YY v Minister for Justice and Equality
 IEHC 185
THE HIGH COURT
[2016 No. 774 JR]
Asylum, Immigration & Nationality – Refugee Appeals Tribunal – Judicial review – Country of Origin Deportation Order – Country of Origin – Credibility – Illegal Immigrants (Trafficking) Act, 2000
Facts: Following the dismissal of the applicant's challenge to a deportation order, the applicant now sought an order of leave to appeal. The applicant contended that the case involved several points of law of exceptional public importance arising from the impugned decision.
Mr. Justice Richard Humphreys held that the application for an order of certiorari would be refused. The Court observed that no point of law of exceptional public importance had been substantiated. Furthermore, the Court declined to permit the applicant appeal to the Court of Appeal for lack of existence of public interest. The Court stated that it would not be in the public interest to permit a person who had fundamentally abused the asylum and immigration system to proceed further. The Court reiterated that the respondent had the discretion to determine the existence of a change of circumstances in the country of origin, based on facts and circumstances.
In (Unreported, High Court, 13th March 2017) I dismissed the applicant's challenge to a deportation order against him and to a decision refusing to revoke the order. The applicant now applies for leave to appeal pursuant to s. 5 of the Illegal Immigrants (Trafficking) Act, 2000.
I noted in the substantive decision that the applicant had advanced no less than sixteen complex and technical grounds for the challenge, not counting sub-grounds. That pattern continues in the present application, the written submissions for which contain the record-breaking contention that there are no less than fifteen points of law of exceptional public importance arising from my decision. That submission, as with the applicant's approach to the substantive hearing, appears to seek to make up in quantity for what the applicant's case may lack in quality. As with the mammoth lists of grounds considered in and , the idea seems to be to overwhelm the court into submission by the multiplication of legal complexity.
I have considered the law in relation to leave to appeal as set out in An Bord Pleanála and . v.
The applicant's first point is ' where the Refugee Appeals Tribunal determines that there is a substantial risk of serious harm to an applicant for subsidiary protection but that the applicant is otherwise excluded from subsidiary protection status, is any subsequent deportation decision subject to the provision on refoulement under Article 21 (1) of Council Directive 2004/83/EC'.
There is unfortunately no substance whatsoever to the point being made here, which, as I said in the substantive judgment, borders on the unstateable. Deportation is generally not a matter of EU law, as I discussed in .
Mr. Michael Lynn S.C. for the applicant submits that this is an important issue, not decided upon by the CJEU. He also asks how the court can rely on EU legislation which is not binding on Ireland in order to determine the extent of binding obligations under EU law. The short answer is very easily, but the broader point is that taking the full series of directives into account simply reinforces the conclusion I would have arrived at any way on the words of the binding directive alone. As previously explained in the No. 1 judgment, my analysis of the directive is in line with European academic commentary as set out in Hailbronner and Thym, EU Immigration and Asylum Law (2nd Ed.), (München, C.H. Beck, 2016) at p. 1257.
The point being advanced simply fails to reach a bare minimum level of credibility which would warrant consideration being given to a reference to the CJEU or to leave to appeal. As Mr. Remy Farrell S.C. for the respondent validly puts it in oral submissions ' it is not sufficient to raise an issue with startling consequences and say, there you go, there's a point of exceptional public importance'.
That this was essentially the applicant's approach was underlined by Mr. Lynn's advancing the argument that the CJEU has produced surprising decisions in the past such as Case C-34/09 (8th March, 2011), and that one cannot predict what might happen if this question was referred. That submission is perilously close to, perhaps functionally indistinguishable from, suggesting that Luxembourg is a bit of a lottery and that the more startling the ramifications of a point that can be dressed up in EU law terms are, the better.
For reasons already explained at some length in S.A. and in the No. 1 judgment, the point is bordering on, if not actually, unstateable. I would have refused leave to advance the point even on an arguability basis. In EU law terms, it is acte clair.
The applicant's second proposed question of law of exceptional public importance is: ' Where the determines that there is a substantial risk of torture or inhuman or degrading treatment of (sic) punishment to a person if returned to their country of origin, but that person is excluded from subsidiary protection status on the basis of previous criminal convictions, is the Minister under a duty to follow the Tribunal's determination unless there is a change of circumstances in the person's country of origin of such a significant and non-temporary nature that the person no longer faces a real risk of serious harm?'
As the convoluted nature of this formulation makes clear, this is not a question of exceptional public importance transcending the facts of these proceedings. Rather it is tailored to the very specific and unusual facts of the present case.
In any event, the question does not arise because I held that the Minister was entitled to form the view that there had been a change of circumstances in the country of origin. Furthermore, I was of the view that the reflection of that change in reputable country reports indicated that it was indeed significant and non-temporary. Thus the factual premise for the question does not arise here.
It was submitted that by analogy with , the Minister cannot take a diametrically opposed decision to that of another agency of the State performing EU law functions without express reasons. However, in this case there are express reasons. This point simply does not arise.
The next question is 'can the court impugn a decision of the Refugee Appeals Tribunal as lacking in adequate reasoning where
(i) the decision has not been impugned by any other person or body and/or
(ii) the Refugee Appeals Tribunal is not a party to the proceedings before the court and so is deprived of the opportunity to defend its decision'.
This point unfortunately substitutes drama for substance. I did not 'impugn' a decision of the Refugee Appeals Tribunal in some sort of irregular manner. I commented that the decision lacked reasons. The applicant has not put forward any basis for disputing that comment, and has failed to point to reasons as set out in the tribunal decision, or even to attempt to do so. By contrast with the approach to the tribunal decision, Mr. Lynn has advanced a litany of complaint against the Minister's lengthy reasoning, and indeed has submitted that a point of law of exceptional public importance arises from the alleged lack of reasons advanced on her behalf. However, Mr. Lynn passes over the absence of reasoning from the tribunal in absolute silence. The approach seems to be that the Minister can have as many reasons as she likes for finding against the applicant, but they will be inadequate; whereas the tribunal does not have to have any reasons for finding in his favour, but if the court points this out, it is committing an error which amounts to a point of law of exceptional public importance.
Apart from the fact that this question misunderstands the substantive decision, and therefore does not arise, it also fails the test set out in (No. 2) in that it is not a point on which the decision turns. The applicant would still have lost the case even if the tribunal had provided reasons, and therefore even if I was incorrect to point out that there were no such reasons.
This point comes nowhere near being a point of law of exceptional public importance. It is not open to a losing party to scour judgments for obiter or minor observations that might be disagreed with, and then to dramatically inflate the significance of the issues involved. No amount of forensic air pumped into a question can turn an obiter observation, or a decision on a point on which the actual outcome does not turn, into a point of law of exceptional public importance.
The next question is ' whether judicial review of a Minister's decision to depart...
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