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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> 'N. (A.N.) v. Minister for Justice, Equality and Law Reform & Ors [2005] IEHC 464 (17 November 2005)
URL: http://www.bailii.org/ie/cases/IEHC/2005/H464.html
Cite as: [2005] IEHC 464

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    Neutral Citation Number: [2005] IEHC 464

    THE HIGH COURT
    2004 1104 JR

    IN THE MATTER OF THE REFUGEE ACT, 1996 (AS AMENDED)

    IN THE MATTER OF THE IMMIGRATION ACT, 1999 AND

    IN THE MATTER OF THE ILLEGAL IMMIGRANTS

    (TRAFFICKING) ACT, 2000

    A. N. N.

    Applicant

    AND
    THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM,
    THE ATTORNEY GENERAL IRELAND

    Respondent

    EX TEMPORE JUDGMENT OF MR JUSTICE CLARKE, DELIVERED ON THE 17TH NOVEMBER, 2005.

    MR JUSTICE CLARKE: In this matter the Applicant seeks leave to bring Judicial Review proceedings for the purposes of challenging an Order of deportation. The test is well settled and it is unnecessary for me to set it out further.
    The background facts are that the Applicant is a national of Angola, who has sought asylum in the State by reason of what he contends to be a well founded fear of persecution resulting from his political opinions and activities in Angola.
    It would appear that he arrived in Ireland on the 14th of June, 2002. He then proceeded with an application for asylum in the ordinary way, which application was initially considered by the Refugee Applications Commissioner. That application was refused and an appeal was brought to the Refugee Appeals Tribunal. By letter dated the 31st of March, 2003, the Applicant was advised that his appeal had been unsuccessful and he was furnished with a copy of the decision of the Tribunal Member concerned.
    By letter dated the 15th of May, 2003, the Minister wrote to the Applicant indicating that he proposed to make a Deportation Order and informing the Applicant of his entitlement to make representations. On foot of that letter a representation was made, dated the 5th of June, raising various humanitarian issues under Section 3 of the Immigration Act, 1999. The application was accompanied by supporting documentation. Certain aspects of those representations arise specifically in this application and I will deal with those aspects in the course of this Judgment.
    On the 11th of November, 2004, the decision of the Minister to make a Deportation Order in respect of the Applicant was notified to the Applicant and to the refugee legal service who had represented the Applicant in the process. It is in respect of that Order that the Applicant seeks leave to bring Judicial Review proceedings.
    In the affidavit required to ground the application for leave, the Applicant, in substance, raises four grounds, or categories of grounds, as the basis for his intended challenge. They are as follows:
    Firstly, complaint is made that the Deportation Order does not state the jurisdiction to which the Applicant is to be deported. It is contended that that absence is a fatal flaw in the Order.
    Secondly, it is suggested that the Minister in reaching his decision to make a Deportation Order considered irrelevant matters or failed to consider relevant matters.
    Thirdly, it is suggested that the decision of the Minister to make a Deportation Order was disproportionate.
    Fourthly, it is suggested that there was no grave or sufficient reason for the making of the Deportation Order.
    At the hearing before me the grounds under the second of those general headings were elaborated on. In that context, it is important to note that in the ordinary way, the representations made on behalf of the Applicant for leave to remain in the country were considered by officials within the Minister's Department who produced papers setting out the facts and making recommendations. Those papers were in turn considered, it would appear, by the Minister.
    Therefore, on the evidence currently before the court, the reasonable inference to draw is that the reasons which informed the Minister's decisions were the reasons set out in those documents. Obviously, in any case where leave is granted and the matter goes to a full hearing it may be that further evidence would be put before the court on behalf of the Minister which may change that situation.
    However, for the purposes of a leave application, it is arguable that the appropriate inference to draw is that the reasons set out in the papers prepared for the Minister were the reasons which actually informed the Minister's decision.
    On that basis, three specific complaints are made in relation to the reasoning contained in those documents, and by inference, the reasoning adopted by the Minister.
    Firstly, it is suggested that there was an inappropriate finding of lack of credibility on the part of the Applicant.
    Secondly, it is suggested that those documents, as they currently stand, give rise to an inference that a personal statement in French, which was undoubtedly submitted by the Applicant with his papers, may not have been considered or certainly considered in English, as part of the process.
    Thirdly, it is said that certain comments written in hand by a senior official betray the taking into account of certain country of origin information in a way that was inappropriate.
    I will deal with each of those points in turn.
    The background to this consideration must start with a brief consideration of the Judgement which I delivered on the 9th of November in the Kouaype case, where, at page 13, insofar as a consideration of the manner in which it might be possible to challenge a Deportation Order made by the Minister on the grounds that the Minister had not properly dealt with the restriction on the making of such Orders contained in Section 5 of the Refugee Act, 1996, I indicated that in general terms there were two grounds upon which, in the absence of special or unusual circumstances, an applicant might seek to challenge the Minister's Order.
    Those grounds were (A) if it could be shown, or at leave stage if it could be shown that there were arguable grounds, that the Minister did not in fact consider whether Section 5 was applicable.
    And (B) whether it could be shown that the decision was unreasonable in the legal sense of that term. It was not relevant in Kouaype but it should be made clear that 'unreasonable' in that sense should be taken to include all analogous matters which arise in public law. That is to say it includes cases where the Minister took into account factors which he should not have taken into account or failed to take into account factors which he should have taken into account.
    Applying that general test and the other aspects of the Kouaype decision to the facts of this case, under the three specific areas argued, it seems to me that the following conclusions arise.
    I deal, firstly, with the question of credibility.
    It is clear from the evidence before the court that both the Refugee Applications Commissioner and the Refugee Appeals Tribunal had serious reservations about the credibility of the Applicant, sufficient to lead to a finding that important aspects of his account were not regarded as credible. There is no challenge to that decision. For the reasons which I set out in Kouaype, it seems to me that a heavy weight has to be given to that fact in considering whether a similar ground can be sustained as the basis for a challenge to the Minister's decision.
    While it is true to state, as was argued by Counsel for the Applicant in this case, that some of the areas of credibility mentioned in the report from the Minister's senior official do not match exactly the areas of credibility identified in the decision of the Refugee Appeals Tribunal, it does not seem to me that, at an overall level, it can be said that there is anything unreasonable or irrational about the conclusions which, by inference, the Minister reached in respect of credibility having regard to the earlier findings of the Refugee Appeals Tribunal. Therefore, that aspect of the grounds put forward does not seem to me to provide substantial grounds for a challenge.
    The second matter is a question of fact as to whether it may be said that the Minister had the opportunity to consider the document produced in French by the Applicant. Clearly, at this stage, no evidence has been filed on behalf of the Minister. It may well, therefore, be that the situation will appear in a different light at a later stage. However, on the basis of the evidence before me at this stage, there seems to be arguable grounds sufficient for leave for the purposes of leave, that an aspect of the representations which were made on behalf of the Applicant, or in this case directly by the Applicant, were not, in fact, considered by the Minister. Therefore, I would propose giving leave on that ground.
    Thirdly, the question of country of origin information arises. That raises a difficult question. The issue can be put this way. There is reference in a handwritten note on the document that went to the Minister to the fact that the situation in Angola had improved significantly in the years immediately prior to the note being written. There's no doubt that there is ample country of origin information to support that view. However, a more subtle question arises in this way.
    The account which the Applicant has given makes specific reference to his political difficulties arising out of his activities in respect of the province of Cabinda. Therefore, the particular difficulties in Angola which form the basis of the Applicant's contention that he was entitled to refugee status were concerned with Cabinda rather than Angola as a whole. The country of origin information certainly seems to suggest that while the position in Angola as a whole has improved significantly, the position in Cabinda has not.
    On that basis, it is, in my view, at least arguable that the mind of the official concerned, and by inference the mind of the Minister, was not directed to the correct question; that is had there been an improvement in the country of origin situation by particular reference to the effect that that improvement might have on the Applicant. Arguably such a question would have required looking at the situation in Cabinda.
    There are, therefore, two ways of looking at the overall consequences of the decision on this aspect of the case. On the one hand, one could take the view that one should look to the fact that the Refugee Appeals Tribunal found that the Applicant had no well founded fear of persecution, even on the basis of the previous situation in Angola, and to the fact that there is no suggestion in the country of origin information that the situation in Angola is now worse than it was at the time of the consideration of the appeal, or indeed that the situation in Cabinda is worse than it was at that time. On that basis one might take the view that there had been no sufficient change in the situation that could lead to a legitimate questioning of the Minister's decision.
    An alternative way of looking at the same set of facts is that the proper inference to draw from the evidence available at this stage is that the Minister took into account an improved situation in Angola as a whole without considering whether the lack of progress in Cabinda was the proper basis for considering the applicability of Section 5 in the Applicant's case.
    For the purposes of this leave application, I am satisfied that it is at least possible that the second approach, as indicated above, may be the correct way of looking at matters, and that there are, therefore, arguable grounds sufficient for leave, under this heading as well.
    In relation to the contention that the Order was disproportionate, I have had regard to the decision of Ryan J. in Fitzpatrick v. the Minister for Justice, in which it is indicated that a Deportation Order which is otherwise sustainable will not be disproportionate simply because the effect may be to return someone to their country of origin where conditions may be less favorable. A heavy weight in any proportionality test has to be placed in favour of the State's entitlement to deport persons who have no other entitlement to remain in the State. Therefore, I am not satisfied that arguable grounds on proportionality have been made out.
    For similar reasons, it does not seem to me that the question of whether there were grave or sufficient reasons for the deportation of the Applicant is an issue which the Minister has to consider. If anything, the test is the other way around if a person has no legal right to remain in the State and has failed in the asylum process. The Applicant, unfortunately, is in such a situation. In such a case it seems to me that, rather than the Minister being required to have a grave or sufficient reason for making a Deportation Order, there would need to be a grave or sufficient reason to require the Minister not to make the Order, or more accurately to bring about a situation where, as a matter of law, the Minister would not be entitled to make the Order. Therefore, I do not consider that that ground gives rise to arguable grounds sufficient for leave.
    In all of the circumstances, it seems to me clear that there are two grounds upon which I should grant leave. They are the grounds concerning the personal statement of the Applicant and the grounds concerning the position in Cabinda.
    I am satisfied that those grounds are in general terms encompassed within the variety of grounds set out in the leave application. But in order that there be proper form for this matter going forward, it seems to me that a revised statement of grounds should be filed incorporating the grounds in respect of which I have indicated that I should grant leave.
    Finally, I should deal with the question of the first matter raised, which is the absence in the deportation order of a specified jurisdiction to which the Applicant is intended to be deported.
    This is a matter which has arisen in a number of cases with which I have had to deal in recent times. The position which I have adopted in those cases is to follow what I think is now a relatively established jurisprudence, which is to the effect that, as Butler J. found, that absence is not a valid ground for challenge. As I have done in the past, and as Butler J. did, I would refuse leave on that ground. But if I am invited to give a certificate in respect of that refusal I would, as both Butler J. and I have done in the past, be prepared to do so.
    MR O'HALLORAN: Indeed, my lord.
    I am grateful and obliged to your lordship for granting leave. And I would seek that you would certify that particular point insofar as ...
    MR JUSTICE CLARKE: Do you recollect, Mr O'Halloran, what was the name of the case?
    MR O'HALLORAN: It was Hamurari.
    MR JUSTICE CLARKE: What I would propose doing is certifying in the same terms as I have already certified in that case. And you might give the name of that case to the Registrar so that he can check the Order made in that case.
    MR O'HALLORAN: Very well, my lord.
    MR JUSTICE CLARKE: I did I think indicate when we were -- when the case concluded that I wouldn't finally make the Order today in case Ms Brett had anything she wanted to say in the light of the Judgement. So perhaps rather than formally make the Order today I should put the matter in for mention perhaps some day next week in case there is anything else that Ms Brett wants to raise.
    MR O'HALLORAN: Very good, my lord.
    MR JUSTICE CLARKE: Just, it occurs to me. It might be better if I put it in for the following week, in that I would like to get a copy of the Judgement and correct it and make it available to the parties. So perhaps if we said perhaps Thursday the 1st of December.
    MR O'HALLORAN: What time are you thinking of, my lord?
    MR JUSTICE CLARKE: 10:30.
    MR O'HALLORAN: I have a hearing.
    MR JUSTICE CLARKE: If Ms Brett has any difficulty with that time it can be mentioned to me at a later stage. For the moment what I will do is I will put the N. case in for mention at 10:30 to finalise the Order.
    MR O'HALLORAN: Obliged, my lord.
    MR JUSTICE CLARKE: In the meantime, I'll retain the papers.
    Thank you very much.
    Case Adjourned

    Approved: Clarke J.


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URL: http://www.bailii.org/ie/cases/IEHC/2005/H464.html