WJF v Minister for Justice and Equality

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice O'Regan
• Judgment Date: 24 November 2016
• Neutral Citation: [2016] IEHC 737
• Docket Number: [2013 No. 412 JR]
• Date: 24 November 2016

[2016] IEHC 737

THE HIGH COURT

JUDICIAL REVIEW

O'Regan J.

[2013 No. 412 JR]

IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000, SECTION 5

AND IN THE MATTER OF THE REFUGEE ACT 1996 (AS AMENDED)

BETWEEN

WJF

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY

IRELAND

ATTORNEY GENERAL

RESPONDENTS

Asylum, Immigration & Nationality – The Illegal Immigrants (Trafficking) Act 2000 – The Refugee Act 1996 – Adoption of previous decision-maker's findings

Facts: The applicant sought an order of certiorari for quashing two decisions of the first named respondent namely, the refusal to grant subsidiary protection and decision to make a deportation order. The main contention raised by the applicant was in relation to the adoption of the findings of the Refugee Appeals Tribunal (RAT) by the first named respondent without making its own independent view. The first named respondent argued that since there was negative credibility findings by the RAT, there was no need for the first named respondent to do further analysis as there was no change in the applicant's submissions.

Ms. Justice O'Regan refused to grant the desired relief to the applicant. The Court held that the first named respondent was correct in adopting the findings of the previous-decision maker as no new evidence was introduced by the applicant challenging the adverse credibility findings. The Court found that the rationale for the decision must be patent or capable of being inferred from its terms and contexts. The Court held that since the applicant's family resided in another jurisdiction, the issue of interference with the family life of the applicant did not arise in the present case. The Court observed that there was no fundamental flaw in both the decisions warranting its reversal.

JUDGMENT of Ms. Justice O'Regan delivered on the 24th day of November, 2016

Introduction

1 This matter came before the Court on 1st November, 2016 on the basis of a telescoped application seeking:

1. an extension of time within which to make the application, together with

2. an order of certiorari quashing two decisions of the first named respondent, namely the decision not to grant subsidiary protection and the decision to make a deportation order.

Background

2 The applicant is a native of Cameroon and arrived in Ireland on 2nd July, 2010 and immediately applied for refugee status. The applicant is single and has two children residing with his parents in Cameroon.

3 No personal documents were ever produced by the applicant although some country of origin information was supplied by him.

4 The Commissioner made a recommendation that the applicant would not be declared a refugee and this recommendation was appealed to the Refugee Appeals Tribunal which upheld the Commissioner's decision by a ruling of 6th April, 2011.

5 Following the foregoing, the Minister communicated with the applicant indicating an intention to deport him and inviting him to apply for leave to stay in Ireland and/or subsidiary protection. The applicant processed both such applications on 3rd June, 2011. A decision as to subsidiary protection was made on 4th October, 2012 and advised to the applicant under cover letter of 5th October, 2012. A decision to deport the applicant was made on 19th October, 2012 and advised to the applicant under cover letter of 2nd November, 2012.

6 The application before the Court is grounded upon an affidavit of the applicant of 22nd May, 2013 and brought by way of notice of motion of 24th May, 2013 which was ultimately filed on 4th June, 2013.

7 Because the application for certiorari engaged the jurisprudence covered by the M.M. v. Minister for Justice [2011] IEHC 547 decision et seq the matter was adjourned until final determination of the M.M. matter. However, in or about July, 2016 the applicant resolved that he wished to proceed with his application. To this end a letter was dispatched on behalf of the applicant to the respondent bearing date 5th July, 2016 indicating that the applicant wished to proceed with his application and was prepared to exclude from same:

1. the matter of M.M.,

2. the case of Junca and all related legal arguments;

3. the EU Directive, the Charter and the Convention.

The respondent agreed. Accordingly an amended statement of grounds issued bearing date 22nd July, 2016.

8 Both parties made written submissions, however, in the applicant's written submissions considerable emphasis was laid on EU law whereas in the respondent's replying submissions, the respondent indicated that it had been agreed that this EU law was not to be relied upon, and so the respondent did not make any submission in respect thereof but rather made submissions relative to domestic law.

9 When the matter commenced, the issue as to whether or not EU law formed a portion of the applicant's claim was discussed and the applicant argued that the import of the letter of 5th July, 2016 dispatched to the respondents was for the purposes of excluding the M.M. case and the Junca case together with all EU directives, charters and conventions relative to those cases but not otherwise. Having indicated to the applicant that I felt that the respondent's view of the letter of 5th July, 2016 to the effect that the EU Directive, Charter and Convention would not be relied upon was not limited to the M.M. decision or the Junca matter was understandable in the circumstances, the applicant gave instructions that nevertheless he wished to proceed with the judicial review application immediately. Accordingly the matter proceeded on the basis of the respondent's understanding of the letter of 5th July, 2016.

10 It was further agreed between the parties that the issue of an extension of time could await a decision on the application for certiorari as the extension of time would only be relevant if the Court held the view that one or both of the subsidiary protection or the deportation order should be quashed – in other words if both the subsidiary protection decision and the deportation order were to stand there would be no need to entertain the extension of time application.

The applicant's submissions

11 The applicant's submissions might be generally summarised as follows:-

i. Both orders were unlawful as both adopted without reason the prior RAT decision.

ii. Both orders were unlawful because both the finding and content of the RAT decision were used without notice to the applicant.

iii. The deportation order is unlawful as the Minister did not conduct her own independent view of refoulement.

iv. The deportation order was unlawful as it was a disproportionate response and the issue of proportionality was not considered.

The issues between the parties

12 The applicant argues that the Minister effectively blindly followed the RAT decision without reason. The Minister's finding quotes the RAT decision extensively and thereafter paraphrases a considerable portion thereof relative to the subsidiary protection decision. Included in the paraphrasing is the following:-

‘The member of the Tribunal stated that there are other inconsistencies, too many to mention, but suffice to say that the applicant's account is lacking in credibility and overall found his account to be inherently lacking in credibility.’

Insofar as credibility is concerned the decision went on to state:-

‘In light of the foregoing, it is reasonable to consider that the applicant's statements in relation to his claimed fear of returning to Cameroon are not credible. As a result, I am satisfied that the applicant's claim is not credible.’

13 In the recommendation to deport the applicant, again, the RAT decision is quoted extensively and is followed by a paraphrasing including the statement quoted above as to various other inconsistencies and the discussion concludes with:-

‘As a result, I am satisfied that Walters Jingwa Fohba's claim is not credible. I have considered all the facts of this case and the facts that Walters Jingwa Fohba's general credibility has not been established. As Walters Jingwa Fohba's claim has been found not to be credible, I am satisfied that repatriating Walters Jingwa Fohba to Cameroon is not contrary to s. 5 of the Refugee Act, 1996, as amended, in this instance.’

14 Thereafter there was a consideration of Art. 8 of the European Convention on Human Rights incorporating reference to the House of Lord's decision in R (Razgar) v. Secretary of State for the Home Department [2004] 2 AC 368 and this discussion concluded with a submission that a decision to deport the applicant would not constitute an interference with the right to respect for family life under Art. 8(1) of the ECHR.

15 The respondent's response is to the effect that the applicant was found by the RAT to be lacking in credibility on certain grounds and the circumstances thereof did not change between the RAT decision and the Minister's decisions. No fresh submissions were made to the Minister by the applicant. The respondent argues that it is clear from the Minister's communications that, in the round, she did not find the applicant credible and by looking at the entirety of the decision there would be no difficulty in ascertaining the rationale thereof. The respondent argues that the applicant was not surprised by the user of the RAT finding and content and no such surprise is expressed in the applicant's grounding affidavit. The respondent further argues that there is no evidence that the Minister did not know that she had an option to reject the RAT finding as suggested on behalf of the applicant and further argues that it is for the applicant to provide evidence in this regard aside from a mere statement that it is not clear from the decision that the Minister knew she had such option. The respondent further argues that the issue of proportionality did not arise in the...