Y v Minister for Justice Equality and Law Reform

JurisdictionIreland
JudgeMs. Justice O'Regan
Judgment Date05 April 2017
Neutral Citation[2017] IEHC 219
Docket Number[2011 No. 982 J.R.]
CourtHigh Court
Date05 April 2017

[2017] IEHC 219

THE HIGH COURT

JUDICIAL REVIEW

O'Regan J.

[2011 No. 982 J.R.]

BETWEEN
Y.
APPLICANT
AND
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
RESPONDENT

Asylum, Immigration & Nationality – S. 17 (7) of the Refugee Act 1996 – Re-admission to the asylum process – Fear of persecution – Existence of new information

Facts: The applicant sought an order of certiorari for quashing the decision of the first respondent for refusing the applicant's application to re-enter the asylum process under s. 17(7) of the Refugee Act 1996 on review. The applicant claimed that the first respondent had applied incorrect test in determining his application on review. The applicant contended that he had new information pertaining to his personality disorder, which could be considered by the first respondent in making a favourable view in relation to the applicant's asylum application. The first respondent submitted that the information regarding the applicant's personality disorder and the substance abuse had already been considered in an earlier application, and that there was nothing new, which could warrant a departure from its decision on further review.

Ms. Justice O'Regan refused to grant the desired relief to the applicant. The Court held that the correct test that the decision-maker should apply for considering an application under s. 17 (7) of the 1996 Act was whether the fresh information available was sufficiently different to entitle the admission of an applicant into the asylum process. The Court held that it should also determine whether that new information was of a nature that could not be made available to the decision-maker despite best efforts. The Court found that the information pertaining to the mental disorder of the applicant was considered clearly by the first respondent in its earlier decision. The Court opined that it was the discretion of the first respondent to consider whether the asserted new claim was based upon the information which was entirely different from the earlier claim, and which admitted of a realistic prospect that a favourable view could be taken.

JUDGMENT of Ms. Justice O'Regan delivered on the 5th day of April, 2017
Issues
1

The applicant herein secured leave in 2011 to maintain the within judicial review proceedings for the purposes of seeking the relief of certiorari to quash the decision of the respondent advised to the applicant of 11th August 2011 when the respondent refused to allow the applicant to make a further application for refugee status pursuant to s. 17 (7) of the 1996 Act. This impugned decision followed an application on 30th June 2011 on behalf of the applicant to be re-admitted to the asylum process under s. 17 (7) of the 1996 Act on the basis of:

1. A personality disorder.

2. The applicant is an atheist.

3. The applicant had a recent history of alcohol abuse and/or substance

abuse.

2

The application was refused on 29th July 2011 and the applicant sought a review of this refusal on 4th August 2011 which culminated in the ultimate refusal order of the 11th August 2011 now under review.

3

The grounds seeking the relief are to the effect that the respondent acted outside power vested in him under s. 17 (7) and misunderstood or incorrectly applied the test for determining such applications. In this regard the applicant asserted that the test would as per the decision of Clark J. in A.A. v. Minister for Justice, Equality and Law Reform [2009] IEHC 436. In addition the applicant complained that the provisions of the within process did not amount to an effective remedy as provided for by Article 39 of Procedures Directive 2005/85/EC. This aforementioned ground was subsequently abandoned following the judgment of Hogan J. delivered on 14th July 2016 in N.M. v. Minister for Justice, Equality and Law Reform [2016] IECA 217.

4

In the circumstances the issue arising is whether or not the correct test and/or procedure was undertaking by the Minister in the assessment of the s. 17 (7) application of the applicant.

Brief Background
5

The applicant was born in 1988 and is a Palestinian national. Both his parents were killed in a bomb blast and he does not have any siblings. At the age of twelve he was detained by Arabic soldiers and subsequently tortured and degraded. Such detention lasted until on or about December 2000 when he travelled to Algeria for a six year period. From there he went to Morocco for appropriately a one year period and ultimately arrived in Ireland on 2nd November 2007. He applied for refugee status on 6th November 2007 on the basis of imputed political opinion. At that time he disclosed that he was an atheist. He was interviewed on 30th January 2008 and ultimately an ORAC decision recommending that he be refused refugee status issued on 14th February 2008. With the assistance of the Refugee Legal Services the applicant submitted an appeal bearing the date 6th March 2008 which was supplemented by additional information including country of origin information in a letter of 13th March 2008. Thereafter it appears that the applicant changed addresses without advising the respondent so that his whereabouts were unknown to the respondent and ultimately his appeal was deemed withdrawn on 17th December 2009. However the applicant did attend a medical examination on 11th June 2008 which culminated in a medical report of 1st October 2008 which was tendered to the appeal Tribunal.

6

In the application for review of the initial refusal under s. 17 (7), by way of letter of 4th August 2011 his complaint is that in the earlier decision (29th July 2011) the deciding officer did not take into account the applicant's personality disorder which it was submitted was established by reason of a second medical report dated 17th June 2011. The earlier decision included a statement to the effect that...

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