H508
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> SM (Pakistan) -v- The Minister for Justice & Equality & anor [2015] IEHC 508 (28 July 2015) URL: https://www.bailii.org/ie/cases/IEHC/2015/H508.html Cite as: [2015] IEHC 508 |
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Judgment
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Neutral Citation [2015] IEHC 508 THE HIGH COURT JUDICIAL REVIEW [2014 No. 333 J.R.] IN THE MATTER OF THE CONSTITUTION, AND IN THE MATTER OF THE REFUGEE ACT 1996 (AS AMENDED), AND IN THE MATTER OF THE IMMIGRATON ACT, 1999 (AS AMENDED) BETWEEN S.M. (PAKISTAN) APPLICANT AND
THE MINISTER FOR JUSTICE AND EQUALITY ATTORNEY GENERAL RESPONDENTS JUDGMENT of Ms. Justice Stewart delivered on the 28th day of July, 2015 1. This is a telescoped application for leave to apply for judicial review together with an application for an order for certiorari quashing the decision of the first named respondents to refuse the application to readmit the applicant to the refugee status determination process, pursuant to s.17(7) of the Refugee Act 1996 (as amended). BACKGROUND 3. Upon her arrival at Dublin airport she was given a letter to present to ORAC, which she so did on Monday, 10th September, 2012, and asked that her application for a declaration of refugee status be re-opened. I should point out at this juncture that in her absence and given that she had failed to attend for her scheduled interview before ORAC for the purpose of her initial asylum application, the application had been determined on the basis of a recommendation to the minister to refuse refugee status. The next day, on 11th September, 2012, she returned to her solicitors for assistance. On 21st September, 2012, she received a letter from the ministerial decisions unit informing her that the application seeking permission to be readmitted to the asylum process pursuant to s.17(7) of the Refugee Act 1996 (as amended) was receiving attention. She subsequently approached the Refugee Legal Services for assistance and on 1st March, 2013, the RLS sought her file from the INIS (Irish Naturalisation and Immigration Service). She received no further information until letter dated 21st August, 2013, when she was informed that a deportation order had been made in respect of her. The applicant then engaged her current solicitors on 26th August, 2013. On procurement of her file from the INIS, the solicitor could not find any copy of the s.17(7) application which, she had been informed by letter of the 21st September, 2012, was under consideration. In the circumstances, where it was unclear what evidence, if any, had already been submitted or considered, her current solicitors asked if she could procure a letter from the Ahmadiyya community confirming her Ahmadi status. She procured the letter from the Ahmadiyya community and an application seeking readmission into the asylum process was made by letter of 19th September, 2013. 4. The applicant was informed by the Garda National Immigration Bureau on 9th October, 2013, that a deportation was arranged for 11th October, 2013. An undertaking not to proceed was refused and shortly before an injunction application was due to be heard on 10th October, 2013, before the High Court, the decision on the s.17(7) application was faxed to the applicant’s solicitor which held: “No new convincing evidence has been supplied to indicate that a favourable view might be taken if S[…] M[…] was readmitted to the process” (p.57 of the booklet). 5. The proceedings were redrafted and the injunction application proceeded on notice to the minister and was opposed. An interim injunction was granted and the interlocutory injunction was made returnable for 14th October, 2013. On 11th October, 2013, an open offer was made by the minister stating that an undertaking was being given thereby disposing of the need to seek an interlocutory injunction and proposing a compromise of the proceedings on the basis that the s.17(7) decision would be reviewed, and that review submissions would be sent to the minister within 28 days of the agreement. 6. The first set of judicial review proceedings were struck out on the 3rd February, 2014. An extensive and detailed letter dated the 26th March, 2014, was furnished by the applicant’s solicitor to the ministerial decisions unit at the INIS, requesting that the applicant be readmitted to the asylum process. The letter is very extensive. It goes into the background of the application to readmit the applicant to the asylum process in short detail and, in great detail, goes into the legal context of the application and quotes extensively from the relevant UNHCR Handbook, Procedures Directive and regulations. It further refers to ECHR case law and the Qualification Directive. 7. The penultimate paragraph of that letter, which is contained from pp.60-66 of the booklet of pleadings before the Court, states as follows:
IMPUGNED DECISION 10. The decision of the ministerial decisions unit, taken by and on behalf of the minister, the first named respondent, on 26th May, 2014, is the decision the applicant seeks to challenge in the within proceedings. The covering letter submitted and sent to the applicant with the decision referred to the applicant’s entitlement to request a review of the decision and further advised: “to seek a review write to the Assistant Principal Officer, Ministerial Decisions Unit, INIS, Burgh Quay, Dublin 2 setting out the reasons why you consider the decision to be incorrect”. SUBMISSIONS 12. The applicant submitted that it is the duty of the minister, pursuant to s.17(7) of the Refugee Act 1996 (as amended), to provide an effective remedy in respect of a first instance decision of the minister to refuse a s.17(7) application and this is outlined in Barr J.’s decision in N.M. v. Minister for Justice, Equality and Law Reform [2014] IEHC 638 as follows:
14. The applicant in reply to this line of argument stated that the line of authorities from Abenglen onwards is irrelevant to the issue to be decided by this Court. The applicant submitted that the case which is fully on point is the decision of Hogan J. in J.K. (Uganda) v. Minister for Justice and Equality [2011] IEHC 473 where at p.2 thereof, at paras. 4 to 7, under the heading “The failure to exhaust the administrative asylum process” he stated as follows:
5. While s.17(7) was significantly amended by the insertion of a new s.17(7A) of the 1996 Act by article 8 of the 2011 Regulations, it is important to stress that the new guidelines have no strict legal basis. They are, of course, in themselves none the worse for that and it is probably true that in some instances and under some circumstances the guidelines might give rise to an enforceable legitimate expectation: cf. the judgment of O’Hanlon J. in Fakih v. Minister for Justice [1993] 2 I.R. 406. 6. That, however, is not the same thing as saying that an applicant is obliged to avail of the appeal process, particularly in light of the provisions of s.5 of the Illegal Immigrants (Trafficking) Act 2000 (“the 2000 Act”) which requires that any challenge to the Minister’s (original) decision has to be made within a 14 day period. If an applicant were to avail of the appeal process, he or she might find themselves well outside the 14 day time period prescribed by s.5 of the 2000 Act. It is, of course, true that the courts can - and regularly do - extend the time limit on discretionary grounds. But what lawyer faced with advising a client on this matter would be willing to forsake the certainty of the 14 day time period for the uncertainty of relying on the courts’ discretion in relation to an extension of time? That question really answers itself. The guidelines are not in themselves law: they are at most elusive wisps hovering around at the outer extremities of the legal system. As such, guidelines of this sort cannot vary or alter or affect legal rights and obligations. 7. In this regard, the Minister cannot have it everyway. If it is desired to encourage applicants to avail of the administrative review regime, then legal certainty requires that the Oireachtas must be prepared to amend the provisions of s.5(2) in order to provide that time does not run against an applicant during the currency of an administrative appeal. Absent such an amendment, then an applicant such as Ms. NK cannot be faulted for failing to avail of the administrative review procedure, even if that procedure might well have dealt with the substance of her complaints.”
In the circumstances, the court is satisfied that the review procedure under the statutory instrument and the supervisory role of the High Court in exercising its judicial review jurisdiction does not constitute an “effective remedy” before a court or tribunal as required by Article 39 of the Directive.” 17. The applicant’s complaint is that, at no stage, has there been a substantive adjudication and/or examination of her claim for refugee status. The applicant’s application for refugee status was determined in her absence, her having failed to attend for the s.11 interview, as arranged. The Procedures Directive (2005/85/EC) (1st December, 2005) which was given recognition in the Asylum Procedures Regulation (S.I. No. 51 of 2011) is worth looking at. Article 10 provides certain guarantees for applicants for asylum. Article 32 specifically deals with the questions of subsequent applications and states as follows:
2. Moreover, Member States may apply a specific procedure as referred to in paragraph 3, where a person makes a subsequent application for asylum: (a) after his/her previous application has been withdrawn or abandoned by virtue of Articles 19 or 20; (b) after a decision has been taken on the previous application. Member States may also decide to apply this procedure only after a final decision has been taken. 3. A subsequent application for asylum shall be subject first to a preliminary examination as to whether, after the withdrawal of the previous application or after the decision referred to in paragraph 2(b) of this Article on this application has been reached, new elements or findings relating to the examination of whether he/she qualifies as a refugee by virtue of Directive 2004/83/EC have arisen or have been presented by the applicant. 4. If, following the preliminary examination referred to in paragraph 3 of this Article, new elements or findings arise or are presented by the applicant which significantly add to the likelihood of the applicant qualifying as a refugee by virtue of Directive 2004/83/EC, the application shall be further examined in conformity with Chapter II. 5. Member States may, in accordance with national legislation, further examine a subsequent application where there are other reasons why a procedure has to be re-opened. 6. Member States may decide to further examine the application only if the applicant concerned was, through no fault of his/her own, incapable of asserting the situations set forth in paragraphs 3, 4 and 5 of this Article in the previous procedure, in particular by exercising his/her right to an effective remedy pursuant to Article 39.”
(a) a decision taken on their application for asylum, including a decision: (i) to consider an application inadmissible pursuant to Article 25(2), (ii) taken at the border or in the transit zones of a Member State as described in Article 35(1), (iii) not to conduct an examination pursuant to Article 36; (b) a refusal to re-open the examination of an application after its discontinuation pursuant to Articles 19 and 20; (c) a decision not to further examine the subsequent application pursuant to Articles 32 and 34” DECISION
(4) An applicant shall not— a) leave or attempt to leave the State without the consent of the Minister, or b) seek or enter employment or carry on any business, trade or profession during the period before the final determination of his or her application for a declaration […] (7) A person who contravenes subsection (4), (4A) or (5) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £500 or to imprisonment for a term not exceeding 1 month or to both.”
22. In a decision in a similar type of matter in M.K. v. Minister for Justice, Equality and Law Reform [2014] IEHC 658, Hanna J. reviewed the provisions of s.17(7) and in particular s.17(7)(d), which is similar to article 32.4 as quoted above, and at paras. 43 to 44 thereof stated as follows:
(7D) Pursuant to an application under subsection (7B), and subject to subsection (7E), the Minister shall consent to a subsequent application for a declaration being made where he or she is satisfied that-
(b) the person was, through no fault of the person, incapable of presenting those elements or findings for the purposes of his or her previous application for a declaration (including, as the case may be, any appeal under section 16).
25. Finally, even if I was disposed to accede to the applicant’s application, which I am not, the grant of judicial review is a discretionary relief. It does not seem to me in all the circumstances that have been outlined to the Court in relation to the applicant’s actions that she has upheld her duties and responsibilities in respect of an asylum applicant. For the reasons set out above I therefore refuse leave. |