Y v The Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Mr Justice Max Barrett |
| Judgment Date | 08 February 2021 |
| Neutral Citation | [2021] IEHC 82 |
| Docket Number | [2020 No. 13 JR] |
| Court | High Court |
| Date | 08 February 2021 |
IN THE MATTER OF SECTION 5 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 (AS AMENDED)
[2021] IEHC 82
Max Barrett
[2020 No. 13 JR]
THE HIGH COURT
By notice of motion of 14th January 2020, Mr Y seeks, inter alia, the following reliefs:
“(1) an order of certiorari quashing the review decision of the Minister made under s.49(7) of the International Protection Act 2015 on 29th November 2019 and issued on 10th December 2019;
(2) an order of certiorari quashing the decision of the Minister made under s.50 of the Act of 2015 on 27th November 2019 and issued on 9th December 2019.
…
(5) such further or other order as the court may deem meet, including an extension of time; and
(6) costs.”
Orders (3) and (4), as mentioned in the notice of motion, were not the subject of the submissions and the court understands them not to be sought any longer. The parties can correct the court if it is mistaken in this regard.
The Statement of Relevant Facts in the Statement of Grounds states, inter alia, as follows:
“(i) The Appellant is a…national of the Democratic Republic of Congo (‘DRC’). He made a claim for international protection to the International Protection Office (‘IPO’) on the 3rd April 2018, on the basis that if he returned to the DRC he would face persecution or serious harm….
(ii) The Applicant filed an International Protection Questionnaire on the 31st May 2018. He was interviewed by the IPO under s.35 of the International Protection Act 2015 (the ‘Act’) on the 6th December 2018. His application for international protection was denied for the reasons set out in the Report pursuant to Section 39 of the International Protection Act 2015 dated 7th May 2019. He duly appealed to the IPAT on the 31st May 2019….
(iii) On the 7th May 2019, the IPO issued an ‘Examination of File under Section 49(3) of the International Protection Act 2015’ by which it made a decision under s.49(4)(b) of the Act that the Applicant be refused permission to remain in the State (the ‘PTR Decision’).
(iv) On the 1st August 2019, the IPAT denied his appeal from the refusal of international protection under s.46 of the Act.
(v) On or around the 7th August 2019, the Applicant made further representations in support of his application for permission to remain and non-refoulement and furnished, inter alia, a s.49 Review Form dated 7/8/19; letters in relation to studies which he had undertaken in the State; copies of payslips; volunteer certificate; letter from [STATED NAME] dated 16/9/19; evidence of CALCC membership.
(vi) On the 10th December 2019, the IPO issued its ‘Review under Section 49(9) of the International Protection Act 2015’ dated 29th November 2019 (the ‘PTR Review Decision’).
(vii) The IPO noted, inter alia, the submissions made on behalf of the Applicant under s.49(3)(a) of connection to the State, including labour market access permission, and s.49(3)(b) Humanitarian Considerations. In relation to the latter, the IPO found that ‘[t]he humanitarian considerations of these submissions is noted here and this issue is also considered later in this report in respect of the prohibition of refoulement’.
(viii) Under the Article 8 ECHR – Private Life heading the IPO noted the Applicant's submissions in relation to his integration in the State, involvement in a church choir, education and employment, including labour market access permission. The IPO determined that ‘Having considered and weighed all the facts and circumstances in this case, a decision to refuse the applicant permission to remain does not constitute a breach of the right to respect for private life under Art. 8(1) ECHR’.
(ix) The IPO further found under the heading of s.49(3) findings that ‘While noting and carefully considering the submissions received regarding the applicant's private and family life and the degree of interference that may occur should the applicant be refused permission to remain, it is found that a decision to refuse permission to remain does not constitute a breach of the applicant's rights. All of the applicant's family and personal circumstances, including those related to the applicant's right to respect for family and private life, have been considered in this review, and it is not considered that the applicant should be granted permission to remain in the State.’
(x) In its consideration of non-refoulement under s.50 of the Act, the IPO noted representations in relation to the Applicant's membership of CALCC and representations from [STATED NAME ] that the DRC remains a high-risk region. The IPO had regard to the US Department of State's 2018 Country Reports on Human Rights Practices – Democratic Republic of Congo, 13 March 2019, on freedom of movement; noted that his immediate family members still reside there; and that he had been denied international protection. The IPO found that ‘having considered all the facts in this case and relevant country of origin information, I am of the opinion that repatriating the applicant to DRC is not contrary to s.50 of the International Protection Act 2015, in this instance, for the reasons set out above.’”
In his grounding affidavit of 9th January 2020, Mr Y avers, inter alia, as follows:
“3. I have reviewed the decision made under sections 49(7) of the International Protection Act 2015 (the ‘Act’) (the ‘Section 49(7) Decision’) as well as the decision under s.50 of the Act (the ‘s.50 Decision’) contained in the document entitled ‘Review under Section 49(7) of the International Protection Act 2016’ dated 29th November 2019 and which issued to me on the 10th December 2019….
4. The s.49(7) Decision was a review of an earlier decision finding that I should not be given permission to remain in the State made under s.49(4)(b) of the Act, and the s.50 Decision was a review of an earlier decision as set out in the ‘Examination of File under Section 49(3) of the International Protection Act 2015’ dated the 7th May 2019 (the ‘PTR Decision’)….
Submissions made on my behalf
5. On the 7th August 2018, by and through my solicitors, I made further representations in support of my application for permission to remain and non-refoulement and furnished, inter alia, a Section 49 Review Form dated 7/8/19; letters in relation to studies which I had undertaken in the State; copies of payslips; volunteer certificate; letter from [STATED NAME] dated 16/9/19; evidence of CALCC membership….
Text of the decision
6. As appears from the s.49(7) Decision, the IPO's determination with regard to my right to private life was as follows:
‘Having considered and weighed all the facts and circumstances in this case, it is not accepted that such potential interference will have consequences of such gravity as potentially to engage the operation of Article 8(1). Having considered and weighed all the facts and circumstances in this case, a decision to refuse the applicant permission to remain does not constitute a breach of the right to respect for private life under Art.8(1) ECHR.’
7. The IPO's final determination with regard to my application to remain under s.49(3) of the Act was as follows:
‘While noting and carefully considering the submissions received regarding the applicant's private family life and the degree of interference that may occur should the applicant be refused permission to remain, it is found that a decision to refuse permission to remain does not constitute a breach of the applicant's rights. All of the applicant's family and personal circumstances, including those related to the applicant's right to respect for family and private life, have been considered in this review, and it is not considered that the applicant should be granted permission to remain in the State.’
8. The IPO's final determination with regard to my application to remain based on non-refoulement under s.50 of the Act was as follows:
‘Accordingly having considered all of the facts in this case and relevant country of origin information, I am of the opinion that repatriating the applicant to DR Congo is not contrary to s.50 of the International Protection Act 2015, in this instance, for the reasons set out above.’
9. As appears from the ‘Review under Section 49(7) of the International Protection Act 2015, the IPO's Decision under section 49(4) of the Act was as follows:
‘The applicant's case was considered under Section 49 and Section 50 of the International Protection Act 2015 on review. Refoulement was not found to be an issue in this case. Consideration was also given to private and family rights under Article 8 ECHR.
Having considered the applicant and the particular circumstances of this case and the applicant's right to respect for his private and family life, I affirm the decision dated 07/05/2019 that the applicant, Mr Y, should not be given permission to remain in the State under s.49 of the 2015 Act.’
Notice of the Impugned Decisions
10. I was notified of the s.49(7) and Decisions by way of a letter, sent by registered post, from the Ministerial Decisions Unit of the Department…dated the 10th December 2019, which I received on or around the 11th December 2019….
Issues Arising from the Impugned Decision
I wish to challenge the decision to refuse me permission to remain for the reasons set out in the Statement of Grounds.
In particular, I say that the Minister has not given proper consideration to my volunteer work and integration into the State and has not given proper regard to the Country of Origin Information and representations submitted on my behalf in relation to my fears of return to the DRC.”
The impugned review decision of 29th November 2019 reads, inter...
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