X v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 22 January 2021
• Neutral Citation: [2021] IEHC 32
• Court: High Court
• Docket Number: [2019 No. 758 JR]
• Date: 22 January 2021

In the Matter of Section 5 of the Illegal Immigrants (Trafficking) Act 2000 (As Amended)

Between

X

Applicant

and

The Minister for Justice and Equality

Respondent

[2021] IEHC 32

[2019 No. 758 JR]

THE HIGH COURT

JUDGMENT of Mr Justice Max Barrett delivered on 22nd January 2021.

1 Mr X, a national of Nigeria, claims to be bisexual or homosexual (both terms have been used by his lawyers in the pleadings, though Mr X's own claim at his s.35 interview was that he is bisexual). His claims as to his sexuality have not been believed by the Minister. Consequently he has failed to secure a refugee declaration, a subsidiary protection declaration or permission to remain in the State and, latterly, has had a deportation order issue against him.

2 On 22nd May 2017, a permission to remain decision issued to Mr X along with a s.39 report dated 15th May 2017. That s.39 report referred to the wrong person in the recommendation section. On 30th May 2017, a s.39 report issued which now referred in Section 10 to Mr X. The brief cover letter which accompanied the report of 30th May 2017 states, inter alia, as follows:

“I refer to our recent letter to you dated 22nd May 2017 in relation to the recommendation made in respect of your application for international protection. I wish to advise you that [the] s.39 report that issued to you with the letter on 22nd May 2017, contained an error in section 10 of that report. I wish to apologise for this error and am now enclosing a copy of the s.39 report containing the correct details. Please also find attached a new recommendation letter which, you will note, has been dated 30th May 2017”

3 There is dispute between the parties as to whether the s.39 report should be treated as having issued on 22nd May 2017 or 30th May 2017. Regardless of where the truth of this lies, to the extent that Mr X now seeks to bring a challenge by reference to the just-described events of May 2017, the court must respectfully decline to extend the time for the bringing of that claim for the reasons set out below.

4 Under s.5 of the Illegal Immigrants (Trafficking) Act 2000 as amended by s.34 of the Employment Permits (Amendment) Act 2014 and s.79 of the International Protection Act 2015, Mr X had a 28-day period within which to question the validity of a s.39 recommendation. Taking his case at its height, he ought to have brought that claim by end-June 2017. Instead, as mentioned, he commenced it in November 2019. Under s.5(2) of the Act of 2000, the court may extend the 28-day period where (i) it considers that there is good and sufficient reason for extending the period within which the application shall be made, and (ii) the court is satisfied that there are substantial grounds for contending that the decision, determination, recommendation, refusal or order is invalid or ought to be quashed. Turning then to consider items (i) and (ii):

• (i) is the High Court satisfied that there are substantial grounds for contending that the impugned act/ion is invalid or ought to be quashed?

  The court's answer to this question is ‘no’. What occurred, with respect, was an administrative error. The wrong person was named in the recommendation section of the s.39 report but it is patently obvious that the report was concerned with all the circumstances of Mr X's case, it is clear from the summary findings in Section 9 what the only recommendation could be, and it is clear that the civil servant who signed Section 10 could only have meant his recommendation to apply to Mr X. We all make mistakes, this was a small administrative mistake, and it was swiftly and honestly corrected; perfection of action is not a standard that the law demands of decisionmakers.

• (ii) is there good and sufficient reason for extending the period within which the application shall be made?

  The court's answer to this question is ‘no’. Mr X has had the benefit throughout his asylum application of legal advice/advisors. He had every opportunity to raise the point that he now seeks to raise concerning the s.39 report and never did so for no good reason other than that he did not. Moreover, the court cannot overlook the extraordinary duration of the extension of time that is sought of it in the within proceedings. Taking Mr X's case at its height and so counting the time from 30th May 2019, the court is being asked to allow a timeframe for bringing the within proceedings that is about 30 times the standard timeframe of 28 days. The court does not see that it can properly grant an extension of time of such a radical duration in all the circumstances presenting. The court respectfully does not accept that because Mr X was informed on 24th July 2019 that the permission to remain decision remained unchanged, that re-set the clock in terms of challenging that decision. To conclude otherwise would run counter to the clear 28-day timeframe contemplated by s.5 of the Act of 2000; it flies too in the face of the practical reality that Mr X has known since May 2017 of the matter of which he now seeks to make complaint.

5 The first of the two questions contended by Mr X to arise in the within proceedings is “Was the permission to remain decision, made under s.49 of the International Protection Act 2015 (the ‘Act’) and dated 30th May 2017 and affirmed on the 24th July 2019 (the ‘PTR Decision’) and which includes the consideration of refoulement, vitiated for illegality as having been made prior to the recommendation under s.39(3)(c) of the Act? As the court is declining to grant the extension of time sought to raise this question, it follows that the court will not consider this question. The court turns therefore to the second of the two questions raised by Mr. X, viz. “Is the Deportation Order vitiated by the Respondent's failure to provide a written decision of his opinion under ss.50 and 51(3) of the Act?”

6 Mr X contends that, as per his written submissions, “The Respondent…issued the deportation order under s.51 without giving the applicant any notice of his s.50 reasoning which he was required to do under s.51(3)”. Three points might be made in this regard.

– first, s.51(3) requires that the reasons for making the deportation order be given, i.e. the “it” referred to is the deportation order. Section 51(3) does not require per se that the reasons for the view taken as to non-refoulement be given, though the fact of the view taken as to non-refoulement would almost undoubtedly be among the reasons as to why the Minister was satisfied to make a deportation order.

– second, in point of fact Mr X was provided with the reasons for the making of the deportation order in the notice of the deportation order that issued on 2nd October 2019.

– third, there can be no question that Mr X was left in the dark as to why his s.50 submissions were unsuccessful. The s.50 submissions in essence amounted to an assertion by his lawyers that he is homosexual and that LGBTI+ people suffer badly (and they do suffer badly) in Nigeria, thus presenting a danger to him if he is returned there. But Mr X knows through his participation in the asylum process from start to finish that the Minister has never accepted that Mr X is either homosexual or bisexual, so it is, with all respect, obvious why the Minister took the view that he did concerning non-refoulement. In the context of this third point, it is perhaps worth remembering the observation of Fennelly J. in Mallak v. Minister for Justice and Equality [2012] 3 IR 297, para.[66] that:

“The most obvious means of achieving fairness is for reasons to accompany the decision. However, it is not a matter of complying with a formal rule: the underlying objective is the attainment of fairness in the process. If the process is fair, open and transparent and the affected person has been enabled to respond to the concerns of the decision-maker, there may be situations where the reasons for the decision are obvious and that effective judicial review is not precluded.”

7 These are standards that have been satisfied in the process in which Mr X has participated.

8 The court respectfully declines to grant any of the reliefs sought by the applicant in his notice of motion. The court, in the Appendix hereto, considers in still more detail the facts and issues presenting in the within applications. That Appendix and all of the text which precedes it together comprise the court's judgment in these proceedings.

9 In this and the next paragraph, the court respectfully makes a number of obiter observations. The granting of asylum is an exercise in humanity. To borrow from the imagery in the Christian parable of ‘The Good Samaritan’, it involves the Irish people reaching out through the legal guise of the State to help a fellow traveller in life, a stranger who has been stripped and beaten and left for dead, yet in whom we recognise a neighbour in desperate need of help. The State, in the substance and operation of its asylum laws, seeks therefore to attain a particular moral ideal. There are moments in the progress of Mr X's application when an onlooker might wonder at how the State has proceeded. Three examples suffice:

• (i) Mr X has recounted a number of sexual encounters with other males, yet his truthfulness in this regard has been assailed on the basis that “it simply is not credible that a young man having been raised in…a restrictive environment would engage in behaviour both unacceptable and outlawed in the society in which he lives”. Such a conclusion, with respect, does not follow. Growing up in a ‘straight’ or strait-laced environment does not mean that a male of any age who is bisexual/homosexual is going to avoid expressing his natural sexuality. As a nation we ought surely to be particularly alive to this truth, for there were doubtless many bisexual/homosexual men in Ireland who – in the particularly bleak period that lasted from the enactment of the...