X.X. v The Minister for Justice & Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 04 May 2018
• Neutral Citation: [2018] IECA 124
• Date: 04 May 2018
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2018] IECA 124 Record No. 2017/169

BETWEEN/

X.X.

APPLICANT/APPELLANT

- AND -

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

[2018] IECA 124

Neutral Citation Number: [2018] IECA 124

Record No. 2017/169

THE COURT OF APPEAL

Immigration and asylum – Judicial review – Refugee Act 1996 – Appellant seeking judicial review – Whether appellant made a valid asylum application pursuant to s. 8 of the Refugee Act 1996

Facts: The appellant contended that he made a valid de novo application for asylum to the Refugee Applications Commissioner pursuant to the provisions of s. 8 of the Refugee Act 1996 on the 8th April 2015 which the Commissioner declined to accept, saying that in view of an earlier (and abandoned) asylum claim, the appellant required the consent of the respondent, the Minister for Justice and Equality, to re-enter the asylum process pursuant to s. 17(7) of the 1996 Act. The appellant's solicitors then applied to the Minister under s. 17(7) for permission to re-enter the asylum system, which application was refused by decision dated the 17th June 2015. The appellant then commenced judicial review proceedings seeking a declaration that he made a valid asylum application pursuant to s. 8 of the 1996 Act which the Commissioner was bound to consider and determine. The appellant's case turned on whether the Minister had previously "refused to grant a declaration" within the meaning of s. 17(7) of the 1996 Act when the appellant's original application for asylum was withdrawn at some stage in 2000 or 2001 and whether the proceedings amounted to a collateral attack on the June 2015 s. 17(7) decision. On the 24th June 2016, the High Court refused the appellant's claim. He then appealed to the Court of Appeal against that decision.

Held by Hogan J that the proceedings did not come within the scope of s. 5 of the Illegal Immigrants (Trafficking) Act 2000 and, accordingly, an appeal would lie to the Court even in the absence of a certificate. Hogan J held that the appellant's original application was not "refused" by the Minister, but was rather withdrawn in August 2000. Hogan J held that the transitional provisions of s. 28 and s. 28A of the 1996 Act did not alter this conclusion. Had the appellant not also made the admittedly without prejudice s. 17(7) application in 2015, Hogan J would have held that his 2015 asylum application was a valid one which the Commissioner was obliged to hear and determine. Hogan J noted that the appellant made a s. 17(7) application in 2015 and that this was refused by the Minister, even if this application was made on a without prejudice basis. Hogan J held that it was perfectly clear that the validity of such a decision could be challenged only by way of judicial review proceedings. Hogan J held that, in light of the reasoning of the Supreme Court in Nawaz v Minister for Justice [2012] IESC 58, the proceedings amounted to a collateral attack on an administrative decision which could only have challenged by way of judicial review proceedings brought under s. 5 of the 2000 Act. Hogan J held that it was for that reason that the appellant could not be heard to claim that he had made a valid asylum claim under s. 8 of the 1996 Act in the absence of a direct challenge brought by way of judicial review in the manner specified by s. 5 of the 2000 Act to the validity of the June 2015 decision refusing him re-entry into the asylum system pursuant to s. 17(7) of the 1996 Act.

Hogan J held that he would dismiss the appeal and affirm the decision of the High Court.

Appeal dismissed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 4th day of May 2018

1 This is an appeal brought by the applicant against the decision of the High Court delivered on the 24th June 2016 in which the applicant's claim that the Minister (or, in strictness, the Refugee Applications Commissioner) had wrongly refused to consider his application for asylum was itself refused: see XX v. Minister for Justice [2016] IEHC 377. There is no doubt but that this appeal presents important and difficult issues relating to the practical operation of our asylum law.

2 The applicant, Mr. X., is a Jordanian national of Palestinian extraction. He arrived in the State in 2000 in circumstances I will presently describe. He originally applied for asylum on his arrival, but he later withdrew that application on the basis that he had been granted residency by reason of the existence of an Irish born child. In more recent times Mr. X. has come to official attention by reason of his suspected involvement (which, to be fair, is denied by him) in radical Islamic organisations. Indeed, Mr. X. was deported to Jordan in 2016 on national security grounds following an unsuccessful attempt by him to challenge the validity of that deportation order in a second set of judicial review proceedings.

3 In those judicial review proceedings challenging the validity of that deportation order (2015 No. 727JR) the High Court (Humphreys J.) refused to grant the applicant leave to appeal to this Court. It is accepted that any challenge to the validity of that deportation order comes within the scope of s. 5(1) of the Illegal Immigrants (Trafficking) Act 2000 ('the 2000 Act') so that a certificate of leave to appeal to this Court is also required by the provisions of s. 5(6) of that Act (as amended). Humphreys J. refused to grant the applicant the necessary certificate for this purpose. It is accordingly clear that this Court lacks any jurisdiction to entertain any appeal against that particular decision of the High Court concerning the validity of that deportation order. That much is accepted by the applicant.

4 That, however, is not the issue so far as this particular appeal is concerned which is exclusively concerned with the first set of judicial review proceedings (2015, No. 647JR). Briefly put, the applicant contends that he made a valid de novo application for asylum to the Refugee Applications Commissioner pursuant to the provisions of s. 8 of the Refugee Act 1996 (as amended) ('the 1996 Act') on the 8th April 2015 which the Commissioner declined to accept, saying that in view of the earlier (and abandoned) asylum claim, the applicant now required the consent of the Minister for Justice to re-enter the asylum process pursuant to s. 17(7) of the 1996 Act. The applicant's solicitors then made what was described as a 'without prejudice' application for permission to re-enter the asylum system to the Minister under s. 17(7), which application was refused by decision dated the 17th June 2015.

5 The applicant then commenced these separate judicial review proceedings seeking a declaration that he made a valid asylum application pursuant to s. 8 of the 1996 Act which the Commissioner was bound to consider and determine. The applicant's case in these proceedings ultimately turns on whether the Minister had previously 'refused to grant a declaration' within the meaning of s. 17(7) of the 1996 Act when Mr. X's original application for asylum was withdrawn at some stage in 2000 or 2001 and whether the present proceedings amount to a collateral attack on the June 2015 s. 17(7) decision.

The applicant's withdrawal of his asylum application

6 It is next necessary to summarise some of the background facts to the present appeal. As I have already indicated, Mr. X. is a Jordanian national with a Palestinian background. He claims that he was harassed, detained and tortured by the Jordanian security forces during this period by reason of his Islamic beliefs and support for the Palestinian cause. He and his family originally arrived in Ireland in 2000 whereupon he duly applied for asylum based on these grounds.

7 Subsequent, however, to his arrival in Ireland, Mr. X.'s wife gave birth to a baby boy in July 2000, whereupon the applicant then withdrew (or, at least, sought to withdraw) his asylum application. The applicant and his family were then subsequently granted residency status in the State based on the existence of the Irish born child.

8 On the 24th June 2009, the applicant was issued with a Jordanian passport which was valid until the 23rd June 2014. In late 2010, one of the applicant's children was detained in Jordan. In or about April 2013, the applicant's older son died while fighting in Syria on behalf of what appears to have been an Islamic faction which was engaged in that conflict.

9 In August 2013, the applicant's wife returned to Jordan with two of the children, and subsequent to that date there was intermittent travel by family members back and forth between Ireland and Jordan. Critically, however, on the 23rd August 2014, the applicant's residence permission in the State, which had been renewed from time to time from 2000 onwards, expired. The applicant did not, however, take steps to seek to renew it for a number of months. Mr. X's Jordanian passport was, however, renewed on the 8th December 2014 for a further five year period.

10 On the 15th January 2015 Mr. X. went to the Garda National Immigration Bureau (G.N.I.B.) to apply for a renewal of his residence permission. His Irish born child had been in Jordan for a period (where the applicant's wife and children and other children also were at this time). Given the uncertainties associated with the whereabouts of the Irish citizen child and the other family members, Mr. X. was requested to clarify details regarding his family's situation.

11 In February 2015, the applicant returned to the G.N.I.B. to renew his permission with his Irish-born child, but it was not, however, renewed at that point. On the 18th February 2015, Mr. X.' solicitors wrote to the Minister applying for the renewal of the residence permission. On the 13th March 2015, Mr. X. received a proposal from the Minister to deport him. The reasons underlying the proposal stated that he was believed to be an organiser for the organisation known as the Islamic State of Iraq and the Levant which is more...