged to reach. No new fact or evidence was put forward as compared with what had been placed before the decision-makers in the asylum process. On its face there was, on any common sense view, a clear lack of...