Y.Y. v Minister for Justice and Equality (No. 5)

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 19 December 2017
• Neutral Citation: [2017] IEHC 815
• Date: 19 December 2017
• Docket Number: [2016 No. 774 J.R.]

[2017] IEHC 815

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2016 No. 774 J.R.]

BETWEEN

Y.Y.

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

(No. 5)

Asylum, Immigration & Nationality - S. 3(11) of the Immigration Act 1999 - Refusal to revoke deportation order - Remittal to Minister - Failure to notify about reliance on documents - Breach of fair procedures

Facts: Following the quashing of the respondent's decision under s. 3(11) of the Immigration Act 1999 by the Supreme Court and the remittal of the matter to the High Court in relation to the deportation order, the High Court was now presented with the validity of the second s. 3(11) decision. The applicant argued that the decision maker should have made rigorous efforts to analyse and scrutinise the documents submitted by the applicant. The applicant objected to the reliance placed by the respondent to a blog article without informing the applicant as he was devoid of an opportunity to comment on it with the help of an expert appointed by the applicant to present certain other information.

Mr. Justice Richard Humphreys granted an order of certiorari and thus, quashed the second decision of the respondent under s. 3(11) of the Immigration Act 1999. The Court adjourned the present matter to discuss the issue of validity of original deportation order as directed by the Supreme Court. The Court noted that although the failure to notify the applicant about public documents was not fatal to the case as they were available, but in the present case, the reliance on somewhat unusual Menas report without informing the applicant was in breach of fair procedures. The Court observed that the Menas report was different from regular country reports and it was not easy to have access to the report.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 19th day of December, 2017

1 In Y.Y. v. Minister for Justice and Equality (No. 1) [2017] IEHC 176, I declined to grant certiorari of a deportation order and a decision under s. 3(11) of the Immigration Act 1999 adverse to the applicant. In Y.Y. v. Minister for Justice and Equality (No. 2) [2017] IEHC 185, I refused leave to appeal to the Court of Appeal. In Y.Y. v. Minister for Justice and Equality (No. 3) [2017] IEHC 334, I declined to continue a stay in favour of the applicant. In Y.Y. v. Minister for Justice and Equality [2017] IESCDET 38, the Supreme Court gave leave to appeal to that court on limited grounds. In respect of my substantive decision in Y.Y. v. Minister for Justice and Equality [2017] IESC 61, the Supreme Court quashed the s. 3(11) decision and remitted the proceedings, insofar as they related to the original deportation order, to this court, to be considered in conjunction with a proposed further s. 3(11) application. Following this, further submissions under s. 3(11) were made by the applicant on 10th August, 2017. As previously mentioned, I note in passing that one point made in those submissions was unfavourable television coverage in relation to the applicant but that was hardly discouraged by the applicant, having effectively waived anonymisation of the country name, which I had previously ordered as a protection for him. A new s. 3(11) decision adverse to the applicant was made on 27th September, 2017. In Y.Y. v. Minister for Justice and Equality (No. 4) [2017] IEHC 690, I inter alia allowed an amendment to the proceedings to challenge that s. 3(11) decision, as envisaged by the Supreme Court.

2 Following that amendment, I considered that the appropriate way to deal with the proceedings was in modular form and I now deal with the validity of the second s. 3(11) decision by way of Module I of the proceedings, leaving over to Module II the question of the ramifications, if any, of this decision for the original deportation order. I am not going to repeat the findings already made, and my previous decisions should be read as incorporated by reference, subject of course to the Supreme Court judgment.

3 I have had regard to the tests as set out in the ECHR case law, as outlined in the No. 1 judgment, particularly at paras. 85 and 86. The Minister in the decision under challenge correctly states the test involved in accordance with the ECHR jurisprudence.

4 Generally, I would accept the submission made by Mr. Remy Farrell S.C. (with Ms. Sinead McGrath B.L.) for the respondents, that the applicant's case, as put forward by Mr. Michael Lynn S.C. (with Mr. David Leonard B.L.), is based on ' a minute dissection of the decision' rather than necessarily focusing on the larger issues involved. In particular, the applicant has, in submissions made on his behalf, shied away from the most striking factual feature of the case, namely that the applicant's brother is living openly in Algeria without difficulty, despite a terrorist conviction in France.

Is there a flaw in the decision because the second s. 3(11) decision is based on different grounds than previous decisions?

5 Mr. Lynn submits that we are on the third decision here and that different decisions have somewhat different rationales, of which he was not given notice, which he says ' goes to the fairness of the procedure'. I reject that submission. If, as here, an original s. 3(11) decision is quashed, the Minister is entitled to make a new decision on a new basis having regard to the material before the decision-maker at that point. No unfairness arises.

Is there a flaw in not reverting to the applicant with the issues of concern to the Minister because the Minister is dispelling doubts under art. 3 of the ECHR?

6 The duty to dispel doubts under art. 3 of the ECHR is an objective exercise. It is not to be equated with dispelling them subjectively in the mind of the applicant or anyone else. No illegality arises here in not giving the applicant a preview of the draft decision simply by virtue of the fact that the Minister is engaged in an art. 3 process, as opposed to any other type of administrative process.

Is there an unfairness on the grounds that the applicant had engaged an expert who was not asked to comment on the Minister's views on the material?

7 In the s. 3(11) submissions, the applicant's solicitor asked for their expert Professor Joffé to be allowed to comment on the Minister's views on the material submitted. Mr. Lynn accepts there is no authority for the proposition that such an opportunity to comment on the Minister's draft decision or provisional views should be allowed. An applicant's rights cannot be greater simply because he or she hires an expert. More fundamentally, and leaving this case aside for a moment, nonsense does not become sense simply because one can find an expert to sign their name to it. One still has to evaluate the basis of the point made. No entitlement to certiorari arises under this heading simply because an expert was engaged in this case.

Is there an unfairness on the ground that the applicant was not asked to comment on the Minister's views on the material submitted?

8 Reliance is placed on Moyosola v. Refugee Applications Commissioner [2005] IEHC 218 in which Clarke J. comments that applicants are entitled to ' an opportunity to answer' a matter that is ' likely to be important to the determination of the RAT'. In such a case ' that matter must be fairly put to the applicant'. Clarke J. goes on to say that ' this remains the case whether the issue is one concerning facts given in evidence by the applicant, questions concerning country of origin information which might be addressed either by the applicant or by the applicant's advisors or, indeed, legal issues which might be likely only to be addressed by the applicant's advisors'. However, it seems to me that that case is dealing with the unexceptional situation where an applicant is entitled to notice of the issue being considered in the first place. It has nothing to do with a situation where an applicant asserts an entitlement to a further bite of the cherry by way of a preview of the Minister's provisional views on material of which the applicant is actually or constructively aware. The factual context is set out by Clarke J. as being a situation where ' none of the applicants had had the fact that it might be contended that their assertions were contrary to such country of origin information brought to their attention nor, indeed, was the relevant country of origin information itself brought to their attention'. That is a totally different situation to that being contended for here, which is a proposition that the applicant is entitled to know what adverse inferences the Minister intends to draw from material of which the applicant is actually on notice. Likewise, where Peart J. in B.W. (Nigeria) v. Refugee Appeals Tribunal [2017] IECA 296 is speaking of the right to ' a fair opportunity to address the concern where that opportunity has not already been provided', he is speaking of a context where the matter of concern to the decision-maker was never suggested to the applicant and therefore ' the applicant had no opportunity of addressing the concerns which it gave rise to in the mind of the Tribunal' (para. 52). Therefore, it seems to me that there is absolutely no support in the jurisprudence for Mr. Lynn's submission that where adverse inferences are going to be drawn from material of which the applicant is fully aware, there is a duty of fairness to the applicant to engage in a further process where those proposed adverse inferences are put specifically.

9 The deportation context is not a process of dialogue: see Baby O. v. Minister for Justice, Equality and Law Reform [2002] 2 I.R. 169 per Keane C.J., at p. 183: there is ' no obligation on the [Minister] to enter into correspondence …setting out detailed reasons as to why refoulement does not arise'. The same point was made in M.A. v. Minister for Justice, Equality and Law Reform...