YY v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 13 March 2017
• Neutral Citation: [2017] IEHC 176
• Court: High Court
• Docket Number: [2016 No. 774 J.R.]
• Date: 13 March 2017

[2017] IEHC 176

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. 1)

Asylum, Immigration & Nationality – S.3 of the Immigration Act, 1999 – S. 17 (7) of the Refugee Act, 1996 – Misleading information – Conviction for terrorist offences in foreign country – Risk of serious harm in country of origin – Art. 3 of European Convention on Human Rights ('ECHR') – Art. 21 of the Council Directive 2004/83/EC – Applicability of the EU law

Facts: The applicant challenged the deportation order made against him by the respondent ('Minister'). The applicant contended that the Refugee Appeals Tribunal ('RAT') had made a finding that the applicant was at risk of serious harm, if returned to the country of origin ('Algeria'), whereas the Minister had a different view stating that the risk had not been made out. The applicant claimed that the respondent should have followed the Tribunal's decision, as the entire asylum process had been construed as one in line with the EU law.

Mr. Justice Richard Humphreys refused to grant the desired relief to the applicant. The Court adjourned the matter to a particular date, so as to permit the applicant to file an application for leave to appeal, if any. The Court also stated as per the Minister's conclusion that there were no substantial grounds for considering that there was a real risk of treatment. The Court opined that the Minister was not bound to follow the views expressed by the Tribunal and that the Minister was required to make an independent scrutiny of the asylum application. The Court held that the Minister had taken into account the up-to-date information in relation to the situation in Algeria and found that there was no real risk of harm to the applicant if he was sent back to Algeria. The Court observed that the fact that the applicant's brother who was a convicted terrorist did not suffer any inhuman treatment contrary to art. 3 of the ECHR in Algeria proved that the applicant's contention in that regard was unfounded. The Court also had regard to the lack of credibility on the part of the applicant who made false representation in Ireland by using multiple identities and fake passports to conceal his convictions in multiple jurisdictions.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 13th day of March, 2017

1 The present judicial review arises on unusual facts. When rejecting the applicant's claim for subsidiary protection, the Refugee Appeals Tribunal made a finding, without clearly identifiable reasons and on limited material, that the applicant was at risk of serious harm if returned to his country of origin. However on a subsequent assessment of further more up-to-date and more detailed material and of the applicant's personal circumstances, the Minister took a contrasting view that such risk had not been made out, and made a deportation order (and subsequently declined to revoke it). The validity of those ministerial decisions is now put in issue by the applicant.

Facts

2 The applicant was born in 1964 in Algeria.

3 He was accused of involvement in terrorist Islamist opposition in Algeria and was convicted of a number of terrorism-related offences, for which he was sentenced to three life sentences and two death sentences as follows:

(i) on 16th May, 1996, for forming an armed terrorist group intending to spread murder and sabotage, forethought deliberate murder, attempted assignation, arson and theft;

(ii) on 23rd December, 1996, for the crimes of forethought deliberate murder, forming an armed terrorist group intending to harm the security of the country and its authorities and possession of war weapons;

(iii) on 21st September, 1997, for forming an armed terrorist group, forethought deliberate murder, and possession of prohibited war weapons;

(iv) on 8th November, 1997, for forming an armed terrorist group, for forethought deliberate murder, assistance of an armed terrorist group and failure to report;

(v) on 18th November, 1997, for forming an armed terrorist group intending to harm the security of the country and forethought deliberate murder.

4 The applicant arrived in the State on 15th July, 1997, and applied for asylum under the false name of a Mr. B.D. He completed a fraudulent application for refugee status on 28th July, 1997, and continued to give false evidence in a s. 11 interview with the Refugee Applications Commissioner on 11th November, 1998.

5 In the original application for asylum, the applicant falsely stated in his questionnaire that his parents and brother were killed in a raid by extremists and that his sister was arrested, and that after the raid he was shot in the leg by government forces.

6 His application for asylum was rejected by the commissioner and he appealed to the tribunal. Again, his notice of appeal and evidence at the hearing on 10th November, 1999 were fraudulent. The tribunal was taken in by his falsehoods and allowed the appeal on 2nd April, 2000, and the applicant was granted a declaration of refugee status.

7 The Minister issued a travel document to the applicant on 10th October, 2000. Thereafter, the applicant left the State, although he may have returned on or about 22nd August, 2001 to renew the travel document.

8 The applicant was arrested in Andorra for fraud offences in 2001 and was released on bail. I have not been given any information about whether this bail was honoured.

9 He entered France in 2002 and was arrested on 23rd July, 2002, by the French Directorate of Territorial Safety as he sought to leave France for the United Kingdom.

10 Criminal proceedings were then brought against the applicant in France and on 29th November, 2005, he was sentenced by the Tribunal de Grande Instance de Paris to eight years of imprisonment for terrorist-related activities, together with a lifetime ban from France.

11 The applicant was convicted in France of the following offences:

(i) membership of a criminal organisation preparing an act of terrorism, committed in England, Ireland, Spain, Andorra and France between 1997 and 2002;

(ii) terrorism/fraudulent detention of numerous false administrative documents, committed in Marseille in 2001 and 2002;

(iii) terrorism/use of a false administrative document which indicates a right, an identity or an occupation, committed in Marseille in 2001 and 2002;

(iv) receiving stolen goods, committed in Marseille in 2001 and 2002; and

(v) illegal entry or illegal stay of a foreigner in France, committed in Marseille in 2001 and 2002.

12 The applicant's brothers G.Y. and C.Y. were before the French court at the same time, a matter to which I will return.

13 Following the expiry of the sentence, the French authorities made arrangements to deport the applicant to Ireland.

14 Prior to his deportation, he applied for refugee status in France on 9th January, 2009, in the name of a Mr. B.D. That application was refused on 22nd January, 2009. While his Irish refugee application had said that he was not involved with any political grouping, his French asylum application stated that he was a sympathiser of a particular Islamic political movement in 1990, and that between 1990 and 1992 he was questioned three times by the authorities following raids.

15 The response of the Irish authorities to developments was that by letter dated the 10th February, 2009, the Minister issued a proposal to revoke the applicant's Irish refugee status. The applicant made representations in relation to the proposed revocation of his declaration as a refugee in March and December, 2009, in which he admitted providing a false identity during the asylum process and involvement in criminality in Andorra.

16 In January, 2010, the applicant wrote to the Minister requesting a temporary identification card, and stating, fraudulently, that he had been issued with refugee status in France in 2000. By this time, the applicant had re-entered the State at some point during 2009.

17 On 1st September, 2010, the applicant was convicted in absentia in the Criminal Court of Verdun for non-compliance with a residence order for non-nationals faced with deportation. He was sentenced to 6 months' imprisonment in relation to this offence. That sentence appears to be outstanding.

18 On 17th May, 2011, the Minister withdrew the proposal to revoke the applicant's refugee status and issued a fresh proposal on the basis of the provision of materially false and misleading information. The applicant made further representations on 21st June, 2011. The applicant's refugee status was duly revoked on 5th August, 2011.

19 The applicant brought an appeal to the High Court against that decision [277 MCA/2011]. In addition, he brought judicial review proceedings seeking to quash the revocation decision [2011 No. 816 JR]. These proceedings came on before Clark J. on 23rd February, 2012. On that date the applicant withdrew the appeal proceedings with an order for the respondent's costs. The judicial review proceedings were struck out with no order.

20 On 5th March, 2012, the respondent issued a proposal to deport the applicant under s. 3 of the Immigration Act, 1999. The applicant made submissions in relation to that proposal on 27th March, 2012, and made an application for subsidiary protection. In that application, he referred to criminal convictions in France but did not disclose such convictions in Algeria.

21 On 17th July, 2014, he applied for permission to re-enter the protection process under s. 17(7) of the Refugee Act, 1996.

22 The application to re-enter the asylum process was refused on 18th September, 2014, on the basis that there was no evidence that persons found guilty of terrorist activities in Algeria have been executed since 1993. The analysis also noted that the applicant appeared to...