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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> K A -v- Minister for Justice & Ors [2012] IEHC 577 (21 December 2012) URL: http://www.bailii.org/ie/cases/IEHC/2012/H577.html Cite as: [2012] IEHC 577 |
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Judgment Title: K A -v- Minister for Justice & Ors Neutral Citation: 2012 IEHC 577 High Court Record Number: 2010 1110 JR Date of Delivery: 21/12/2012 Court: High Court Composition of Court: Judgment by: Mac Eochaidh J. Status of Judgment: Approved |
NEUTRAL CITATION 2012 [IEHC] 577 THE HIGH COURT JUDICIAL REVIEW [2010 No. 1110 J.R.] IN THE MATTER OF THE REFUGEE ACT 1996 (AS AMENDED) AND IN THE MATTER OF THE IMMIGRATION ACT 1999 (AS AMENDED) AND IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 BETWEEN K A APPLICANT AND
THE MINISTER FOR JUSTICE AND LAW REFORM, ATTORNEY GENERAL, IRELAND RESPONDENTS JUDGMENT of Mr. Justice Colm Mac Eochaidh delivered on the 21st day of December 2012 1. This is an application for judicial review of a deportation order. The notice of motion for leave to seek judicial review issued on 4th August 2010, seeking a variety of reliefs relative to the deportation order, a decision refusing subsidiary protection and a decision refusing the applicant refugee status. Leave was granted by Clark J. on 19th January 2012, in the following terms:
The first issue to be decided is whether the ground in respect of which leave to seek judicial review was granted is comprised in the grounds as originally formulated on 8th August 2010. The respondents argue that the 'leave ground' is a new ground and consequently the applicant will require an extension of time to seek relief because s. 5 of the Illegal Immigrants (Trafficking) Act 2000, requires challenges to deportation orders (inter alia) to be brought within fourteen days of the date of the notification of the order. Section 5(2) of the Illegal Immigrants (Trafficking) Act 2000 provides:
(a) be made within the period of 14 days commencing on the date on which the person was notified of the decision, determination, recommendation, refusal or making of the Order concerned unless the High Court considers that there is good and sufficient reason for extending the period within which the application shall be made, and (b) be made by motion on notice (grounded in the manner specified in the Order in respect of an ex parte motion for leave) to the Minister and any other person specified for that purpose by order of the High Court, and such leave shall not be granted unless the High 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."
3. The only formal record of the leave application is the perfected order of the court dated 6th March 2012. In written submissions to this Court, signed by counsel for the respondent the following account of the leave application is set out:
4. It seems to me that the issue of delay in raising the ground in respect of which leave was granted only arises if it is a new ground, or in the words of O. 84, r. 20(3), an "additional ground". 5. In S.M. v. The Minister for Justice, Equality and Law Reform (Unreported, Supreme Court, 3rd May 2005), McCracken J. considered how far s. 5 of the Illegal Immigrants (Trafficking) Act 2000 applies in respect of an application to amend grounds in judicial review. The learned Supreme Court judge referred to the decision of Kelly J. in Ni Éilí v. The Environmental Protection Agency & Ors. [1997] 2 ILRM 458, which involved an application to extend grounds beyond those identified in a grant of leave where the impugned decision was one protected by statutory provisions requiring any challenge to be brought within a fixed period. At p. 464, Kelly J. said the following:
"The next point to be considered is whether either the amendments to the reliefs sought or the amendments of the grounds amounted to the making of an additional and entirely new case....... The amendment sought at D2 and F1 and the amendments to the grounds, therefore, as they are in fact making a new case or new cases, they are prima facie out of time under s. 5 and the court will have to be satisfied that there is good and sufficient reason for extending the periods in which such claims may be made." 7. Following the approach of McCracken J. in S.M. v. The Minister for Justice, Equality and Law Reform, I now compare the case originally pleaded with the case in respect of which leave was granted to see if it is a new ground and if so whether time should be extended to permit the ground to be pursued. The Original Statement of Grounds 9. In addition to seeking to challenge the deportation order, the applicant also sought to challenge a decision on subsidiary protection and a decision on refugee status, though leave was not granted to challenge these decisions. Section E of the original statement grounding application for judicial review is entitled 'Grounds upon which Relief is Sought'. Four grounds are set out. The first ground asserts that the applicant's claim for refugee status was not determined by a procedure compliant with the requirements of Council Directive 2005/85/EC by reason of the absence of an effective remedy against the first instance determination of his application for asylum. This defect therefore deprived the respondent of jurisdiction to refuse the applicant a declaration of refugee status and/or to make a decision on subsidiary protection and/or to make a deportation order. The ground in respect of which leave was granted by Clark J. is not related in any way to this ground. 10. The second ground in the original pleading is as follows: "... the respondent erred in law in:
(ii) Failing to make a proportionate decision; (iii) Failing to make any reasoned and proportionate determination on refoulement. Undue reliance was placed on the previous unlawful asylum decisions made in respect of the applicant. In the alternative, any imputed refoulement findings were unreasoned and/or irrational."
The original pleading at para. 2(iii) is to be read bearing in mind the strong assertion by the applicant that he is member of the Ahmadi community and the equally strong assertions by the Minster's officials that the Tribunal found that he was not a member of the Ahmadi community which latter assertions were made for the purpose of recommending to the Minster that he make a deportation order, something he could only do if the principle of non refoulement was respected. 14. The original pleading seeks to attack the deportation order because of the manner in which refoulement was addressed. The rule against refoulement could only be said to have been respected if the Minister had decided that the applicant was not a member of the Ahmadi community. If the applicant was of the Ahmadi faith, returning him to Pakistan would deliver him into the hands of his persecutors (assuming the rest of his story is credible) and thereby breach the non refoulement rule. Thus, the pleading may be interpreted as embracing a complaint that the finding of non-refoulement could only have been made if the Minister and his officials mistakenly found that the RAT had said that the applicant was not a member of the Ahmadi community. In this sense, the 'leave ground' is embraced by the original pleading. 15. The second element of the original pleading was the plea that the Minister and his officials placed undue reliance on previous unlawful asylum decisions made in respect of the applicant. The ground permitted by Clark J. is directed at the mischaracterisation by the Minister and his officials of the findings of the RAT on the question of whether the applicant was a member of the Ahmadi community. It does not strain language to say that the 'leave ground' is embraced by the original plea that the Minister and his officials placed undue reliance on the decision of the RAT. I understand the term "undue" to mean unwarranted or inappropriate. Where the applicant pleaded that the Minister and his officials placed undue reliance on the earlier asylum decisions, that is capable of meaning that the Minister and his officials placed an unwarranted reliance on those decisions in the sense that they misconstrued or mischaractarised them. In my view, this pleading is also comprised in the 'leave ground'. 16. I also find that the final alternative plea at para. 2(iii) of the original pleading (where it is said that any imputed refoulement findings were unreasoned and/or irrational), is also capable of being embraced by the ground fashioned by Clark J. 17. In view of my conclusion that the ground expressed in the order granting leave is not a new ground and is embraced by the matters originally pleaded, I refuse the respondents' application to set aside the grant of leave and conclude that the proceedings have been instituted timeously. Was the Decision of the RAT misrepresented by the Minister and his officials? 19. The first question presented is a simple question of fact. In the earlier part of this judgment, I set out quotations from the Minister's officials who said that the Refugee Appeals Tribunal found that the applicant was not a member of the Ahmadi faith or the Ahmadi community. 20. Section 3 of the Tribunal's decision is entitled 'Summary of the Applicant's Claim' and records the applicant's assertion that he is an Ahmadi Muslim and that all of his family were similarly Ahmadi Muslims. The discrimination suffered by members of this community is described and the particular persecution suffered by the applicant because of his Ahmadi faith was also described. 21. At section 4 of the Tribunal's decision, the Tribunal notes that it was asked to consider a letter confirming that the applicant was a member of the Ahmadi community. The Refugee Applications Commissioner made a submission to the Refugee Appeals Tribunal which sought to cast doubt on the idea that the applicant was a member of the Ahmadi faith by saying that although the applicant said he was not only a member of the faith but also an active preacher of the Ahmadi faith, he did not know that there had been a split within the Ahmadi religion. In section 6 of the Tribunal's report, the author records that the applicant "claims to have been persecuted in Pakistan on account of the fact that he was a member of the Admadi (sic) faith. His main problem seemed to relate to the fact that he was an active preacher and there was the charge of blasphemy pending against him which would result in the death penalty. Therefore, it is central to this man's appeal to be able to show that he was a prominent member of the Ahmadi community". From this quoted text, one can discern that the concern of the Tribunal was not as to whether the applicant was a member of the Ahmadi faith, but whether he was a prominent member of that faith and a preacher of that faith. 22. The Tribunal refers to country of origin information which describes two sects within the Ahmadi faith. The differences between them are significant but do not need to be set out in this judgment. The applicant claimed that there was only one sect and the RAT says as follows:
24. In the next part of the Tribunal's assessment, reference is made to detailed questions put to the applicant during interview [conducted by ORAC], the answers given by the applicant are recorded in the Refugee Appeal Tribunal's decision and the Tribunal comments on the answers given as follows:
26. In view of the foregoing, I find that the Minister's officials erroneously concluded and so represented to the Minister that the Refugee Appeals Tribunal had disbelieved the applicant as to his membership of the Ahmadi community and faith. Is the Minister's Deportation Decision unreasonable ? The Minister was told by his officials that the Refugee Appeals Tribunal had decided that the applicant was not a member of the Ahmadi faith. Given that the Minister is prohibited from making a deportation order unless he is satisfied that he is not sending a person into harm's way, it may be said that the Minister was persuaded to make a deportation order because of the finding that the applicant was not a member of the Ahmadi community and therefore would not suffer any of the disadvantages members of that community apparently suffer in Pakistan. In circumstances where no such finding was ever made by the Refugee Appeals Tribunal, the rationality of the decision to make a deportation order disintegrates and I grant an order quashing the deportation order in suit.
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