A.W.K.(Pakistan) v The Minister for Justice and Equality

JurisdictionIreland
JudgeMr. Justice Richard Humphreys
Judgment Date25 September 2018
Neutral Citation[2018] IEHC 550
CourtHigh Court
Docket Number[2018 No. 430 J.R.]
Date25 September 2018

[2018] IEHC 550

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2018 No. 430 J.R.]

BETWEEN
A.W.K. (PAKISTAN)
APPLICANT
AND
THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENTS

Immigration and asylum – Certiorari – Deportation – Applicant seeking certiorari of an International Protection Act 2015 s. 49(9) decision and consequential certiorari of a deportation order – Whether the applicant sought the correct relief

Facts: The applicant arrived in Ireland on 25th August, 2015. He applied for asylum on 26th August, 2015. That application was rejected by the Refugee Applications Commissioner on 29th August, 2016. He appealed to the Refugee Appeals Tribunal against that rejection. Following the commencement of the International Protection Act 2015 on 31st December, 2016, he applied for subsidiary protection on 13th February, 2017, an application that was then remitted to the International Protection Office (IPO) and refused on 10th July, 2017. An appeal to the International Protection Appeals Tribunal was dismissed on 13th October, 2017. On 26th July, 2017, he was informed that the first respondent, the Minister for Justice and Equality, had refused permission to remain in the State under s. 49(4)(b) of the 2015 Act. On 15th and 24th November, 2017 he made representations out of time to review that decision under s. 49(7) and (9). On 15th March, 2018 the IPO rejected the review under s. 49(9) and the applicant was so notified on 23rd April, 2018. On 3rd May, 2018 he sought a further review. On 8th May, 2018 a deportation order was made. On 10th May, 2018 the IPO informed the applicant that the review had been completed and no further review arose. These proceedings were filed on 31st May, 2018 and moved ex parte on 12th June, 2018. The primary relief sought fell essentially into two categories: (i) certiorari of the s. 49(9) decision of 15th March, 2018 and consequential certiorari of the deportation order; and (ii) mandamus to compel the Minister to consider the further purported application under s. 49(9), made on 3rd May, 2018.

Held by the High Court (Humphreys J) that, having considered whether a decision on a review under s. 49(7) is a decision under s. 49(4)(b) of the 2015 Act for the purposes of s. 5 of the Illegal Immigrants (Trafficking) Act 2000, a purposive interpretation favoured the application of s. 5. Humphreys J held that the decision provided quite a degree of express reference to the detail of the applicant’s submission under the heading of his private life rights. Humphreys J held that the applicant sought the incorrect relief in the sense that no certiorari of the refusal to consider the further or later view was sought.

Humphreys J held that the application would be dismissed and that the respondents would be released from their undertaking not to enforce the deportation order.

Application dismissed.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 25th day of September, 2018
1

The applicant claims he was born in Pakistan in 1991. He says that he went to Lahore in March, 2010 and to the United Kingdom on 28th January, 2011, where he studied accountancy and then subsequently apparently changed studies to the security industry. He applied for leave to remain. That application was rejected. He appealed in April, 2015 and, with his student permission about to expire as of December, 2015, he came to Ireland, arriving on 25th August, 2015. He then applied for asylum on 26th August, 2015, apparently never having sought protection during his years in the U.K. That application was rejected by the Refugee Applications Commissioner on 29th August, 2016. He appealed to the Refugee Appeals Tribunal against that rejection. Following the commencement of the International Protection Act 2015 on 31st December, 2016, he applied for subsidiary protection on 13th February, 2017, an application that was then remitted to the International Protection Office and refused on 10th July, 2017. An appeal to the International Protection Appeals Tribunal was dismissed on 13th October, 2017. On 26th July, 2017, he was informed that the Minister had refused permission to remain in the State under s. 49(4)(b) of the 2015 Act. On 15th and 24th November, 2017 he made representations out of time to review that decision under s. 49(7) and (9). On 15th March, 2018 the IPO rejected the review under s. 49(9) and the applicant was so notified on 23rd April, 2018. On 3rd May, 2018 he sought a further review. On 8th May, 2018 a deportation order was made. On 10th May, 2018 the IPO informed the applicant that the review had been completed and no further review arose. The present proceedings were filed on 31st May, 2018 and moved ex parte on 12th June, 2018.

2

I have received helpful submissions from Mr. Eamonn Dornan B.L. for the applicant and from Mr. David Conlan Smyth S.C. (with Ms. Sarah-Jane Hillery B.L.) for the respondents.

Relief sought
3

The primary relief sought falls essentially into two categories: (i) certiorari of the s. 49(9) decision of 15th March, 2018 and consequential certiorari of the deportation order and (ii) mandamus to compel the Minister to consider the further purported application under s. 49(9), made on 3rd May, 2018.

Is the case covered by s. 5 of the Illegal Immigrants (Trafficking) Act 2000?
4

Mr. Conlan Smyth submits that what is at issue is merely a review rather than a decision, but that is something of a mischaracterisation. The rejection of the review application is itself a form of decision and therefore, as Mr. Dornan puts it, ‘ a target for judicial review’. That does not, however, determine the issue as to whether or not it should be regarded as covered by s. 49(4)(b). Section 79 of the International Protection Act 2015 adds to the list of decisions covered by s. 5 of the Illegal Immigrants (Trafficking) Act 2000 a number of further decisions including a new para. (oi), which is ‘a decision of the Minister under s. 49(4)(b)’ and a new para. (oj), which is ‘ a deportation order under s. 51’. The question then is whether a decision on a review under s. 49(7) is a decision under s. 49(4)(b) of the 2015 Act for the purposes of s. 5 of the 2000 Act, as so amended.

5

Section 49(8) provides that ‘ Subsections (2) to (5) shall apply to a review under subsection (7)’ subject to a qualification not relevant here. Therefore, on a literal interpretation, subs. (4) applies and a refusal of a review under subs. (7) should be deemed to be a decision under s. 49(4)(b).

6

If I am in any way wrong about that, a purposive interpretation favours the application of s. 5 here. The logic of paras. 41 and 42 of my decision in K.R.A. v. Minister for Justice and Equality [2016] IEHC 289 [2016] 5 JIC 1214 (Unreported, High Court, 12th May, 2016) applies, namely that the rejection of a review is an adverse immigration decision which is relevant to the presence or removal of an illegally present non-national. Therefore s. 5(1)(oi) of the 2000 Act should be construed in a manner that gives effect to that purpose. Furthermore, looking at that purpose in the very specific context of the sequence of deportation decisions, it would be totally illogical if a refusal of permission under s. 49(4) were to be subject to s. 5, the consequential deportation order were to be so subject and a decision refusing to revoke the deportation order under s. 3(11) of the...

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