H. (I.) v. Minister for Justice, Equality and Law Reform [2005] IEHC 463 (9 November 2005)

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Cite as: [2005] IEHC 463

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    Neutral Citation Number: [2005] IEHC 463

    [2004 No. 1140 JR]
    BETWEEN
    I H
    APPLICANT
    -and-
    THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, AND ATTORNEY GENERAL IRELAND
    RESPONDENTS
    ____________________
    EX TEMPORE JUDGMENT OF Mr Justice Clarke delivered on the 9th day of November, 2005

    In these proceedings the applicant seeks leave to challenge by way of judicial review a deportation order made in relation to him. The applicant is a Moldovan national who has deposed on affidavit to the fact that he fled Moldova in fear of persecution and arrived in this State on the 21st September 2001. He further states that he remains fearful for his safety if returned to Moldova. He says that after arriving in this State he applied for recognition as a refugee and went through the usual procedures which are required of those seeking such refugee status. Ultimately his application was rejected by the Refugee Appeals Commissioner, and an appeal followed to the Refugee Appeals Tribunal. The decision of that tribunal was also against a recommendation to the effect that the applicant should be given refugee status.

    On the 31st December 2002, the applicant was advised by letter from the Minister's Department, that it was the Minister's intention to make a deportation order. Subsequent to that, a deportation order was actually made, and it is in respect of that deportation order that these proceedings have been issued.

    In substance, the factual matters set out in the applicant's grounding affidavit, concern his medical condition. He indicates that he suffers from a severe form of arthritic condition. He contends that there may be discrimination against him on the basis of his Russian ethnic origin in relation to treatment for that medical condition, if returned to Moldova. Against that factual background, it is necessary to consider the legal issues which arise in this case.

    First, the applicant contends that the Minister, in deciding to make the deportation order under challenge did not properly consider the issues which arise under both section 5 of the Refugee Act, 1996 and section 3 (6) of the Immigration Act, 1999. In a decision which I delivered this morning in the case of Kouaype v. The Minister for Justice, Equality and Law Reform, I set out the principles by reference to which it is open to a person to seek to challenge the decision of the Minister to make a deportation order, where that person was a failed asylum seeker.

    Having regard to those principles, it does not seem to me that the grounds put forward in respect of either section 5 or section 3 (6) are made out. For the reasons indicated in that judgment, it seems to me that, in the absence of special or changed circumstances, it is very difficult for a person who has failed the asylum process to challenge the decision of the Minister in so far as that decision takes the view that deportation is not prohibited by section 5 of the 1996 Act. In simple terms, the reason for this being that the grounds for qualification for refugee status are identical to the grounds for prohibiting deportation under section 5, and therefore if someone has failed to obtain refugee status, in the absence of special or changed circumstances, it is difficult to see how there could be any criticism of the Minister, if the Minister states that he is satisfied that section 5 did not apply.

    For similar reasons, it seems to me to be difficult to challenge the view taken by the Minister under section 3 (6) of the 1999 Act unless there is evidence that the Minister did not actually consider the relevant factors set out in that section or where there are special circumstances. I am not satisfied on the evidence in this case that there is an arguable case made out that the Minister failed to give consideration to the relevant factors. The judgment which the Minister makes on those factors, and the weight he attaches to each of them, is, to a very considerable extent, a matter within the complete discretion of the Minister, and is not a matter on which the court should attempt to second-guess the Minister.

    The applicant also places reliance on other statutory and legal principles in seeking leave. The first is that the applicant places reliance on the provisions of section 4 of the Criminal Justice (United Nations Convention Against Torture) Act, 2000, and arising therefrom, Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Obviously, there are requirements in relation to those provisions which need to be in place before a person can be deported. The matter was given some brief consideration by the Supreme Court in the judgment of Keane C.J. in Baby O v. the Minister for Justice, 2002, 2 I.R. 169 at p. 183, where the court considered an appeal against a refusal of an application for leave which, in that case, included grounds under the Act of 2000. The view which the Supreme Court came to was that, on the facts of that case, the consideration by the Minister of whether it was appropriate to deport the applicant, having regard to the provisions of section 5 of the 1996 Act, necessarily required also that the Minister had considered whether there was a prohibition on deportation under the 2000 Act. That will not necessarily be the case in all circumstances in that there are, for example, circumstances where a person might not be subject to a fear of persecution for a convention reason but might nonetheless, in the words of section 4, be "in a situation where there were substantial grounds for believing that the person would be in danger of being subjected to torture."

    There are also questions as to the extent of the application of that section in relation to cases where the source of any such potential torture came from non-state agents. I addressed this issue to some extent in Lelimo v. the Minister for Justice. However, it seems to me that on the facts of this case, the nature of the complaint of the applicant being in respect of the disparity in medical treatment that might be available to him if he were to remain in this jurisdiction on the one hand or be returned to Moldova on the other, could not, even on the basis of arguable grounds, be said to amount to torture for the purposes of the Convention. It does not seem to me, therefore, that there are arguable grounds under that heading. I also note that there is mention in the statement of grounds of a contention on the part of the applicant that the standard of review which this court should exercise in cases involving significant human rights, should be higher than that which has been traditionally applied by the courts in reviewing administrative action as set out in O'Keeffe v. An Bord Pleanala. I have already indicated in Gashi v. The Minister for Justice, Equality and Law Reform that until the matter is finally determined by the Supreme Court, I am prepared to accept that it is arguable, sufficient for the purposes of leave, that a higher standard does apply in such cases. However, it does not seem to me that that this matter avails the applicant on the facts of this case.

    In so far as the applicant places reliance on the European Convention on Human Rights, I have considered the Authorities in respect of the interpretation of Article 3 of the Convention in so far as it relates to cases where it might be argued that someone should not be deported because of the medical consequences of a deportation order. It seems clear from cases such as Ben Said, v. The United Kingdom, and SCC v. Sweden, that the threshold that need to be passed before it can be said that deportation might be in breach of Article 3, is very high indeed.

    In Ben Said v. The United Kingdom, the European Court of Human Rights ("ECHR") regarded the circumstances required to invoke Article 3 as being required to be exceptional. The circumstances were described as compelling humanitarian circumstances, and a review of the facts in the failed cases before the ECHR demonstrate that there were quite significant medical consequences for those persons who were to be deported. Nonetheless, those significant medical consequences did not entitle, in all but one of the cases, the applicant concerned to be permitted to rely on Article 3. Given that very high threshold, and without in any way minimising what are undoubtedly significant potential medical consequences for the applicant, it does not seem to me that the Convention affords the applicant any protection on the facts of this case. I should say that, in principle, there are cases where a proportionate balancing of the rights guaranteed by the ECHR may require that deportation not occur.

    But so far as the core of the applicant's case is concerned, it seems to me that precisely the same considerations apply in this case as applied in the Kouaype case, which as I indicated, I gave judgement on this morning.

    The substance of the applicant's complaints in this case were before the Refugee Appeals Tribunal. The Refugee Appeals Tribunal came to the conclusion, which is not now the subject of any challenge and could not at this remove be the subject of any challenge, that that did not afford the applicant entitlement to refugee status. It seems to me that there is considerable merit in the submissions made by counsel on behalf of the respondents to the effect that the case now sought to be made is, in substance, an attempt to review by the back door the decision of the Refugee Appeals Tribunal by inviting the court to consider the Minister's equivalent decision under section 5.

    Obviously, as I pointed out in Kouaype, there may well be cases where there has been a change in circumstances, or where there have been additional factors brought into play, which may mean that the Minister may have to give significant additional considerations to the issue before deciding that he is not debarred by section 5 from making a deportation order, but on reviewing the papers that were before the Refugee Appeals Tribunal, and the papers which were before the Minister, it does not seem to me that there are any such special considerations or changed circumstances present in this case. The height of the applicant's entitlement to remain in this jurisdiction, it seems to me, arose if he could persuade the relevant statutory bodies that the extent of the medical difficulties which might arise were he to be returned to Moldova, would amount to sufficient grounds to warrant conferring refugee status on him. Having failed to establish that in the refugee process, it does not seem to me that there is any other basis for considering that the Minister was in any way legally wrong in coming to the conclusion that a deportation order should be issued.

    The one final matter that arises on the grounds set out, and it is one on which I have not reached a concluded view, because I want to hear counsel further in relation to it in respect of one aspect, is the contention that the deportation order itself is defective by reason of not specifying a destination to which the applicant is to be deported. It was touched on in the course of argument and, perhaps due to my fault, was not gone into in any greater detail, but my recollection of the submissions of counsel were that there had been a decision of this court to the effect that that was not a valid ground for challenging a deportation order but that there may be an appeal in respect of that decision. I might ask counsel to clarify if that is actually the situation.

    MR CONLON-SMITH: The case I referred to in my submissions, Sabia, Judicial Review 2003, No. 771, JR, judgment of Mr. Justice Butler in November 2004, and the challenge in that case was that the immigration regulations of 1999 were in fact contrary to the Act in that they failed to require a deportation order to state the proposed country of deportation.

    JUDGE: Is it correct that that decision is under appeal?

    MR CONLON-SMITH: Yes, my lord, I understand it is under appeal, awaiting a date.

    JUDGE: Did that appeal require a certificate? I presume it did.

    MR CONLON-SMITH: I presume it did, my lord.

    JUDGE: The Registrar tells me that he did the order and that it did require a certificate.

    MR CONLON-SMITH: I was in a case last week before Mr. Justice O'Leary on which this point arose and I made the same submissions in relation to Sabia, and he followed the case.

    JUDGE: I had intended following Sabia but given that it is under appeal, and given that Mr. Justice Butler was obviously persuaded by the position as regards the warrant, I should indicate that I would be minded, if Mr. O'Halloran wanted a certificate, on that point as opposed to any other aspect of the case, to consider granting it.

    MR O'HALLORAN: This would be an appropriate case on which to give such a certificate because it is full square with Sabia. In the Sabia case it was submitted that there was no possibility of the applicant being deported to any place other than his country of origin. Indeed, Mr. Justice Butler pointed out that if there was any confusion, the court would react quickly in that, but in this case there isn't.

    JUDGE: I take it Mr. O'Halloran, that you say that if the Supreme Court were to be persuaded to overturn Mr. Justice Butler in Sabia, it would follow logically that my following of Sabia would equally be overturned by the Supreme Court, and you should have the benefit of the chance of that even though it is likely to be determined whenever Sabia gets to the Supreme Court.

    MR O'HALLORAN: Absolutely, my lord, and I would be satisfied to be totally dependent on the outcome of that case. Naturally, there would be consequences for my client if the outcome was negative but so be it.

    JUDGE: I shouldn't reach a conclusion, Mr Conlon-Smith, without hearing you on the question of certificate.

    MR CONLON-SMITH: I have to concede that point to Mr O'Halloran.

    JUDGE: If I am to follow one bit of Sabia I must equally follow the other bit. Perhaps I might do, as I have indicated I do not propose granting leave for the reasons I have set out, but I would propose granting a certificate. Perhaps what you might do is check what were the exact terms of the issue which was the subject of the certificate in the order made by Mr Justice Butler and I will make it in the same terms as in that case unless there is any reason to vary it. Perhaps I might put the matter in for mention on Friday morning, or some other date that suits the parties.

    MR CONLON-SMITH: Perhaps Friday morning, then, my lord.

    JUDGE: Say 10.30 on Friday morning.

    MR CONLON-SMITH: Very good, my lord. In this court?

    JUDGE: I am assuming I'm sitting in this court on Friday. I will retain the papers until the matter is finally disposed of.

    MR O'HALLORAN: I am wondering, my lord, whether there is a written judgment in the Kulia case.

    JUDGE: There is, and it is in the course of being typed to incorporate a number of hand written changes. There is a substantial circulation list for it already, Mr. O'Halloran, but I will add your name to that.

    MR O'HALLORAN: I wonder if there would be a draft. I may be before you tomorrow.

    JUDGE: It will be delivered to the Law Library within the hour.

    JUDGMENT ADJOURNED UNTIL FRIDAY, 11TH NOVEMBER, 2005 AT 10.30 a.m.

    Approved: Clarke J.


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URL: http://www.bailii.org/ie/cases/IEHC/2005/H463.html